INTRODUCTION
The new judges announced their new policy today. It has been put in
writing. I have attached a copy of the policy for your records.
II. SUMMARY OF NEW POLICY
The new Harris County Judges have enacted a new bail policy. I have
attached a copy for your records. I would highlight the policy in the
following respects:
1. The bail schedule is rescinded. Harris County will no longer use
a bail schedule in setting bail.
2. The policy states that it is intended to remedy the constitutional
violations identified by the federal district court and the 5th Circuit
in ODonnell v. Harris County.
3. Section 1 reiterates that there is no bail schedule any longer and
that secured money bail cannot be used as a condition of pretrial
release prior to an individualized determination of ability to pay and,
if the defendant cannot pay, consideration of alternatives.
4. Section 2 states:
> All misdemeanor arrestees must be released on a personal bond (i.e.
> unsecured bnd) or on non-financial conditions as soon as practicable
> after arrest, except arrestees who fall within certain categories.
Only people in those categories may be detained for up to 48 hours for
any individualized hearing. These categories are:
a. arrests for violating a protective order.
b. assaults on a family member.
c. DWI 1st or DWI 2nd (these people can be detained for up to 8
hours prior to release on a personal bond to allow time for the person
to become sober.
d. Individuals arrested and charged with a new offense while on
any form of pretrial release;
e. Individuals arrested for not appearing at a court date while
on any form of pretrial release in an open case.
f. individuals arrested on any form of community supervision
following a conviction for a Class B misdemeanor or above.
5. Section 3 repeats that the people in categories a-f may be
detained up to 48 hours. However, the footnote states that the judicial
officer may release them on a pretrial bond anyway if recommended by
employees of the district attorneys' office, pretrial services office,
the sheriff's office or other governmental agency. The hearing officer
must have complete discretion to release prior to an individualized
hearing.
6. SECTION 4 SAYS THAT SECURED MONEY BAIL CANNOT BE USED FOR ANYONE
WHO DOES NOT FALL INTO CATEGORIES A-F.
7. Section 5 says the individualized hearing will take place within
48 hours.
8. Section 6 states if the person falls within the a-f categories and
is not present in the jail, or an in-person hearing is not practicable
then the conditions must be done within the 48 hour period in absentia
and an in person hearing must be conducted as soon as practicable
thereafter.
9. Section 7 says that at the individualized hearing the
decision-maker may consider the full range of available conditions of
release including secured money bail. (This is only applicable to the
crimes set out on a-b, d-f) (c still requires a PR bond).
10. Section 8 sates that public defenders must provide representation
at the hearings unless the defendant waives it.
11. Section 9 states that before secure money bail may be required
the following must be done:
a. there must be an affidavit completed by the defendant. There
is a disclosure that must be given to the defendant and it appears to
deviate from the one the 5th circuit and trial court set out. But I
have not checked to make certain. It does not appear to have a
reference to what sum could be raised from other sources.
b. Ability to pay must be supported by an affidavit.
c. the defendant must be given an opportunity to be heard
regarding the ability to pay, to present evidence, etc.
d. if the decision maker decides to require money bail then the
order must be accompanied by substantive findings on the record and
reveiwable by a higher court. The findings must be by clear and
convincing evidence. The findings must say that they have the ability
to pay or that there is no less restrictive alternative available and
that the imposition of unaffordable bail and that it is necessary for
the government's interests. IF THE INCOME EQUAL TO OR LESS THAN 125% OF
THE FEDERAL POVERTY LINE THEN THE DEFENDANT MAY NOT BE ASSESSED ANY FEE
ASSOCIATED WITH THE PERSONAL BOND OR AN UNSECURED BON OR THE COST OF A
NON-FINANCIAL CONDITION OF RELEASE, INCLUDING BUT NOT LIMITED TO A
SUPERVISION FEE, A FEE OR ELECTRONIC MONITORING, OR THE COST OF AN
INTERLOCK DEVICE. These same procedures must be followed for an order
of detention.
e. Says that provisions 8 (a)-(d) are not intended to conflict
with Texas law.
12. Section 10 says that anyone who remains in jail must be given a
bail review hearing within one business day.
13. Section 11 says that anyone release on conditions is also
entitled to a individualized hearing, if requested within one business
day.
14. Section 12 says that the sheriff must not enforce any order
requiring secured bail that is not the result of an individualized
hearing.
15. Section 13 says the sheriff must not enforce any order requiring
secured money bail tat is not supported by a record. If the record is
not present then the sheriff must present a general order bond to the
defendant.
16. Section 14 says any directive to pay secured money bail that is
done before an individualized hearing must not be enforced.
17. Section 15 states that if the defendant is in jail for 40 hours
and no condition of release has been issued then the sheriff's office
must present the arrestee to a judicial officer for an individualized
hearing. If the person does not appear before a judicial officer within
48 hours of arrest then the sheriff must deliver a General Order Bond to
the defendant.
18. Section 16 states that the court coordinators are responsible for
monitoring the jail population and informing the sheriff's office of any
arrestee who must be presented with a General Order Bond to avoid
violation of this policy.
III. INITIAL ANALYSIS OF NEW POLICY
The new policy appears to violate state law and our rights in several
respects. I will summarize them in general:
1. There are certain crimes for which a defendant cannot be granted a
PR bond by the magistrate and it can only be done by the judge over the
criminal case. Tex. Code Crim. Pro. art. 17.03.
2. The policy in effect gets rid of secure money bail in Harris
County.
3. The statement set out that has to be given appears to deviate from
the one that was required in the federal cases (I believe) and the
changes are to our detriment.
4. There is case law in Texas that says that the judge only sets the
bond amount and the defendant chooses what avenue of bond to use. This
policy would seem to violate this law.
5. I would throw out that the policy violates the bail bondsmen's
constitutional rights to engage in the bonding business. The bondsmen's
right is a protected property right under the Texas Constitution. This
right has been recognized before (although I question whether it is a
strong argument).
6. This policy seems to turn the constitution on its head. The
county cannot determine who is really poor so everyone gets released on
a PR bond. I believe that this is because the judges recognize that
they do not have the man power to individually magistrate everyone.
7. Also, there is no such thing under the law as a "General Order
Bond." They appear to try to make them issued by the judges "through"
the sheriff. This is an attempt to fix the problem identified by the
5th Circuit.
8. The policy attempt to resurrect the first injunction where the
court ordered the Sheriff to do certain things and that was reverse by
the appellate court. So this should be attacked as a violation of that
prior decision.
IV. UNANSWERED QUESTIONS
A PR bond, by its very nature, has to have a financial amount.
Otherwise, it is not a bond. But the new policy does not set out
anywhere in it what the amounts of the PR bonds will be. I would argue
that they are Zero which would mean this is not a bond.
It appears that these bonds are not bonds at all.
These are my initial thoughts. I am forwarding this to everyone to get
this discussion started. It appears that misdemeanor bail will be over
in Harris County under this policy. Therefore, we must decide our next
step quickly.
Ken W. Good
The Good Law Firm
Law Office of Ken W. Good, P.L.L.C.
5604 Old Bullard Road, Suite 102
Tyler, Texas 75703
(903) 579-7507
(866) 381-0455 (Fax)