One Step Up, Two Steps Back: “Bail Reform” Texas Style

CRIMINAL COURT NEWS

BY DAN DWORIN

Governor Greg Abbott declared bail reform a priority for the 87th Legislature in 2021. Abbott got his wish when lawmakers approved Senate Bill 6 during the second called session. Effective Dec. 2, 2021, cashless personal bonds will be prohibited in nearly all felony cases involving violence.

At a time when Texas’s biggest counties are facing pressure from federal lawsuits challenging the constitutionality of their bail practices—and after a year of pandemic-induced efforts to reduce the number of defendants held in detention pre-trial—the major impact of the bond-reform bill will be to reverse the progress made to move away from the cash bail system in Texas.

The bill requires magistrates who set bonds on new cases to do so within 48 hours of a defendant’s arrest and further mandates that magistrates be provided a basic level of criminal history information on each defendant whose bail they set so that public safety concerns can be adequately addressed. Most larger counties, such as Travis, which have functional pretrial services departments to assist judges, already provide that information to magistrates. There are also requirements aimed at gathering data on charitable bail funds which exist to help indigent defendants post bail in low-level cases. Advocates for bail reform point to this as an example of the Legislature taking aim at funds that might, for example, help protesters arrested during a rally to post bail.

According to Twyla Carter, National Director of Policy of the California-based The Bail Project, stated, “[SB 6 is] going to force innocent people to plead guilty, exacerbate racial disparities, will expose counties to costly litigation and actually harm public safety because it is going to result in more people remaining in jail pre-trial before they’ve been convicted of a crime.”

Since personal bonds can include many conditions such as prohibiting contact with an alleged victim, drug testing, or participation in a substance-abuse treatment program, it is hard to see how public safety is increased by returning to a reliance on bail bond companies, whose only concern is making sure the defendant returns to court to avoid a costly forfeiture. Media reports indicate that, in response to the nationwide movement towards cashless bail, the insurance industry, which backs bondsmen, increased its lobbying efforts dramatically.

As many magistrates in small counties are non-lawyer justices of the peace, the bill’s mandatory training might help ensure some semblance of uniformity in bail-setting practices, but curtailing the ability of judges to make individualized determinations of whether an accused can be adequately monitored on a personal bond with conditions— regardless of offense—represents a sharp turn away from the kind of bail reform for which community-based criminal justice groups have been pressing. SB 6 also marks a departure from the practices developed in Texas’s most populous counties by local elected officials. Texas taxpayers will ultimately decide if the higher costs associated with increased pre-trial detention are worth the dance of bail reform in our state. AL

Dan Dworin is a criminal defense attorney licensed in the Western District of Texas since 1997. He is board certified in criminal law by the Texas Board of Legal Specialization. dworinlaw.com.