Texas bail reform — one of Gov. Greg Abbott’s top priorities for this legislative session — appears likely to pass in the state Legislature, with both the Texas Senate and House of Representatives poised to reach an agreement on what the legislation will look like.
The Damon Allen Act, which would make it more difficult for people to get out of jail pretrial, has passed both chambers of the Legislature, but in significantly different forms. Lawmakers now have less than a week to reconcile their competing versions before the session ends.
Both advocates and opponents believe some version of bail reform will become law.
One of the fiercest advocates for the Senate’s bill – Senate Bill 21 – has been Harris County District Attorney Kim Ogg, who testified in favor of the bill earlier this session before the Senate Committee on Jurisprudence.
“Crime is up, ladies and gentlemen, and it is associated with bail,” Ogg said at the time.
The DA testified that between 2015 and 2020, the number of people who had committed crimes while out on bond had risen from approximately 3,200 to approximately 10,500. The number of offenses those individuals were arrested for while out on bond rose from 6,348 to 18,796.
“At some point,” Ogg said, “repeated criminal conduct must be stopped, even while awaiting trial, in order to protect the public. And this is where the public’s interest in safety must override the individual’s right to personal freedom.”
Since then, the Senate and House have each passed their own version of bail reform, both under the label of House Bill 20. But the Senate’s version replaced the language in HB 20 to make it identical to its earlier bill. Now, with less than one week until the session ends, the two chambers have to iron out their differences in a conference committee.
“We are cautiously optimistic,” said Andy Kahan, director of victim services and advocacy for Crime Stoppers of Houston. “We are right now at the point of no return, and basically, it’s kind of like in a football analogy, we’re at the 1-yard line, and we need that last push to get over the goal line.”
The House’s version – authored by state Rep. Andrew Murr, R-Junction – requires defendants to undergo 24-48 hours of pretrial risk assessment and magistration before they can be released on bond. If a defendant cannot afford the full amount of cash bail judge assessed, he or she can swear out an affidavit to that effect.
Krishnaveni Gundu — the cofounder of the Texas Jail Project, an organization that works with people incarcerated in county jails — said the legislation would be especially hard on people with intellectual or behavioral disabilities, who may not understand they have the right to an affidavit, let alone to act upon it.
“The affidavit will require information like income, employment history, cash holdings, and non-cash assets, and you know, what kind of money they owe,” she said. “For somebody with an intellectual or a developmental or a cognitive disability, that’s absolutely unreasonable to expect them to be able to do that.”
The Senate’s version – authored by state Sen. Joan Huffman, R-Houston – has greater restrictions on the number and type of offenses for which a defendant can be released on a personal bond, as opposed to a cash bond. Among other things, the Senate’s version effectively blocks the operation of charitable bail foundations, such as the one operated by the Texas Jail Project.
“We run a bail fund in one of the smaller counties (Smith County), and that would essentially shut down,” Gundu said. “We wouldn’t be able to help out folks that are being held on bonds less than $10,000.”
The bill also appeared to be aimed especially at Harris County, according to Insha Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice.
“It’s very clear that Senate Bill 21 was released to rein in what Sen. Huffman has called sort of the excesses of Harris County’s bail reform measures, which have actually been very successful, both in terms of public safety and cost savings, as well as getting people back to court,” Rahman said. “While (with) House Bill 20, Rep. Murr’s intention was to help guide judicial discretion around the bail decision, in making sure that people aren’t simply detained because of their wealth or poverty.”
But the two versions have one major factor in common, according to Harris County Commissioner Rodney Ellis, a former state senator.
“They end release from jail on non-money conditions for large numbers of Texans,” he said. “This means that people with money can use their homes as collateral or simply write a check to post bail. People without money will have to stay in jail indefinitely.”
Ellis said that would fall hardest on poor defendants who can’t afford cash bail, particularly Black and Hispanic Texans.
“You know, bail reform advocates who oppose both bills fear a potential merging of the legislation could create a worst case scenario,” Ellis said. “And I think that’s a possibility.”
That could be catastrophic for Harris County.
In 2017, a federal court ruled the county’s cash bail system was unconstitutional because it discriminated against the poor. The county is currently operating under a consent decree with regards to misdemeanor bail.
“We have only reformed misdemeanor bail in Harris County, after the county fought it, spent $10 million on legal fees with ridiculous arguments,” Ellis said. “You (would now) put judges in a position where they can follow a federal court consent decree or follow the state law. I think federal law, a consent decree, trumps that, so the issue will be litigated in court.”
Critics also argue that either of the bail reform bills under discussion would also impose significant costs on the taxpayer.
“We are about to end up having to spend a lot of money having to incarcerate people,” Ellis said.
Harris County is currently involved in separate litigation regarding its felony bail system.
All of this affects real people. Ask Goldie Van Zandt: She and her husband Jerome met in the Navy. Jerome retired after 20 years, having served in the Persian Gulf War, the Afghanistan War, and the Iraq War. He suffered from PTSD and began self-medicating.
Then two just celebrated their 37th anniversary — only, he wasn’t here.
That’s because last fall, Jerome was arrested for possessing less than a gram of crack cocaine and fleeing arrest, both felonies. His bail: $120,000, which the Van Zandts could not afford.
Van Zandt argued her husband poses no risk to public safety and no flight risk. He just wants to come home.
“The thing to me about the bill is that I think that it penalizes poor people and people that are suffering from mental health (illneses) or PTSD,” Mrs. Van Zandt said. “I get upset, because the poor (who) can’t afford the bail are people just trying to make a living or trying to survive. But, you know, people that have done much more, have done horrendous crimes, they get to get out and bond on bail. They can afford the bail, so they get out.”