Bail gets an overhaul in Texas

On the afternoon of Thanksgiving Day 2017, Texas Trooper Damon Allen pulled over a driver for a traffic violation. As Allen walked back to his patrol car, the driver, DaBrett Black, shot him multiple times, then drove away. Police conducted a five-hour manhunt to capture Black, but Allen died that day, leaving behind a wife and three children.

Black was out of jail on bail when he killed the trooper: Five months before, he had rammed his vehicle into a police deputy. Two years before that, he was convicted of assaulting a law enforcement officer. The magistrate judge who set Black’s $15,500 bail said he was unaware of the man’s criminal history.

On Sept. 13, Texas Gov. Greg Abbott signed the Damon Allen Act, a criminal justice reform package, in an attempt to prevent more deaths like Allen’s. The legislation mandates cash bonds for violent or sexual offenses, reforms magistrate training, and creates a statewide information system (including criminal history of defendants) for magistrates to consult when setting bail.

Recently, the issue of bail reform has found bipartisan support in the United States. Most of the concern around bail centers on how it may punish the poor more severely than someone rich who is suspected of the same crime. Many agree that low-risk defendants should not be jailed before their trials simply because they cannot afford bail. That argument has prompted reforms in Illinois, New York, New Jersey, California, and elsewhere.

But the Texas bail reform focuses on a different problem—violent offenders being released before trial when they should be detained. While the new law will likely keep Texans safer from dangerous criminals, reform advocates say it leaves cash bail in place with all its inconsistencies and inefficiencies. Democrats in the state Legislature argue the new law supports the bail bonds industry and hurts the poor by increasing reliance on cash bail.

Two years ago, Harris County—home to Houston—agreed to settle a yearslong federal lawsuit over its bail practices. The lawsuit said the county discriminated against the poor by requiring set amounts of cash bail for people charged with misdemeanors, regardless of their financial situations. The settlement caused judges to release more defendants without bail ahead of their trials. Most defendants are released automatically, but for those who pose safety concerns, a judge decides on detention at a hearing. In March, independent monitors hired to track results of the bail reform published a report showing the rate of misdemeanor crimes and reoffenses had decreased slightly.

But as the consent decree’s misdemeanor bail reform was unfolding, the number of accused felons released on bail and reoffending in Houston was rising. In April, Harris County District Attorney Kim Ogg said the number of people who commit crimes while out of jail on two to four bonds had quadrupled from 2016 to 2020. In August, after police arrested two men for killing an off-duty deputy, Ogg said, “It should surprise no one at this point in Harris County, Texas, that both individuals were already out on bond, one on multiple bonds.”

As violent crime increased last year across major American cities, crime in Houston jumped more than 40 percent. The governor declared the Damon Allen Act an emergency item for the Texas Legislature. But on May 30, Democrats walked out of the House chamber to stop an election reform bill from passing. The Damon Allen Act ultimately passed after the Legislature returned for two special sessions, with Republicans making compromises, including removing a risk assessment tool for judges and removing a restriction on charity funds paying bail for individuals accused or previously convicted of violent crimes.

The Texas Constitution gives defendants a right to bail, so during this legislative session Republicans introduced a constitutional amendment that would let magistrates decide whether to hold high-risk individuals without bail. That amendment did not pass. “Magistrates are now left trying to guess just how high is high enough for a bond on a defendant who poses a threat to their community,” wrote Brett Tolman and Nikki Pressley at the conservative Texas Public Policy Foundation.

Tolman and Pressley believe the Damon Allen Act is a good first step for bail reform and will provide important protection to Texas communities. But they say that the Texas bail system is broken because it is “primarily based on ability to pay rather than the individual’s risk of being a danger to others.”

“This system continuously puts Texans in danger, and it must change,” they wrote. “We must continue to strive for a system based on risk, not riches.”