SB 1338

85(R) - 2017
Senate Criminal Justice
Senate Criminal Justice

Vote Recommendation

  • Neutral
  • Neutral
  • Neutral
  • Positive
  • Positive


John Whitmire

Bill Caption

Relating to the pretrial release of a defendant.

Fiscal Notes

Estimated Two-year Net Impact to General Revenue Related Funds for SB1338, Committee Report 1st House, Substituted: an impact of $0 through the biennium ending August 31, 2019.

The bill would make no appropriation but could provide the legal basis for an appropriation of funds to implement the provisions of the bill. 

Bill Analysis

This bill would require the judges of county courts, statutory county courts, and district courts that try criminal cases to adopt an instrument to be used in conducting a pretrial risk assessment for defendants charged with an offense in that county. The instrument would have to be objective, validated, and standardized, and would analyze empirical data and risk factors to determine the risk of a defendant failing to appear in court as required, and the safety of the community or the victim if the defendant were to be released. A magistrate would be required to consider the results of the assessment before making a bail decision for an offense punishable as a Class B misdemeanor or higher. In addition, the Office of Court Administration of the Texas Judicial System would develop an automated pretrial risk assessment system, and make it available at no cost to a county municipality or magistrate.

If this bill passes, after a magistrate has considered the result of the assessment, but without unnecessary delay and, not later than 48 hours after a defendant has been arrested the defendant would be either released on personal bond or monetary bond, with or without conditions. The magistrate would be required to impose the least restrictive conditions and the minimum amount necessary to reasonable ensure the defendant’s appearance in court. In addition, magistrates would be prohibited from requiring a defendant to provide a monetary bail bond for the sole purpose of preventing the defendant’s release on bail.

This bill also specifies that when a defendant appears in response to a citation, they may not be temporarily detained for the purpose of conducting a risk assessment. In addition, if a person was released on personal bond and then arrested for failure to appear, a magistrate would be required to release a person on personal bond if the defendant shows good cause for the failure to appear.

Under current law, a person may not be rearrested or required to give a bond in a higher amount because they waived right to counsel or requested assistance of counsel. If this bill passes, they may not be rearrested or ordered to pay a higher bond if the accused is formally charged with the same offense for which they were initially arrested, unless the judge or magistrate provides notice to each party to the action, and provides an opportunity for a hearing.  

This bill would require a magistrate authorizing a defendant’s release to provide written notice to the defendant that identifies the conditions of release and the penalties for violating those conditions.

Additionally, this bill would authorize a magistrate to require a defendant submit to home curfew and electronic monitoring as a condition of release. It would authorize a magistrate to reduce or waive a cost for electronic or drug monitoring if the defendant demonstrates inability to pay. Finally, this bill would authorize funds for any fiscal year to be used to provide continuing legal education regarding bail practices to any master, magistrate, referee, or associate judge.  

Vote Recommendation Notes

While many of the provisions of this bill are procedural, SB 1338 supports individual liberty and limited government by prohibiting unnecessary bond assessment thereby reducing the burden of adjudication of low level offenses. A key component of a limited government is a justice system that ensures that punishment is proportional to the offense. The process itself can be part of the punishment if the cost to go through the process is more onerous than it must be - this bill gets to the heart of that issue by limiting bond requirements. For these reasons we support SB 1338.

Organizations Supporting

American Civil Liberties Union of Texas
Texas Appleseed
Texas Conference of Urban Counties
Texas Public Policy Foundation