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Abbott proposes tougher bail rules for violent-crime suspects

August 8, 2018

AUSTIN — Citing official lapses in the 2017 killing of a state trooper in East Texas, Gov. Greg Abbott on Tuesday proposed stricter requirements for releasing violent-crime defendants from jail to target people charged with assaulting police officers, and those accused of sex crimes.

Appearing at a Waco event with the widow of slain Trooper Damon Allen, who was gunned down during a Thanksgiving Day traffic stop on Interstate 45 near Fairfield, about 150 miles north of Houston, Abbott proposed modifying laws “to emphasize the community, require a magistrate to consider the criminal history of a defendant and allow a magistrate to consider other relevant information, including impact on law enforcement” before setting bail for those defendants.

If the plan is approved, Abbott said “Texas will take meaningful steps to reform our bail system so that we can better protect innocent life, keep violent criminals off our streets and prevent tragedies like the death of Damon Allen.”

“It’s time for action,” he said, flanked by Allen family members and top officials with the Texas Department of Public Safety.

Targeting only serious-crime cases, Abbott’s changes would not affect bail-reform initiatives underway in several Texas cities, including Houston, to ensure that poor defendants charged with nonviolent minor crimes are not kept in jail just because they cannot afford to post cash bail.

Under existing Texas law, bail may be set by any magistrate — from a county justice of the peace to judges in state district court.

Abbott endorsed allowing only district judges and their associate judges, not lower-court magistrates, to set bail in felony criminal cases and misdemeanors involving assault or sex offenses — and require that any courts reviewing bail “consider technical issues of mental health and family violence.”

Abbott said the Allen case, which has drawn sharp criticism from law enforcement officials across the state, highlights why change is needed.

Dabrett Black, 32, is accused of fatally shooting Allen after he posted $15,500 bail for a felony charge of aggravated assault of a peace officer. Black had rammed a deputy’s vehicle in July 2017, according to court records. A justice of the peace set that bail, officials said.

There was a warrant for Black’s arrest in late November when Allen pulled him over.

Law enforcement officials and Abbott, a former Houston judge who served on the Texas Supreme Court and as attorney general, have said Black should not have been released from jail. Officials involved with the case have acknowledged that information lapses also allowed Black to post bail in an earlier case, from 2015, in which he was also accused of assaulting an officer.

In many counties, justices of the peace — some of whom are not attorneys — set bail for violent-crime suspects without having full information about the defendant, mental health issues or even pending criminal charges.

Abbott is calling for the creation of a new uniform case management system to allow judges and magistrates to have “a full picture of a defendant’s criminal history and mental health involvements, and alert them to protective orders.” He said that system could “close critical information gaps, especially in counties of less than 20,000 population.” Abbott’s plan released Tuesday did not include what such a system would cost.

Missing from Abbott’s plan is a no-bail rule for so-called “heinous crimes,” a controversial provision that would require a change in the state constitution and was dropped in the 2017 legislative session amid opposition from judges, bondsmen and defense attorneys.

Senate Criminal Justice Committee Chairman John Whitmire, D-Houston, who unsuccessfully tried to pass the bail-reform measure in 2017, said he supports what Abbott wants to do but suggested that Abbott should include a call to change the state constitution to deny bail for additional crimes.

“You can set million-dollar bail, but human traffickers and cartel members just pay it and leave,” Whitmire said. “It’s a cost of doing business. There are some defendants who should not be released at all, in the interest of public safety.”

Texas Supreme Court Chief Justice Nathan Hecht applauded Abbott’s proposal, saying that current law limits judges’ power to detain high-risk defendants. “Texas judges lack sufficient information to effectively scrutinize which defendants pose a threat to public safety and those who don’t,” he said.

Allen Place Jr., a former Texas House member who is chief spokesman for the Texas Criminal Defense Lawyers Association, said bail laws generally are designed to ensure that people charged with crimes show up for their day in court.

“These people still have the presumption of innocence under our system,” he said.

Even so, he and Whitmire agreed that any changes should consider costs — such as additional staffing required to have district judges set bail for all violent-felony defendants, as well as the costs associated with keeping more people in jail without bail.

“We need to be aware of unintended consequences, both for the small counties where district judges may not be available to set bail, and in the large counties,” Whitmire said.

A 2017 study commissioned by the Judicial Council chaired by Hecht found that while fewer high-risk defendants were being released from jail, two-thirds of local officials said judges rely heavily on their own “gut feeling” when setting bail, and 40 percent of judges agreed. Only in six of Texas’ 254 counties did judges have access to risk assessment information before they set bail, a recent Judicial Council poll showed.

In a statement, Democratic gubernatorial challenger Lupe Valdez, the former Dallas County sheriff, said Abbott’s proposed changes “aren’t enough . . . We must put in place gun safety measures including universal background checks and red flag laws, which could have kept Dabrett Black from having access to the gun that killed Officer Allen.”

Mike Ward covers Texas politics, the governor and executive branch, criminal justice and ethics issues, and investigations for the Houston Chronicle, San Antonio Express-News and other Hearst Texas news organizations. He also co-hosts the leading Texas Take politics podcast. Reach him at Mike.Ward@Chron.com and follow him @ChronicleMike on Twitter.

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