Tex.
Code of Crim. Proc. Article 17.028
Bail Decision
(a)
Without unnecessary delay but not later than 48 hours after a defendant is arrested, a magistrate shall order, after individualized consideration of all circumstances and of the factors required by Article 17.15 (Rules for Setting Amount of Bail)(a), that the defendant be:(1)
granted personal bond with or without conditions;(2)
granted surety or cash bond with or without conditions; or(3)
denied bail in accordance with the Texas Constitution and other law.(b)
In setting bail under this article, the magistrate shall impose the least restrictive conditions, if any, and the personal bond or cash or surety bond necessary to reasonably ensure the defendant’s appearance in court as required and the safety of the community, law enforcement, and the victim of the alleged offense.(c)
In each criminal case, unless specifically provided by other law, there is a rebuttable presumption that bail, conditions of release, or both bail and conditions of release are sufficient to reasonably ensure the defendant’s appearance in court as required and the safety of the community, law enforcement, and the victim of the alleged offense.(c-1)
Subsections (b) and (c) may not be construed as requiring the court to hold an evidentiary hearing that is not required by other law.(d)
A judge may not adopt a bail schedule or enter a standing order related to bail that:(1)
is inconsistent with this article; or(2)
authorizes a magistrate to make a bail decision for a defendant without considering each of the factors in Article 17.15 (Rules for Setting Amount of Bail)(a).(e)
A defendant who is denied bail or who is unable to give bail in the amount required by any bail schedule or standing order related to bail shall be provided with the warnings described by Article 15.17 (Duties of Arresting Officer and Magistrate).(f)
A defendant who is charged with an offense punishable as a Class B misdemeanor or any higher category of offense and who is unable to give bail in the amount required by a schedule or order described by Subsection (e), other than a defendant who is denied bail, shall be provided with the opportunity to file with the applicable magistrate a sworn affidavit in substantially the following form:(g)
A defendant filing an affidavit under Subsection (f) shall complete a form to allow a magistrate to assess information relevant to the defendant’s financial situation. The form must be the form used to request appointment of counsel under Article 26.04 (Procedures for Appointing Counsel) or a form promulgated by the Office of Court Administration of the Texas Judicial System that collects, at a minimum and to the best of the defendant’s knowledge, the information a court may consider under Article 26.04 (Procedures for Appointing Counsel)(m).(g-1)
The magistrate making the bail decision under Subsection (a) shall, if applicable:(1)
inform the defendant of the defendant’s right to file an affidavit under Subsection (f); and(2)
ensure that the defendant receives reasonable assistance in completing the affidavit described by Subsection (f) and the form described by Subsection (g).(h)
A defendant described by Subsection (f) may file an affidavit under Subsection (f) at any time before or during the bail proceeding under Subsection (a). A defendant who files an affidavit under Subsection (f) is entitled to a prompt review by the magistrate on the bail amount. The review may be conducted by the magistrate making the bail decision under Subsection (a) or may occur as a separate pretrial proceeding. The magistrate shall consider the facts presented and the rules established by Article 17.15 (Rules for Setting Amount of Bail)(a) and shall set the defendant’s bail. If the magistrate does not set the defendant’s bail in an amount below the amount required by the schedule or order described by Subsection (e), the magistrate shall issue written findings of fact supporting the bail decision.(i)
The judges of the courts trying criminal cases and other magistrates in a county must report to the Office of Court Administration of the Texas Judicial System each defendant for whom a review under Subsection (h) was not held within 48 hours of the defendant’s arrest. If a delay occurs that will cause the review under Subsection (h) to be held later than 48 hours after the defendant’s arrest, the magistrate or an employee of the court or of the county in which the defendant is confined must provide notice of the delay to the defendant’s counsel or to the defendant, if the defendant does not have counsel.(j)
The magistrate may enter an order or take other action authorized by Article 16.22 (Early Identification of Defendant Suspected of Having Mental Illness or Intellectual Disability) with respect to a defendant who does not appear capable of executing an affidavit under Subsection (f).(k)
This article may not be construed to require the filing of an affidavit before a magistrate considers the defendant’s ability to make bail under Article 17.15 (Rules for Setting Amount of Bail).(l)
A written or oral statement obtained under this article or evidence derived from the statement may be used only to determine whether the defendant is indigent, to impeach the direct testimony of the defendant, or to prosecute the defendant for an offense under Chapter 37 (Perjury and Other Falsification), Penal Code.(m)
Notwithstanding Subsection (a), a magistrate may make a bail decision regarding a defendant who is charged only with a misdemeanor punishable by fine only or a defendant who receives a citation under Article 14.06 (Must Take Offender Before Magistrate)(c) without considering the factor required by Article 17.15 (Rules for Setting Amount of Bail)(a)(6).(1)
granted personal bond with or without conditions;(2)
granted surety or cash bond with or without conditions; or(3)
denied bail in accordance with the Texas Constitution and other law.(b)
In setting bail under this article, the magistrate shall impose the least restrictive conditions, if any, and the personal bond or cash or surety bond necessary to reasonably ensure the defendant’s appearance in court as required and the safety of the community, law enforcement, and the victim of the alleged offense.(c)
In each criminal case, unless specifically provided by other law, there is a rebuttable presumption that bail, conditions of release, or both bail and conditions of release are sufficient to reasonably ensure the defendant’s appearance in court as required and the safety of the community, law enforcement, and the victim of the alleged offense.(c-1)
Subsections (b) and (c) may not be construed as requiring the court to hold an evidentiary hearing that is not required by other law.(d)
A judge may not adopt a bail schedule or enter a standing order related to bail that:(1)
is inconsistent with this article; or(2)
authorizes a magistrate to make a bail decision for a defendant without considering each of the factors in Article 17.15 (Rules for Setting Amount of Bail)(a).(e)
A defendant who is denied bail or who is unable to give bail in the amount required by any bail schedule or standing order related to bail shall be provided with the warnings described by Article 15.17 (Duties of Arresting Officer and Magistrate).(f)
A defendant who is charged with an offense punishable as a Class B misdemeanor or any higher category of offense and who is unable to give bail in the amount required by a schedule or order described by Subsection (e), other than a defendant who is denied bail, shall be provided with the opportunity to file with the applicable magistrate a sworn affidavit in substantially the following form:(g)
A defendant filing an affidavit under Subsection (f) shall complete a form to allow a magistrate to assess information relevant to the defendant’s financial situation. The form must be the form used to request appointment of counsel under Article 26.04 (Procedures for Appointing Counsel) or a form promulgated by the Office of Court Administration of the Texas Judicial System that collects, at a minimum and to the best of the defendant’s knowledge, the information a court may consider under Article 26.04 (Procedures for Appointing Counsel)(m).(g-1)
The magistrate making the bail decision under Subsection (a) shall, if applicable:(1)
inform the defendant of the defendant’s right to file an affidavit under Subsection (f); and(2)
ensure that the defendant receives reasonable assistance in completing the affidavit described by Subsection (f) and the form described by Subsection (g).(h)
A defendant described by Subsection (f) may file an affidavit under Subsection (f) at any time before or during the bail proceeding under Subsection (a). A defendant who files an affidavit under Subsection (f) is entitled to a prompt review by the magistrate on the bail amount. The review may be conducted by the magistrate making the bail decision under Subsection (a) or may occur as a separate pretrial proceeding. The magistrate shall consider the facts presented and the rules established by Article 17.15 (Rules for Setting Amount of Bail)(a) and shall set the defendant’s bail. If the magistrate does not set the defendant’s bail in an amount below the amount required by the schedule or order described by Subsection (e), the magistrate shall issue written findings of fact supporting the bail decision.(i)
The judges of the courts trying criminal cases and other magistrates in a county must report to the Office of Court Administration of the Texas Judicial System each defendant for whom a review under Subsection (h) was not held within 48 hours of the defendant’s arrest. If a delay occurs that will cause the review under Subsection (h) to be held later than 48 hours after the defendant’s arrest, the magistrate or an employee of the court or of the county in which the defendant is confined must provide notice of the delay to the defendant’s counsel or to the defendant, if the defendant does not have counsel.(j)
The magistrate may enter an order or take other action authorized by Article 16.22 (Early Identification of Defendant Suspected of Having Mental Illness or Intellectual Disability) with respect to a defendant who does not appear capable of executing an affidavit under Subsection (f).(k)
This article may not be construed to require the filing of an affidavit before a magistrate considers the defendant’s ability to make bail under Article 17.15 (Rules for Setting Amount of Bail).(l)
A written or oral statement obtained under this article or evidence derived from the statement may be used only to determine whether the defendant is indigent, to impeach the direct testimony of the defendant, or to prosecute the defendant for an offense under Chapter 37 (Perjury and Other Falsification), Penal Code.(m)
Notwithstanding Subsection (a), a magistrate may make a bail decision regarding a defendant who is charged only with a misdemeanor punishable by fine only or a defendant who receives a citation under Article 14.06 (Must Take Offender Before Magistrate)(c) without considering the factor required by Article 17.15 (Rules for Setting Amount of Bail)(a)(6).
Source:
Article 17.028 — Bail Decision, https://statutes.capitol.texas.gov/Docs/CR/htm/CR.17-COPY.htm#17.028 (accessed Jun. 5, 2024).
