Courts have called Texas bail practices unconstitutional. Will that push this year’s reform efforts to success?

“Courts have called Texas bail practices unconstitutional. Will that push this year’s reform efforts to success?” was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

_{Editor’s note: This story has been updated throughout.}

A lot has changed in Texas and the country since state lawmakers failed to pass a bail reform law in 2017.

There have been a number of largely successful lawsuits against Texas counties over their bail practices. Two of Texas’ largest counties — Harris and Dallas — have been at the forefront of those lawsuits — with federal judges calling their practices unconstitutional.

Those cases, along with recent jail deaths and the governor’s recent involvement on the issue, are expected to be front and center this year as state lawmakers renew a fight to reform the Texas bail system.

State Sen. John Whitmire, D-Houston, and state Rep. Andrew Murr, R-Junction, announced Monday at the Capitol that they have again filed legislation that would implement a risk-assessment tool for judges to use when making bail decisions, among other proposals. Joining them in support of the legislation were the state’s two top judges, Texas Supreme Court Chief Justice Nathan Hecht — who has publicly called for a change to Texas’ system for years — and Court of Criminal Appeals Presiding Judge Sharon Keller.

“I don’t believe I’ve seen anything more broken in the criminal justice system than our current bail bond process,” Whitmire said. “If we do not fix it, ladies and gentlemen, the federal courts will.”

Bail is a legal mechanism to ensure defendants appear in court for their hearings after being charged with a crime. The most common practice is money bail, in which judicial officers set a bond amount that defendants must pay in order to be released. In the last few years, lawsuits have popped up all over the country — including in Texas — arguing that the system wrongfully detains poor defendants until their case is resolved while similar defendants with cash are allowed to go free.

In a speech to the 2017 Legislature, Hecht argued for reforms by noting that 75 percent of people in Texas jails have not been convicted. To illustrate what he considers a flawed system, he cited the case of a grandmother who was kept in jail for about two months on a $150,000 bond after allegedly shoplifting $105 worth of clothes for her grandchildren.

The bipartisan legislation filed Monday aims to help poor, low-level defendants get out of jail on free bonds and keep in jail those thought to be flight risks or threats to public safety. The proposed risk-assessment tool would have to be used within two days of arrest to help judges determine the defendant’s level of risk based on criminal history, not just the current offense. The bills are similar to last session’s, when legislation passed the Senate but died before reaching the House floor.

Whitmire blamed his 2017 bill’s failure on the powerful bail bond industry, which includes companies that front the full cost of a bail bond at a fee of about 10 percent. (A defendant being held on a $1,000 bond, for example, could pay $100 to a bail bond company to be released.) He said last session that bail bond companies opposed the bill because it would cut into their cash flow, but those in the industry have argued the measure would lessen a judge’s discretion and threaten public safety by letting more people out of jail.

The Texas Alliance for Safe Communities, a nonprofit organization that’s opposed to bail reform, issued a statement after the bills were filed, claiming risk assessment tools lean too much toward letting people leave jail, even if it’s unsafe. The group cited multiple crimes committed by those who were out on bail bonds, including an Austin murder where the suspect was out on bond on robbery charges at the time.

“Algorithm-based bail policies remove these critical decisions from our elected judges, in some cases needlessly endangering law enforcement and Texans, and do nothing to support and provide accountability to defendants to ensure they don’t spiral into a cycle of crime,” the statement said.

The lawmakers acknowledged there will continue to be strong opposition from the industry this session, but Murr said elected officials and the general public have learned a lot more about the issue since 2017.

“Sometimes it takes more than one swing of an ax to chop a tree down,” he said.

Toward the end of the 2017 session, a federal judge slammed Harris County’s money bail practices for misdemeanor defendants. The lawsuit went back and forth between federal courts, but with the 2018 election wiping out the Republican judge defendants and replacing them with Democrats, a settlement is now before the judge to automatically release 85 percent of all misdemeanor defendants on no-cash bonds. Lawsuits in Dallas and Galveston followed soon after the 2017 ruling in Harris County, and now civil rights lawyers are suing Harris over its felony bail practices as well.

The lawsuits drew attention to practices in other Texas counties, with local officials in some jurisdictions scrambling to change their systems and avoid litigation. Recent deaths in Texas county jails have also drawn calls for reform. One woman died in Bexar County jail in December after spending five months behind bars on a $300 bail bond on a trespassing charge.

“Bail bond is not supposed to be part of the punishment,” Whitmire said. “It is unconstitutional to hold somebody in jail simply because they’re poor where someone with means — same circumstances, same charges, same allegations — get to go free.”

Another change from last session: the governor’s interest in bail reform. In August, Republican Gov. Greg Abbott entered the fray with a different focus than civil rights lawyers, arguing that the system is flawed by letting dangerous people be released on money bail. He held a news conference in Waco with the widow of state trooper Damon Allen, whom Whitmire’s and Murr’s bills are named for. Allen was gunned down during a traffic stop on Thanksgiving 2017; the murder suspect was out of jail on a $15,500 bond at the time after allegedly assaulting a sheriff’s deputy.

Asked about the governor’s take on their bills, Whitmire didn’t say if Abbott supported the current filings, but he said they were in constant communication.

“[Abbott] plays a critical role,” he said. “He took a strong stand on reform last fall, so we’re going to continue to work with him.”

An Abbott spokesperson said Monday morning that the governor had not looked at the bills, but he reaffirmed that Abbott remains behind the reforms he requested in Waco. Those reforms include informing judicial officers of a defendant’s full criminal history and weighing law enforcement safety in bail decisions. The filed bills include both of those changes.

To set bail, most Texas jurisdictions use bail schedules, in which a bond amount is set based solely on the criminal charge. The proposed risk assessment tool would also take into account the defendant’s criminal history and age.

If the tool determines that a defendant shows a lower risk of skipping court hearings or posing a threat to public safety, the judicial officer would release the person on a no-cost “personal bond” with or without conditions, like GPS tracking or drug testing. Under the proposed measure, judges and magistrates could still impose money bail if they decided it was the least restrictive way to ensure court appearance and public safety, but they could not use it as a way to detain poor defendants before their trials.

The risk assessment tool is meant to keep poor defendants from being kept in jail before being convicted simply because they can’t afford a low-cost bond amount. Critics of current bail practices have argued that risk assessment tools considering criminal history can reinforce a system that prejudices against poor people of color. If someone was arrested on a charge earlier tied to race or poverty status, that person would be given a higher risk level. But the critics still support the tool over current practices.

“Until we can get some better tools, then the risk assessment system would need to work for now,” said Tarsha Jackson, criminal justice director of the Texas Organizing Project, a nonprofit that advocates for low-income communities and people of color.

The other piece of the proposed legislation would change bail practices — and the Texas Constitution — to allow judicial officers to deny bail if they believe money bail or a personal bond couldn’t reasonably ensure the person would show up for court or if that person might endanger the safety of a victim or the public.

Since release on bail is a constitutional right in Texas except in capital murder cases, changing this part of the law requires voter approval even after the Legislature passes it.

A law passed recently in California that abolished cash bail, allowing for judges to decide between release on personal bonds or pretrial detention, drew sharp criticism from the bail industry and reform advocates. The latter group argued the law gave too much discretion to judges and worried it would lead to more people being kept in jail, not fewer. The law is on hold pending voter approval in 2020.

But Murr and Whitmire say the constitutional amendment, though hard for some people to wrap their heads around, would help judicial officers.

“[It would] provide another tool to be used by prosecutors and magistrates when they identify someone who is so extremely dangerous that they should be held in jail without bond,” Murr said.