Written by Brady Miller
Edited by Ritvik Mahendra, Hannah Fuchs, and Daisy Kielty
For years, federal courts have called Texas’ bail system unfairly discriminatory against impoverished people. Across Texas, too many people are detained prior to their trial simply because they do not have enough money to pay their bail. Even though courts across the country have deemed it unconstitutional, Texas continues to use this discriminatory practice. In a ruling ordering the restructure of the misdemeanor bail system in Harris County in 2017, District Judge Lee Rosenthal declared that “Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.” As Republican Texas Supreme Court Chief Justice Nathan Hecht put it in his 2021 State of the Judiciary Address to the state legislature, “We have a bail crisis in Texas.”
Article I Sec. 11 of the Bill of Rights of the Texas Constitution grants the right of pretrial bail to all defendants with the sole exception of capital murder. This right is also granted on the federal level by the prohibition of excessive bail in the Eighth Amendment to the Constitution. The right was later affirmed in Stack v. Boyle, a 1951 Supreme Court case in which the Court ruled that bail set high enough to detain a defendant, rather than to assure the defendant’s appearance at trial, violates the Eighth Amendment. Members of the judiciary, such as Judge Rosenthal, have consistently found Texas’ bail practices woefully out of line with both the Texas and United States Constitutions.
House Bill 20 from the regular 87th Legislative Session, authored by Corrections Committee Chairman Andrew Murr, was filed with the intent of reforming Texas’ bail system. Bail reform, or his version of it, was one of Governor Abbott’s legislative priorities for the 87th legislature. Governor Abbott called HB 20 the Damon Allen Act – named after a state trooper who was killed by a person who had been released on bail while awaiting trial. In Governor Abbott’s words, “The Damon Allen Act makes it harder for dangerous criminals to be released from jail on bail.” While the basic principles of HB 20 would solve one of the problems that Chief Justice Hecht outlined with the bail system, that “it’s dangerous to release defendants only because they can afford to make bail,” it does nothing to address what Hecht and many traditional bail reform advocates see as the bigger issue.
HB 20 nearly made it through the entire legislative process during the regular session, passing both the House and Senate. However, policy differences between the two legislative bodies and a move by Texas Democrats to break legislative quorum to stop the passage of SB 7, the hotly debated “election integrity” bill, brought the process to a halt. HB 20 never made it back to the House floor for final approval to be sent to the Governor. It died when the legislature adjourned sine die on May 31.
Article III Section 5(a) gives the Governor the power to convene the state legislature for special sessions as they may choose – a power that Governor Abbott has used liberally this year. At the conclusion of the regular session, Governor Abbott announced that “ensuring the integrity of our elections and reforming a broken bail system remain emergencies in Texas, which is why these items, along with other priority items, will be added to the special session agenda.” On July 7, 2021, Governor Abbott issued a proclamation setting the agenda for the First Special Session of the 87th Legislature. Unfortunately for Governor Abbott, enough members of the House Democratic Caucus continued their quorum break to protest the unnecessarily restrictive elections bill that no official House business could be conducted and, thus, no legislation made it to Governor Abbott’s desk.
On August 7, 2021, only one day after the expiration of the first special session, Governor Abbott proclaimed the start of the second special session with a nearly identical agenda. Two weeks into the second special session, on August 19, enough House Democrats had returned to the State Capitol for an official quorum to be present. With only two weeks left to get legislation passed, members quickly began hearings on Abbott’s agenda. One of those bills was SB 6, filed by Senate Jurisprudence Committee Chair Joan Huffman. Though edited from its original text, SB 6 was the second special session’s version of the Damon Allen Act. One difference between HB 20 and SB 6 was that as filed, SB 6 would have eliminated the practice of charitable groups posting bail for defendants. Charitable bail gained national attention last year after thousands of people protesting the death of George Floyd were arrested and subsequently bailed out by community bail funds. After a fairly bipartisan outrage in the House, that provision was stripped from SB 6 before the bill’s final passage.
Opponents of SB 6 argue that the bill does not attempt to solve the problem of wealth-based discrimination in the bail system, but instead, may actually exacerbate it. Sections 6 and 7 of SB 6 eliminate the use of personal bonds in a long list of situations, including any case in which the defendant “is charged with an offense involving violence.” Personal bonds are those that do not require any cash to be put up by the defendant and are instead contingent on restrictions like GPS monitoring. The elimination of personal bonds in a large proportion of cases naturally increases the state’s reliance on cash bail, disproportionately affecting poorer citizens. An extensive report by the Prison Policy Initiative found that cash bail “perpetuates an endless cycle of poverty and jail time.” Supporters of the bill recall anecdotes such as the killing of State Trooper Damon Allen to provide cause for SB 6. Notably though, Damon Allen’s killer was out of jail on $15,500 cash bond and not a personal bond, a practice that is not limited by SB 6.
More cases questioning Texas’ bail practices are making their way through the federal court system. Take for example, the case of Preston Chaney, a 64-year old Black man in Harris County who could not afford to pay his $100 bond last year. Because of the backlog of cases, Mr. Chaney sat in jail for several months awaiting his trial. In that time, he contracted COVID-19 and passed away. After Mr. Chaney's death, Harris County Sheriff Art Acevado admitted through Twitter that “no one is supposed to be in jail for failing to pay a $100 bond on a non-violent offense.” Had he been able to afford the $100, he could have walked out of jail just a couple of days after his arrest. If death isn’t excessive bail, what is?
Members of the legislature that opposed SB 6 have also pointed out that there are a few positive, less controversial provisions in the bill. SB 6 strengthens the judicial training requirements for bail setting and provides a framework for streamlining pertinent defendant information to judges that are setting bail. However, the positives pale in comparison to the negatives that criminal justice reform advocates like El Paso State Representative Joe Moody call a “double down on those errors of the past.”
For years now, groups ranging from Republican members of the Texas Supreme Court to civil rights groups like the Texas Fair Defense Project have called for meaningful bail reform in Texas. Bail reform has traditionally been a Democratic issue, but with more conservative criminal justice groups, such as Right on Crime, there is an increasing number of Republicans coming on board with indigent bail reform and pretrial diversion policies. When you get past the political rhetoric of bail reform, it makes for good conservative policy. Tax reform has historically been a pillar of conservative Republican politics. Studies estimate the cost to keep a defendant in jail at $60 per day. In the case of Preston Chaney, Texas taxpayers paid thousands of dollars to keep him in jail over a $100 bond. Extrapolate that out to the quarter of a million Texans that are currently incarcerated, and it is difficult to calculate how much taxpayer money is being wasted.
No matter the reasoning, there needs to be progress made in the bail reform fight in Texas. We just need to utilize our leaders to do it. House Democrat Joe Moody and Republican Jeff Leach co-founded the Criminal Justice Reform Caucus in 2019, through which they worked on and passed legislation addressing a range of smaller criminal justice reform issues throughout the 87th Legislative session. Unfortunately, bail reform was not one of those issues. That has to change. The current system of locking up our citizens because they cannot pay their way out is unconstitutional, immoral, and in the words of Chief Justice Hecht, “offends basic notions of liberty and humanity.”
 O’Donnell v. Harris County, No. H-16-1414, 2017 U.S. Dist. Lexis 4267 (S.D. Tex. Jan. 11, 2017).  Nathan L. Hecht, C.J., Tex. Sup. Ct. The State of the Texas Judiciary Address to The People of Texas (Mar. 23, 2021), https://www.txcourts.gov/media/1451942/soj-2021final.pdf.  Tᴇx. Cᴏɴsᴛ. art. 1, § 11.  U.S. Cᴏɴsᴛ. amend. VIII.  Stack v. Boyle, 342 U.S. 1 (1951).  H.B. 20, 87th Leg., Reg. Sess. (Tex. 2021).  Press Release, Off. of the Tex. Gov., Gov. Abbott Signs Damon Allen Act Into Law At Safer House. Summit (Sept. 13, 2001), https://gov.texas.gov/news/post.governor-abbott-igns-damon-allen-act-into-law-at-safer-houstin-summit.  Tᴇx. Cᴏɴsᴛ. art. 3, § 5.  Press Release, Off. of the Tex. Gov., Gov. Abbott Statement On 87th Leg. Sess. (May 31, 2021), https://gov.texas.gov/news/post.governor-abbott-statement-on-87th-legislative-session.  Off. of the Sec. of State, Tex. Gov. Abbott Proc. Calling 87th Spec. Sess. Agenda (July 7, 2021), https://gov.texas.gov/uploads/files/press/PROC_first_called_sesson_87th_legislature_ IMAGE_07-07-21.pdf.  Off. Of the Sec. of State, Tex. Gov. Abbott Proc. Calling 2d spec. Sess. Agenda (July 7, 2021), https://gov.texas.gov/uploads/files/press/PROC_first_called_session_87th_legislature_ IMAGE_08-05-21.pdf  S.B. 6, 87th Leg., 2d Spec. Sess. (Tex. 2021).  Id.  Id.  Id.  Bernadette Rabuy & Daniel Kopf, Detaining the Poor: How Money Bail Perpetuates an Endless Cycle of Poverty and Jail Time, Prison Policy Initiative (May 10, 2016), https://www.prisonpolicy.org/reports/incomejails.html.  Jolie McCullough, House and Senate Committees Advance GOP Bail Legislation, as Democrats Warn Bills Could Lead to Mass Detentions, The Texas Tribune (July 10, 2021, 9:00 PM), https://www.texastribune.org/2021/07/10/texas-bail-bills-legislature/.  Gabrielle Banks & Samantha Ketterer, ‘Deep indifference to human suffering’ at Harris County Jail, Lawyers Say, Houston Chronicle (Feb. 6, 2021, 6:12 PM), https://www.houstonchronicle.com/news/houston-texas/crime/article/harris-county-jail-indifference-human-suffering-15926278.php.  Id.  Art Acevedo (ArtAcevedo), Twitter (Feb. 6, 2021, 5:28 PM), https://twitter.com/ArtAcevedo/status/1358195956605472768.  S.B. 6, 87th Leg., 2d Spec. Sess. (Tex 2021).  Jolie McCullough, House and Senate Committees Advance GOP Bail Legislation, as Democrats Warn Bills Could Lead to Mass Detentions, The Texas Tribune (July 10, 2021, 9:00 PM), https://www.texastribune.org/2021/07/10/texas-bail-bills-legislature/.  Right ᴏn Crime, https://rightoncrime.com/ (last Sept. 26, 2021).  An Analysis of Texas Jail Bookings: How Texas Counties Could Save Millions of Dollars by Safely Diverting People From Fail, Texas Appleseed (Apr. 2019), https://www.texasappleseed.org/sites/default/files/An%20of%20Texas%20Jail%20Bookings%20Apr%202019.pdf.  Press Release, Rep. Dade Phlean, Phelan and Moody Introduce Smarter Justice, Safer Texas (Apr. 21, 2021), https://house.texas.gov/news/press-releases/?id=7442.  Nathan L. Hecht, C.J., Tex. Sup. Ct., The State of the Texas Judiciary Address to The People of Texas (Mar. 23, 2021), https://www.txcourts.gov/media/1451942/soj-2021final.pdf.