Texas Governor Shifts Bail Reform Toward Bill That Would Give Him More Control

by | March 20, 2019 AT 7:20 AM

By Jolie McCullough

Across the political spectrum, Texas lawmakers agree that something needs to be done this year about the state’s bail system.

Since reform efforts failed in the 2017 legislative session, federal judges have called bail practices in Texas’ two largest counties unconstitutional — claiming the justice systems often keep poor people locked up for days or weeks before their trials while letting similar defendants with cash walk free. And more states, counties and cities are veering away from cash-based bail systems and leaning toward making pretrial jail release decisions based on an arrestee’s risk of posing a danger or skipping court hearings.

The ongoing federal lawsuits (and the potential for new ones) and recent jail deaths have further spurred efforts in Texas to address the court rulings and help get poor people accused of nonviolent crimes out of jail. Republican Gov. Greg Abbott has prioritized fixing the bail system this session, but he has focused more on making it harder for dangerous defendants to get out of jail.

But when this legislative session’s first pair of major reform bills were filed last month by a Democratic senator and Republican House representative who have worked on the issue for years, Abbott was silent. Now, he appears to have thrown his weight behind a less-detailed bill with the same name. A key difference: It puts power over changes to Texas’ bail system directly into his office — giving him control over the creation of a risk-assessment tool to be used in bail decisions.

The bill was only recently filed, and advocacy groups for bail reform have acknowledged that it will likely be tweaked as it moves through the Legislature, but the legislation still has drawn concern from groups that say it doesn’t properly address the problems that led to federal litigation and that it is fully “unworkable” in some areas.

“If the Legislature does not want federal courts to design local bail systems in Texas, they need to pass a bill that corrects the essential problem of people who could otherwise safely be released being jailed for no other reason than their not having money for bail,” said Mary Schmid Mergler, director of the criminal justice project for the advocacy group Texas Appleseed, in an email to The Texas Tribune.

She added that the first bills filed are more comprehensive and research driven.

Senate Criminal Justice Committee Chair John Whitmire, D-Houston, and state Rep. Andrew Murr, R-Junction, filed those bills in early February and seemingly sought to get the governor on board by including provisions that Abbott has backed, including having judicial officers consider the defendant's criminal history and the safety of law enforcement officers when setting bail, not just the current criminal charge.

Most notably in a nod to the governor, they named their legislation the Damon Allen Act in honor of the Texas Department of Public Safety trooper whose murder pushed Abbott to call for change to bail practices last year. Allen was gunned down in a 2017 traffic stop as the man suspected of killing him was out of jail on a $15,500 bond after allegedly assaulting a sheriff’s deputy.

A primary piece of Whitmire and Murr’s legislation would have the state’s Office of Court Administration create a risk-assessment tool to help judges determine an arrestee’s potential for posing a danger or skipping court hearings if released from jail before trial. It would also establish procedures in statute aimed at releasing poor, low-risk defendants from jail on no-cost bonds while those deemed a high risk would be detained before trial without the option of bailing out with cash. (Currently in Texas, bail release can only be denied in capital murder cases or in certain repeat felony or bail violation circumstances.)

The second Damon Allen Act filed this month by state Rep. Kyle Kacal, R-College Station, also includes a risk-assessment tool, but it doesn’t specify how and when the tool would be used to affect bail practices. Instead, it creates a program within the governor’s office that would both develop the tool and recommend best practices for pretrial release decisions.

“I think [Abbott] and his office produced the Kacal bill, which means we’ve got a lot of work to do with the governor’s office if we’re going to pursue my bill,” Whitmire told the Tribune last week. “I know [Abbott] wants to control it.”

A little more than a week ago, just before the bill-filing deadline, the senator submitted a second piece of bail legislation that matches Kacal’s bill, putting Whitmire’s name at the top of two bills named after Trooper Allen. Whitmire said last week that he had not talked to Abbott’s office about the new bills.

Kacal confirmed to the Tribune that he worked with Abbott on his bill to "avoid tragedies like the death of Trooper Damon Allen in the future." A spokesperson for Abbott did not respond to multiple requests for comment on the issue.

Although Kacal’s name is on the bill filed earlier this month, it’s not difficult to see Abbott’s influence. Kacal, who represents Allen’s hometown of Mexia, stood behind the governor at an August press conference in Waco where Abbott first called for legislation that he said would keep dangerous people like Allen’s murderer off the street. The governor’s proposal included creating a system that considers criminal history and the safety of law enforcement when making bail decisions, and it would allow only district judges, not lower-level magistrates, to set bail for all felony and violent misdemeanor crimes.

All of those pieces are included in Kacal’s bill.

The governor also acknowledged at the time that his proposal, though primarily focused on keeping “violent criminals off our streets,” could become an avenue to keep poor people who aren't dangerous out of jails as well, potentially by using a risk-assessment tool.

“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 at the press conference.

A risk-assessment tool is included in Kacal’s legislation, but it is much less specific than Whitmire and Murr’s bills, which explicitly lay out how and by when judicial officers must use the tool in making bail decisions, in part nodding to the necessary changes called for by federal judges in Harris and Dallas counties. Instead, the Kacal (and now Whitmire) legislation places the power for creating the risk-assessment tool, as well as deciding on best practices for pretrial release, directly under the governor.

The bill would create a Bail Advisory Program within the governor’s Criminal Justice Division, a grant-making arm of the executive office. The governor would appoint a director, and the program would develop a pretrial risk-assessment tool for bail decisions (with help from the Office of Court Administration), recommend best practices for bail decisions and collect data on bail practices statewide.

“[Abbott’s] concerned about who would get out on a [no-cost] bond, and I guess he thinks if he came up with a risk-assessment model, he would be able to have more input,” Whitmire said.

Under the Texas Capitol, there is also a slew of other bills on the subject that have been filed, aside from the dueling Allen bills.

A couple of bills mainly address the recent federal opinions that called county practices unconstitutional by requiring individual bail hearings within 48 hours for those who claim they can’t afford automatically set bail amounts. Officials from the powerful bail bonds industry, which collects a percentage of the bail amount from defendants to front the total cost and which Whitmire has said killed past legislation because of fear it will cut into profits, said they could support such a proposal, but they are concerned with the risk-assessment portion of the bills. At least one other bill would default to release from jail on no-cost bonds for all defendants charged with nonviolent crimes.

Advocacy groups pushing for change from both sides of the aisle said they were pleased that the issue is so prominently on the table this year.

“We are very encouraged that there are so many members of the legislature paying attention to the issue of pretrial reform,” said Mergler. “It's a testament to how broken our current pretrial justice system is.”

And although Whitmire and Murr’s bills appear to have more advocacy support and legwork behind them, advocates across the nation have also criticized practices included in their measures, like allowing judges to fully deny bail and risk-assessment tools in general. Measures passed in California and Maryland leaned toward preventive detention for high-risk defendants as well, and in California, some advocates have since pulled their support for the legislation, claiming that risk-assessment tools can be racially biased and that judges have too much discretion to deny bail altogether and keep people locked up. In Maryland, reports have shown that a rule meant to reduce the jail population and use of cash bail led to judges opting more often to keep people in jail rather than release them on no-cost bonds.

The advocates acknowledge there’s a lot that needs to be worked out as the bills — largely the two Damon Allen Acts — move through the Legislature. Mergler and Marc Levin, vice president of criminal justice of the Texas Public Policy Foundation, a conservative think tank, said there aren’t enough district judges to satisfy the provision in Kacal’s bill requiring only district court judges — or their associate judges — to determine bail for all felony cases, along with violent misdemeanors.

“There’s a lot of ideas out there, so now we need to in the next few weeks have consensus on what can pass out of both House Criminal Jurisprudence and Senate Criminal Justice,” Levin said of the two committees that will hold hearings on the bills.

The advocates and Whitmire acknowledged there would likely need to be changes, potentially substantial ones, in the remaining months of the session. Whitmire said he wants to be able to merge some of the items from his original legislation filed with Murr into the governor-backed bill, such as being able to deny bail for violent defendants (which would also require a constitutional amendment).

But, as he indicated by filing a bill matching Kacal’s, he said he is willing to work with the governor on the issue moving throughout the legislative session.

“Anything we pass, the governor has to sign it, so that makes it pretty important that we work with the governor,” he said, laughing.

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