Harris County is in the spotlight as Texas lawmakers seek overhaul of bail laws

​​Proposed overhaul of Texas bail laws is aimed at Harris County

State leaders say stricter bail laws are needed to curtail a rise in the number of defendants charged with new crimes while out on bond.

With an eye on Harris County, Texas lawmakers are considering new measures aimed at keeping more defendants accused of violent and sexual crimes behind bars as they await trial, building off recent changes that clamped down on the use of cashless bail in state courts.

Republicans have made the issue a priority in recent campaigns and legislative sessions, arguing that stricter bail laws are needed to curtail a rise in the number of defendants, particularly in Harris County, charged with new crimes while out on bond. State GOP leaders have pinned most of the blame on local Democratic judges, who they accuse of setting overly lenient bail conditions.

Democrats and civil rights groups say the GOP’s 2021 bail overhaul, Senate Bill 6, has done little to address the problem because it sets limits only on no-cost and low-cost bonds — meaning those who can afford to post bail can still do so, while only those without enough cash are forced to stay behind bars.

Opponents of the GOP bail restrictions have pointed to a Chronicle analysis that found most people accused of murder while out on bond in Harris County had secured their release by paying bail.

Restricting the use of cash bail would require amending the Texas Constitution, a step proposed by Republican lawmakers in 2021 that failed to attract enough support from Democrats.

This session, state Sen. Joan Huffman — the Houston Republican who authored the GOP’s priority bail bill in 2021 — is planning to take a second crack at an amendment that would authorize judges to deny bail “under some circumstances to a person accused of a violent or sexual offense.”

For now, the Texas Constitution places firm restrictions on when judges can deny bail outright, generally guaranteeing defendants a right to pretrial release unless they are charged with capital murder or meet certain criteria for repeat violent offenses. Two years ago, Republicans sought to expand those conditions, but the measure died in the House over opposition from Democrats who said the proposed changes were too broad.

The policy has the support of Gov. Greg Abbott, who has said he wants lawmakers to “once again seek to pass a constitutional amendment to keep dangerous criminals behind bars.”

“I signed a bail reform law last session to try to strengthen bail policies,” Abbott said last fall. “But to make sure that we achieve what we needed to achieve, we also needed to amend the Texas Constitution.”

Huffman has said she also wants to expand the 2021 GOP bail bill to deny no-cost personal bonds to defendants charged with violating family violence protective orders and unlawfully possessing a weapon as a convicted felon. The bill already prohibits the use of personal bonds for some 20 violent and sexual crimes.

It also provides judges and magistrates with more information about a defendant’s criminal history and requires them to consider that factor, among others, when setting bail.

Local felony court judges, for their part, say they have set higher bail amounts for felony charges in recent years, but are still hamstrung in most cases by the bail guarantees in the state constitution.

State Rep. Ann Johnson, D-Houston, said she is “open” to a bail-related constitutional amendment, but only if Republicans also commit to changes aimed at tackling Harris County’s enormous backlog of cases and reducing mass incarceration.

“I think what we have to be mindful of is not overdoing it. We’re talking about changing the foundation of our constitutional requirements,” said Johnson, the former chief human trafficking prosecutor in Harris County. “If I thought that would make you safer, I’m open to those things. But that, in the absence of the investment in the infrastructure of the public safety system, the criminal justice system, is expedient. Yeah, it sounds good. But I don’t know that it has the effect that we all desperately want.”

Huffman, through multiple attempts to pass the constitutional amendment in 2021, repeatedly stressed that she was taking a “balanced approach” that would avoid targeting low-level offenders. She said the measure was aimed at “clearly violent individuals who are at high risk of either not appearing [for trial] or reoffending.”

A former state district judge, Huffman also has noted that judges and magistrates would be merely given discretion, not required, to deny bail under the cases outlined in the amendment.

“This is to be used for the most heinous examples and the worst abuses that we see of the bail system,” Huffman said when laying out her plan in committee meetings. “This is what the prosecutors and those who are trying to deal with these issues are asking for. … I’ve really tried to focus on those that pose a risk to our citizens, and I’m trying very hard to get that done in a fair way that honors due process.”

All changes to the Texas Constitution require two-thirds support in both chambers of the Legislature. Voters must then approve the measure in a statewide referendum.

Bail bond companies

Lawmakers and local officials have also begun taking aim at the bail bond industry in an effort to slow the rate of violent crime committed by defendants who are out on bond.

In 2021, Harris County defendants were charged with 22,610 new felonies and misdemeanors while out on bond, more than three times as many as in 2015, according to county data. The Harris County District Attorney’s Office projected a slight decline in that number by the end of 2022, though still well above totals from previous years.

The changes center around a standard, used in most jurisdictions and other states, that bail agents require defendants to come up with 10 percent of the bail amount, plus collateral, to secure their freedom. A recent Houston Chronicle investigation found that bail bondsmen have for years offered defendants discounted rates, sometimes as low as 2 or 3 percent.

Last year, the Harris County Bail Bond Board approved a measure requiring licensed bail agents to take an upfront fee of at least 10 percent of bail from defendants charged with violent crimes.

This session, Johnson has filed a bill that would essentially extend the policy statewide. It would also appear to insulate Harris County from the legal argument, advanced by the bail bond industry, that counties do not have authority to “fix prices or set rates” like the 10 percent minimum.

The idea has received support from conservatives and liberals alike.

“Texans must hold the bonding industry accountable for who they are helping to release back into our communities,” said Nikki Pressley, Texas director of Right On Crime, an arm of the conservative Texas Public Policy Foundation think tank. “The 10 percent minimum would help judges more accurately assess how high they want to set bail for high-risk cases.”

Pressley said the Legislature “also has an opportunity to do more on this issue, such as requiring the bondsmen to pay the outstanding balance of a bond forfeiture when someone reoffends while on bond.”

“A bonding agent is essentially an insurance agent, but right now, they face no repercussions for bonding out violent offenders over and over,” she said.

Case backlogs

Also on the agenda for some lawmakers is Harris County’s backlog of nearly 40,000 pending felony cases across its 23 criminal district courts.

The cases began piling up after Hurricane Harvey, which damaged the county’s criminal justice facilities in 2017 and brought proceedings to a crawl. Court closures during the COVID-19 pandemic, paired with a nationwide increase in violent crime, caused further disruption and created more backlogs in counties across Texas.

This has led to jail overcrowding, extended the time defendants spend behind bars before they’re convicted of a crime, and delayed case resolutions for victims. In Harris County, plea deals are routinely rejected by defendants who have little incentive to accept even reduced charges, since the likelihood of conviction falls as cases languish.

To speed things up, Johnson has proposed the creation of six new district courts to handle felony criminal cases in Harris County.

In 2021, the Legislature approved a new criminal district court in Texas’ largest county for the first time since 1984, even as Harris County’s population has swelled from nearly 2.8 million to more than 4.7 million since then.

Johnson said that even six new courts would not meet the county’s needs, citing a recent study by the state Office of Court Administration that found Harris County needs dozens of new judges to handle criminal, civil and family cases.

“That’s great that people are coming here,” Johnson said. “But that also means those are additional folks that are strains on our roads, on our schools, on our healthcare system, and, like it or not, our court system. The idea that all these folks are coming here and are not going to get traffic tickets or DWIs, whatever else, is illogical.”

The courts would be funded by the county, which would need to cover the costs of employing judges, prosecutors, bailiffs and clerks for each court, along with the physical space to house them. County officials have previously estimated that it costs about $1.7 million to run one court per year.

jasper.scherer@chron.com