Sunday, February 7, 2016

Getting High: Bail in Brazos County, Part 2

Recently I posted that bonds in Brazos County for misdmeanor cases were too high. In the post I compared them against published bond schedules for Harris County arrestees, revealing that in some instances, a misdemeanor arrest in Brazos County could mean having bail set 6 times higher for the same offense in Harris County.

This post explains several the problems and how they were created.

Bail is haphazardly set in Brazos County. The reason is in the history. When I began practicing criminal law here, 1 person was responsible for setting bail. Her name was Judge Carolyn Hensarling, and because her Justice of the Peace office was on the 3rd floor of the courthouse, she set bail amounts. At that time the Brazos County jail was located on the 4th floor of the courthouse. Each morning at 8:00 AM, jailers would bring the those arrested the night before down, line them up against her small courtroom wall, and she would read each their magistrate warnings and set bail.

It was a good system. Why? Because Judge Hensarling's was at the courthouse. She could, and would, sign off on agreed bonds, or if you showed up early enough, listen to argument that bond relief should be given. She would let you stand with your client while she read magistrate warnings. When you have been in jail overnight it can be a small, but important, comfort to have a lawyer next to you the first time you appear in front of a judge. For the lawyer, it solidifies the relationship just beginning. It was dependable, practical and generally fair system of setting bail amounts.

But Judge Hensarling did not win re-election one year and was replaced by a judge who was not as, well, collegial in the view of many. There was contention between the new JP, the DA's office, and other judges. It was decided sometime in the mid to late 1990's to rotate the job of reading magistrate warnings and setting bail amounts amongst all the JP's in the county. Initially, the JP's would travel to the jail, by then moved to a location outside the courthouse. Currently, arrestees from the 24 hours before are assembled in a room at the jail, read their magistrate warnings and bail affixed by a two way video link.

Gone are the days when a lawyer could appear with his client by getting to the courthouse early. A lawyer wanting to speak to the JP to try and have a say in the bond amount will have to find out JP setting bonds is that week (the JPs know, the jail knows, but practically no one else does), and attempt to get hold of them before they convene their morning, video "jail run." Even if an agreed bail is secured, getting it to the judge after the jail run is can be a problem depending on who the JP is.

The most systemic problem today is arrestees from College Station. Unlike every other law enforcement agency in the county, the College Station Police Department does not immediately take "on site" arrestees (arrests without warrant are called "on site") to the Brazos County jail. They take them instead to the College Station Police Department. At some point, they are transported as a group to the county jail, where, if they make it on time, have bail set along with everyone else arrested in the last 24 hours. If College Station transport is late, or if the arrestee does not make the transport, they will wait an additional 24 hours until the JP convenes their video jail run the following morning.

College Station makes most of the "on site" misdemeanor arrests in Brazos county for an obvious reason: Texas A&M University. DWI, Possession of  Marijuana (POM) are chief among these. Steps have been taken to lessen the problem, but the solution created another. POM arrests from College Station are allowed now to waive magistrate warnings (allowed in misdemeanor arrests) and make bail from the College Station city jail at the base $2000 bail amount for Class B misdemeanors.

DWI, however, is another matter. Brazos County is a no refusal jurisdiction. In other words, if arrested for DWI here, and the arrestee refuses to consent to a blood or breathe specimen for forensic testing, a warrant will be sought to secure it. Here's the rub: An arrestee refusing consent will be held and transported to the county jail. An arrestee who consents is allowed to waive magistrate warnings and post bail from the College Station city with the $2000 base amount.

I have not found evidence that an arrestee is told if they consent, they can make bail and therfore be released faster, but I know this procedure is or has been utilized. I have heard it too many times from potential DWI clients coming into my office after making bail after consent or refusal. I understand it is anecdotal, but I would invite someone in authority to get on the record and say it is not, or has not, happened in the past.

If true, it jeopardizes the validity of the consent to provide a breath or blood specimen. If an arrestee knows liberty is a "yes" away instead of a paddy wagon ride to county jail and potentially another 24 hour wait, most will understandably opt for consent. Second, and more fundamentally it is wrong to treat these folks differently. If one set of misdemeanor arrestee is eligible to make bail from College Station, then all should be. Finally bail is meant to assure later court appearance, not penaliize arrestees for not cooperating with law enforcement investigations.

Here are my suggestions:
  • Lower bail amounts for misdemeanors. Use the Harris County bail schedule as a guide. It would promote use of cash bonds, which can be refunded to the arrestee once court proceedings are finished. 
  • Make posting bail easier and uniform. Everyone goes to county, and all misdemeanor arrestees allowed to waive magistrate warnings and post bail according to schedule. If College Station continues to insist on transporting from the city jail, allow their misdemeanors arrestees to also waive and make bail as if they were in county.   
  • For that matter, lower bonds across the board. We have too many people locked up in Brazos County on pre-trial detention. It would save tax payer dollars and as a matter of principle, if an arrestee has not been convicted, and have no other holds, unless unique circumstances otherwise exist, they ought to have liberty. 
  • Publish the bail schedule. Let everyone know what it is going to cost.   
  • If the published bail schedule is deviated from, make the magistrate place in writing why. 
  • Instead of 4 Justices of the Peace rotating the setting of bail, have a single JP do the job. It promotes continuity. Better still, have one of the current associate judges do the job and increase their pay because they do it. 
Oh, and happy Super Bowl Sunday everyone. Go Broncos!


  1. It certainly seems that there should be a more streamlined approach to bail setting. I am sure if the judge were the one needing a reasonable amount, it would be done with the snap of a finger. This is one of the many things wrong with our legal system today.

    Eliseo Weinstein @ JR's Bail Bonds

  2. I had posted before, but don't see it. I work for a JP in a?other county. My son was arrested for POM under 2 and released without arraignment. I've since discovered he signed a waiver on his BAIL BOND. Really? I would like to know where it states in the law that a waiver is possible, other than when am Atty files a motion with the judge to waive arraignment. This w]uld mean that you already have an Atty retained, which would mean it didn't matter really, about the notice of right to counsel. I would also like to know who or what gives the authority for such waiver to be taken on the bond. Makes absolutely no sense. We have 4 JP's and they each take 7 days of on call and do magistations every day of the week. They know of no law where you can waive arraignment and 2 of them have over 20 yes experience as Judges.
    Please let me know where I can find this law. Thank you so much. Great article.

    1. I will not address the propriety of allowing waivers or the method of waiver of warnings required under 15.17(a) CCP.. I will write that allowing proper waiver of magistrate warnings can speed release of misdemeanor arrestees. Art. 1.14(a) CCP allows a defendant to waive any rights "secured him by law...." If properly done the arrestee would be given written warnings, and then waive the magistrate orally reading the same warnings to the arrestee ("The magistrate SHALL inform...."). I am at a loss to understand how this is not a settled issue amongst JP's and magistrates giving the warnings and setting bonds around the state. I would think there would be some method of communication between counties allowing misdemeanor waivers of Art. 15.17 warnings and counties, like yours, that do not about both the propriety and utility of waiving warnings in misdemeanors situations. ldt