Politics and Profit Motive Lead to Unreasonable Conditions of Bond in First Time DWI Cases


By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


The Texas Legislature in 1999 gave courts the general authority to impose “reasonable conditions” of pre-trial release. This authority was codified in Chapter 17 of the Texas Code of Criminal Procedure. Art. 17.40(a) and has been used by some courts to impose draconian “conditions” of bond in DWI cases on the dubious claim they are related “to the safety of the community.”


Unfortunately, some courts, with pressure from tough on crime advocacy groups who often endorse judges during election cycles, have added such burdensome conditions of bond as to amount to punishment prior to a finding of guilt, disregarding the fundamental principle of “innocent until proven guilty.”


The Texas Court of Criminal Appeals, in Ex parte Anderer, held that a court’s condition of bail will be upheld if it meets three criteria: 1) it must be reasonable; 3) it must be made to secure the presence of the defendant at trial; and 3) it must be related to the safety of an alleged victim or the community. At least one Court of Appeals, the Twelfth District in Burson v. State, held that the condition relating to safety of either victim or community does not necessarily need to relate to the other two criteria.


This authority to order conditions of release has been used to impose severe conditions in DWI cases, some of which, but not all, are listed below:

No driving while on bond;
Home curfew and electronic monitoring under Art. 17:43;
Home confinement, electronic monitoring and drug testing under Art. 17.44;
Installation of an ignition interlock (deep lung) device in any vehicle driven by the defendant under Art. 17.441;
No consumption of alcohol while on bond;
Attend AA meetings while on bond;
An In-Home alcohol monitor that requires a specimen of breath 3 times a day;
Pre-trial services meetings;
Random urinalysis
Travel restrictions; and/or
Employment restrictions

Complying with these bond conditions may require weekly or bi-weekly urinalysis, compelled attendance at Alcoholic Anonymous meetings, substance abuse counseling sessions, drug and alcohol evaluations, and filing a “no driving” affidavit.


The only caveat given by the Court of Criminal Appeals in Anderer is that a bail condition “may not impinge unreasonably upon rights guaranteed by the Constitution.” And, like many things we take for granted, driving is a privilege…not a right.  While the initial purpose of bail is to prevent punishment prior to conviction, as noted in Anderer, its overriding purpose is to secure a defendant’s presence in court as the appeals court pointed out in Ex parte Garcia. It is that chasm between the initial purpose and the overriding purpose of bail which permit courts to impose particularly harsh, and often unwarranted, conditions in DWI cases.  Even first time DWI cases.


It is particularly difficult to reverse a bail condition on appeal. The Court of Criminal Appeals in Ex parte Rubac held that a review of a pre-trial bail decision will be governed by the strict “abuse of discretion” rule. And Rubac further held that the defendant bears the burden to establish “abuse of discretion” relating to either the amount of bail or any specific condition.  Rubac does not, however, mean that courts of appeal will simply rubber-stamp trial court bail decisions. For example, the Court of Appeals, in Ex parte Anunobi, held that “the appellate court may not simply substitute its judgment for that of the trial court; however, an abuse of discretion review requires more than simply deciding whether the trial court acted arbitrarily or capriciously.”


This position was supported by the Court of Appeals, First District [Houston] in Cooley v. State.


The First District Court of Appeals, in Ex parte Ruiz, following the lead of Rubac, held that before the magistrate sets either the amount or any specific condition of bail, it should consider the following factors set forth in Art. 17.15:


1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression.
3. The nature of the offense and the circumstances under which it was committed are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be considered.


The Court of Appeals, in Ex parte Beard, held that an appellate court must measure a trial court’s bail decision against the “relevant criteria” by which the decision was made. In other words, does a DWI bail condition imposed for the “safety of the community” trump the requirement that bail not be an “instrument of oppression?” In deciding what, if any, condition to impose in a DWI case, the trial court should also consider the following factors listed in Rubac: work record, family ties, residency, criminal record, conformity with previous bond conditions, and aggravating circumstances involved in the offense.


These factors notwithstanding, courts have upheld decisions by trial judges to impose conditions in some DWI cases which are contrary to the intent of the law. For example, the First District Court of Appeals in Houston, in Ex parte Sells, 2000 Texas App. LEXIS 132, upheld a Harris County judge who imposed the interlock device in every DWI case when the alcohol level exceeded 0.20. Art. 17.441, which authorizes the use of the interlock device, was intended to apply to “repeat” DWI offenders, but since the statute did not specifically bar its use in “other circumstances,” it was not “unreasonable” to make it a condition in first-offense (misdemeanor) DWI. The Ex parte Sells court added:


“Appellant contends installation of the device and the loss of his driver’s license were punishment, thus invoking the federal and state protections against double jeopardy; he asks this Court to bar his DWI prosecution. The record reveals that appellant’s driving license was neither revoked or suspended; rather, he was issued a temporary license that restricted him to driving a car equipped with an interlock device.



“The revocation of licenses and privileges has traditionally not found to be punitive in nature … Driving is a privilege, not a right. The [courts have] held that a complete loss of driving privileges is not punishment. The requirement of an interlock device, a less severe infringement on the privilege of driving, does not constitute punishment. Therefore, we conclude that the restriction on appellant’s driving license also does not constitute punishment.”


It should be noted that most Harris County misdemeanor courts in cases with a first time DWI are requiring Interlock or In-Home monitors for breath test cases over .15, a DWI with an accident, a total refusal case with no breath or blood test, or a DWI with a major accident.  Other courts have been known to impose interlock devices in cases where the defendant refused to perform Standardized Field Sobriety Tests, refused to provide a breath sample, and have not been ordered to provide a blood sample.  In other words, these courts are requiring additional conditions of bond where the only “proof” of vehicle operation while intoxicated is a cop’s say-so.  While appellate courts say they will not “rubber stamp” trial court bail decisions, we think this is just a public “thumping of the chest,” proclaiming they have more “power” than local judges. But at the end of the day, and probably for the same political considerations as the trial courts, the appeal courts will more often than not uphold trial court bail decisions, even if they stretch both the letter and intent of the law as in the Sells decision.


Most reasonable people would automatically believe that severe bail conditions that impose a limitation on an individual’s liberty and incur considerable expense, regardless of the offense, are contrary to the “presumption of innocence.” But this point of view was rejected by the U.S. Supreme Court in Bell v. Wolfish, a case tangentially related to bail conditions, which held that the “presumption of innocence” is a doctrine concerning the burden of proof at a criminal trial and, therefore, is not applicable in a determination of the rights of a pre-trial detainee.


In practical effect, magistrates, county court judges, and district court judges have virtually unlimited authority to impose unusually onerous conditions in DWI cases. The problem inherent in this kind of authority is that it will, and is, too often abused.


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization