Texas lawmakers pass rewrite of state’s bail system aimed at keeping more people behind bars who can’t post cash

Around the Clock Bail Bonds on 10th St. and Nueces in Austin on May 8, 2019.

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A sweeping revision of the process for releasing accused criminals on bail was finally passed by the Texas Legislature on Tuesday, nearly three months after the GOP-priority legislation stalled in the regular legislative session.

Senate Bill 6, which would require people accused of violent crimes to put up cash to get out of jail, cleared the House Monday on an 85-40 vote, largely along party lines. The Senate had passed the legislation earlier this month on a 27-2 vote.

The Senate accepted House changes to the legislation Tuesday. The bill now goes to the governor, who is expected to sign it into law.

Last week, a House committee removed a controversial provision that would have restricted charitable groups from posting bail for defendants, a practice that gained popularity last summer when groups posted bail to release people arrested while protesting the death of George Floyd, a Black man murdered by a white Minneapolis police officer.

On Friday, House members added a related provision back into the bill that does not limit the ability of such groups to post bail. Instead, the amendment would require charitable bail funds to be certified by county officials as nonprofit organizations and file reports on who they bond out of jail.

“The original bill that came over [from the Senate] was essentially going to outlaw … the charitable bail process,” said state Rep. Travis Clardy, R-Nacogdoches, on his amendment. “We made it very clear to the other side of the building that this would not stand.”

SB 6 would change how and if people can be released from jail before their criminal cases are resolved, while they are still legally presumed innocent. Currently, the ability of a defendant to post cash determines most Texas jail releases, but some jurisdictions — particularly in Harris County after losses in federal court — have recently shifted to releasing more people accused of low-level crimes without requiring money. The bill, in part, would limit when people without cash could be released.

Some parts of the bill are widely supported, such as requiring judicial training, collecting data and requiring officials to look at a defendant’s criminal history before setting bail.

But, civil rights advocates and some Democrats have fought against other significant portions of the legislation which they argue will lead to discrimination against poor people and people of color, including the provision on charitable bail.

The bill would ban the release of those accused of violent crimes on personal bonds, which don’t require cash but can include restrictions like GPS ankle monitoring or routine drug testing. Civil rights advocates have argued the exclusion of only cashless bonds will exacerbate wealth-based detention and lead to overfilled jails.

Gov. Greg Abbott and other Republicans, along with crime victims and their supporters, have pushed for the bail legislation, saying it is needed to keep dangerous people behind bars before their trials. They have pointed to rising crime rates and numerous examples of defendants accused of violent crimes being released on bond and then accused of new crimes.

In at least several of the examples noted by bill supporters, the defendants were released from jail after paying a bail bonds company or giving cash to the court — practices that wouldn’t be limited under the bill.

“This bill isn’t going to prevent all crime. It’s not going to prevent individuals from committing crimes if they do make a bond,” Huffman said before the Senate vote this month. “But it will give trained magistrates and judges all the information that they need to use their judicial discretion to make what we hope will be appropriate bond decisions.”

SB 6 opponents have argued the bill would wrongly increase the state’s reliance on cash bail, noting that restricting personal bonds primarily penalizes low-income people, limits judicial power and would boost the for-profit bail bonds industry.

“Taking away judicial discretion is not a good thing,” said state Rep. Ann Johnson, D-Houston, Friday. “You don’t get to unelect the bail bond industry.”

Multiple federal courts in recent years have found bail practices in Texas’ two largest counties unconstitutionally discriminatory against poor people. And civil rights groups involved in those lawsuits sent a letter to officials in all of Texas’ 254 counties earlier this month warning that similar litigation could follow SB 6’s passage.

“Because personal bonds are the only path to release from jail for people without access to money, sections 6 and 7 [of the bill] prohibit judges from releasing large categories of people who cannot afford to pay bail,” the letter said. “This infringement on judicial discretion will not make communities safer. It will, however, violate the rights of tens of thousands of people -- disproportionately poor, Black and brown people -- every year.”

The Republican-driven legislation has been a priority for the governor for years, and he deemed the measure an emergency in the regular legislative session that ended in May. But a similar bill was killed by a deadline and the House Democrats’ initial walkout to block the GOP voting bill. After Abbott called lawmakers back to again address conservative priorities like voting and bail, Democrats skipped town for weeks shortly after the House and Senate committees voted out both bills.

Earlier this month, about halfway through this second special legislative session, enough Democrats were marked present for the legislation to finally progress.

After voting on SB 6 Monday, a paired resolution failed to pass the House after a 87-35 vote. The resolution, which needed approval from two-thirds of the House — or 99 members— would have asked Texas voters in the May election if judges could deny releasing from jail on any type of bail, cash or personal, defendants accused of high-level violent and sexual crimes.

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