THE RIGHT TO BAIL

     The Excessive Bail provision of the Eighth Amendment to the United States Constitution is based on an old English common law right of Englishmen and the British Bill of Rights. It is considered a fundamental right by the Supreme Court of the United States.

     The United States Supreme Court has stated that “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary government action.” Foucha v. Louisiana, 504 U.S. 71, 80 (1992). The Court has also held that “In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” U.S. v. Salerno, 481 U.S. 739 (1987) (reserved on other grounds). Additionally, the Eighth Amendment states that “excessive bail shall not be required.” U.S. Const. Amend. VIII. However, the courts have interpreted this constitutional provision to prohibit excessive bail without a right to bail. Bail becomes excessive when courts set a higher than reasonably necessary amount to ensure that a defendant appears at trial

THE RIGHT TO BAIL IN TEXAS

     The Eight Amendment to the United States Constitution states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” This fundamental right allows an accused to be free before conviction, allowing the defendant to preparae a defense and preventing unjust punishment of the wrongfully accused. It would seem that prohibiting excessive bail would mean that bail should be made available and affordable to everyone. That is not always the case.
     Article 1, Section 11, of the Texas Constitution extends the right to bail to all defendants except those charged with capital offenses. This constitutional provision is buttressed by Article 1, Section 13, of the Texas Constitution which prohibits excessive bail. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.”

TRIAL COURT’S DISCRETION IN SETTING BAIL

      Texas jurisprudence is well-settled that the trial court enjoys inherent discretion in setting bail. The primary purpose of a bond is securing the defendant’s presence at trial. Ex parte Vasquez, 558 S.W.2d 477, 479 (Tex.Crim.App.1977); Ex parte Bonilla, 742 S.W.2d 743, 744 (Tex.App.-Houston [1st Dist.] 1987, no pet.). The factors a trial court should consider in setting bail are set out in Tex. Code Crim. Proc. Ann. § 17.15 (Vernon Supp. 2004):

      1.         The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

      2.         The power to require bail is not to be used as an instrument of oppression.

      3.         The nature of the offense and the circumstances of its commission are to be considered.

      4.         The ability to make bail is to be regarded, and proof may be taken on this point.

       5.         The future safety of a victim of the alleged offense and the community shall be considered.

      Texas has an extensive body of case law dealing with bail issues which interpret the Texas Code of Criminal Procedure and the Constitution. See Ludwig v. State, 812 S.W.2d 323, 324 (Tex.Crim.App. 1991)(stating that to be governed in the exercise of [its] discretion by the Constitution and by the [article 17.15 factors]“). The general principles of bail law are well established in appellate court decisions. Once bail has been set, the burden is on the defendant to demonstrate the bail is excessive. See: Ex parte Rubac, 611 S.W.2d 848, 849 (Tex.Crim.App.1981); Ex parte Martinez-Velasco, 666 S.W.2d 613, 614 (Tex.App.-Houston [1st Dist.] 1984, no pet.). The Court is to set bail sufficiently high to provide reasonable assurance the accused will submit himself to the Court proceeding, but bail should not be so high as to constitute an instrument of oppression. See: Ex parte Bufkin, 553 S.W.2d 116, 118 (Tex.Crim.App. 1977; Ex parte Willman, 695 S.W.2d 752, 753 (Tex.App.-Houston [1st Dist.] 1985, no pet.)

       In considering the amount of bail to set, Courts be guided by such criteria as:

        1.          The defendant’s work record;

        2.         Family ties to the community;

        3.         Residency in the community; and 

        4.         Past criminal record. See Rubac, 611 S.W.2d at 849; Martinez-Velasco, 666 S.W.2d at 14-15.

     While have a past criminal record will not necessarily prevent the defendant from getting bail. As long as the Defendant appeared in Court at the right times and no prior judgment nisi’s or capias warrants were issued, prior criminal record will have much less of an impact. The opposite is true though. If the defendant has a criminal record and a history of not appearing in Court, this will likely be held against him and his bail set higher.

TEXAS CASES DEALING WITH BAIL PRINCIPLES

            In Ex parte Dueitt, 529 S.W.2d 531 (Tex.Crim.App. 1975) the defendant was indicted in Harris County on two counts of delivery of a controlled substance. Prior to his indictment and shortly after his arrest, a local justice of the peace reduced defendant’s bail from $20,000 to $10,000. Defendant posted bail and was released from custody. Following his indictment, the trial court reset bail at $60,000 and the defendant was re-arrested. He could not post the $60,000. He filed a pretrial habeas corpus petition alleging the bail was excessive. Id., at 532. It was established at the habeas hearing that defendant was 23 years of age, married, and father of a three year old daughter; and that he had lived his entire life in Harris County. He had never been convicted of a felony and his former employer said he could have his job back if released on bail. Id. The court of appeals ordered that the $60,000 bond reduced to the original $10,000.

        In Ex parte Branch, 653 S.W.2d 380 (Tex.Crim.App. 1977) the defendant was charged with possession of heroin. Bond was set at $500,000. The State offered evidence at the pretrial habeas hearing that the defendant had three other charges pending against him, including an aggravated assault on a peace officer; and that he had already posted bonds in the amount of $200,000 in those cases. The defendant, through his wife, established he was unable to raise the $50,000 fee necessary to make the $500,000 bond. Defendant’s wife testified that her husband had worked at Gulf Oil Corporation for twenty-three years, and that he had been working with his father at a store prior to his arrest. The appeals court found the $500,000 bond excessive and ordered it reduced to $20,000.

                        In Ludwig v. State the defendant had been charged with two murders. Bond was set at $2,000,000. The defendant requested a bail reduction and presented evidence of a limited ability to make bond because his assets were frozen by court order. The defendant’s family members testified there were able to collectively offer $10,000.  The defendant was a vetrinarian in Katy and had strong communiy ties. There was no indication the defendant had a criminal record or had failed to attended any hearings in the past. The appeals court ordered it reduced to $50,000.

            In Ex parte Khalid Sabur-Smith, 73 S.W.3d 436 (Tex.App.-Houston [1st Dist.] 2002)(per curiam) involved a twenty two year old defendant. He was arrested and charged with second degree felony assault charge. Defendant lived with his mother was living with his mother and had strong family ties to the community which included a large extended family. For three years prior to his arrest defendant was employed at various jobs. Defendant’s prior criminal conduct involved only two prior trespass warnings. The State conceded Defendant had never been arrested. The sexual assault victim in this case claimed the Defendant had offered drugs in exchanged for sex. When the victim refused the Defendant alleged forced himself on her. Several months later following a DNA match Defendant was arrested. His bond was set at $150,000. Defense counsel requested the bond be substantially lowered. But this request was denied by the Court.

            The appellate court held that while “no precise standard for reviewing bond settings on appeal,” the “right to a reasonable bond is based on the presumption of innocence …” The primary factors” to be considered by the court are punishment and the nature of the offense. The court said the crime Defendant was accused of was a second degree felony for which Defendant could be imprisoned for up to twenty years with a fine up to $10,000. The appellate court stated that excessive bonds are justified only when violence was during the crime and/or the defendant has a lengthy criminal history of sexual assaults and violence. Substantiating this point the court cited to Balawajder v. State, 759 S.W.2d 504 (Tex.App.-Fort Worth 1988, no pet.) where the defendant was charged with aggravated rape and robbery. Further the defendant had at least one prior felony conviction and arrest in three states. The other case cited by the Sabur-Smith Court was Ex parte Ruiz, 692 S.W.2d 192 (Tex.App.-Austin 1985, no pet.) wherein the defendant was charged with six felonies. Further, the Defendant was a career criminal with a violent past. The bond in the Balawajder case was $50,000 and in the Ruiz case it was $100,000. These bonds were significantly lower than in the Sabur-Smith’s case. After nothing that Sabur-Smith did not pose any future threat to either the victim or the general public, the court found his $150,000 bond excessive and ordered it reduced to $30,000.

            In Ex parte Martinez-Velasco, the defendant was indicted for delivering cocaine. His bond was set at an astounding $2,000,000.  Defendant filed pretrial motions asking his bond be reduced.  At the reduction hearing the defendant showed he was an Ecuadorian citizen who had resided and worked in the U.S. for 3o years.  He had community ties in the form of long lasting friendships and no prior criminal record.  Additionally, his arrest had been completely uneventful. The appeals court ultimately reduced the bond to $375,000.

            In Ex parte Veselka, 2008 WL 4958305 (Tex. App.–San Antonio 2008, no pet. h.)(not designated for publication) the Court of Appeals upheld a $750,000.00 bond in a capital murder case, finding that, considering the facts of the case, the circumstances of appellant’s arrest, appellant’s ability to make bail, and his ties to the community, “we cannot conclude that the trial court abused its discretion in only reducing the bail to $750,000.”