Goheen & O’Toole, P.L.L.C.
BAIL AND A COUCH
Bail. All of a sudden the most important topic in criminal law. When Tonya Couch appeared in front of the judge on Monday, her bail, or more correctly the amount and conditions of her bail, became the hottest topic in Texas criminal law. News outlets across the state and nation reported the decision to reduce her bond from $1,000,000.00 to $75,000.00 (local news, state-wide news, national news); and, many people were outraged by the reduction. Just reading the comments on a few of these pages makes one realize there is a lot of confusion about bail bonds and their purpose.
The Law on Bail
Article 1.07 of the Texas Code of Criminal Procedures (the code) says every prisoner is bailable unless they are charged with capital murder and the proof is evident. Ms. Couch was bailable, thus the original amount was set at $1,000,000.00. The Texas Criminal Appeals court indicated the purpose of bail is to “secure the presence of the accused…not a revenue stream,” Trammel v. State 529 S.W.2d 528 (Tex. Crim. App. 1975). In fact the code sets out rules in article 17.15 for fixing the amount: “(1) …sufficiently high to give reasonable assurance that the undertaking will be complied with, (2) … no to be so used as to make it an instrument of oppression, (3)…nature of the offense and the circumstances…are…considered, (4)…ability to make bail is regarded…, (5) The future safety of a victim…and community shall be considered.” Courts have also considered other factors when setting or reducing the amount of someone’s bail. These include work and the ability to work, ties to the community, prior criminal record, conformity with prior bonds, aggravating circumstances. In addition to setting an amount, a judge can include additional conditions such as electronic GPS monitoring, surrendering of passports, literally “any reasonable condition of bond…” according to the code article 17.40
Photo by: Reuters
Requests for bail reductions are fairly common. Most of the time the amount is originally set by a magistrate who is only aware of the facts in an arrest affidavit. The accused doesn’t get to explain their ability or inability to post the bail amount until a motion for reduction is filed and a hearing is set. At the hearing, as in Ms. Couch’s case, evidence can be produced as to the aggravating circumstances of the offense, the potential flight risk of the accused, their ability to work and post the bail amount, where the accused lives and works, their criminal history, and a multitude of other factors. The judge who is presiding then must decide if a reason to reduce the bond exists and what they, the judge, thinks is a reasonable amount serving several purposes: (1) ensures the accused returns to court to face the accusation, (2) protects the safety of the community and any potential victims, (3) not be so oppressive as to be unfair to the accused. Notice throughout the entire process of setting and reducing bail the facts of the case against Ethan Couch or Ms. Couch’s parenting style are not relevant.