House supports Abbott’s bail priorities—minus ban on bail for undocumented people
AUSTIN (Nexstar) — On Tuesday morning, the Texas House overwhelmingly voted to support one of Gov. Greg Abbott’s top priorities of this session — bail reform. However, their votes indicated a desire to strip one proposed element of the reform — to automatically deny bail for people illegally in the country charged with certain felonies.
First, the House voted 122-20 to advance an amended version of Senate Bill 9, an encompassing bill reducing personal bond options, requiring judges to review appointed magistrates bond amounts and allowing prosecutors to protest bond decisions.
Then, the House voted 133-8 to advance an amended version of Senate Joint Resolution 5, a proposed constitutional amendment which would require judges to deny bail for certain felony charges if judges feel the accused is either a flight risk or a threat to the community.
Finally, the House voted 88-50 to advance an amended version of Senate Joint Resolution 1, which would deny bail for those accused for “illegal aliens” charged with certain felonies.
While all three bills advanced to a third reading, SJR 5 and SJR 1 will require 100 votes to pass as a two-thirds threshold is required to pass a constitutional amendment.
‘It isn’t perfect, but it’s a good balance’ – Democrats support SJR 5
Two weeks ago, Abbott held a news conference urging Democratic support of his bail reform package. However, he didn’t seem optimistic.
“There is progress, but not sufficient progress being made with discussions,” Abbott said on May 7. “I will tell you this… the amendment version that has the elements I laid out today, as well as a few more elements, I don’t know how many Democrats have actually seen that yet, so they have not yet been put to the test.”
Those changes appeared to be enough. The primary change was requiring judges to find a defendant is likely to willfully skip their court date or is a threat to their community. Judges would have to make their determination on the ‘preponderance of evidence’– more likely than not–standard after Rep. Mitch Little’s, R-Lewisville, amendment to change it from a ‘clear and convincing evidence’ standard.
“SJR 5 has come a long way. It isn’t perfect, but it’s a good balance that’s going to get us to the right results in most cases.” State Rep. Joe Moody, D-El Paso, said. “As the bill came to us, it was a ‘may deny bail’ with no burden of proof on the state and no right to counsel. It also swept up poor people who might miss court due to things like lack of transportation, instead of focusing on flight risk. It had some procedural problems. That all got worse in certain proposals that we saw that applied to a wide range of offenses that would have flipped the burden onto the defendant to prove that they should be released. Quite frankly, some of those proposals were Gulag bills.”
Moody, who is listed as the only Democratic House sponsor on the bill, says their version is a good fix to the problems on the extreme high end of the bail system.
“It guarantees counsel in these bail hearings. It focuses on only willful non-appearance. It applies only to serious charges and requires consideration of the specific facts behind them. It’s true that this is a shall deny bail when those things are proven, but the reality is that’s already happening,” Moody said. “If the state proves a person is a danger or a flight risk at a hearing where the defendant is represented, that’s a person who should be locked up pending trial.”
Even the Bail Project, an advocacy group dedicated to to ending the cash bail system, had a positive outlook on the changes.
“The Senate’s version of SJR 5 threatened to unravel core legal protections and open the floodgates for unchecked pretrial incarceration,” the Bail Project’s Deputy Director of Policy said in a statement. “But today, the House took a meaningful step in the right direction by passing a version of the amendment that restores critical safeguards. High legal standards to deny release and the right to counsel when pretrial liberty is at stake are essential to protecting due process and preventing widespread abuse of pretrial detention. While our concerns about threats to pretrial liberty remain, the House version reflects a more responsible approach. Lawmakers must stand firm in conference and reject any attempts to strip these hard-fought protections.”
‘You wanna get tough on crime, let’s deny all of them bail’ – SJR 1
If the Texas House is going to pass SJR 1, they’re going to need to convince ten more Democrats to vote for the bill on the third and final reading. According to Texas Legislature Online’s unofficial tally, 86 of the 88 House Republicans voted in favor with Speaker of the House Dustin Burrows, R-Lubbock, not voting and State Rep. Richard Hayes, R-Lake Dallas, being absent. On the other side of the aisle, Moody and State Rep. Richard Peña Raymond, D-Laredo, were the only two Democrats to vote in favor of the proposed amendment.
SJR 1 defines an “illegal alien” as someone who entered the country without inspection or someone admitted legally who failed to maintain their legal non-immigrant status. The amendment would require judges to hold “illegal aliens” without bail if a judge or magistrate finds probable cause on a long list of felonies — most of them violent or sexual in nature.
“Had we passed this constitutional amendment years ago, there’d be little boys and girls still alive today who were tragically killed,” State Rep. John Smithee, R-Amarillo, said. Smithee is the primary House sponsor on SJR 1. “Consider the rights of the innocent people who deserve to be protected from the senseless acts of violence.”
SJR 1 is unofficially known as ‘Jocelyn’s Law,’ named after 12-year-old Jocelyn Nungaray who was killed in Houston last June. The two men charged with Nungaray’s murder were Venezuelan nationals in the country illegally. Jocelyn’s mother Alexis was invited to Abbott’s ‘State of the State’ address, where he declared bail reform an emergency item.
“Illegal immigrants who are arrested should be considered a flight risk, denied bail and turned over to [Immigration and Customs Enforcement,]” Abbott said during the address.
On Tuesday, the Democratic House Caucus got their chance to respond, both through their votes and through a fiery speech by State Rep. Terry Canales, D-Edinburg.
“This is a tough one. It’s tough. But there’s a level of logic here that’s missing. One of the most fundamental things a judge considers when he’s going to determine whether you have the right to bail is whether you’re a flight risk, but that’s just one. The second one is danger to your community,” Canales said. “So as I listen to this, okay we’re going to say ‘you’re fundamentally a flight risk because you’re here illegally,’ I would tell you, I’m more worried about how big a danger you are to the community. And those crimes committed by an American citizen don’t make that person any less dangerous. So think about it. I’m voting no because the hypocrisy of it doesn’t withstand the smell test… You wanna get tough on crime, let’s deny all of them bail. Vote no on this piece of crap.”
Both SJR 1 and SJR 5 need 100 votes on third reading to pass. If either proposal gets through the legislature, Texas voters will have the final say on Nov. 4.
