Circumstances for Bail Pending Appeal In Texas
The Right to Bail Pending Appeal
The Texas Constitution recognizes the right to bail for all criminal offenses except those wherein the imposition of the death penalty is strongly indicated. See TEX. CONST. art. I, 11.
This constitutional right to bail is limited to preconviction cases. Ex parte Laday, 594 S.W.2d 102, 103 (Tex. Crim. App. 1980).
Convicted felons are not guaranteed the right to bail under the constitution. Ex parte McBride, 108 Tex. Crim. 618, 2 S.W.2d 267, 267 (1928).
Article 44.04 of the Texas Code of Criminal Procedure governs the availability of bonds pending appeal. See TEX. CRIM. PROC. CODE ANN. art. 44.04 (Vernon Supp. 2000).
This article was amended in 1999 by the Texas Legislature; however, the 1999 revisions to the article apply only to a request for bail pending appeal that is made by a defendant on or after September 1, 1999, the effective date of the 1999 revisions. TEX. CRIM. PROC. CODE ANN. art. 44.04 historical note (Vernon Supp. 2000)[Act of May 19, 1999, 76th Leg., R.S. ch. 546, 2, 3 1999 Tex. Gen. Laws 3042].
A request for bail pending appeal that is made by a defendant before the effective date of this Act is covered by the law in effect when the request was made, and the former law is continued in effect for that purpose. Id.
The applicable version of article 44.04 (b) renders a convicted felon ineligible for bail pending appeal where punishment in excess of fifteen years confinement has been assessed. See TEX. CRIM. PROC. CODE ANN. art. 44.04 (Vernon 1965, amended 1977, 1981, 1983, 1985, 1991, 1999).
In cases where the assessed punishment for a felony conviction is fifteen years or less, the trial court has discretion to modify bail, set a reasonable bail, deny bail, revoke existing bail, or impose reasonable conditions on bail. TEX. CRIM. PROC. CODE ANN. art. 44.04(c),(d).
The trial court may deny bail if there exists good cause to believe that the defendant would not appear when his conviction became final or is likely to commit another offense while on bail. TEX. CRIM. PROC. CODE ANN. art. 44.04(c).
Article 44.04(d) further allows the court to increase or decrease the amount of bail after conviction either upon its own motion or the motion of the State or the defendant.
The statutory authority to deny bail pending appeal in certain cases does not carry with it the authority to set excessive bail in those cases. See Ex parte Harris, 733 S.W.2d 712, 715 (Tex.App.--Austin 1987, no pet.). the Texas Court of Criminal Appeals has recognized that "bail should be set sufficiently high reasonably to assure appearances, but not be used as an instrument of oppression." Ex parte Davila, 623 S.W.2d 408, 409 n.2 (Tex. Crim. App. 1981).
The burden is on the person seeking a reduction to show that the bail set is excessive. Ex parte Rubac, 611 S.W.2d 848, 849 (Tex. Crim. App. 1981).
Article 17.15 of the Texas Code of Criminal Procedure provides certain rules for setting a bond amount:
The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to governed in the exercise of this discretion by the Constitution and by the following rules:
(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 so used as to make it an instrument of oppression.
(3) the nature of the offense and the circumstances under which it was committed are to be considered.
(4) the ability to make bail is to be regarded, and proof may be taken upon this point.
(5) the future safety of a victim of the alleged offense and the community shall be considered. TEX. CRIM. PROC. CODE ANN. art. 17.15 (Vernon Supp. 2000).
The Texas Court of Criminal Appeals has articulated additional factors that a court should consider in determining a reasonable bail post-conviction. Rubac, 611 S.W.2d at 849-50; see also Ex parte Davila, 623 S.W.2d at 410.
The length of the sentence and the nature of the offense are considered primary factors. Rubac, 611 S.W.2d at 849.
Other relevant circumstances include the petitioner's work record, family ties, length of residency, prior criminal record, conformity with previous bond conditions, other outstanding bonds, and any aggravating factors involved in the offense. 611 S.W.2d at 849-50.