House Joint Resolution (HJR) 4 by Rep. Kyle Kacal (R-College Station) is a proposed constitutional amendment that would give wide latitude to judges to deny bail to defendants who they determine to be flight risks or dangerous to the public.
The text also requires judges to deny bail for capital murder defendants and those accused of sexual violence against a person under 17 years old unless “clear and convincing evidence” is offered to justify granting bail.
The other piece of legislation, House Bill (HB) 20, is authored by Rep. Andrew Murr (R-Junction) and named after the late Damon Allen, a Texas Department of Public Safety officer who was killed by an individual said to be free on pretrial release. The bill sets up a state-funded risk assessment tool that judges would be able to use when making bail decisions.
David Slayton, the administrative director of the Texas Office of Court Administration, testified as a neutral witness on HJR 4 that judges in Texas do not have a mechanism available to them to deny pretrial release to violent individuals.
“There’s really no way under our current law to keep people who are dangerous, and judges know that, in jail without a constitutional amendment to allow it,” Slayton said.
“[I]f Osama Bin Laden would have been arrested in Texas on September the 12, 2001, a Texas judge could not have denied him bail if he was charged only with murder or with robbery or … a sexual offense against a child.”
He emphasized that “if those people have money, they will get out.”
On the other hand, John Convery, a past president of the Texas Criminal Defense Lawyers Association, said HJR 4 “crushes the presumption of innocence.”
“It just puts such a big crack in it that it’ll never be put back together again,” Convery said.
Convery also testified from his perspective as a defense lawyer that the state system is less equipped than the federal system to assess public safety risk, as the federal system dedicates more resources to investigate the backgrounds of defendants.
Judge Michael Fields, who was a Republican criminal court judge in Harris County for 20 years, said HJR 4 is possibly a “solution in need of a problem,” noting that judges are already able to deny bail with probable cause. He did not take a position on HJR 4, but he urged the committee to proceed with caution.
“It is imperative that we are judicious in our actions when it comes to amending our constitution, because freedom is hard. Constitutional liberties are hard,” Fields said. “The bill of rights was written, as you all know, to protect people accused of criminal activity. Our founding fathers wrote our constitution that way.”
Fields emphasized, “Holding people without bail violates our constitution.”
Jim Bethke, director of the Harris County Justice Administration Department, testified in opposition to HB 20. He contended that more incarceration does not necessarily correspond with lower crime rates.
Arguing that there is no “low-hanging fruit,” Bethke testified that of the 8,458 defendants currently in custody at the Harris County Jail, only 250 of them are misdemeanor defendants, while 7,374 are on pretrial detention for felonies.
“Unlike many other counties in the State of Texas, Harris County does not detain people unnecessarily on low-level nonviolent charges simply because they cannot afford their bond,” Bethke explained.
However, Bethke said he does “empathize with the victims and I understand what you’re trying to do[.]”
Andy Kahan testified on behalf of Houston CrimeStoppers that personal recognizance bonds in Harris County have quadrupled since the year 2018 from 239 to 1,097.
“Like it or not, we are in the midst of a bond pandemic in the state of Texas, and people are paying the price, the ramifications, of what I am seeing for bond reform,” Kahan said.
He said that since 2018 he has tracked 106 individuals who were murdered by defendants who had forfeited their bonds or who courts had released on multiple bonds and no-bail felony bonds, characterizing violence committed by freed defendants as “utterly preventable.”
He noted, “Homicides by defendants released on bond have more than doubled since 2018.”
Kahan, who testified in favor of both HJR 4 and HB 20 said that Houston CrimeStoppers supports the right to post bail, but public safety ought to be given priority. He said the state “desperately” needs the constitutional amendment.
Rep. Ann Johnson (D-Houston) recoiled from the idea that bond policies are exclusively responsible for a sharp increase in violence in Harris County.
“Let’s also recognize we’re in the middle of COVID, we haven’t had a jury trial in over a year, and we are off of a flooded building from [Hurricane] Harvey, and we are excessively backlogged,” Johnson said.
Kahan responded that while he agreed those extenuating factors played a role, the “revolving door at the courthouse” is a significant contributor to crime.
Kasey Allen, the widow of Damon Allen, pleaded with the committee to take action and discussed a family friend of hers who also died at the hands of a defendant who the state released on bond.
“Now I’m working to get this legislation passed, not only for myself, but for the other trooper’s family, too, because I know them. They both have been murdered by repeat offenders,” Mrs. Allen said.
“Please help me protect those who protect us even at the cost of their own lives.”
HB 20 was reported favorably by the committee and awaits consideration on the floor of the Texas House.
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Hayden Sparks is a senior reporter for The Texan and a lifelong resident of the Lone Star State. He has coached competitive speech and debate and has been involved in politics since a young age. One of Hayden's favorite quotes is by Sam Houston: "Texas has yet to learn submission to any oppression, come from what source it may."