State legislatures consider and enact laws that address all aspects of pretrial policy, including citations, release eligibility, conditions of release, commercial bail bonding, victims’ rights and diversion. These legislative policies have an important role in providing fair, efficient and safe practices carried out by law enforcement and the courts.
Below is a synopsis of this state’s pretrial release laws as of March 2013 and any relevant legislative reports or audits. Recent enactments modifying these provisions can be found in NCSL’s pretrial enactments database.
Citation in Lieu of Arrest
Issuing a citation is not presumptive, however a citation can be issued for class C misdemeanors; and class A or B misdemeanors of driving with an invalid license, contraband in a correctional facility, theft of service, theft, graffiti, criminal mischief, possession of a controlled substance in penalty group 2-A and possession of marijuana. Citations cannot be issued for public intoxication. Citations can be issued after arrest by a peace officer. (C. Cr. P. Art. 14.06.)
Pretrial Release Eligibility
State constitution provides a presumption of pretrial release. Pretrial release can be denied for capital offenses, felonies when the defendant has two prior felony convictions, felonies while on pretrial release for a felony, offenses involving a deadly weapon when the defendant has a prior felony conviction, and violation of a protection order that is a condition of pretrial release related to family violence or a child victim. (Const. art. 1 § 11, 11a & 11c; C. Cr. P. Art. 17.152 & Art. 17.153)
Pretrial Release Conditions
Law allows release on personal recognizance. Common conditions of release include: commercial surety, cash deposit, other secured bond, supervision and additional requirements. Electronic monitoring is authorized for any defendant eligible for pretrial release. (C. Cr. P., Art. 17.03, Art. 17.02, Art. 17.06, Art. 17.44)
Defendants charged with felonies if they have two prior felony convictions, or offenses involving a deadly weapon if they have a prior felony conviction require a hearing to deny pretrial release. (Const. Art. 1, § 11a)
Bail Bond Agent Licensure
To be licensed as a bail bond surety, applicants must meet age, residency and prelicense education requirements. Crimes for which a license can be denied or revoked include all felonies and misdemeanors involving moral turpitude. (Occupations Code § 1704.151)
Bail Bond Agent Business Practices
Bail agents are prohibited from soliciting business in any place of detainment for persons in the custody of law enforcement. They cannot recommend an attorney or make arrangements with public officials. Advertisements must clearly indicate the county or counties in which the agent holds a license, and the telephone number shown must be for that or those counties only. (Occupations Code § 1704.304; § 1704.303; § 1704.302)
Bail Forfeiture Procedure
Courts are instructed to consider absences due to death, sickness, uncontrollable circumstances, or detention elsewhere. Statute addresses standards for remission procedure. Unpaid forfeitures can result in the suspension of the agent’s authority to execute new bonds. (C.C.P. Art. 22.13; C.C.P. Art. 22.16)
Victims’ Rights and Protections
Victims have the right to notification of pretrial release. Defendants charged with family violence can be detained for a maximum of four hours and up to an additional 48 hours after a release hearing. Electronic monitoring that includes an electronic receptor device can be ordered for offenses involving family violence. (C. Cr. P. Art. 17.29; C. Cr. P. Art. 17.291; C. Cr. P. Art. 17.49)
Diversion programs authorized include: mental health and veterans/active military problem-solving courts. (§ 616.001 et. seq.; § 617.001 et seq.)
Full text of statutes can be retrieved using NCSL’s State Legislatures Internet Links database or learn more about NCSL’s Criminal Justice Program.