By: Mark Diaz
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What You Need To Know About Bail And Bail Bonds In Texas
Many people accused of crimes in Texas are forced to stay in jail while awaiting trial with high bail bond amounts. The most common reason for this is that the accused person cannot afford to make bail. Although the bail system is not supposed to punish people simply for being poor, that is often the practical effect of how Texas courts enforce the laws governing bail and bail bonds.
So how does bail work? And what is the difference between “bail” and a “bail bond”? In this article, we provide a brief overview of the bail laws in Texas and what you need to know if you, or someone you are close with, is ever placed under arrest on suspicion of a crime.
What Is Bail?
The concept of bail dates back to ancient England. Prisons were not as widespread as they are today, and it was often impractical to hold a person accused of a crime while awaiting trial. So many accused defendants were allowed to buy their freedom by paying a sum of money called bail, which was typically what they would owe the victim if they were ultimately found guilty.
In present-day Texas, the purpose of bail is simple: to ensure the accused will make all required appearances and not attempt to flee the jurisdiction. The Texas Penal Code defines bail more precisely as “the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond.” After a person is arrested, they are brought before a magistrate, who sets the conditions of bail.
Note the use of the terms “bail bond” and “personal bond.” These refer to different types of bail. Let’s take the bail bond first. A bail bond is what most people commonly associate with bail itself–an amount of money they must pay to get out of jail while awaiting trial. If the defendant has the money to pay for bail outright, that is known as cash bail. But if they do not have the money, then they must take out a bail bond.
For example, let’s say John Doe is charged with a crime. The judge sets his bail at $50,000. John does not have access to this much cash. If he still wants to post bail and get out of jail, he will need to obtain a bail bond.
A bail bond is a legal agreement between yourself and a third party, who is known as a surety. The surety posts the bond and guarantees to the court that you will make any necessary appearances. There are a number of individuals and businesses that will agree to act as a surety in exchange for compensation. These are known as “bail bondsmen.” A professional bail bondsman must be licensed by the State of Texas.
So to continue our John Doe hypothetical example, John Doe could go to a licensed professional bail bondsman and sign an agreement to have them post the $50,000 bail. In exchange, John Doe must give the bond bailsman a fee or “bond premium.” This is normally 10 percent of the full amount of the bail bond, which in this case would be $5,000.
What Is A Personal Bond?
When a magistrate or judge releases a defendant on personal bond, they do not have to pay cash bail or obtain a bail bond in order to be released from jail. The defendant is “released on recognizance,” or in plain terms, on their promise to appear in court when required. The court may still require the defendant to post a personal bond fee before being released, which is equal to the greater of $20 or 3 percent of the cash bail amount fixed by the court.
It is important to note that even when a defendant is released on personal bond, the court can still impose certain conditions or restrictions on the defendant. For instance, a defendant released on recognizance may be ordered to stay away from their accuser, avoid using illegal drugs or alcohol, and surrender any firearms in their possession.
How Does a Court Decide the Amount of Bail?
Every Texas trial court has a “bond schedule” that guides magistrates and judges in assessing the amount of bail. These are only guidelines, however, and individual judges and magistrates may adjust the amount of bail upward or downward depending on the circumstances of a case.
Here are some of the more common factors that courts use in fixing the amount of bail:
- The severity of the criminal charge; for example, a felony will usually carry a higher amount of bail than a misdemeanor.
- Whether the defendant has any prior criminal convictions.
- Whether the defendant was already out on bail at the time of their arrest.
- Whether the defendant is currently on probation following conviction for another crime.
- Whether the defendant may pose a risk to other people in the community.
- Whether the defendant may be considered a “flight risk.”
What Does Flight Risk Mean?
This last item warrants some further explanation. The term “flight risk” is often associated with bail decisions. It broadly refers to the court’s assessment of whether a particular defendant has the means or incentive to flee the jurisdiction before trial.
Consider two defendants charged with similar crimes. Defendant A has lived in Galveston their entire life. He has a 9-to-5 job and a family to support. He has never traveled outside of Texas and in fact, does not have a passport.
Defendant B, in contrast, was arrested in Galveston while visiting from another state. She has no ties to the community. She also has access to substantial wealth and a passport.
A judge is likely to set Defendant B’s bail much higher than that of Defendant A, as the former is a greater flight risk. Of course, Defendant B is also much more likely to be in a position to post bail than Defendant A, especially if he does not have easy access to cash.
When Can a Texas Court Deny Bail?
Although the law presumes most defendants are entitled to some sort of bail, there are exceptions. A court may deny bail outright–thus forcing a defendant to remain in jail pending trial–under certain circumstances. These include cases where the defendant is charged with capital murder or they are charged with a felony and have a prior felony record.
What If I Fail to Meet the Conditions of Bail?
As noted above, bail is not an unconditional release from jail. Whether you were released on a bail bond or personal bond, the court will order you to meet certain conditions in order to stay out of jail through your trial. If you fail to appear in court when required or otherwise “skip bail,” the court will issue a bench warrant for your immediate arrest.
Skipping bail is costly. If you posted cash bail with the court, all of that money is forfeited to the court, so you will not get any of it back. If you took out a bail bond, the surety loses its money and will seek to recover it from you.
Can I Get My Bail Back?
If you posted cash bail and complied with all of the court’s conditions, you will typically get your money back when your criminal case is completed. If you posted a bond through a bail bondsman, however, they will keep the 10 percent or other bond premium you paid them, as that is nonrefundable.
Can I Ask the Court to Reduce My Bail?
Even after the court sets the amount of bail, as the defendant you have the right to request a reduction. The court will hold a separate bail hearing to decide if a reduction or change in bail is warranted. Keep in mind, however, that the prosecution can also request the court raise the amount of bail.
How a Criminal Defense Attorney Can Help You With Bail
Too many people arrested for crimes do not have a lawyer present for their bail hearing. This often leads magistrates to make rushed decisions based on pre-existing bond schedules, as opposed to taking the time to properly consider the defendant’s particular circumstances. By working with an experienced Galveston criminal defense attorney, a suspect’s bail often receives more individualized attention.
Even after your preliminary hearing, your criminal defense attorney can continue to fight for a reduction in bail at a subsequent hearing. In some cases, a defense attorney can even get the prosecution to agree to such a reduction or even a release on personal bond. Ultimately, a lawyer can mean the difference between sitting in jail for months awaiting trial or going home to your family while you continue to maintain your innocence.
So if you need legal representation in connection with any criminal defense matter, contact criminal defense attorney Mark A. Diaz today to schedule a consultation.