WACO, Texas (KWTX)X Two identical bills just filed in the Texas Legislature would require counties to adopt a new system that would consider a defendant's flight risk and the community's overall safety, instead of the ability to pay to determine bond amounts.
State Sen. John Whitmire, D-Houston, and Rep. Andrew Murr, R-Junction, authored identical measures that call for bonds to be set as low as possible and within 48 hours of arrest, and to impose the "least restrictive conditions" under the proposed legislation.
But both bills also would allow magistrates who now have no authority to deny a bond to have that power in certain cases.
Ultimately the decision would rest with a local magistrate and cash bond would not be outlawed.
Corresponding constitutional amendments also have been filed that would allow for denying bond to anyone deemed a flight risk or danger to the public.
The Texas Constitution says only defendants charged with a capital offense are automatically ineligible for bail.
“It’s complicated but healthy. It’s a conversation we should be having and there’s a lot of good criminal justice reform out there,” Coryell County District Attorney Dustin Boyd, said.
The current system, Whitmire says, “Keeps low-risk, nonviolent, low economic status, broke effectually, people locked up ... and it releases violent offenders who can come up with large sums of money to post a large bond.”
The bills would set up mechanisms that provide pathways for background information about people having bonds set to flow to magistrates who set those bonds.
“When we go in to do our jobs as magistrates it would be nice to have that information available to us,” McLennan County Pct. 3 Justice of the Peace David Paryea said.
In their current versions the bills, both known as the “Damon Allen Act” in honor of Central Texas Department of Public Safety Trooper Damon Allen, who was shot and killed on Thanksgiving Day 2017 after a traffic stop on Interstate 45, are scheduled for hearings in House and Senate committees.
The man accused of Allen's murder, Dabrett Black, was convicted of assaulting an officer in 2015 and then arrested for ramming another Smith County deputy's car two years later, but that data had not been provided to the Montgomery County magistrate who released him on bond before the fatal shooting.
Texas Gov. Greg Abbott, during a press conference in Waco announcing the legislation, said his main issue is not keeping “non-dangerous” defendants in jail because they can’t make their bonds, while at the same time making sure the most violent offenders don’t end up back on the streets.
“Our goal for people who are not dangerous to the community is to not house non-dangerous criminals behind bars, but put them on a pathway toward productivity and contributing back to society,” Abbott said.
“Our goal at the same time is to make sure that if there are criminals who are dangerous who pose a threat to a law enforcement officer or the community, we’re going to get them off the street and keep them off the street.”
Boyd and Paryea, along with several other judges and attorneys in Central Texas say the system, while it has flaws, works pretty well right now.
“I think our judges and my office do an extremely good job at making sure reasonable bonds are set for defendants and the ones who need to stay in jail stay there while those who don’t need to be held are able to post bond and get out,” Boyd said.
Retired 54th District Judge George Allen said every magistrate has his or her own system for setting bonds and most solicit input from law enforcement or attorneys if they have questions.
“We used to use a set formula in McLennan County that had an outline for what bonds ought to be,” Allen said.
“But back in those days we had JPs who’d been on that job for 20 or more years and every one had a lot of experience, so I think today they’ve gotten away from those schedules.”
Tom Needham, assistant district attorney in McLennan County, said the ultimate goal of the bills is laudable, but the question is how to get there.
Needham went on to say the process in McLennan County seems to be working.
“I don’t think we have any issues like that here, but our JPs do a good job setting bonds.”
Paryea, who serves as president of the Texas Justice Court Judges Association, said his main issue is that currently there is no mechanism in place in the state that allows magistrates to access criminal case histories of defendants when setting bond.
“What concerns us is the flow of information back to the court” when making decisions about bonds, Paryea said.
Boyd expressed an issue with the current language in the Damon Allen Act that would place even more stress on his already overworked office because in some instances it calls for additional bond hearings when a defendant is ordered detained.
In the case where a magistrate orders a defendant to remain in custody without setting bond, the defendant is entitled to a re-hearing on the bond order within 10 days.
He said it would be just one more hoop for prosecutors to jump through.
“It’s another hearing we’ll have to prepare for and attend, which will cost my office time and cost the courts another setting, and if the defendant is ordered held again, that person can appeal, which sets up yet another hearing.”
“The reform is good and I think we need it but we need to make sure it does what it’s supposed to do,” Boyd said.
Whitmire, who chairs the Senate Criminal Justice Committee, is adamant about the need for the reform.
"The current bond system in the state of Texas does not serve public safety. It is actually endangering all of us,” he said.
Few Texas counties utilize a risk assessment system currently to determine if a defendant might commit a new crime or just not show up in court when called, a problem the Allen Act would seek to repair, Murr said.
"A validated risk assessment tool will be provided to counties at no additional cost," Murr said, that way: "We can better help out local governments and jails manage costs, and better allocate our limited taxpayer resources."
Whitmire authored a reform bill last session which passed the conservative upper chamber but died in the House.
Whitmire says as many as 75 percent of the 45,000 people in pretrial detention in Texas have on any given day not been convicted of a crime.
"Criminal justice is a system. If any component of the system is not working, well, it affects our entire criminal justice system. I don't believe I've seen anything more broken in the criminal justice system than our current bail bond process," Whitmire said at a 2018 press conference.
He mentioned Sandra Bland, who committed suicide in the Waller County jail in 2015 after she was unable to pay a bail bondsman $500 to be released.
The legislation comes to light as several Texas counties — as well as municipalities across the country — fight lawsuits challenging their bail practices.
Murr added that keeping these people behind bars costs counties just less than $1 billion a year.
Former Dallas County Sheriff Lupe Valdez, the Democratic candidate for governor, said in a statement that a discussion on bail reform must address that too many people are kept in jail simply because they're poor.
"If we are going to talk about keeping our communities safe from harm, we must put in place gun safety measures including universal background checks and red flag laws, which could have kept Dabrett Black from having access to the gun that killed Officer Allen," Valdez said.