Texas GOP priority bill on bail reform passes House

The Texas House gave initial approval on Monday to a bill that would allow judges to deny nocost personal bonds to people accused of violent or sexual offenses and would mandate the creation of a statewide risk assessment tool for setting bail, a priority piece of legislation for top Republican leaders.

The bill, and another that has passed in the Senate, are backed by respectively Republican Gov. Greg Abbott and Lt. Gov. Dan Patrick. They center on the decisions that judges make about whether to detain people charged with criminal offenses while they await trial.

Critics say the legislation will do little to dissemble a system that punishes poor defendants by keeping them locked up solely because they can’t afford bail. Harris County in 2019 stopped requiring bail for most low-level crimes after the U.S. Supreme Court found the system to be unconstitutionally discriminatory; federal judges have similarly ruled against Dallas County’s bail practices.

House Bill 20, which is up for its final vote later this week, would also set new requirements for training for judges on bail duties and give judges a 48-hour deadline to decide whether to deny or grant bail using “the least restrictive conditions and minimum amount of bail” that will still keep the community safe.

The bill’s author, state Rep. Andrew Murr, RJunction, who is an attorney and former judge, said he spent hundreds of hours working with and listening to advocacy groups in crafting the bill, a similar version of which

failed to pass in 2019. It is dedicated to state trooper Damon Allen, who was fatally shot in 2017 by a suspect who was out on bond.

“The goal today is to strike a balance in which we provide information, credible information, to our trained magistrates, so they can determine that those who are low-risk have a chance to get out whereas those that are at a higher risk with a violent offense or violent criminal history, they don’t easily pay and immediately walk on the street the next day and do something else that harms us,” Murr said.

Risk tool questioned

Proponents of the bill have said the statewide risk assessment will help judges ensure that people who aren’t dangerous will be able to walk free while the poor won’t face detention for lack of money. It will be based on “empirical data” that “does not consider factors that disproportionately affect” minority groups. Judges will be able to use it as a reference but will not be bound to the results and will still have ultimate discretion over most bail decisions.

But those opposing the legislation say such risk assessments are prone to the same biases that have led minorities to be disproportionately incarcerated across the nation.

“There is no such thing as a race-neutral risk assessment tool,” said Nick Hudson, policy and advocacy strategist with the American Civil Liberties Union, at a hearing on the bill earlier this month. “It’s mathematically impossible.”

Hudson pointed to studies that showed that a popular software system sold to jurisdictions across the country was twice as likely to label black defendants as higher risk compared to white defendants. They found that changes needed to be made to the formula to remove racial bias.

“We are very concerned that these tools, if we hook our entire pre-trial system to the wagon of pre-trial assessments, we will very likely exacerbate racial inequity,” he said.

Derek Cohen, vice president of policy at the conservative-leaning Texas Public Policy Foundation, said unlike proprietary software, the criteria and reasoning behind the Texas risk assessment would be transparent to judges and the public alike. He added that the bill includes a requirement that the state’s Office of Court Administration collect data and study the system and produce a report with recommendations on improvements annually.

“Concerns of discrimination are valid, but unfounded,” Cohen said. “The benchmark these policies should be judged against is the status quo and not a hypothetical fantasy world.”

Amendments added

Several Democratic amendments were tacked onto the bill on the floor on Monday, including one by Rep. Terry Canales, D-Edinburg, that would allow a person unable to pay bail to submit an affidavit stating the maximum amount they would be able to pay and have a hearing before a judge, who could then consider it and deviate from any bail schedule in making a final decision.

Another by Rep. Gene Wu, D-Houston, provides that people who are found not guilty or have their charges dismissed after a trial or appeal receive a full bail refund, including clerk fees.

Similar legislation in the Senate, SB 21, authored by Sen. Joan Huffman, R-Houston, focuses on repeat offenders and would require cash bail for people who have been accused or previously convicted of violent crimes. The bill passed the upper chamber last month but has been sitting in the House Criminal Jurisprudence Committee since mid-April.