On August 11, 2016, the Fourteenth Court of Appeal, based in Houston, issued an opinion in Ex parte Donaldson[1] that set out the legal rules governing excessive bail.


Texas Constitution Prohibits Excessive Bail


The right to be free from excessive bail in Texas is protected in Article I, § 11 of the state’s constitution.


The amount of bail in Texas is within the discretion of the trial court subject to the following five rules:


  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 the victim of the alleged offense and the community shall be considered.


These five rules are set out in Article 17.15 of the Texas Code of Criminal Procedure.


In 1981, the Texas Court of Criminal Appeals added seven additional factors the trial court may weigh in determining the amount of bail.


  1. The accused’s work record;
  2. The accused’s family and community ties;
  3. The accused’s length of residency;
  4. The accused’s prior criminal record;
  5. The accused’s conformity with previous bail conditions;
  6. The existence of other outstanding bail, if any; and
  7. Aggravating circumstances alleged to have been involved in the charged offense.


Excessive bail claims are generally raised in pretrial writs of habeas corpus.


Burden on Defendant


The defendant bears the burden of presenting facts in these proceedings that would entitle him to relief. This burden demands that the defendant establish a sufficient record upon which a reversal could be made by a reviewing court. Texas courts of appeals will not reverse a trial court’s bail determination unless these two evidentiary and procedural requisites are met.


Primary Factors for Reasonableness of Bail


When assessing the reasonableness of bail, the Court of Criminal Appeals has instructed the lower appeal courts that the two primary factors to consider are 1) the punishment that can be imposed and 2) the nature of the offense.


Further, the Court of Criminal Appeals has instructed that when an offense is serious and involves aggravating factors that may result in a lengthy period of incarceration, bail must be set “sufficiently high” to ensure the defendant’s presence at trial.


To further insure the defendant’s presence at trial, Article 17.40 of the Texas Code of Criminal Procedure permits a magistrate to impose any reasonable bond condition related to the safety of the victim of the alleged offense or the safety of community.


For example, Article 17.44 of the Code of Criminal Procedure gives the magistrate the statutory authority to impose “home confinement and electronic monitoring” as a condition of bail.


Article 17.032 of the Code of Criminal Procedures also authorizes a magistrate to impose other conditions of bail, such as:


  • Non-contact with victim
  • Communication restrictions
  • GPS monitoring
  • Travel limitations
  • Curfew
  • Drug testing
  • Motor vehicle ignition interlock devices
  • Submission of specimen for DNA sampling
  • Counseling, education and instruction on AIDS and HIV awareness


One Purpose of Bail is to Prevent Punishment Before Conviction


The constitutional rule governing conditions, however, is that they must not reasonably impinge on a defendant’s constitutional rights. This rule exists, the Court of Criminal Appeals has explained, because trial courts must be mindful that one of the purposes of bail pending trial is to prevent the infliction of punishment before conviction. The state’s high court has set forth three criteria for determining the appropriateness of a bail condition:


  • It must be reasonable;
  • It must be to secure the defendant’s presence at trial; and
  • It must be related to the safety of the alleged victim or the community.


The primary statutory authority governing bail bonds can be found in Chapter 17 of the Code of Criminal Procedure and Chapter 1704 of the Occupations Code.


Family Violence


In family violence cases, one important rule can be found in Article 17.291 of the Criminal Code of Procedure: a magistrate may hold a person for a period of no more than four hours—a period that may be extended to 48 hours under certain circumstances—if the person has been arrested without a warrant in order to prevent family violence when there is probable cause that family violence may continue.


Personal Bonds


Personal bonds are authorized by Article 17.04 of the Code of Criminal Procedure. These bonds demand a number of statutory prerequisites:


  • Defendant’s name,
  • Address,
  • Place of employment,
  • Specific identification information, and
  • A sworn oath to appear before a magistrate or court.


Mental Health Issues


A personal bond binds the defendant to pay the full amount of the bail should he or she fail to appear in court when so required.  The Texas legislature has recognized that pretrial jail confinement is not suitable for individuals suffering from mental health issues. Lawmakers enacted Article 17.032 of the Code of Criminal Procedure that describes specific conditions requiring the release on personal bonds of certain individuals with a mental health issue. The statute, in part, provides:


“A magistrate shall release a defendant on personal bond unless good cause is shown otherwise if the: (1) defendant is not charged with or has not been previously convicted of a violent offense; (2) defendant is examined by the local mental health or mental retardation authority or another mental health expert under Article 16.22 of [the Code of Criminal Procedure]; (3) applicable expert, in a written assessment submitted to the magistrate under Article 16.22: (A) concludes that the defendant has a mental illness or is a person with mental retardation and is nonetheless competent to stand trial; and (B) recommends mental health treatment for the defendant; and (4) magistrate determines, in consultation with the local mental health or mental retardation authority, that community-based mental health or mental retardation services for the defendant are available through the Texas Department of Mental Health and Mental Retardation under Section 534.053, Health and Safety Code, or through another mental health or mental retardation services provider.”


Mental Health Regularly Ignored in Harris County


This rule is frequently ignored by Harris County Criminal Law Hearing Officers who are authorized to set bail under the county’s inflexible bail schedule. This is particularly disturbing because roughly 30 percent of the Harris County Jail population suffers from documented mental health issues—many of whom could, and should, be released on a personal bond as authorized by statute.


These legal rules are important because within them is significant room for bail reform in the State of Texas where excessive bail and/or unreasonable conditions are prevalent. Bail in this state simply cannot continue to be an instrument of pretrial punishment that undermines the constitutional presumption of innocence. Reasonable bail is an essential component of a fair criminal justice system. That component is lacking in many counties in the State of Texas, and reform is desperately needed.


[1] 2016 Tex. App. LEXIS 8723 (Tex. App.—Houston [14th Dist.] Aug. 11, 2016.