THE RIGHT TO BAIL:

TO OFTEN ABUSED IN HARRIS COUNTY, TEXAS

Houston Criminal Lawyer John T. Floyd Discusses Excessive Bail in

Texas Courts

The Eight Amendment to the United States Constitution expressly prohibits

excessive bail. This fundamental right allows an accused to be free before
conviction, permitting the unhampered preparation of a defense and
preventing unjust punishment upon the innocent.

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.

With the fundamental principals firmly embedded in this country’s

jurisprudence why do the Harris County Criminal Courts and the District
Attorney’s Office continue to impose excessive bonds in many non-violent
property crimes?

TRIAL COURT’S DISCRETION

Texas jurisprudence is well-settled that the trial court enjoys inherent

discretion in setting bail. 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.
See: Ludwig v. State, 812 S.W.2d 323, 324 (Tex.Crim.App. 1991)(noting
that the court is "to be governed in the exercise of [its] discretion by the
Constitution and by the [article 17.15 factors]");

Several general principles of law have been clearly established by the state’s
appellate courts in bail cases.

• The burden of proof rests with the defendant who claims 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 primary purpose for setting bond is to secure the presence of the
defendant in court at his 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 amount of bail should be set sufficiently high to give reasonable
assurance that the accused will comply with the undertaking, but
should not be set so high as to be 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.)
• Courts should also consider the defendant's work record, family ties,
residency and past criminal record. See: Rubac, 611 S.W.2d at 849;
Martinez-Velasco, 666 S.W.2d at 14-15.

APPLICABLE CASE LAW GOVERNING THESE 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; namely, heroin. 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. Id., at 533.
In Ex parte Lerma, 561 S.W.2d 10 (Tex.Crim.App.1978)(En Banc) two
defendants were arrested, and subsequently indicted, in Harris County for
possession of heroin. Bond was set at $300,000. Defendants filed a pretrial
petition for writ of habeas corpus challenging the bond as excessive. At the
habeas hearing it was established that both defendants were Mexican
nationals, were married, and had children. One of the defendants was a
homeowner and worked as a taxi driver while the other defendant was a
parts buyer for large buses and trucks. Id., at 11. One of the defendants’
sister testified that she was married and had lived in Houston for nine years.
She said her brother as a responsible citizen who would post her brother’s
bail. Id. And while law enforcement offered negative testimony about the
defendants, it was established that neither had ever been convicted of a
crime in the United States or Mexico. Id., at 12. The court of appeals
concluded the $300,000 bail was excessive, and ordered it reduced to
$100,000 for one defendant and to $75,000 for the other defendant. Id.

In Ex parte Branch, 653 S.W.2d 380 (Tex.Crim.App. 1977) the defendant

was charged by complaint with possession of heroin. Bond was set at
$500,000. Id., at 381. 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. Id. 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.
Id., at 382.

In Ludwig v. State, supra, the court dealt with a case where the defendant
had been charged with two murders. Bond was set at $2,000,000. At a bail
hearing the defendant presented evidence of a limited ability to make bond
because his assets were frozen by court order. Id., at 324. The defendant’s
family members testified that the most they could contribute to bond was
$10,000. Id., 324-25. With a license to practice veterinary medicine in Texas
and an established practice in Katy, the defendant had extensive ties to the
community. Id. The lower court record was void of any evidence that the
defendant had a prior criminal record, had ever failed to comply with terms
of a bond in the past, or had ever attempted to flee police custody. Id. The
appeals court found the two million bond excessive and ordered it reduced to
$50,000. Id., at 326.

In Ex parte Martinez-Velasco, supra, the defendant was indicted for delivery

of cocaine, a Penalty Group 1 controlled substance. Id., at 614. Bond was set
at $2,000,000. Defendant filed a pretrial writ of habeas corpus claiming the
bail was excessive. The trial court reduced the bond to $750 000. Id. At the
pretrial habeas hearing it was revealed that defendant, an Ecuadorian, had
resided and conducted business in the United States for thirteen years, had
established strong friendship ties in the United States, had no prior criminal
record, and that no threats, force or violence had been used during his
apprehension and arrest. Id., at 614-15. The appeals court ordered the bond
reduced to $375,000. Id., at 617.

In Nguyen v. State, 881 S.W.2d 141 (Tex.App.-Houston [1st Dist.] 1994, no

pet.) the defendant was charged with aggravated robbery, burglary of
habitation, and engaging in criminal activity. Id., at 142. An aggregate bail
of $350,000 was set by the trial court. At a pretrial habeas corpus hearing
(after which bail was lowered by the trial court to $250,000) the arresting
officers testified that the defendant cooperated with them during the arrest
process: he consented to search, did not flee when opportunity presented
itself, and did not possess a weapon. Id. Defendant testified that he as 31
years of age, an American citizen, graduated from high school, attended
college at Houston Baptist University and University of Houston for three
years, and had been married for five years. Id. His mother and father resided
in Houston, and his older brother was employed as an interpreter by the City
of Houston and Harris County. Id. Before his arrest, defendant lived with his
wife in California where he worked as a salesman for his mother-in-law who
owned a diamond business. Id., at 143.Defendant’s brother testified that the
defendant would live with mother and father if he was granted bail, and the
arresting officer testified that defendant had no criminal record or known
gang affiliation. Id. The appeals court ordered the bond reduced to $60,000.
Id., at 144.

In Ex parte Bogia, 56 S.W.3d 835 (Tex.App.-Houston [1st Dist.] 2001, no

pet.) the defendant was charged with second degree felony theft and bond
was set at $360,000. Id., at 836. The defendant had significant ties to the
community with a 15 year marriage and a twelve year old child. Id.. at 839.
She presented evidence at a bail reduction hearing that her relatives could
not raise the money for bail. As in Ludwig, there was no evidence that the
defendant in Bogia had ever failed to comply with a previous bond or tried
to evade an arrest or had a prior criminal record. Id., at 837. Further, there
was no evidence that the defendant posed a threat to either the victim or the
community, and there was the likelihood of a light or probated sentence. Id.

These cases reflect that the courts of appeals have consistently over the past
three decades struck down excessive bonds, particularly in Harris County.
The appeals courts, however, have upheld “excessive” bail in some extreme
circumstances. For example, in Maldonado v. State, 999 S.W.2d 91
(Tex.App.-Houston [14th Dist.] 1999, pet. ref’d) the appeals court held that it
is “a matter of common sense that those who possess illegal drugs with the
intent to deliver in quantities present in this case effect [sic] the community
in which they live,” and that “[p]ossession and distribution of narcotics
cannot be ignored in analyzing the safety of the community relevant to bail
determinations.” Id., at 96-97.

See also: Ex parte Prelow, 929 S.W.2d 54, 56 (Tex.App.-San Antonio 1996,
no pet.)[excessive bail upheld because defendant had access to assault rifles
and frequently engaged in shootouts with others]; Esquivel v. State, 922
S.W.2d 601, 604 (GTex.App.-San Antonio 1996, no pet.)[excessive bail
required because of “the brutality of the crime, the duplicity involved in
perpetrating a kidnapping scheme to account for the disappearance of the
child, the evasion appellant bragged about to the detective when he was
arrested, concern for the safety of other witnesses who have been
interviewed during the investigation, and a history of violence toward other
members of his family”].

But in Perez v. State, 897 S.W.2d 893 (Tex.App.-San Antonio 1995, no pet.)
(per curiam) the court of appeals, while acknowledging that numerous DWI
convictions are potentially dangerous to the community, they cannot be used
as a pretext to justify excessive bail where the only purpose is to keep a
defendant incarcerated pending appeal. Id., at 898. See also: Smith v. State,
829 S.W.2d 885, 887 (Tex.App.-Houston [1st Dist.] 1992, pet ref’d)
[rejecting a condition which required the defendant to pay a $53 million
judgment obtained him in a separate civil suit].

In Ex parte Khalid Sabur-Smith, 73 S.W.3d 436 (Tex.App.-Houston [1st

Dist.] 2002)(per curiam) the defendant was 22 years of age and who, at the
time of his arrest for second degree felony assault charge, was living with
his mother at her Bryan College Station home. He had strong family ties to
the community, including a finance, nine uncles, three aunts, and 27 cousins.
He had been gainfully employed at various jobs for the three years prior to
his arrest – and he had a job waiting should he be released on bond. Id., 437-
38.

The defendant in Khalid Sabur-Smith had received a criminal trespass

warning in 1999, had been questioned as a suspect in a sexual assault case in
2000, and had received a criminal trespass warning in 2001. The State
acknowledged the defendant had never been arrested for any of these
incidents. Id.

The sexual assault victim in Khalid Sabur-Smith reported to police that a

man known to her as “Deon” had sex with her without her consent on May
7, 2001. She told police that the Deon came to her residence and offered her
drugs in exchange for sex. She refused the offer. Deon then forced his way
into the victim’s home and forced her to perform oral sex on him. He then
had sexual intercourse with her. Id.

Two days later the police questioned Khalid Sabur-Smith who told officers
that he victim consented to have sex with him. He said she performed oral
sex on him and then masturbated him to ejaculation. The defendant denied
having sexual intercourse with the victim. Id.

Five months after the alleged offense police requested a DNA sample from
Khalid Sabur-Smith which matched the DNA taken from the vaginal swap
of the victim. Id., at 439. Khalid Sabur-Smith was arrested and bond was set
at $150,000. His attorney immediately requested that the amount of bail be
reduced to between $30,000 and $50,000. The court denied the request. Id.

While noting that there is “no precise standard for reviewing bond settings
on appeal,” the appeals court said that the “right to a reasonable bond is
based on the presumption of innocence …” Id. The court then noted that the
“primary factors” to be considered are punishment and the nature of the
offense. Id. The court said the offense that Sabur-Smith was charged with, a
second degree felony sexual assault, carried a penalty of imprisonment from
two to 20 years with a fine up to $10,000. Id.

The appeals court pointed out that in sexual assault cases an “excessive”
bond is justified only when the defendant has used violence during the
commission of the offense and/or has an extensive criminal history of sexual
assaults and violence. Id., 439-440.

The Sabur-Smith court illustrated this point by citing Balawajder v. State,

759 S.W.2d 504 (Tex.App.-Fort Worth 1988, no pet.) in which the defendant
had been charged with aggravated rape and robbery and who had at least one
prior felony conviction and arrests in three states. Id., at 506 The other case
was Ex parte Ruiz, 692 S.W.2d 192 (Tex.App.-Austin 1985, no pet.) in
which the defendant was charged with six felonies, including an aggravated
sexual abuse count that occurred during the commission of a robbery and
who was a career criminal with a violent past. Id., at 194.

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. Id., at 441.

HARRIS COUNTY COURT BAIL SCHEDULE

Harris County
District Court Bail Schedule

Offense Bail
All capital felonies ……………………………………..No Bond
All murders not particularly specified below…………...$50,000.00
All first degree felonies not particularly specified below.$20,000.00
All second degree felonies not particularly specified below
…………………………………………………………..$10,000.00
All felony DWI’s not particularly specified below ……$10,000.00
All third degree felonies not particularly specified below
…………………………………………………………..$5,000.00
All fourth degree (State Jail) felonies not particularly specified below
…………………………………………………………..$2,000.00
Repeat Offenders
Habitual …………………………………………………No Bond
First degree felony with previous conviction …………..$30,000.00
Second degree felony with previous conviction ………..$20,000.00
Felony DWI with previous felony DWI conviction
……………………………………….Double bond amount for each
 ………………………………………Previous felony DWI conviction.
Third degree felony with previous conviction ………….$10,000.00
Fourth degree (State Jail) with previous conviction …… $5,000.00
Four degree (State Jail) felony with more than one previous
conviction
……………………………………………………………$15,000.00

Particular Situations
Large quantities of controlled substances …….Double the value of the
or large quantities of stolen property controlled substance or

property

Complete Court Bail Schedule:

http://www.justex.net/BailBondSchedule.aspx

The Harris County District Attorney’s Office frequently engages in the

practice of markedly increasing the value of property taken in thefts or the
value of narcotics seized from defendants in order to have excessive bail set.
For example, a defendant can be arrested with 10 kilos of cocaine and the
District Attorney’s Office will place the value of a kilo of cocaine at
$100,000. This will result in the defendant being placed under a $2 million
bond when, in reality, a kilo of cocaine can be purchased in Harris County
for $15,000 to $17,000. The only way the kilo’s value reaches $100,000 in
value is when it is cut and sold in individual grams on the street. The district
courts generally go along with this borderline unethical conduct – and that is
why so many Harris County excessive bails are frequently reversed at the
appellate level.
Under this kind of bail “schedule,” the amount of bail is generally
determined by the offense charged and, sometimes, by the defendant’s
criminal history. See: Ex parte Beason, 1993WL 3222730 (Tex.App.-
Houston[1st Dist.] 1993)(per curiam)(not designated for publication)(taking
judicial notice of the “District Court Bail Schedule” adopted by Harris
County district judges as a nonbinding guideline); Ex parte Bogia,. supra.

In Ex parte Clark, 635 S.W.2d 202 (Tex.App.-San Antonio 1982) the court
of appeals refused to be guided in determining the amount of bail by a “bond
schedule” memorandum “agreed to” by the criminal district judges as “a
guide that the judges use from which they can deviate depending on the
circumstances.” Id., at 204 n.2.

In Ex parte Khalid Sabur-Smith, supra, the court of appeals recognized but

did not lend credence to the Harris County Bail Schedule, saying:

“Giving appellant the presumption of innocence to which he is entitled

under the United States and Texas constitutions, considering the amount of
bail considered reasonable for other felony sexual offenses, the evidence of
the offense, the resources available to appellant to make bail, the length of
appellant's confinement without trial, the lack of evidence of other crimes,
arrests, or convictions, and the appellant's community ties and work record,
we conclude appellant has established that bail of $150,000 is excessive.
This Court, in a Harris County case, has considered the Harris County
District Court Bail Schedule as a factor in reviewing the amount of the bail
for various offenses. See Ex parte Bogia, 56 S.W.3d 835, 838 (Tex.App.-
Houston [1st Dist.] 2001, no pet.). The Harris County District Court Bail
Schedule is not binding on district courts outside Harris County, nor on
district courts in Harris County. Still, it is some indication of the propriety of
bail for various types of offenses, just as case law arising from other
counties is. The standard bail in the Harris County District Court Bail
Schedule for a “3g” offense, such as sexual assault, is $30,000. Id. at 841;
see Tex.Code Crim. Proc. Ann. art. 42.12 § 3g(1)(H) (Vernon Supp.2002)
(classifying sexual assault). We reverse the trial court's order denying habeas
corpus relief. We grant relief and render judgment that appellant's bail be
reduced to$30,000.” Id.,at441.

While the Harris County bail schedule is not per se unconstitutional, it does
violate the spirit of the bail process. Texas jurisprudence requires that bail be
determined by a totality of the defendant’s circumstances, not just the
offense charged and criminal history. Tex.Code Crim. Proc. art. 17.15.

In Ex parte Simon Garcia, 100 S.W.3d 243 (Tex.App.-San Antonio 2001)

the court of appeals confronted the Bexar County Bond Schedule. The court
said that once a bail hearing is conducted, “ …the [schedule] should not be
used.” Id. The court added:

‘The court should consider the factors set forth in the statute. Id. We do,
however, recognize the schedule as a guide which in a general way includes
certain factors, particularly the nature of the crime, its severity, and whether
it was committed against a specially protected class (such as children, the
elderly, and victims of domestic violence). In any event, this court does not
review the trial court's mental process in determining bail, we instead review
the appropriateness of the conclusion, i.e., whether the amount of bail is
reasonable.” Id.

THE EX PARTE BOGIA HOLDING

The extraordinary amount of bail that the Court discussed in Bogia was
$360,000 on an alleged theft of $183,214.50. In Bogia, District Judge
Belinda Hill applied the standard Harris County District Court Bail Schedule
(attached hereto as Exhibit A) and doubled the amount of the alleged theft.
The Court of Appeals, First District of Texas, reversed Judge Hill and set the
bail at $10,000 in Bogia stating that such amount was the standard Harris
County District Court Bail Schedule for someone charged with a second
degree felony that has no criminal history. The standard Harris County
District Court Bail Schedule for someone charged with a first degree felony
that has no criminal record is $20,000. The Court in Bogia points out that
the standard Harris County District Court Bail Schedule sets bond at
$50,000 for accused murderers, $35,000 for illegal aliens, $30,000 and
$20,000 for those with prior criminal history, and $35,000 for those charged
with 3g or deadly weapon offenses. See also: Ex parte Mayfield, 2007
Tex.App. LEXIS 9758, at p. 7 (Tex.App.-Waco 2007)[followed Ex parte
Bogia].

Typical bond amounts set by the Court of Appeals and the Texas Court of
Criminal Appeals as well as United States Federal Courts are designed to
avoid excessive bail. The First District Court of Appeals in Bogia had the
following to say about their typical bond amounts:

“The bail in this case far exceeds what has been approved in theft cases, and
even in capital murder cases, by the Court of Criminal Appeals and by this
Court.

”The case law from the Court of Criminal Appeals does not support bail in
this amount. In Ex parte Keller and Ex parte Franklin, 595 S.W.2d 531
(Tex.Crim.App.1980), the defendants were charged with stealing more than
a million dollars. The trial court originally set bail at $600,000 for each
defendant ($200,000 in each of three cases against each defendant), but
reduced Keller's bond to $300,000. Id. The Court of Criminal Appeals then
lowered bail to $30,000 for each petitioner ($10,000 per case), even though
Franklin had two prior felonies theft convictions and Keller had prior
convictions for felony forgery and misdemeanor theft. Id. at 532, 533.
Appellant has no convictions and is accused of stealing less than 20% of
what Keller and Franklin were accused of, but her bail is 12 times theirs. See
also Ex parte Rubac, 611 S.W.2d 848, 850 (Tex.Crim.App.1981) (reducing
bail on appeal from $100,000 to $25,000 after conviction and 10-year
sentence for drug offense); Pemberton, 577 S.W.2d at 267 (reducing bail on
appeal from $55,000 to $25,000 after conviction and five-year sentence for
aggravated robbery).

“In capital murder cases, the Court of Criminal Appeals has repeatedly
reduced bail to amounts much lower than appellant's, ranging from $100,000
to $20,000, with most in the $20-50,000 range. See Ex parte McDonald, 852
S.W.2d 730, 733-35 (Tex.App.-San Antonio 1993, no pet.) (collecting cases)
(finding no case in which the Court of Criminal Appeals had approved a
bond as high as $300,000 and concluding “··· it would be an unusual case
which would justify such a high bail amount.” Id. at 735, n. 4); Ex parte
Delk, 750 S.W.2d 816 (Tex.App.-Tyler 1988, no pet.) (capital murder bail
reduced from $100,000 to $35,000); Ex parte Goosby, 685 S.W.2d 440
(Tex.App.-Houston [1st Dist.] 1985, no pet.) (reducing capital murder bail
from $250,000 to $100,000 and affirming bail of $25,000 for attempted
capital murder).

“This Court has frequently lowered bail in theft cases to far below the value
of the property allegedly stolen. Because these opinions are unpublished, we
do not cite them here as authority. Federal courts have apparently done the
same. The Houston Chronicle of August 4, 2001 reported that a local United
States magistrate set bail of $50,000 for a wire fraud defendant accused of
stealing $300,000.” Ex Parte Bogia, supra, 56 S.W.3d at 837-38.

In regards the Harris County District Court Bail Schedule, the Court in
Bogia declined to follow the recommendation to double the amount of the
alleged theft and instead stated:

“We consider it significant that if the Harris County District Court Bail
Schedule had been followed in the Keller case, bail would have been $2
million. Keller, 595 S.W.2d at 531 (defendant allegedly stole more than $1
million). Instead, the Court of Criminal Appeals in Keller set bail at
$30,000, a mere 1.5% of the Bail Schedule amount. Stated another way, the
Court of Criminal Appeals in Keller set bail for defendants with prior felony
convictions who were accused of a far greater theft at 3% of the amount they
allegedly stole, not 200% as the Bail Schedule provides and as the trial court
did here. We conclude that the Bail Schedule's formula for large theft cases
cannot be reconciled with Keller. If a $360,000 bail can be justified here, it
will not be because of any formula. On the contrary, it would have to be
justified by extraordinary facts in this particular case.” Id. See also: Ex parte
Khalid Sabur-Smith, 73 S.W.3d 436 (Tex.App.-Houston [1st Dist.] 2002)(per
curiam) Ex Parte Ruiz, 129 S.W.3d 751, 753-54 (Tex.App.-Houston [14th]
2004) [two reported cases from Harris County since Ex Parte Bogia
reaffirming the bail standard of review set forth in Ex parte Rubac set forth
in Bogia].

The consensus of the appeals courts seems to be that excessive bonds in

theft cases will not be permitted, particularly when a defendant can show ties
to the community and there is no evidence of future danger to the
community.

The Bogia principles notwithstanding, Harris County judges continue to set,

at the request of the District Attorney’s Office inflated, excessive bail. It is a
shame that the Harris County District Attorney’s Office and many of the
Harris County Courts refuse to follow the rulings from the Court of Appeals.
The only way to resolve this issue, which seems to be a slippery slope
towards ever rising bond amounts for all cases, is by a concerted effort from
the defense bar to demand that judges follow the law. This is most
effectively done by filing writs of habeas corpus setting out all the relevant
case law on excessive bonds along with all the individual factors that
support a low bond; factors that suggest ties to the community, low
likelihood of flight, and the lack of factors indicting future danger to the
community.

Unreasonably high bonds are unnecessarily oppressive, punitive in nature

and fly contrary to the fundamental principal that the accused is presumed
innocent until proven guilty. Without opposition the practice of issuing
unreasonably high bonds will continue.