Bail in the age of COVID-19

By Joshua A. Reiss
Division Chief, Harris County District Attorney’s Office

We live in interesting times. It is safe to say that at the beginning of 2020, none of us would have predicted that a global pandemic would have upended our lives. From a criminal justice perspective, among the topics that COVID-19 has laid bare are some very real differences among prosecutors, the defense bar, and certain judges about the role and purpose of bail.

            This article will explore critical aspects of Texas bail law in the context of common defense arguments (with recommended rebuttals) and discuss at some length a recent Harris County COVID-19 bail case with implications for criminal law practitioners.

Important aspects of Texas bail law

While we all intrinsically have an understanding of bail, how exactly does Texas law define it, and what is its purpose? Bail is the security given by the accused that he will appear and answer before the proper court the accusation brought against him. It includes a bail bond or a personal bond.[1]

            Defense arguments for bail lower than that sought by the State generally fall into one of the following categories:
            1)         the defendant is entitled to bail;
            2)         the defendant is entitled to bail he can afford; and
            3)         a defendant who can make bail is not less of a threat than one who cannot.
            A fourth argument, that a defendant is entitled to bail in light of the threat of COVID-19 in the jail, is a more recent development. I will address each of these arguments in turn.

“My client is entitled to bail.”

The argument that all defendants are entitled to bail arises from Texas Constitution Art. 1 §11: “All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.” The Court of Criminal Appeals recognizes: “The general rule favors the allowance of bail. Thus, presumptions are not to be indulged against the applicant, and the power to deny or require bail will not be used as an instrument of oppression.”[2]

            However, as is common with general rules, there are exceptions. Defendants charged with capital murder,[3] true habitual criminals, individuals with a prior felony conviction now charged with a felony involving a deadly weapon, and violations of certain court orders or conditions of bond in a family violence case are some of the exceptions when “no bond” is permitted.[4]

“My client is entitled to bail he can afford.”

The wealth-based argument against bail is prevalent, and it carries many underlying concerns about the justice system generally.[5] Prosecutors presenting bail arguments need to be cognizant of this argument and circle back to what is permitted under Texas law. In all instances, Code of Criminal Procedure Art. 17.15 is the proverbial home base. It reads:

The amount of bail to be required in any case is to be regulated by the court, judge, magistrate, or officer taking the bail; they are to be governed in the exercise of this discretion by the Constitution and by the following 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 a victim of the alleged offense and the community shall be considered.

Of particular note, the mandatory “shall” appears in the context of “sufficiently high” bail to give “reasonable assurance” that the defendant will appear in court while simultaneously taking into account “the future safety of a victim …  and the community.”

            Simply put, the ability to make bail is to be taken into account, but it is not dispositive. Contemplate this scenario: A defendant is charged with a sexually violent offense and is able to afford only $250 bail. If the defendant were to be entitled to bail he can afford, then the magistrate would be required to set bail at $250. This is nonsensical. As the 14th Court of Appeals recognizes, “To show that he is unable to make bail, a defendant generally must show that his funds and his family’s funds have been exhausted. The accused’s ability to make bond is merely one factor to be considered in determining the appropriate amount of bond.”[6]

“A defendant who can make bail is not less of a threat than one who cannot.”

The notion that wealthier defendants are no less a potential danger to the community than those less affluent is intertwined with the wealth-based critique that a defendant is entitled to bail he can afford. While counties should ensure that their systems of setting bail are applied even-handedly to all defendants, this argument generally is outside the confines of the Art. 17.15 requirement that the safety of the victim and the community “shall be considered.” The legislature can change Art. 17.15 to remove this public safety consideration if it would like; the judiciary cannot.

“My client should not be subject to pre-trial detention due to COVID-19.”

This is the argument of the moment. It is being used to advance the previously discussed wealth-based and entitlement arguments. In responding to this argument, prosecutors can steer the discussion back to controlling law.

            Art. 17.15 lacks a specific catch-all to permit consideration of public health. In addition, nothing in the Court of Criminal Appeals’ First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-007, directs a court to circumvent Art. 17.15.

            Texas caselaw has developed a variety of permissible, individualized bail considerations. These considerations work in concert with Art. 17.15:
            1)         the defendant’s work record;
            2)         the defendant’s family and community ties;
            3)         the defendant’s length of residency;
            4)         the defendant’s prior criminal record;
            5)         the defendant’s conformity with previous bond conditions;
            6)         the existence of other outstanding bonds;
            7)         aggravating circumstances alleged to have been involved in the charged offense; and
            8)         whether the defendant is a U.S. citizen.[7]
Public health is notably absent from this list.

            Read together, Texas law is (at the moment) unmistakable: A generalized concern about COVID-19 is not permissible in setting bail. However, a properly framed individualized argument might call for a different approach. A defendant facing a nonviolent charge with multiple high-risk factors that place him at greater risk of contracting COVID-19 (e.g., over 60 years old, diabetic, immunocompromised, and with malignant hypertension) is likely to get a sympathetic ear at a bail hearing.

            Though in the context of release from federal pretrial detention, U.S. Magistrate Judge Steve Kim eloquently identified the problems created when judges stray from normal decision-making about bail and the law because of COVID-19. Prosecutors are encouraged to consider his argument:

Judges cannot responsibly—much less legally—make what would essentially be momentous public health decisions for prisons under the pretense of individual pretrial release determinations. Defendants’ unbounded argument for pretrial release because of the COVID-19 pandemic, if accepted and extended to its logical conclusion, would mean the release—en masse—of all federal pretrial detainees. So it is up to Congress, not the courts, to legislate in the current crisis a comprehensive solution for the federal prison system at large.[8]

The Timothy Singleton case

All of these arguments over bail and COVID-19 converged in the Harris County case State v. Singleton. The result is the (re)birth of a form of review of insufficient bail in dangerous cases.

            Singleton was arrested for aggravated assault with a deadly weapon. He allegedly threatened a senior citizen with a firearm over a debt. Prior to this event, Singleton was a true habitual offender with convictions for robbery, retaliation, assault of a family member by strangulation, and credit card abuse.

            The hearing officer found probable cause and then set Singleton’s bail at $500 without any no-contact or curfew conditions. By contrast, the Harris County District Court felony bond schedule called for $50,000 bail.

            The hearing officer’s comments, contrary to existing state statutory and case law and the newly-imposed mandates of GA-13, Governor Greg Abbott’s executive order intended to restrict the release of violent offenders during the pandemic,  reflect that an extra-judicial, generalized concern about COVID-19 improperly controlled her decision-making:

It’s not for protection of the community to say that I cannot give a personal bond when the person who can pay gets out and the person who can’t pay stays in. So then it’s not about safety. It’s about who can pay. … When we have, as mentioned, a pandemic going on in which we have had someone test positive in the Harris County Jail, it becomes very problematic to arbitrarily say that anyone who has a prior conviction for violence or a prior conviction for threat of violence, or is currently charged with violence or threat of violence can’t get a personal bond. So you are just trying to fill the jail up which is the exact opposite of what should be happening right now.

Singleton paid a fee to the bondsman, made his bail, and was discharged from custody. Two weeks later, he was accused of assaulting his ex-girlfriend and her grandmother.

            In the interests of public safety, the State sought to raise Singleton’s bail under Art. 17.09(3) to $50,000 when Singleton made his initial appearance in the 230th District Court.[9] The State urged the judge that Singleton’s $500 bail was insufficient given the nature of the offense, prior violent criminal offenses, and his history of failure to appear for court appearances, including failure to appear for a jury trial. However, that judge kept the $500 bail in place.

            Having exhausted the usual remedies, we got creative. Based on a suggestion by attorneys at the Texas Attorney General’s Office, we examined Code of Criminal Procedure Art. 16.16:

Where it is made to appear by affidavit to a judge of the Court of Criminal Appeals, a justice of a court of appeals, or to a judge of the district or county court, that the bail taken in any case is insufficient in amount, or that the sureties are not good for the amount, or that the bond is for any reason defective or insufficient, such judge shall issue a warrant of arrest, and require of the defendant sufficient bond and security, according to the nature of the case.

            On its face, the clear language of Art. 16.16 offered some hope. However, Art. 16.16 is unusual. It is a carryover from the original Code of Criminal Procedure and is outside Chapter 17, which details the procedural requirements of bail. In addition, it has been infrequently litigated. The most recent case on point is nearly a century old.[10]

            Encouraged by Harris County District Attorney Kim Ogg, we decided to give it a go. Along with the required affidavit detailing the procedural and factual background of Singleton’s case, we filed a motion arguing that jurisprudence and practitioner commentary recognizes Art. 16.16 as a pre-indictment vehicle to reopen bail proceedings in special circumstances.[11] Singleton’s case was a special circumstance. He was a violent, habitual felon charged with a crime involving a firearm, the victim was a senior citizen, the defendant failed to appear in court on other occasions, his bail was 99 percent lower than called for by the Harris County District Court’s felony bond schedule, and a generalized concern about COVID-19 factored into the insufficient bail determination. The “nature of the case” required $50,000 bail.

            The Court of Criminal Appeals agreed. It issued an arrest warrant (attached below). Some things of note about this warrant. First, the Court of Criminal Appeals never issued an opinion, but the warrant makes clear that it is issued “Pursuant to Article 16.16 of the Texas Code of Criminal Procedure.” Therefore, it is safe to argue that the Court of Criminal Appeals recognizes Art. 16.16 as a pre-indictment vehicle to reopen bail proceedings in special circumstances. Second, Judge Richardson signed the arrest warrant for an en banc court; this was a unanimous action. Third, the Court of Criminal Appeals raised Singleton’s bail to $100,000 when we asked for $50,000. The message was unmistakable; the “nature of the case” coupled with the decision-making of the magistrate and judge disturbed the Court of Criminal Appeals. (A downloadable copy of the State’s renewed emergency motion is at www.tdcaa.com/emergency-motion-to-increase -bail-ccp-art-16-16.)

Framing a bail argument

COVID-19 does not appear to be leaving us soon. So what are some best practices to deal with this reality as it affects bail? Here are some thoughts.

            First, do not request “high” bail. Optics matter. Articles 16.16 and 17.09(3) refer to “sufficient” bail. Track the statutes with your wording by asking for “sufficient” bail given the “nature of the case.”

            Second, always use Art. 17.15 and established caselaw to structure a bail sufficiency argument. Things to detail include: violence of the offense, a defendant’s prior failures to appear or bond forfeitures, his criminal record, age of the complainant, a defendant’s requested deviation from the bond schedule, and gang affiliation. Remember there are two “shall(s)” in Art. 17.15: The court shall consider risk of flight and danger to the community.

            Third, when a defense attorney asks to approach the bench to request lower bail, politely reply that you want a formal hearing based on a motion. A record here is critical, and the hearing gives an opportunity for the court to hear from any victims. Do not just approach the bench with the defense attorney as I did far too often as a junior prosecutor.

            Fourth, do not be afraid to push back on the notion that COVID-19 creates a new bail dynamic that necessitates pre-trial release considerations outside the Code of Criminal Procedure and caselaw for all cases. As I’ve shown, it is not a universal “get out of jail free” card for all defendants.

            Fifth, be mindful that Art. 16.16 exists as a remedy in a special circumstance. But be clear-sighted. The appropriate case will most likely involve a violent crime, bail set far below a bond schedule, and a record that extra-judicial considerations entered into the bail determination.

Endnotes

[1]  Tex. Code Crim. Proc. Art. 17.01.

[2]  Ex parte Davis, 574 S.W.2d 166, 168 (Tex. Crim. App. 1978).

[3]  Tex. Const. Art. 1 §11 (“unless for capital offenses, when the proof is evident”).

[4]  Tex. Const. Art. 1 §11 (a)–(c); Tex. Code Crim. Proc. Arts. 17.152-3. When seeking to hold a defendant at “no bond,” prosecutors must be mindful of the differing pleading and burden of proof requirements of the exception at issue.

[5]  See e.g., O’Donnell v. Harris County, 892 F.3d 147 (5th Cir. 2020); Cynthia E. Jones, “Accused and Unconvicted: Fleeing From Wealth Based Pretrial Detention,” 82 Alb. L. Rev. 1063 (2018-2019).

[6]  Ex parte Castellano, 420 S.W.3d 878, 883 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (emphasis added); see also Richardson v. State, 181 S.W.3d 756, 760 (Tex. App.—Waco 2005, no pet.) (considering funds of the appellant’s father and brother).

[7]  Ex parte Melartin, 464 S.W.3D 789, 792 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

[8]  United States v. Joel Antonio Villegas, No. 2:19-cr-568-AB, 2020 WL 1649520, *3 (C.D. Cal. April 3, 2020) (order denying application to reconsider detention).

[9]  “Provided that whenever, during the course of the action, the judge or magistrate in whose court such action is pending finds that the bond is defective, excessive, or <insufficient in amount,> or that the sureties, if any, are not acceptable, or <for any other good and sufficient cause,> such judge or magistrate may, either in term-time or in vacation, order the accused to be rearrested, and require the accused to give another bond in such amount as the judge or magistrate may deem proper. When such bond is so given and approved, the defendant shall be released from custody.” Tex. Code Crim. Proc. Art. 17.09 §3 (emphasis added).

[10]  Shipp v. State, 21 S.W. 2d 297 (Tex. Crim. App. 1929) (per curiam) (holding that a bail increase was appropriate after the district attorney filed an affidavit arguing that bond was insufficient under facts of the offense); but see Jenkins v. State, 77 S.W. 224 (Tex. Crim. App. 1903) (“The article in question is found in the chapter on procedure in preliminary or examining trials, and, in our opinion, is applicable alone to such trials, and does not apply after indictment”).

[11]  See Ex parte Selfin, 618 S.W.2d 766, 768 (Tex. Crim. App. 1981) (“There is no indication in the record that the State moved for a new bond after Williams’ bond was reduced … or that affidavits to reopen the bond proceedings were filed with the court pursuant to Arts. 16.16 or 23.11); 29 Thomas S. Morgan & Harold C. Gaither, Jr., Texas Practice, Juvenile Law and Practice, §33:32 (3d ed.) (2019) (“If the prosecutor believes the bail is set too low, the prosecutor can file, upon affidavit, a motion to increase bail, stating why the bail is insufficient”).