How Does The Process Of Bail Work In Harris County?

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A New Bail System

The bail process in Harris County dramatically changed on July 29, 2017 when the county implemented a brand new system for setting bail in criminal cases. The most important change that came with the new system was the introduction of something called the “Public Safety Assessment.” The Public Safety Assessment (also called the “PSA”) is a report, prepared by the Pretrial Services Department, that gets written for every single person arrested and charged with a Class B misdemeanor or higher. The PSA assigns each arrestee a score that represents how likely they are to reoffend or fail to show up to court. A judge then uses that report to help determine the type and amount bail that person should receive.

To understand why this is such a big change, you need to understand how the old system of setting bail worked.

Under the old system, after a person was arrested, the police would call the District Attorney’s Office. The District Attorney’s Office would accept charges and set a recommended bail amount according to a written “bail schedule.” The bail schedule, which was written by the judges, set recommended bail amounts based almost entirely on the level of misdemeanor or felony the person was charged with and the person’s criminal history. It didn’t take any other factors into account (such as a person’s age) in determining the recommended amount of bail. And the bail schedule never recommended a “personal bond” (also called a “personal recognizance” or “PR bond”) which is a type of bail that costs no money and allows a person to be released from jail just on their promise that they will show up to court later. Under the old system, after the District Attorney’s Office recommended a bail amount according to the bail schedule, a “probable cause” judge (also called a “PC judge”) would hear a brief summary of the facts of the case from the DA’s Office and, if the judge determined there was probable cause for the arrest, the judge would set a bail amount.  The vast majority of the time, the PC judge would follow the bail schedule. If you wanted a PR bond, you had to sit in jail and wait until your first court appearance in your assigned court, which could be days after you appeared in front of the PC judge, and ask that judge for a PR bond. That judge then had complete discretion, with no guidelines, to determine whether to grant a PR bond. Most of the time, the judges denied requests for PR bonds.

The effect of this system was that, with few to no PR bonds being set, poor people were less likely to bail out of jail. For example, if you were charged with possession of less than a gram of cocaine (a state jail felony) and had no criminal history, the recommended bail amount was $2,000. If you were too poor to post that amount and the judge didn’t grant you a PR bond, you sat in jail. Many poor people would choose to plead guilty just to get out of jail rather than sit in jail for months to fight their cases.

That system has changed. Now, after the District Attorney’s Office accepts changes, the PSA is prepared. The PSA came about as the result of an analysis of over 1.5 million criminal cases across the United States. The researchers determined which factors really determined whether people would show up for court after being arrested, such as the actual type of crime charged (not just the degree of misdemeanor or felony), whether the crime charged was a violent one, the person’s age, and whether the person ever failed to appear in court on any past cases. Unlike the old bail schedule, the PSA now makes recommendations for PR bonds depending on the arrestee’s PSA score. Though the PC court judge can still refuse to set a PR bond despite the PSA’s recommendation, the fact that the PSA recommends PR bonds in a large number of cases means that many more people are getting released on PR bonds than ever before. The end result is fewer poor people are sitting in jail just because they are poor.

The new system didn’t do away with the bail schedule, but it did change it. Because not every arrestee will be recommended (or granted) a PR bond, judges still need to set bail amounts in many cases. Fortunately, the new bail schedule takes PSA scores into account in determining how high or low bail should be.

The new felony bail schedule can be found here.

The new misdemeanor bail schedule can be found here.

The Federal Lawsuit

As Harris County was getting ready to roll out this new bail system, it was sued in federal court by a group of misdemeanor arrestees who were too poor to afford the bail set in their cases. The plaintiffs claimed the old system was unconstitutional and they did not want to wait for the new system to start. A federal judge agreed with them and issued an order that misdemeanor defendants that are not granted PR bonds and are too poor to make bail have to be released on a PR bond within 24 hours.

The federal judge’s order effectively means that all poor misdemeanor defendants are now getting released on PR bonds, even though the PSA would not recommend PR bonds for all of their cases.

How Bail Is Made

Arrestees who are granted PR bonds are released on their promise to later show up for court. They are required to regularly report into a pretrial services officer by phone or in person before their court dates. How often they have to report, or whether they have to show up in person or call, is determined by their PSA score.

Arrestees who are given bail amounts have two options to make their bail.

The first option is to pay the full bail amount in cash. A friend or family member takes the full amount in cash, goes to the bonding window at 49 San Jacinto, and posts the bail. The arrestee is released and, once the case is resolved, the person gets the full amount back minus a small “handling fee” charged by the Sheriff’s Office. If the arrestee fails to appear in court and the bond is forfeited, the money goes to the county.

The second option is to use a bail bond company. The way a bail bond company works is that it puts up the full amount of the bail in exchange for a fee, usually 10% of the total bail (sometimes less, sometimes more, depending on how likely they think the person is to show up for court). In exchange for paying the fee (which the bail bond company keeps), the bail bond company puts up the remaining 90% of the bond. If the arrestee doesn’t show up for court and the bond is forfeited, a warrant is issued for that person’s arrest, and the bail bond company may use bounty hunters to track the arrestee down and bring him to court so that they don’t lose the 90% of the bail they paid.