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A BILL TO BE ENTITLED
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AN ACT
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relating to bail and to judicial education regarding bail
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practices.
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
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SECTION 1. Chapter 17, Code of Criminal Procedure, is
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amended by adding Articles 17.027, 17.028, 17.029, and 17.034 to
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read as follows:
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Art. 17.027. PRETRIAL RISK ASSESSMENT. (a) The judges of
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the county courts, statutory county courts, and district courts
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trying criminal cases in each county shall adopt an instrument to be
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used in conducting a pretrial risk assessment of a defendant
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charged with an offense in that county. The instrument adopted must
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be the automated pretrial risk assessment system developed under
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Section 72.032, Government Code, or another instrument that is:
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(1) objective, validated for its intended use, and
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standardized; and
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(2) based on an analysis of empirical data and risk
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factors relevant to:
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(A) the risk of a defendant failing to appear in
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court as required; and
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(B) the safety of the community or the victim of
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the alleged offense if the defendant is released.
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(b) A magistrate considering the release on bail of a
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defendant charged with an offense punishable as a Class B
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misdemeanor or any higher category of offense shall order that:
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(1) the personal bond office for the county in which |
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the defendant is being detained, or other suitably trained person,
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use the instrument adopted under Subsection (a) to conduct a
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pretrial risk assessment with respect to the defendant; and
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(2) the results of the assessment be provided to the
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magistrate without unnecessary delay to ensure that the magistrate
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is able to make a bail decision under Article 17.028 within the
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period required by Subsection (a) of that article.
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(c) Notwithstanding Subsection (b), a magistrate may
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personally conduct a pretrial risk assessment using an instrument
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adopted under Subsection (a).
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(d) The magistrate must consider the results of the pretrial
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risk assessment before making a bail decision under Article 17.028.
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Art. 17.028. BAIL DECISION. (a) Without unnecessary delay
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but not later than 48 hours after a defendant is arrested, a
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magistrate shall order, after considering all circumstances and the
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results of the pretrial risk assessment conducted under Article
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17.027, that, unless otherwise prohibited by law, the defendant be
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released on:
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(1) personal bond or monetary bail bond without
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conditions; or
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(2) personal bond or monetary bail bond with any
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condition the magistrate determines necessary.
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(b) A magistrate may release a defendant arrested pursuant
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to a warrant that was issued in a county other than the county in
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which the defendant was arrested if a bail decision has not
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previously been made by another magistrate and if the magistrate
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would have had jurisdiction over the matter had the warrant been
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issued in the county of arrest. If applicable, the magistrate shall
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forward a copy of the bail order to a personal bond office in the
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county in which the arrest warrant was issued.
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(c) In making a bail decision under this article, the
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magistrate shall impose, as applicable, the least restrictive
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conditions and the minimum amount of bail, whether personal bond or
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monetary bail bond, necessary to reasonably ensure the defendant's
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appearance in court as required and the safety of the community and
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the victim of the alleged offense.
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(d) A magistrate may not require a defendant to provide a
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monetary bail bond for the sole purpose of preventing the
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defendant's release on bail.
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(e) If the magistrate determines that a defendant is not
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indigent and is able to pay any costs related to a condition of the
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defendant's bail, the magistrate shall assess the costs as court
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costs or order the costs to be paid directly by the defendant as a
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condition of release.
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(f) A judge may not adopt a bail schedule or enter a standing
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order related to bail that:
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(1) is inconsistent with this article; or
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(2) authorizes a magistrate to make a bail decision
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for a defendant without considering the results of the defendant's
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pretrial risk assessment.
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(g) This article does not prohibit a sheriff or other peace
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officer, or a jailer licensed under Chapter 1701, Occupations Code,
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from accepting bail under Article 17.20 or 17.22 before a pretrial
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risk assessment has been conducted with respect to the defendant or
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before a bail decision has been made by a magistrate under this
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article.
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Art. 17.029. DEFENDANT APPEARING IN RESPONSE TO CITATION.
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A defendant who appears before a magistrate as ordered by citation
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may not be temporarily detained for purposes of conducting a
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pretrial risk assessment or for a magistrate to issue a bail
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decision. The magistrate, after performing the duties imposed by
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Article 15.17, shall release the defendant on personal bond, unless
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the defendant is lawfully detained on another matter.
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Art. 17.034. RELEASE OF DEFENDANT ARRESTED FOR FAILURE TO
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APPEAR. A magistrate shall release on personal bond a defendant who
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was released on personal bond and subsequently arrested on a
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warrant issued for the defendant's failure to appear as ordered if
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the defendant shows good cause for the failure to appear. If good
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cause is not shown, a magistrate may release the defendant in
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accordance with Article 17.028.
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SECTION 2. Section 4, Article 17.09, Code of Criminal
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Procedure, is amended to read as follows:
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Sec. 4. (a) Notwithstanding any other provision of this
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article, the judge or magistrate in whose court a criminal action is
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pending may not order the accused to be rearrested or require the
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accused to give another bond in a higher amount because the accused:
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(1) withdraws a waiver of the right to counsel; [or]
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(2) requests the assistance of counsel, appointed or
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retained; or
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(3) is formally charged with the same offense for
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which the accused was initially arrested and bond was given, except
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as provided by Subsection (b).
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(b) The judge or magistrate may order the accused to be
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rearrested or require the accused to give another bond in a higher
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amount based on the circumstance described by Subsection (a)(3)
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only after providing notice to each party to the action and, on
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request of any party, an opportunity for a hearing.
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SECTION 3. Article 17.20, Code of Criminal Procedure, is
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amended to read as follows:
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Art. 17.20. BAIL IN MISDEMEANOR. In cases of misdemeanor
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when the defendant is in the custody of the officer or jailer, the
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sheriff or other peace officer[,] or a jailer licensed under
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Chapter 1701, Occupations Code, may, whether during the term of the
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court or in vacation, [where the officer has a defendant in
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custody,] take [of] the bail of the defendant as the officer or
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jailer may consider reasonable [a bail bond].
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SECTION 4. Article 17.21, Code of Criminal Procedure, is
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amended to read as follows:
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Art. 17.21. BAIL IN FELONY. (a) In cases of felony, when
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the defendant [accused] is in the custody of a [the] sheriff or
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other peace officer or a jailer licensed under Chapter 1701,
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Occupations Code, and the court before which the prosecution is
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pending is in session in the county where the defendant [accused] is
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in custody, the court shall make a bail decision in accordance with
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Article 17.028. After approving the bail, the [fix the amount of
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bail, if it is a bailable case and determine if the accused is
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eligible for a personal bond; and the sheriff or other peace]
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officer, unless it be the police of a city, or [a] jailer may
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[licensed under Chapter 1701, Occupations Code, is authorized to]
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take the [a] bail [bond] of the defendant [accused in the amount] as
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ordered [fixed] by the court under Article 17.028. On taking the
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bail, the[, to be approved by such] officer or jailer shall [taking
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the same, and will thereupon] discharge the defendant [accused]
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from custody.
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(b) The defendant and the defendant's sureties are not
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required to appear in court.
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SECTION 5. Article 17.22, Code of Criminal Procedure, is
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amended to read as follows:
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Art. 17.22. MAY TAKE BAIL IN FELONY. In a felony case, if
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the court before which the case [same] is pending is not in session
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in the county where the defendant is in custody, the sheriff or
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other peace officer[,] or a jailer licensed under Chapter 1701,
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Occupations Code, who has the defendant in custody may take the
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defendant's bail [bond in such amount] as ordered [may have been
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fixed] by the court or magistrate under Article 17.028[,] or, if
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bail [no amount] has not been ordered [fixed], [then in such amount]
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as the [such] officer or jailer may consider reasonable.
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SECTION 6. Chapter 17, Code of Criminal Procedure, is
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amended by adding Article 17.251 to read as follows:
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Art. 17.251. NOTIFICATION OF CONDITIONS OF RELEASE. (a) A
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magistrate authorizing a defendant's release on bail shall, if
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applicable, provide written notice to the defendant of:
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(1) the conditions of the defendant's release; and
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(2) the penalties of violating a condition of release,
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including the defendant's arrest.
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(b) The notice under Subsection (a) must be provided in a
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manner that is sufficiently clear and specific to serve as a guide
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for the defendant's conduct while released.
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SECTION 7. Section 4, Article 17.42, Code of Criminal
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Procedure, is amended by amending Subsection (a) and adding
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Subsection (a-1) to read as follows:
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(a) If a court releases a defendant [an accused] on personal
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bond on the recommendation of a personal bond office, the court
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shall assess a personal bond fee of $20 or three percent of the
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amount of the bail fixed for the defendant [accused], whichever is
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greater. The court may waive the fee or assess a lesser fee if the
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court determines that the defendant is indigent or demonstrates an
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inability to pay or if other good cause is shown. The court may
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require that any fee assessed under this subsection be paid:
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(1) before the defendant is released;
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(2) as a condition of release; or
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(3) as court costs.
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(a-1) Notwithstanding Subsection (a), the court or jailer
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may not refuse to release a defendant based solely on the
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defendant's failure to pay a personal bond fee if the defendant is
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indigent or demonstrates an inability to pay the fee.
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SECTION 8. Article 17.43(a), Code of Criminal Procedure, is
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amended to read as follows:
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(a) A magistrate may require as a condition of release [on
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personal bond] that the defendant submit to home curfew and
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electronic monitoring under the supervision of an agency designated
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by the magistrate.
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SECTION 9. Article 17.44(e), Code of Criminal Procedure, is
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amended to read as follows:
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(e) The cost of electronic monitoring or testing for
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controlled substances under this article may be assessed as court
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costs or ordered paid directly by the defendant as a condition of
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bond. A magistrate may reduce or waive a cost described by this
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subsection if the magistrate determines that the defendant is
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indigent or demonstrates an inability to pay.
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SECTION 10. Section 54.737(c), Government Code, is amended
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to read as follows:
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(c) The rules must provide that a criminal law magistrate
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judge may only release a defendant under Article 17.028(b)
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[17.031], Code of Criminal Procedure, under guidelines established
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by the council of judges.
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SECTION 11. Section 56.003, Government Code, is amended by
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adding Subsection (b-1) to read as follows:
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(b-1) In addition to the uses described by Subsection (b),
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funds appropriated for any fiscal year may be used to provide
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continuing legal education regarding bail practices to any master,
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magistrate, referee, or associate judge appointed pursuant to
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Chapter 54 or 54A as required by the court of criminal appeals under
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Section 74.025.
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SECTION 12. Subchapter C, Chapter 72, Government Code, is
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amended by adding Section 72.032 to read as follows:
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Sec. 72.032. AUTOMATED PRETRIAL RISK ASSESSMENT SYSTEM;
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PRETRIAL RISK ASSESSMENT INSTRUMENTS. For purposes of Article
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17.027, Code of Criminal Procedure, the office shall develop an
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automated pretrial risk assessment system and make the system
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available to judges and other magistrates in this state at no cost
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to a county, municipality, or magistrate. The office shall also
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make available nonautomated pretrial risk assessment instruments
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to judges and other magistrates in this state at no cost to a
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county, municipality, or magistrate.
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SECTION 13. The following provisions of the Code of
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Criminal Procedure are repealed:
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(1) Article 17.03(g);
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(2) Article 17.031; and
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(3) Sections 5(c) and 6(c), Article 17.42.
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SECTION 14. Not later than January 1, 2019, the Office of
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Court Administration of the Texas Judicial System shall develop the
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automated pretrial risk assessment system and make available
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automated or nonautomated pretrial risk assessment instruments as
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required by Section 72.032, Government Code, as added by this Act.
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SECTION 15. Not later than January 1, 2019, the judges of
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the county courts, statutory county courts, and district courts
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trying criminal cases in each county shall adopt a pretrial risk
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assessment instrument as required by Article 17.027, Code of
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Criminal Procedure, as added by this Act.
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SECTION 16. The change in law made by this Act applies only
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to a person who is arrested on or after January 1, 2019. A person
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arrested before January 1, 2019, is governed by the law in effect on
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the date the person was arrested, and the former law is continued in
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effect for that purpose.
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SECTION 17. This Act takes effect September 1, 2017.
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