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Bail in Texas: What’s All This About Bail Reform? Can You Get Out of Jail?

Bail is not guaranteed to you in the constitution. It’s a process that has been created by legislatures and courts to help people get out of jail after they’ve been arrested. Defendants in Texas do not have a legal right to being released after arrest. Innocence doesn’t matter.

Federal vs. Texas Bail Process

Bail is provided in both the federal and state systems, but it’s not the same process. It’s handled differently by the feds than it is down at Dallas County (or Tarrant County, or any other place where you’ve been arrested and booked on a Texas state law violation). Both end up doing the same thing, though: getting the arrested person freed on from jail – under certain conditions.

Bail is commonplace in the Texas system, as it is in most states. Bail is not common in federal arrests. There, someone arrested on a federal charge is either kept behind bars without bail (”detained”) or he is released by the federal judge under special conditions and with lots of pre-trial supervision.



What Is Bail?

Bail itself is a deposit of money or a personal pledge of some sort. It’s collateral for freedom. You’ve been arrested but you’re considered innocent until proven guilty, so the bail process provides a way for you to get your freedom back until, and unless, the Powers That Be can prove their case against you and you’re found guilty of violating the law.

The key to bail is it has to be serious enough that the arrested person (”suspect”) will not scoot off out of the state or federal jurisdiction but will stick around and show up for trial. If an arrested person, or suspect, is out on bail and doesn’t show up then the bail is “forfeited.” It’s lost. Plus, that person may face additional criminal charges just for skipping town.

As for bail works and how to get bail in Dallas, or elsewhere in Texas, check out:

Bail is paid by the arrested person, their family, or a bail bondsman. Some defendants will get their money back at the end of trial (even if they’ve been found guilty) as long as they’ve been good at their word at staying around and showing up.

Bail Often Coupled With Other Conditions

Bail usually doesn’t work alone. Before bail is granted, the judge may well order other things to make sure the arrested person comes back for trial. These are called “conditions of release.” They can include things like house arrest (where the suspect wears a GPS ankle bracelet); drug testing; and various kinds of supervision.

U.S. Constitution and Bail

Bail is mentioned in the federal constitution. Under the 8th Amendment, “excessive bail” is prohibited. Various United States Supreme Court (”SCOTUS”) cases have defined what “excessive bail” means in this country. There’s no definition in the Constitution itself.

SCOTUS instructs that bail should be offered to anyone who is arrested unless there’s a “compelling government interest” not to do so. Texas laws bolster this with granting rights to those arrested in the state system with a right to bail in all but a few cases (like capital murder arrests).

Bail Reform Movement

What if you cannot afford bail? There are procedures where an arrested person can ask the judge for a “bail reduction.” Here, a motion is made to the judge that the bail is too high given the arrested person’s financial circumstances, and is therefore “excessive” — which violates the 8th Amendment of the Constitution.

The federal Bail Reform Act may come into play here. Under this federal statute, the arrested person argues that the bail is so high that it’s really a denial of bail because there’s no way that the arrested person can pay it.

Thing is, these protections haven’t really been working. There is a “bail reform movement” right now that is active both on the national level and here in Texas. The crux of the bail reform movement is that the bail process has turned into a punishment of sorts, working to keep poor people behind bars even though they are innocent of any crime. They lose their freedom and have to remain in jail just because they don’t have the means to make bail. Especially hard hit are the mentally ill, who often face arrest without the ability to get bailed out.

The argument is being made that those who are charged with non-violent offenses, or low-level crimes, should be released without bail.

For details on the arguments here, read the Op-Ed piece written by Lynda Frost, Director Of Planning And Programs For The Hogg Foundation for Mental Health at The University of Texas at Austin, entitled “Texas Punishes People Who Can’t Afford To Post Bail,” and published on March 29, 2016 in the Fort Worth Star Telegram.

Over on the federal side of things, bail reform has made it to Congress. A proposed federal law entitled “No Money Bail Act of 2016,” was introduced last February as national bail reform. Included within its language, the following “findings”:

(1) Nearly 60 percent of the inmates in jails in the United States are pretrial detainees who have not been convicted of a crime, an estimated 75 percent of whom have been charged with nonviolent crimes.

(2) Under current bail systems that use payment of money as a condition of pretrial release, nearly 50 percent of the most dangerous pretrial detainees are released without supervision, according to a study by the Arnold Foundation.

(3) Throughout the Nation, those with money can buy their freedom while poor defendants remain incarcerated awaiting trial.

(4) Pretrial detention costs State and local governments an estimated $14,000,000,000 each year.

Read the proposed legislation here.

Courts are also working to reform bail, as judges and prosecutors work to address the problem some arrested people have with making bail. See, “Court systems rethink the use of financial bail, which some say penalizes the poor,” written by Lorelei Laird and published by the ABA Journal on April 1, 2016.

Back in March, the Justice Department sent a letter out to state judges in Texas and the rest of the country on the issue of unfair bail and targeting the poor for profit.

What about here in Dallas – Fort Worth?

According to an article published in the Dallas Observer, Dallas County has more people in jail than the national average, and more people get arrested in Dallas than in other major Texas cities. These numbers suggest that some arrested people may not be able to make bail after arrest, and are having to stay behind bars until trial.

In Lynda Frost’s Op-Ed, there are specific numbers. She points to data from the Texas Commission on Jail Standards, where over 75% of those folk setting in the Tarrant County Jail during February 2016 were awaiting trial. They couldn’t make bail. (Dallas numbers from the TCJS had Dallas County at over 70%.)

Bail and Jail in Texas

Right now, a lot of people are working for bail reform. Until things change, when you are arrested in Texas, for violation of either a state or federal law, you will be taken to jail. Innocent or guilty isn’t going to matter: your freedom will be taken from you until trial unless you can fight back and successfully get your freedom back. This often means a fight at the bail hearing.

Of course, there’s a recent example of what bail reform might mean in the future. In New Jersey, state law provides that every arrested person gets bail.

Which meant that suspected bomber Ahmad Khan Rahami was granted bail by a New Jersey Superior Court Judge Regina Caulfield this week.  See the analysis by PIX11.com in ““Why the $5.2M bail set for Ahmad Khan Rahami doesn’t mean he’ll walk.

For more information, check out our web resources as well as Michael Lowe’s Case Results and his article:



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