Harris County could find itself between a rock and a hard place over its misdemeanor bail reforms, as the Texas House prepares to vote on changes to the state's bail system on Monday.
House Bill 20 would require that virtually all arrests in Texas be subject to risk assessment and magistration, "which means that somebody has to be held in jail for upwards of 24 to even 48 hours before they're seen by a judge and able to be released," said Inshah Rahman, vice president of advocacy and partnerships at the Vera Institute of Justice.
That by itself would present problems for Harris County, which agreed in its bail reforms to allow people arrested on low-level, non-violent misdemeanors to be released immediately on their own personal recognizance.
What complicates matters further is that HB 20 would allow a judge to require a defendant to post a cash bail at the end of that 24-48 period in order to be released. The county's bail reform settlement was premised on the finding that the existing cash bail system discriminated against indigent defendants, often forcing such individuals to remain in jail for months pending trial because of an inability to pay.
"If HB 20 moves forward in its present form, Harris County would have to make the choice of, ‘Do I violate a federal court order, or do I violate newly passed state law?'" said Rahman.
A similar bill, Senate Bill 21, has already passed the Senate and been referred to the House Committee on Criminal Jurisprudence. Gov. Greg Abbott has made the passage of one of these bills an emergency item for the legislative session.
Rahman argued that in addition to putting Harris County in an untenable legal position, HB 20 would also impose an unfunded mandate.
"The way HB 20 is being sold in the Legislature is that it won't come with much cost, because some of the procedures and tools within the bill, such as risk assessment implements will be provided to counties for free," Rahman said.
But applying those risk assessments and keeping people in jail for an additional 24-48 hours does come with a cost. "Those are costs to counties that the county has to bear of more personnel to manage that administrative process. Those are costs in the local jail budgets, because jail populations will go up, no doubt, as a result of this change," Rahman said.