Texas Bail Bond Reform: Arguments Reach Fifth Circuit

By Benson Varghese

Last Updated: June 4th, 2020
Published on: October 8th, 2017


The United States Fifth Circuit Court of Appeals heard oral arguments last week in a case in which Harris County is being sued for its bail bond procedures which, plaintiffs argue, result in widespread detention of individuals who cannot afford bail – even though they are presumed innocent.

The case was first argued in front of U.S. Chief District Judge Lee Rosenthal, of  the Southern District of Texas. Her 193-page scathing opinion of the pre-trial bond system in Texas was covered by the ABA Journal and the Houston Press, among others.

Judge Rosenthal found that a bond system that allows those with financial means to be released while forcing those without financial means to remain incarcerated prior to a trial was a violation of due process and equal protection. She found that Harris County – which has an approach similar to almost every other county in Texas – has a consistent and systematic practice of imposing money bail on misdemeanor cases which results in indigent arrestees from being released because they cannot pay at least the bondsman’s premium. The courts are not making an individualized determination to see if there are more effective ways to assure the defendant will appear in court and follow the law while on pre-trial release.

For instance, in federal criminal cases, most arrestees are brought before magistrates who make series of inquiries that help the magistrate determine if the accused is a flight risk or is at risk of not showing up to court. The difference is not that individuals are not held in custody pre-trial, the difference is they are not held in custody pre-trial simply because they cannot afford the bond.

Rosenthal ordered Harris County authorities to release indigent misdemeanor defendants on personal bonds within 24 hours if they cannot not afford bail. Her decision was appealed by Harris County, and the Fifth Circuit heard arguments last week on the issue from both sides. You can hear the oral arguments below. A transcript is also provided below.

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