By: Whitmire, Zaffirini S.B. No. 1338
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to bail and to judicial education regarding bail
  practices.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Chapter 17, Code of Criminal Procedure, is
  amended by adding Articles 17.027, 17.028, 17.029, and 17.034 to
  read as follows:
         Art. 17.027.  PRETRIAL RISK ASSESSMENT. (a)  The judges of
  the county courts, statutory county courts, and district courts
  trying criminal cases in each county shall adopt an instrument to be
  used in conducting a pretrial risk assessment of a defendant
  charged with an offense in that county. The instrument adopted must
  be the automated pretrial risk assessment system developed under
  Section 72.032, Government Code, or another instrument that is:
               (1)  objective, validated for its intended use, and
  standardized; and
               (2)  based on an analysis of empirical data and risk
  factors relevant to:
                     (A)  the risk of a defendant failing to appear in
  court as required;
                     (B)  the safety of the community or the victim of
  the alleged offense if the defendant is released; and
                     (C)  the lawful immigration status of the
  defendant.
         (b)  A magistrate considering the release on bail of a
  defendant charged with an offense punishable as a Class B
  misdemeanor or any higher category of offense shall order that:
               (1)  the personal bond office for the county in which
  the defendant is being detained, or other suitably trained person,
  use the instrument adopted under Subsection (a) to conduct a
  pretrial risk assessment with respect to the defendant; and
               (2)  the results of the assessment be provided to the
  magistrate without unnecessary delay to ensure that the magistrate
  is able to make a bail decision under Article 17.028 within the
  period required by Subsection (a) of that article.
         (c)  A magistrate may not, without the consent of the
  sheriff, order a sheriff or sheriff's department personnel to
  conduct a pretrial risk assessment under Subsection (b).
         (d)  Notwithstanding Subsection (b), a magistrate may
  personally conduct a pretrial risk assessment using an instrument
  adopted under Subsection (a).
         (e)  The magistrate must consider the results of the pretrial
  risk assessment before making a bail decision under Article 17.028.
         Art. 17.028.  BAIL DECISION. (a)  Without unnecessary delay
  but not later than 48 hours after a defendant is arrested, a
  magistrate shall order, after considering all circumstances and the
  results of the pretrial risk assessment conducted under Article
  17.027, that, unless otherwise prohibited by law, the defendant be
  released on:
               (1)  personal bond or monetary bail bond without
  conditions; or
               (2)  personal bond or monetary bail bond with any
  condition the magistrate determines necessary.
         (b)  A magistrate may release a defendant arrested pursuant
  to a warrant that was issued in a county other than the county in
  which the defendant was arrested if a bail decision has not
  previously been made by another magistrate and if the magistrate
  would have had jurisdiction over the matter had the warrant been
  issued in the county of arrest. If applicable, the magistrate shall
  forward a copy of the bail order to a personal bond office in the
  county in which the arrest warrant was issued.
         (c)  In making a bail decision under this article, the
  magistrate shall impose, as applicable, the least restrictive
  conditions and the minimum amount of bail, whether personal bond or
  monetary bail bond, necessary to reasonably ensure the defendant's
  appearance in court as required and the safety of the community and
  the victim of the alleged offense.
         (d)  A magistrate may not require a defendant to provide a
  monetary bail bond for the sole purpose of preventing the
  defendant's release on bail.
         (e)  If the magistrate determines that a defendant is not
  indigent and is able to pay any costs related to a condition of the
  defendant's bail, the magistrate shall assess the costs as court
  costs or order the costs to be paid directly by the defendant as a
  condition of release.
         (f)  A judge may not adopt a bail schedule or enter a standing
  order related to bail that:
               (1)  is inconsistent with this article; or
               (2)  authorizes a magistrate to make a bail decision
  for a defendant without considering the results of the defendant's
  pretrial risk assessment.
         (g)  This article does not prohibit a sheriff or other peace
  officer, or a jailer licensed under Chapter 1701, Occupations Code,
  from accepting bail under Article 17.20 or 17.22 before a pretrial
  risk assessment has been conducted with respect to the defendant or
  before a bail decision has been made by a magistrate under this
  article.
         Art. 17.029.  DEFENDANT APPEARING IN RESPONSE TO CITATION.
  A defendant who appears before a magistrate as ordered by citation
  may not be temporarily detained for purposes of conducting a
  pretrial risk assessment or for a magistrate to issue a bail
  decision.  The magistrate, after performing the duties imposed by
  Article 15.17, shall release the defendant on personal bond, unless
  the defendant is lawfully detained on another matter.
         Art. 17.034.  RELEASE OF DEFENDANT ARRESTED FOR FAILURE TO
  APPEAR. A magistrate shall release on personal bond a defendant who
  was released on personal bond and subsequently arrested on a
  warrant issued for the defendant's failure to appear as ordered if
  the defendant shows good cause for the failure to appear. If good
  cause is not shown, a magistrate may release the defendant in
  accordance with Article 17.028.
         SECTION 2.  Section 4, Article 17.09, Code of Criminal
  Procedure, is amended to read as follows:
         Sec. 4.  (a)  Notwithstanding any other provision of this
  article, the judge or magistrate in whose court a criminal action is
  pending may not order the accused to be rearrested or require the
  accused to give another bond in a higher amount because the accused:
               (1)  withdraws a waiver of the right to counsel; [or]
               (2)  requests the assistance of counsel, appointed or
  retained; or
               (3)  is formally charged with the same offense for
  which the accused was initially arrested and bond was given, except
  as provided by Subsection (b).
         (b)  The judge or magistrate may order the accused to be
  rearrested or require the accused to give another bond in a higher
  amount based on the circumstance described by Subsection (a)(3)
  only after providing notice to each party to the action and, on
  request of any party, an opportunity for a hearing.
         SECTION 3.  Article 17.20, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 17.20.  BAIL IN MISDEMEANOR.  In cases of misdemeanor
  when the defendant is in the custody of the officer or jailer, the
  sheriff or other peace officer[,] or a jailer licensed under
  Chapter 1701, Occupations Code, may, whether during the term of the
  court or in vacation, [where the officer has a defendant in
  custody,] take [of] the bail of the defendant as the officer or
  jailer may consider reasonable [a bail bond].
         SECTION 4.  Article 17.21, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 17.21.  BAIL IN FELONY. (a)  In cases of felony, when
  the defendant [accused] is in the custody of a [the] sheriff or
  other peace officer or a jailer licensed under Chapter 1701,
  Occupations Code, and the court before which the prosecution is
  pending is in session in the county where the defendant [accused] is
  in custody, the court shall make a bail decision in accordance with
  Article 17.028. After approving the bail, the [fix the amount of
  bail, if it is a bailable case and determine if the accused is
  eligible for a personal bond; and the sheriff or other peace]
  officer, unless it be the police of a city, or [a] jailer may
  [licensed under Chapter 1701, Occupations Code, is authorized to]
  take the [a] bail [bond] of the defendant [accused in the amount] as
  ordered [fixed] by the court under Article 17.028. On taking the
  bail, the[, to be approved by such] officer or jailer shall [taking
  the same, and will thereupon] discharge the defendant [accused]
  from custody.
         (b)  The defendant and the defendant's sureties are not
  required to appear in court.
         SECTION 5.  Article 17.22, Code of Criminal Procedure, is
  amended to read as follows:
         Art. 17.22.  MAY TAKE BAIL IN FELONY. In a felony case, if
  the court before which the case [same] is pending is not in session
  in the county where the defendant is in custody, the sheriff or
  other peace officer[,] or a jailer licensed under Chapter 1701,
  Occupations Code, who has the defendant in custody may take the
  defendant's bail [bond in such amount] as ordered [may have been
  fixed] by the court or magistrate under Article 17.028[,] or, if
  bail [no amount] has not been ordered [fixed], [then in such amount]
  as the [such] officer or jailer may consider reasonable.
         SECTION 6.  Chapter 17, Code of Criminal Procedure, is
  amended by adding Article 17.251 to read as follows:
         Art. 17.251.  NOTIFICATION OF CONDITIONS OF RELEASE. (a)  A
  magistrate authorizing a defendant's release on bail shall, if
  applicable, provide written notice to the defendant of:
               (1)  the conditions of the defendant's release; and
               (2)  the penalties of violating a condition of release,
  including the defendant's arrest.
         (b)  The notice under Subsection (a) must be provided in a
  manner that is sufficiently clear and specific to serve as a guide
  for the defendant's conduct while released.
         SECTION 7.  Section 4, Article 17.42, Code of Criminal
  Procedure, is amended by amending Subsection (a) and adding
  Subsection (a-1) to read as follows:
         (a)  If a court releases a defendant [an accused] on personal
  bond on the recommendation of a personal bond office, the court
  shall assess a personal bond fee of $20 or three percent of the
  amount of the bail fixed for the defendant [accused], whichever is
  greater. The court may waive the fee or assess a lesser fee if the
  court determines that the defendant is indigent or demonstrates an
  inability to pay or if other good cause is shown. The court may
  require that any fee assessed under this subsection be paid:
               (1)  before the defendant is released;
               (2)  as a condition of release; or
               (3)  as court costs.
         (a-1)  Notwithstanding Subsection (a), the court or jailer
  may not refuse to release a defendant based solely on the
  defendant's failure to pay a personal bond fee if the defendant is
  indigent or demonstrates an inability to pay the fee.
         SECTION 8.  Article 17.43(a), Code of Criminal Procedure, is
  amended to read as follows:
         (a)  A magistrate may require as a condition of release [on
  personal bond] that the defendant submit to home curfew and
  electronic monitoring under the supervision of an agency designated
  by the magistrate.
         SECTION 9.  Article 17.44(e), Code of Criminal Procedure, is
  amended to read as follows:
         (e)  The cost of electronic monitoring or testing for
  controlled substances under this article may be assessed as court
  costs or ordered paid directly by the defendant as a condition of
  bond. A magistrate may reduce or waive a cost described by this
  subsection if the magistrate determines that the defendant is
  indigent or demonstrates an inability to pay.
         SECTION 10.  Section 54.737(c), Government Code, is amended
  to read as follows:
         (c)  The rules must provide that a criminal law magistrate
  judge may only release a defendant under Article 17.028(b) 
  [17.031], Code of Criminal Procedure, under guidelines established
  by the council of judges.
         SECTION 11.  Section 56.003, Government Code, is amended by
  adding Subsection (b-1) to read as follows:
         (b-1)  In addition to the uses described by Subsection (b),
  funds appropriated for any fiscal year may be used to provide
  continuing legal education regarding bail practices to any master,
  magistrate, referee, or associate judge appointed pursuant to
  Chapter 54 or 54A as required by the court of criminal appeals under
  Section 74.025.
         SECTION 12.  Subchapter C, Chapter 72, Government Code, is
  amended by adding Section 72.032 to read as follows:
         Sec. 72.032.  AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM;
  PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article
  17.027, Code of Criminal Procedure, the office shall develop an
  automated pretrial risk assessment system and make the system
  available to judges and other magistrates in this state at no cost
  to a county, municipality, or magistrate.  The office shall also
  make available nonautomated pretrial risk assessment instruments
  to judges and other magistrates in this state at no cost to a
  county, municipality, or magistrate.
         SECTION 13.  The following provisions of the Code of
  Criminal Procedure are repealed:
               (1)  Article 17.03(g);
               (2)  Article 17.031; and
               (3)  Sections 5(c) and 6(c), Article 17.42.
         SECTION 14.  Not later than January 1, 2019, the Office of
  Court Administration of the Texas Judicial System shall develop the
  automated pretrial risk assessment system and make available
  automated or nonautomated pretrial risk assessment instruments as
  required by Section 72.032, Government Code, as added by this Act.
         SECTION 15.  Not later than January 1, 2019, the judges of
  the county courts, statutory county courts, and district courts
  trying criminal cases in each county shall adopt a pretrial risk
  assessment instrument as required by Article 17.027, Code of
  Criminal Procedure, as added by this Act.
         SECTION 16.  The change in law made by this Act applies only
  to a person who is arrested on or after January 1, 2019. A person
  arrested before January 1, 2019, is governed by the law in effect on
  the date the person was arrested, and the former law is continued in
  effect for that purpose.
         SECTION 17.  This Act takes effect September 1, 2017.