By: Reynolds H.B. No. 55       A BILL TO BE ENTITLED   AN ACT   relating to bail proceedings and related duties of a magistrate in a   criminal case.          BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:          SECTION 1.  This Act may be cited as the Damon Allen Act.          SECTION 2.  Article 1.07, Code of Criminal Procedure, is   amended to read as follows:          Art. 1.07.  RIGHT TO BAIL. (a) Except as provided by   Subsection (b) or Chapter 17, any person [All prisoners] shall be   eligible for bail, [bailable] unless the person is accused of a   [for] capital offense for which [offenses when] the proof is   evident. This provision shall not be [so] construed [as] to prevent   bail after indictment found upon examination of the evidence, in   such manner as may be prescribed by law.          (b)  A person who is charged with a felony offense involving   the use or exhibition of a deadly weapon or who is charged with an   offense listed in Article 42A.054(a) other than a nonviolent drug   offense under Chapter 481, Health and Safety Code, may be denied   bail pending trial if a judge or magistrate determines by clear and   convincing evidence that requiring bail and conditions of release   is insufficient to reasonably ensure:                (1)  the person's appearance in court as required; or                (2)  the safety of the community or of any person,   including the victim of the alleged offense.          SECTION 3.  Chapter 17, Code of Criminal Procedure, is   amended by adding Articles 17.027, 17.028, 17.029, 17.034, 17.035,   17.036, and 17.037 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 72.038, Government Code, or another instrument that is:                (1)  objective, validated for its intended use, and   standardized;                (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; and                      (B)  the safety of the community or of any person,   including the victim of the alleged offense, if the defendant is   released;                (3)  transparent and available for review by the   public; and                (4)  designed to reduce the likelihood of bail   decisions being affected by bias based on sex, race, or other   protected classifications.          (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 established under Article   17.42 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 results of any pretrial risk assessment conducted   under this article must be promptly provided to the defendant and   the attorney representing the state.          (f)  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 hold a proceeding open to the public and, after   considering all circumstances and the results of the pretrial risk   assessment conducted under Article 17.027, shall order that the   defendant be:                (1)  released on personal bond without conditions;                (2)  released on personal bond or monetary bail bond   with any condition the magistrate determines necessary to   reasonably ensure the defendant's appearance in court as required   and the safety of the community and of any person, including the   victim of the alleged offense; or                (3)  denied bail in accordance with this chapter and   other law.          (b)  In making a bail decision under this article, the   magistrate shall impose, as applicable, the least restrictive   conditions and 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   of any person, including the victim of the alleged offense.          (c)  In each criminal case, there is a rebuttable presumption   that personal bond, conditions of release, or both personal bond   and conditions of release are sufficient to reasonably ensure the   defendant's appearance in court as required and the safety of the   community and of any person, including the victim of the alleged   offense. For purposes of rebutting the presumption established by   this subsection, the court may consider the results of the   defendant's pretrial risk assessment and other information as   applicable.          (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. A defendant who remains in custody for   more than 48 hours after a magistrate enters an order requiring the   defendant to provide a monetary bail bond is entitled to a bail   review hearing under Article 17.034.          (e)  A magistrate who denies a defendant's bail shall inform   the defendant that the defendant is entitled to a bail review   hearing under Article 17.034 and, as soon as practicable but not   later than 24 hours after denying bail, issue a written order of   denial that includes findings of fact and a statement of the   magistrate's reasons for the denial.          (f)  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.          (g)  A judge may enter a standing order to release defendants   charged with specified offenses on personal bond before a pretrial   risk assessment has been conducted, but may not otherwise 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 or the ability of the defendant to pay a   monetary bail bond.          (h)  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.  BAIL REVIEW HEARING REQUIRED. (a) As soon as   practicable after a defendant's bail is denied under Article 17.028   or after the defendant becomes eligible for a bail review hearing   under Article 17.028(d), but not later than the third day after the   date the magistrate issues the written order denying or setting   bail, as applicable, the court in which the defendant's case is   pending shall conduct a hearing regarding whether to detain the   defendant pending the trial of the offense.          (b)  A defendant may voluntarily waive in writing the   defendant's right to a bail review hearing. The court or the   attorney representing the state may not direct or encourage the   defendant to waive the defendant's right to a bail review hearing. A   waiver under this subsection shall be filed with and become part of   the record of the proceedings. A waiver obtained in violation of   this subsection is presumed invalid. At any time, a defendant may   withdraw a waiver under this subsection and request a bail review   hearing, which must be held not later than the third day after the   date of the withdrawal.          (c)  A defendant is entitled to be represented by counsel at   a bail review hearing, and an indigent defendant is entitled to have   counsel appointed to represent the defendant for that purpose.          (d)  The defendant may present any relevant information at   the bail review hearing, including by testifying, presenting   witnesses, and cross-examining witnesses presented by the attorney   representing the state.          (e)  The rules of evidence applicable to criminal trials do   not apply to a bail review hearing.  The defendant or the attorney   representing the state may request a proffer of a witness's   testimony before the witness is presented.          (f)  A defendant may not use a bail review hearing to:                (1)  seek discovery or conduct an examining trial; or                (2)  harass a victim of or witness to the alleged   offense.          (g)  At any time during the period occurring after the bail   review hearing concludes and before the trial of the offense   commences, and regardless of whether the defendant was released or   confined as a result of that hearing, the court may reopen the bail   review hearing based on new information that the court determines   is material to the bail decision made with respect to the defendant.          Art. 17.035.  BAIL REVIEW HEARING: FINDING AND ORDER. (a)   In a bail review hearing, the court shall consider:                (1)  the nature and circumstances of the offense   charged;                (2)  the weight of the evidence against the defendant,   including whether the evidence is likely to be admissible in the   trial of the offense;                (3)  the history and characteristics of the defendant,   including:                      (A)  the defendant's character, physical and   mental condition, family ties, employment, financial resources,   length of residence in and other ties to the community, past   conduct, criminal history including any prior offenses involving   peace officers, history relating to drug or alcohol abuse, and   history of attendance at court proceedings related to a charge for a   Class B misdemeanor or any higher category of offense; and                      (B)  whether, at the time of the offense, the   defendant was on community supervision, parole, or mandatory   supervision or was otherwise released pending trial, sentencing,   or appeal for any offense, including an offense under federal law or   the law of another state;                (4)  the nature and seriousness of the danger to the   community or to any person, including the victim of the alleged   offense as a result of the defendant's release on bail, if   applicable;                (5)  the nature and seriousness of the risk of   obstruction to the criminal justice process as a result of the   defendant's release on bail, if applicable;                (6)  the results of the defendant's pretrial risk   assessment; and                (7)  any other relevant information.          (b)  The judge shall reduce any applicable amount of monetary   bail in accordance with the defendant's ability to pay and shall   order the defendant to be released in accordance with Article   17.028 unless the judge finds by clear and convincing evidence that   requiring bail and conditions of release is insufficient to   reasonably ensure the defendant's appearance in court as required   or the safety of the community or of any person, including the   victim of the alleged offense. If the judge makes the finding   described by this subsection, the judge shall:                (1)  deny the defendant's bail; and                (2)  issue a written order of denial that includes:                      (A)  findings of fact;                      (B)  a statement of the judge's reasons for the   denial; and                      (C)  an explanation of how the denial was   supported by the results of the defendant's pretrial risk   assessment.          Art. 17.036.  BAIL REVIEW HEARING: CONTINUANCE.  Except for   good cause shown, the court may not authorize a continuance for more   than five days, excluding weekends and legal holidays.          Art. 17.037.  BAIL REVIEW HEARING: APPEAL. A defendant is   entitled to appeal a denial of bail. The defendant shall be   detained in jail pending the appeal. The court of criminal appeals   shall adopt rules accelerating the disposition by the appellate   court and the court of criminal appeals of an appeal under this   article.          SECTION 4.  Section 4, Article 17.09, Code of Criminal   Procedure, is amended to read as follows:          Sec. 4.  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.          SECTION 5.  Article 17.15, Code of Criminal Procedure, is   amended to read as follows:          Art. 17.15.  RULES FOR SETTING [FIXING] AMOUNT OF BAIL. (a)    The amount of bail to be required in any case is to be regulated by   the court, judge, magistrate, or officer taking the bail and is [;   they are to be] governed [in the exercise of this discretion] by the   Constitution and [by] the following rules:                (1) [1.]  The bail shall be sufficiently high to give   reasonable assurance that the undertaking will be complied with.                (2) [2.]  The power to require bail is not to be so used   as to make it an instrument of oppression.                (3) [3.]  The nature of the offense, [and] the   circumstances under which the offense [it] was committed, and the   defendant's criminal history, including any prior offenses   involving peace officers or family violence, are to be considered.                (4) [4.]  The ability to make bail is to be considered   [regarded], and proof shall [may] be taken upon this point before a   bail decision is made under Article 17.028.                (5) [5.]  The future safety of the community and of any   person, including a victim of the alleged offense, [and the   community] shall be considered.                (6)  The results of a pretrial risk assessment shall be   considered.          (b)  In this article, "family violence" has the meaning   assigned by Section 71.004, Family Code.          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)  Except as otherwise provided by this subsection, 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 reimbursement fee of $20 or three percent of the   amount of the bail set [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 the fee or if other good cause is   shown.  A court that requires a defendant to give a personal bond   under Article 45.016 may not assess a personal bond reimbursement    fee under this subsection. A court may require that a personal bond   reimbursement fee assessed under this subsection be paid 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 reimbursement fee if the   defendant is indigent or demonstrates an inability to pay the fee.          SECTION 8.  Section 27.005(a), Government Code, is amended   to read as follows:          (a)  For purposes of removal under Chapter 87, Local   Government Code, "incompetency" in the case of a justice of the   peace includes the failure of the justice to successfully complete:                (1)  within one year after the date the justice is first   elected, an 80-hour course in the performance of the justice's   duties, including not less than four hours of instruction regarding   the justice's duties:                      (A)  under Article 15.17, Code of Criminal   Procedure; and                      (B)  with respect to setting bail in criminal   cases; and                (2)  each following year, a 20-hour course in the   performance of the justice's duties, including not less than:                      (A)  two hours of instruction regarding the   justice's duties:                            (i)  under Article 15.17, Code of Criminal   Procedure; and                            (ii)  with respect to setting bail in   criminal cases; and                      (B)  10 hours of instruction regarding   substantive, procedural, and evidentiary law in civil matters.          SECTION 9.  Subchapter C, Chapter 72, Government Code, is   amended by adding Section 72.038 to read as follows:          Sec. 72.038.  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 10.  The following provisions of the Code of   Criminal Procedure are repealed:                (1)  Article 17.03(g); and                (2)  Sections 5(c) and 6(c), Article 17.42.          SECTION 11.  (a) Section 27.005(a)(1), Government Code, as   amended by this Act, applies only to a justice of the peace who is   first elected or appointed on or after the effective date of this   Act. A justice of the peace who is first elected or appointed   before the effective date of this Act is governed by the law in   effect on the date the justice was first elected or appointed, and   the former law is continued in effect for that purpose.          (b)  A justice of the peace serving on the effective date of   this Act must complete the justice's initial two hours of   instruction required by Section 27.005(a)(2)(A), Government Code,   as added by this Act, not later than March 1, 2022.          SECTION 12.  Not later than March 1, 2022, 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 72.038, Government Code, as added by this Act.          SECTION 13.  Not later than March 1, 2022, 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 14.  The change in law made by this Act applies only   to a person who is arrested on or after March 1, 2022. A person   arrested before March 1, 2022, is governed by the law in effect   immediately before the effective date of this Act, and the former   law is continued in effect for that purpose.          SECTION 15.  (a)  Except as provided by Subsection (b) of   this section, this Act takes effect on the 91st day after the last   day of the legislative session.          (b)  Section 2 of this Act takes effect December 1, 2021, but   only if the constitutional amendment proposed by the 87th   Legislature, 1st Called Session, 2021, authorizing the denial of   bail to an accused person if a judge or magistrate determines by   clear and convincing evidence that requiring bail and conditions of   release is insufficient to reasonably ensure the person's   appearance in court or the safety of the community or of any person,   including the victim of the alleged offense, is approved by the   voters. If that amendment is not approved by the voters, Section 2   of this Act has no effect.