Cunningham Bail Bill Lets Victims Sue Judges For Up To $10M

The text as introduced · 2,402 words

89R80 CS-D

By: Cunningham
H.B. No. 1167

A BILL TO BE ENTITLED

AN ACT

relating to the release on bail of certain defendants accused of

committing a felony offense and the criminal consequences of

committing a felony while released on bail for a prior felony;

creating a criminal offense; increasing the minimum term of

imprisonment for certain felonies; changing eligibility for

deferred adjudication community supervision, mandatory

supervision, and parole.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

ARTICLE 1. MINIMUM BAIL FOR CERTAIN FELONY OFFENDERS

SECTION 1.01. Article 17.028(m), Code of Criminal

Procedure, is amended to read as follows:

(m) Notwithstanding Subsection (a), a magistrate may make a

bail decision regarding a defendant who is charged only with a

misdemeanor punishable by fine only or a defendant who receives a

citation under Article 14.06(c) without considering the factor

required by Article 17.15(a)(7) [ 17.15(a)(6) ].

SECTION 1.02. Article 17.03(a), Code of Criminal Procedure,

is amended to read as follows:

(a) Except as otherwise provided by this article

[ Subsection (b) or (b-1) ], a magistrate may, in the magistrate's

discretion, release the defendant on personal bond without sureties

or other security.

SECTION 1.03. Article 17.15(a), Code of Criminal Procedure,

is amended to read as follows:

(a) The amount of bail and any conditions of bail to be

required in any case in which the defendant has been arrested are to

be regulated by the court, judge, magistrate, or officer taking the

bail in accordance with Articles 17.20, 17.21, and 17.22 and are

governed by the Constitution and the following rules:

1. Bail and any conditions of bail shall be sufficient

to give reasonable assurance that the undertaking will be complied

with.

2. The power to require bail is not to be used to make

bail an instrument of oppression.

3. The nature of the offense and the circumstances

under which the offense was committed are to be considered,

including whether the offense:

(A) is an offense involving violence , as defined

by Article 17.03; or

(B) involves violence directed against a peace

officer.

4. The minimum amount of bail for an offense involving

violence, as defined by Article 17.03, that is punishable as a

felony of the second degree or any higher category of offense is:

(A) $5 million if the offense is a capital

offense;

(B) $3 million if the offense is a felony of the

first degree; and

(C) $2 million if the offense is a felony of the

second degree.

5. The ability to make bail shall be considered, and

proof may be taken on this point.

6 [ 5 ]. The future safety of a victim of the alleged

offense, law enforcement, and the community shall be considered.

7 [ 6 ]. The criminal history record information for the

defendant, including information obtained through the statewide

telecommunications system maintained by the Department of Public

Safety and through the public safety report system developed under

Article 17.021, shall be considered, including any acts of family

violence, other pending criminal charges, and any instances in

which the defendant failed to appear in court following release on

bail.

8 [ 7 ]. The citizenship status of the defendant shall

be considered.

SECTION 1.04. Article 17.20(c), Code of Criminal Procedure,

is amended to read as follows:

(c) Notwithstanding Subsection (b), a sheriff, peace

officer, or jailer may make a bail decision regarding a defendant

who is charged only with a misdemeanor punishable by fine only or a

defendant who receives a citation under Article 14.06(c) without

considering the factor required by Article 17.15(a)(7)

[ 17.15(a)(6) ].

SECTION 1.05. Chapter 17, Code of Criminal Procedure, as

amended by this article, applies only to a person who is arrested on

or after December 1, 2025. A person arrested before December 1,

2025, is governed by the law in effect on the date the person was

arrested, and the former law is continued in effect for that

purpose.

ARTICLE 2. IMPROPER SETTING OF BAIL; LIABILITY; OFFENSE

SECTION 2.01. Title 5, Civil Practice and Remedies Code, is

amended by adding Chapter 108A to read as follows:

CHAPTER 108A. PUBLIC SERVANT LIABILITY

Sec. 108A.001. LIABILITY OF JUDGE OR MAGISTRATE FOR

IMPROPER SETTING OF BAIL. (a) A victim of an offense that was

committed while the person was released on bail, or the victim's

estate if the victim is deceased, may bring a cause of action

against the judge or magistrate who released the person on bail for

damages incurred as a result of the offense if:

(1) the offense for which the person was released on

bail is an offense involving violence, as defined by Article 17.03,

Code of Criminal Procedure, that is punishable as a felony of the

second degree or any higher category of offense; and

(2) the amount of bail set by the judge or magistrate

was less than the minimum amount required under Article

17.15(a)(4), Code of Criminal Procedure, for the offense.

(b) The amount of damages awarded in an action brought under

this section may not exceed $10 million.

(c) A judge or magistrate may not assert judicial immunity

or other forms of immunity as a defense to an action brought under

this section.

(d) Section 108.002 does not apply to an action brought

under this section.

SECTION 2.02. Subchapter C, Chapter 33, Government Code, is

amended by adding Section 33.052 to read as follows:

Sec. 33.052. IMPROPER SETTING OF BAIL OR RELEASE OF CERTAIN

DEFENDANTS; OFFENSE; REMOVAL. (a) A judge or magistrate commits an

offense if the judge or magistrate:

(1) sets bail for an offense involving violence, as

defined by Article 17.03, Code of Criminal Procedure, that is

punishable as a felony of the second degree or any higher category

of offense and the amount of the bail set by the judge or magistrate

is less than the minimum amount required under Article 17.15(a)(4),

Code of Criminal Procedure, for the offense; or

(2) releases on bail a defendant who is charged with

committing a felony while released on bail for a prior felony in

violation of Section 11d, Article I, Texas Constitution.

(b) Except as provided by Subsection (c), an offense under

this section is a misdemeanor punishable by a fine not to exceed

$4,000.

(c) An offense under this section is a misdemeanor

punishable by a fine not to exceed $10,000 if it is shown on the

trial of the offense that the defendant has been previously

convicted of an offense under this section.

SECTION 2.03. Sections 81.078(c) and (d), Government Code,

are amended to read as follows:

(c) On proof of final conviction of any felony involving

moral turpitude , an offense punishable under Section 33.052(c), or

any misdemeanor involving theft, embezzlement, or fraudulent

misappropriation of money or other property, the district court of

the county of the residence of the convicted attorney shall enter an

order disbarring the attorney.

(d) In an action to disbar any attorney for acts made the

basis of a conviction for a felony involving moral turpitude , an

offense punishable under Section 33.052(c), or a misdemeanor

involving theft, embezzlement, or fraudulent misappropriation of

money or other property, the record of conviction is conclusive

evidence of the guilt of the attorney for the crime of which he was

convicted.

SECTION 2.04. Chapter 108A, Civil Practice and Remedies

Code, as added by this article, applies only to a cause of action

that accrues on or after December 1, 2025.

ARTICLE 3. INCREASED PENALTIES FOR FELONY COMMITTED WHILE RELEASED

ON BAIL

SECTION 3.01. Article 42.01, Code of Criminal Procedure, is

amended by adding Section 17 to read as follows:

Sec. 17. In addition to the information described by

Section 1, the judgment must reflect affirmative findings entered

pursuant to Article 42.0195.

SECTION 3.02. Chapter 42, Code of Criminal Procedure, is

amended by adding Article 42.0195 to read as follows:

Art. 42.0195. FINDING REGARDING CERTAIN FELONY OFFENSES

COMMITTED WHILE ON BAIL. In the trial of an offense punishable as a

felony of the first, second, or third degree, on the motion of the

attorney representing the state the judge shall make an affirmative

finding of fact and enter the affirmative finding in the judgment in

the case if the judge determines that the offense was committed

while the defendant was released on bail for a prior felony for

which the defendant has been charged.

SECTION 3.03. Article 42A.102(b), Code of Criminal

Procedure, is amended to read as follows:

(b) In all other cases, the judge may grant deferred

adjudication community supervision unless:

(1) the defendant is charged with an offense:

(A) under Section 20A.02, 20A.03, 49.045, 49.05,

49.061, 49.065, 49.07, or 49.08, Penal Code;

(B) under Section 49.04 or 49.06, Penal Code,

and, at the time of the offense:

(i) the defendant held a commercial

driver's license or a commercial learner's permit; or

(ii) the defendant's alcohol concentration,

as defined by Section 49.01, Penal Code, was 0.15 or more;

(C) for which punishment may be increased under

Section 49.09, Penal Code;

(D) for which punishment may be increased under

Section 481.134(c), (d), (e), or (f), Health and Safety Code, if it

is shown that the defendant has been previously convicted of an

offense for which punishment was increased under any one of those

subsections; [ or ]

(E) under Section 481.1123, Health and Safety

Code, that is punishable under Subsection (d), (e), or (f) of that

section; or

(F) punishable as a felony of the first, second,

or third degree, if it is shown that the defendant committed the

offense while the defendant was released on bail for a prior felony

for which the defendant has been charged;

(2) the defendant:

(A) is charged with an offense under Section

21.11, 22.011, 22.021, 43.04, or 43.05, Penal Code, regardless of

the age of the victim, or a felony described by Article 42A.453(b),

other than a felony described by Subdivision (1)(A) or (3)(B) of

this subsection; and

(B) has previously been placed on community

supervision for an offense under Paragraph (A);

(3) the defendant is charged with an offense under:

(A) Section 21.02, Penal Code; or

(B) Section 22.021, Penal Code, that is

punishable under Subsection (f) of that section or under Section

12.42(c)(3) or (4), Penal Code; or

(4) the defendant is charged with an offense under

Section 19.02, Penal Code, except that the judge may grant deferred

adjudication community supervision on determining that the

defendant did not cause the death of the deceased, did not intend to

kill the deceased or another, and did not anticipate that a human

life would be taken.

SECTION 3.04. Subchapter K, Chapter 42A, Code of Criminal

Procedure, is amended by adding Article 42A.518 to read as follows:

Art. 42A.518. COMMUNITY SUPERVISION FOR CERTAIN FELONY

OFFENSES COMMITTED WHILE ON BAIL. A court granting community

supervision to a defendant convicted of an offense for which the

court has made an affirmative finding under Article 42.0195 shall

require as a term of community supervision that the defendant serve

a term of imprisonment in the Texas Department of Criminal Justice

of not less than five years.

SECTION 3.05. Section 508.145, Government Code, is amended

by adding Subsection (e-1) to read as follows:

(e-1) Except as otherwise provided by this subsection, an

inmate serving a sentence for an offense for which the judgment

contains an affirmative finding under Article 42.0195, Code of

Criminal Procedure, is not eligible for release on parole until the

inmate's actual calendar time served, without consideration of good

conduct time, equals five calendar years, or until the date that the

inmate would otherwise be eligible for release on parole under

another provision of this section, whichever is later. This

subsection does not apply to an inmate who is ineligible for release

on parole pursuant to another provision of this section.

SECTION 3.06. Section 508.147, Government Code, is amended

by amending Subsection (a) and adding Subsection (a-1) to read as

follows:

(a) Except as provided by Subsection (a-1) and Section

508.149, a parole panel shall order the release of an inmate who is

not on parole to mandatory supervision when the actual calendar

time the inmate has served plus any accrued good conduct time equals

the term to which the inmate was sentenced.

(a-1) An inmate serving a sentence for an offense for which

the judgment contains an affirmative finding under Article 42.0195,

Code of Criminal Procedure, may not be released to mandatory

supervision unless:

(1) the inmate's actual calendar time served, without

consideration of good conduct time, equals at least five years; and

(2) the inmate is otherwise eligible for release under

Subsection (a).

SECTION 3.07. Subchapter D, Chapter 12, Penal Code, is

amended by adding Section 12.503 to read as follows:

Sec. 12.503. PENALTY FOR CERTAIN FELONY OFFENSES COMMITTED

WHILE ON BAIL. If an affirmative finding is made under Article

42.0195, Code of Criminal Procedure, in the trial of an offense, the

minimum term of imprisonment for the offense is increased to five

years unless another provision of law applicable to the offense

provides for a minimum term of imprisonment of five years or more.

SECTION 3.08. Chapters 42 and 42A, Code of Criminal

Procedure, as amended by this article, Sections 508.145 and

508.147, Government Code, as amended by this article, and Section

12.503, Penal Code, as added by this article, apply only to an

offense committed on or after September 1, 2025. An offense

committed before September 1, 2025, is governed by the law in effect

on the date the offense was committed, and the former law is

continued in effect for that purpose. For purposes of this section,

an offense was committed before September 1, 2025, if any element of

the offense occurred before that date.

ARTICLE 4. EFFECTIVE DATE

SECTION 4.01. (a) Except as provided by Subsection (b) of

this section, this Act takes effect September 1, 2025.

(b) Articles 1 and 2 of this Act take effect December 1,

2025, but only if the constitutional amendment proposed by the 89th

Legislature, Regular Session, 2025, authorizing the legislature to

set a minimum amount of monetary bond for persons charged with

certain felony offenses involving violence and requiring the denial

of bail to a person accused of committing a felony while released on

bail for a prior felony under most circumstances is approved by the

voters. If that amendment is not approved by the voters, Articles 1

and 2 of this Act have no effect.