This section is designed to assist defendants and defense attorneys
in obtaining pretrial bail that is reasonable and that complies with the requirements of the law. It is not intended to be
contrary to any law or Local Rules. Further, this section does not address initial magistration on arrest but applies only
to those situations in which the defendant has been indicted or in which the defendant is already in custody and a bail has
been set. A magistrate will seldom refuse to set bail since the right to bail exists in most cases. The more frequent problem
is the setting of bail that the defendant considers to be excessive. However, in those situations in which the magistrate
has not set bail, the provisions of this section may be used.
In all situations, the court requires defense counsel to discuss the issue of bail
with the District Attorneys Office. If an agreement can be reached on the amount or conditions of bail, the court will, in
most situations, approve the agreement and sign an order to that effect.
If no agreement can be reached, the court may informally confer with the attorney for the state and for the defense
either in person or over the phone to determine an appropriate amount of bail and any appropriate conditions. The court will
then sign an appropriate order to that effect.
In those situations
in which no agreement on bail can be reached, or in which the bail or conditions set by the magistrate or this court is considered
excessive by the defendant, the defendant has at least two options.
first option is to file a Motion for Reduction of Bail, and set the matter for hearing at the court’s next ancillary
hearing date or at such other date as can be arranged through the Court Coordinator. This is the preferred option as all matters
are handled in the cause number and file already pending with the District Clerk. The elements and burden of proof are generally
the same as that of a habeas corpus proceeding. In the event the defendant is dissatisfied with the results of the Motion
for Reduction of Bail, then habeas corpus remains available.
other option is the filing of an Application for Writ of Habeas Corpus. This proceeding is an absolute right of the defendant.
However, it is not the preferred method because a habeas corpus proceeding requires the opening of a civil file by the District
Clerk, the carrying of that administrative burden and cost by the county and requires that both the criminal file and the
civil file be brought forward until the final disposition of the case. The additional expense and administration required
is simply, in my opinion, unnecessary.
I will grant that the
habeas corpus proceeding presents an appealable order that the interlocutory bond order does not. Thus, in those situations
in which an appeal of the bond order is likely or is a foreseen circumstance, the defense attorney should use the habeas corpus
proceeding in lieu of the Motion for Bond Reduction.
either of those proceedings for hearing is to be done through the Court Coordinator.
In most cases involving drug or alcohol offenses, bail will be set with conditions on the bond. Generally, those
conditions will be tailored to the situation, the protection of society and alleged victims, and the best interests of
the defendant. Defense attorneys should be prepared to discuss conditional bonds with their clients so that they will understand
the purposes behind the conditions, and the penalties for violating the conditions of bond.
Conditional bonds will generally include the following provisions:
1. Commit no violation of the law.
2. Abstain from
the use of alcohol and illegal drugs.
3. Avoid persons and places
of disreputable or harmful character.
4. Report to the
Community Supervision Officer (CSO) on a monthly basis with the first report to be made in person on the day of release from custody.
5. Remain within
the limits of the State of Texas unless given permission to leave the State by the CSO or the Court.
6. Submit to random urinalysis on a monthly basis at irregular intervals and pay the fee for testing as directed
by the CSO.
7. Submit to an alcohol/drug evaluation as directed
by the CSO within 30-days after release from custody, and pay the required fee for such.
8. Attend alcohol/drug counseling as directed by the CSO and pay the required fees for such.
9. Install and pay for appropriate vehicle interlock devices or SCRAM device as directed by the CSO.
10. Pay a $50 per month pretrial fee to the Community Supervision and Corrections
Department, with the first payment to be made on the day of release from custody.
11. Attend AA/NA/CA meetings no less than twice per week, and provide proof of attendance to the CSO.
Other conditions for sexual offenses, assaultive offenses, family violence and
other types of offenses may be included depending on the situation.