From KERA News:

Texas lawmakers are weighing numerous measures to tighten bail restrictions in Texas after Gov. Greg Abbott named the issue as one of his emergency items for the 89th Legislature.

The Senate Committee on Criminal Justice heard testimony on five bail-related pieces of legislation Wednesday in the committee’s first meeting of this legislative session. One of the proposals is a priority bill for Lt. Gov. Dan Patrick this session.

“This is an emergency item we will pass next week, all of these bills off the Senate floor,” said Patrick in a Wednesday morning press conference where he advocated for changes he said would enhance public safety in Texas. “Most of them will be unanimous or near unanimous.”

This early support from two top state officials could indicate success for stricter bail regulation measures this year, but some of the same legislation has failed to make it to the governor’s desk in previous sessions. Researcher Lisel Petis with the criminal justice and civil liberties program at the R Street Institute said partisan politics — and misunderstandings about bail and the criminal justice system — might still get in the way.

“I’ve had plenty of conversations where people talk about how criminals need to be held accountable and that’s why they need to be held before trial,” Petis said. “It seems clear that that really just completely ignores the presumption of innocence in our constitutional protections.”

Why is bail one of the top legislative priorities this year?

When officials talk about bail reform, that most commonly refers to efforts to make the bail process more financially equitable, according to Advancing Pretrial Policy and Research. This includes things such as advocating for less use of cash bail and more intentional handling of pretrial detention.

Houston-area Republican Sen. Joan Huffman, who authored all the bills heard Wednesday, says her legislation is aimed at affording less lenience for those accused of crimes and more transparency in the bail process. Or, as former Harris County District Attorney Kim Ogg put it during her committee testimony, “a reform of bail reform.”

The last major piece of statewide bail legislation was Senate Bill 6, which lawmakers passed in 2021. It banned judges from issuing personal recognizance bonds for defendants accused of violent crimes, requiring defendants to put up cash bail or get a bond.

During his State of the State address earlier this month, Gov. Abbott said Texas should go further. He called for the denial of bail to those charged with capital murder and other violent crimes — as well as immigrants in the country without legal status, who he said should be considered flight risks and turned over to U.S. Immigration and Customs Enforcement or ICE.

“Lawmakers must choose: Support the safety of the citizens they represent or the criminals who kill them,” Abbott said during his speech.

Abbott also called out “activist judges” who he said had too much discretion over who could be let out on bail. That most likely refers to judges in Harris County who have come under scrutiny for letting defendants out on bail or bond who then go on to commit other crimes. Democratic judges are often at the receiving end of this criticism, especially when a person let out on bail is later charged with murder.

Committee members and those who testified in Wednesday’s hearing also frequently criticized Harris County judges and magistrates. So did Patrick in his press conference, where he blamed House Democrats — mostly ones from Harris County — for preventing constitutional amendments that would have tightened bail restrictions from passing.

“In the past, Democrats appointed by speakers in key positions have bottled these bills up,” Patrick said. “There are lots of ways to kill a bill: points of order, slowing it down. Whatever the answer is, there is no excuse.”

Bail-related bills filed in the Texas Legislature

According to the Texas Constitution, legislators can only vote on bills related to the governor’s emergency items during the first 60 days of the legislative session.

As of Tuesday, lawmakers have filed 29 pieces of legislation containing the word “bail.” Huffman has authored eight.

A former Harris County prosecutor and judge, Huffman is a senior member of the Senate Criminal Justice Committee and has been one of Abbott’s most trusted partners in the Senate on bail-related legislation for several sessions.

Senate Joint Resolution 1

SJR 1 proposes a constitutional amendment that would deny bail to anyone charged with a felony who entered the United States without inspection or was admitted into the country as a nonimmigrant — meaning they had permission to stay in the country on a temporary travel, work or study basis — and failed to maintain nonimmigrant status.

Huffman aims for the bill to go hand in hand with the Laken Riley Act, which mandates the arrest of any person without legal status “accused of theft, burglary, assaulting a law enforcement officer, and any crime that causes death or serious bodily injury.”

A committee substitute passed Wednesday that names the resolution Jocelyn’s Law, after Houston 12-year-old Jocelyn Nungaray. Jocelyn’s accused killers are two Venezuelan men who crossed the border without inspection, according to ICE.

“These are real people, folks who have suffered great tragedy,” Huffman said. “We fail them.”

There’s ongoing debate about how exactly the Fourteenth Amendment applies to people without legal status, specifically those accused of breaking the law. Some opponents testified on Wednesday that SJR 1 violates the Equal Protection Clause of that amendment, while supporters said the Constitution doesn’t apply to those without legal status.

If SJR 1 is ultimately approved by the Texas Legislature, a vote on this proposal would take place during a state election this November.

Senate Bill 9

This proposal is one of Patrick’s priority bills for lawmakers this session. Senate Bill 9 expands the provisions of 2021’s SB 6, proposing that a defendant cannot be released on personal bond if they’ve been charged with:

• Murder resulting from the manufacture or distribution of fentanyl or derivative substances

• Terroristic threat

• Violations of certain court orders or conditions of bond in family violence

• Child abuse or neglect, sexual assault or abuse and other offenses

• Unlawful possession of a firearm

Magistrates would not be allowed to release a defendant charged with a felony on bail unless the defendant has appeared before the magistrate and the magistrate has considered the defendant’s public safety report, which summarizes a defendant’s criminal history if they have one and alerts magistrates if that person is ineligible for personal bond.

Also under SB 9, magistrates and other judicial officers ranking below district judges would not be allowed to modify the amount or conditions of a bond set by a district court judge in their own county or another.

Criminal law hearing officers function like magistrates, specifically in Harris County. SB 9 would require that these officers cannot release a defendant on bail if the person:

• Was charged with a felony while on parole

• Has been convicted of two or more felonies and went to state prison

• Is subject to an immigration detainer issued by ICE

• Has been charged with murder, capital murder, aggravated kidnapping, aggravated assault or aggravated sexual assault.

The legislation would also allow state prosecutors to appeal if they’re not satisfied with the bail set for someone who is charged with a felony or has been previously granted bail for a pending felony charge. A person out on bail while the appeal is pending would be able to remain free, but a defendant already in jail would remain in jail while the appeal of their bail amount is pending.

Support for these parts of SB 9 came from law enforcement and local prosecutors who tried high-profile cases where the alleged perpetrators were out on bail or bond at the time.

But Aaron Johnson with the Texas Association of Pretrial Services was among those who opposed the bill. He said the conversation is too focused on how high bail amounts should go.

“When are we going to have a serious discussion about actually identifying people who are safety risks to the community versus people who we just don’t know what else to do with, and so jail becomes that holding place for these individuals?” Johnson said.

Also under SB 9 — charitable bail organizations would be required to submit reports about defendants whose bail they pay to the state’s Office of Court Administration and no longer the sheriffs of counties where the organizations pay bail. The report would have to include each charge for which the bond was paid, the amount of the bond paid and whether there’s been a bond forfeiture in connection with the charges paid for.

This comes after Patrick ordered the Senate Criminal Justice Committee last year to examine charitable bail organizations operating in Texas as part of his interim charges between sessions.

Only one such organization was known as active at the time, the Texas Organizing Project. Another, the Bail Project, stopped operating in Texas in 2023 and shifted toward policy, according to the group’s national director.

Senate Bill 40

Senate Bill 40 also affects how charitable bail organizations operate. The bill would ban a political subdivision — such as counties and cities — from using public funds to pay charitable bail organizations.

SB 40 would let a taxpayer or resident of that political subdivision sue and seek an injunction over that alleged use of public funds.

This specifically targets Harris County, Huffman said. According to her office’s calculations, Harris County has issued at least 311 payments totaling $2.1 million to the Bail Project.

Some at Wednesday’s hearing, including April Aguirre, testified passionately about their personal experiences. After Aguirre’s 9-year-old niece was killed in 2022, the alleged gunman was later released from jail after he paid a portion of his bail.

His release was not associated with the Bail Project. But Aguirre nonetheless told lawmakers Wednesday she believed there were too many resources for people accused of crimes and not enough for crime victims.

She also testified that, according to Harris County auditor’s office records she brought to the hearing, the Bail Project received public funds as recently as last week — $14,950 on Feb. 5. Patrick also referenced this data at his press conference.

“If you’re going to help them on your own private dime, great,” Aguirre said. “But for our taxpayer money to be going towards something like this is absurd. I can’t understand it.”

However, Nate Walker with the Bail Project said the framing of those county figures was incorrect. The payments are reimbursements when client cases resolve, he said, and he reiterated that the Bail Project stopped providing bail assistance in Texas in 2023.

“The auditing documents discussed today reflect our own money coming back to us when our clients’ cases close,” he said. “I repeat, the Bail Project has not, and never has, accepted public funds in Texas.”

Senate Joint Resolution 5

Senate Joint Resolution 5 is a proposed constitutional amendment that would allow — but not mandate — a judge or magistrate to deny bail to a person accused of certain violent offenses, first-degree felony sexual offenses or continuous human trafficking.

After a hearing, a judge or magistrate would have to rule that there’s clear and convincing evidence that the opportunity for release through bail wouldn’t be enough to ensure the defendant’s appearance in court or the safety of the community. If the judicial officer denies bail, they must also write up their findings of fact to support their decision under this proposal.

“This is about victims and citizens being able to feel like their government — the institutions that are trying, should protect them — are actually doing their job,” said Huffman on Wednesday.

This proposal hasn’t stuck the last two times Huffman filed it, which Patrick also referenced in his press conference. A similar 2021 resolution passed both chambers but didn’t make it to the Secretary of State’s office for placement on the ballot. Another resolution passed the Senate but died in committee in the House in 2023, the year Abbott also named tightening bail restrictions as one of his emergency items.

Petis with the R Street Institute said the clear and convincing evidence provision is one of the strongest parts of SJR 5. But she also said lawmakers should ensure a comprehensive detention hearing and require judges to consider other factors, like whether the defendant has access to counsel.

“Freedom is a core value in America, and we don’t just take it away without good reason,” Petis said. “Having those constitutional rights when we’re taking somebody’s freedom away, I think, will be very important to make sure we’re making the right decisions in those cases.”

If SJR 5 is ultimately approved by the Texas Legislature, a vote on this proposal would take place during a state election this November.

Senate Bill 1047

SB 1047 would change the state’s Public Safety Report System, creating flags on a defendant’s report if they are out on probation, parole or mandatory supervision. The bill would make note of any outstanding warrants for their arrest and any current or previous protective orders.

Prosecutors and clerks would also have access to the PSRS no later than 48 hours after the person’s arrest under this proposal. A magistrate would be allowed to order, prepare or consider a public safety report in setting bail for a defendant who’s not in jail at that time.

This would also notify victims that they have the right to provide information to a local prosecutor that could help a magistrate in setting bail if the person is arrested.

This story was updated to clarify an alleged gunman’s release from jail was not associated with the Bail Project.

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