By Clinton Morgan
Assistant District Attorney in Harris County
“Bail reform” has become a major issue in Texas, especially in the big cities. Recent elections have brought in judges who are more predisposed to leaving defendants out on bail pending trial. When prosecutors are unhappy with a defendant’s low bail, we have little recourse. We can ask for it to be raised, but we have no appellate remedy if the judge turns us down. But what about a judge who thinks a defendant’s bail is too low?
Let’s say the initial magistrate to hear a case sets bail at a low amount and the defendant bails out, but when the case is assigned to a trial court, that judge believes the bail is too low. Can the trial court judge revoke the current bonds and hold the defendant to a higher bail amount?
In Ex parte Gomez,[1] the Court of Criminal Appeals confronted just such a case and upheld the trial court’s broad discretion to determine the appropriate bail amount, even if that means sending a bailed defendant back to jail. In doing so, the Court of Criminal Appeals also cleared up one of the longstanding low-level mysteries of Texas law: What’s the difference between “bail” and “bond?”
Finding bail “insufficient in amount”
The allegation against Gomez is that he lurked in an ex-girlfriend’s closet and, once she was asleep, strangled her until a housemate intervened. Gomez was arrested soon after and charged with burglary and occlusion assault of a family member.
At his initial appearance before a magistrate, the State requested a protective order and asked that bail be set at $100,000 for each charge. The magistrate signed the protective order but set bail at $25,000 for the burglary and $15,000 for the assault charge. Gomez’s father got surety bonds for these amounts, and Gomez was released the next morning.
His first trial court appearance was a few hours later, and the trial judge had a different view on what constituted bail in a sufficient amount. After hearing the allegations, she declared the current bonds insufficient and ordered bail be set at $75,000 for each charge—$150,000 total. Gomez’s family could not get a bond in this amount, so he went back to jail.
Gomez’s attorney quickly filed for habeas relief. His main argument was not about the reasonableness of the amount but about the procedure the trial court used. He alleged Code of Criminal Procedure Art. 17.09, §3 prohibited the trial court from revoking a bailed defendant’s bond without “good and sufficient cause.” He also alleged the trial court erred by not applying the Rules of Evidence and by appointing Gomez a lawyer although Gomez did not want an appointed lawyer.
At the habeas hearing, the State and trial judge both pointed out that Art. 17.09, §3 allows a trial court to revoke a defendant’s bond if it “finds that the bond is defective, excessive, or insufficient in amount, or that the sureties, if any, are not acceptable, or for any other good and sufficient cause. …” The trial judge said she had found the original bonds “insufficient in amount” and denied relief.
Was there “good and sufficient cause?”
On appeal, the parties raised the same arguments: Gomez claimed the trial court could not revoke bail without “good and sufficient cause,” and the State[2] replied that under Art. 17.09, a trial court could revoke the bonds based on a bare finding they were “insufficient in amount.”
The State pointed to Art. 17.15, which lays out the purpose of bail, requiring that bail be “sufficiently high” to ensure the defendant’s presence at trial and that the magistrate considers the safety of the victim and the community. The State argued a trial court could revoke a defendant’s bonds any time it found those bonds were insufficient to ensure his appearance or to protect the victim or community.
The First Court of Appeals reversed on a novel argument it came up with on its own.[3] It held that it was “undisputed” that the original bonds were sufficient because the bonds were for $40,000, and the original magistrate had set bail at $40,000.[4] That is, the First Court treated bail and bond as two separate things; so long as a bond was in the amount the magistrate had set bail at, the bonds were necessarily sufficient. The First Court held that because the record did not show any changed circumstances between the initial setting of bail and the trial court’s revocation, there was no “good and sufficient cause” for revocation.
Upholding the trial court’s discretion
The Court of Criminal Appeals granted petitionary review and reversed.[5] Judge Keel wrote the opinion for a seven-judge majority. Judges Yeary and Slaughter concurred without opinion.
Judge Keel’s analysis started off by addressing the First Court’s distinction between “bail” and “bond.” She noted that Chapter 17 of the Code of Criminal Procedure—which covers most bail procedures—uses the terms “interchangeably.”[6] For instance, Art. 17.01 defines “bail” as “the security given by the accused that he will appear … and includes a bail bond or a personal bond.” Thus, bail is bond, and both are the security given. Similarly Arts. 17.02, 17.033, and 17.09 use the terms in a way that “conflates” them. Therefore, the First Court erred to draw a meaningful distinction between “bail” and “bond.”
Judge Keel moved on to the main issue; it was not, as it had been addressed in the First Court, whether the trial court abused its discretion in finding the original bonds insufficient. Instead, the issue on a habeas writ was to determine whether, under the criteria in Art. 17.15, the final bond set was excessive. “If the trial court did not set bail in an excessive amount under Art. 17.15, it did not abuse its discretion to find the original bond insufficient under Art. 17.09.”[7]
Judge Keel rejected several arguments made by the First Court and Gomez. First, she rejected the First Court’s suggestion that the trial court had to justify its ruling with findings. That requirement has no basis in Art. 17.09. Second, she rejected the argument that there had to be a “good and sufficient cause” other than mere insufficiency. The phrasing of Art. 17.09—allowing a bond to be revoked if it is “insufficient in amount … or for any other good and sufficient cause”—showed that insufficiency was itself a “good and sufficient cause.”
Third, she rejected the argument that the trial court was bound by the magistrate’s original bail determination. The statutes that created hearing officers in Harris and some other counties specifically allow for trial court judges to revisit rulings by the hearing officers.[8]
Finally, she rejected Gomez’s argument that because Arts. 16.16 and 23.11[9] allow a judge to raise bail only on affidavit, the trial court had erred to raise bail without proper evidence under Art. 17.03. Without such a requirement, according to Gomez, a trial judge might revoke a defendant’s bond on a whim. Judge Keel rejected this argument for two reasons. First, those are different statutes, and their affidavit requirement does not apply to Art. 17.09.[10] Second, bail decisions are still subject to habeas and appellate review; thus, “if the record shows a trial court arbitrarily found ‘insufficient bond,’ the trial court’s actions would be a reversible abuse of discretion.”
The opinion concludes by remanding the case to the First Court to consider whether the bail amount was an abuse of discretion and to consider Gomez’s procedural issues that were not addressed the first time.
Takeaways
A trial judge’s discretion is near its apex when it comes to bail, and Gomez emphasizes that. It’s frustrating for prosecutors when bail is set too low and it’s frustrating for defendants when they have to wait for trial in jail, but someone has to set bail, and our system gives that responsibility to the trial judge.
The application of Ex parte Gomez to felonies filed in justice courts is not as straightforward as with cases where appointed magistrates have set bail. Under Ex parte Clear,[11] a district judge could not use Gomez to increase the bail of a defendant who was originally charged by complaint in a justice court unless an indictment had been issued. If a prosecutor is unhappy with the bail assessed by a JP in a felony case, his or her options are to:
1) ask the JP to increase bail;
2) get an indictment, which would vest the district court with jurisdiction to adjust bail under Art. 17.09; or
3) file an affidavit in the district court seeking increased bail under Code of Criminal Procedure Art. 16.16.
This case may bear watching on remand, where the First Court will address what procedures, if any, a trial court must follow when revoking a defendant’s bonds because they are insufficient in amount.
Endnotes
[1] 624 S.W.3d 573 (Tex. Crim. App. 2021).
[2] I represented the State throughout the appeal.
[3] Ex parte Gomez, No. 01-20-00004-CR, 2020 WL 4577148 (Tex. App.—Houston [1st Dist.] Aug. 7, 2020) (not designated for publication).
[4] Id. at *6.
[5] Because the First Court of Appeals issued its mandate at the same time as its opinion, petitioning for discretionary review was far more complicated than normal. The procedures are laid out in Rule of Appellate Procedure 31.4, and the considerable filings on this subject are available on the First Court’s and Court of Criminal Appeals’s pages for the case.
[6] Gomez, 624 S.W.3d at 577.
[7] Id. at 578.
[8] I do not purport to know all the statutes about hearing officers around the state, but Judge Keel cited Government Code §§54.856 (Harris County), 54.882 (Lubbock County), 54.912 (Bexar County), and 54.982 (Travis County).
[9] These articles are interesting but little-used tools. Code of Criminal Procedure Art. 16.16 applies before indictment and Art. 23.11 applies after, but both allow a prosecutor to submit an affidavit to a judge showing a defendant’s bond is insufficient in amount. The articles do not require a hearing, and on their bare terms do not even allow one. They give prosecutors a chance to seek increased bail without a hearing, which would likely expose key witnesses to pretrial cross-examination.
[10] Gomez, 624 S.W.3d at 579.
[11] 573 S.W.2d 224 (1978).