So You Got Arrested

New Laws, New Crimes: Unpacking Texas's Latest Legislative Changes

• BRCK Criminal Defense Attorneys

Share episode

The Texas justice system just got a major update. In this episode of "So You Got Arrested," we're diving into the new laws that went into effect on September 1st. Join criminal defense attorneys as they break down what these changes mean for everyone in the Lone Star State. 

From the new criminal offense of "jugging"—a term for ambushing people after they withdraw cash from a bank—to stricter penalties for squatters, notaries, and even jury duty exemptions, we're covering the most significant shifts. ⚖️ We also discuss how the law is finally catching up with technology, with new offenses for doxing, AI-generated images, and using social media to facilitate drug sales. Get a clear understanding of your rights and the legal landscape with expert insights and real-world examples. Tune in to stay informed and know your options. 

Connect with us 

https://www.youtube.com/@UCOf1wA9fdt4S2I_LuVNSz3g 

https://www.brckdefense.com/ 

https://www.facebook.com/BRCKDefense/ 

https://www.linkedin.com/company/brckcriminaldefenseattorneys 

https://www.instagram.com/brckdefense/ 


Speaker 1:

The Texas justice system is messy, so let's break it down. You're listening to so you Got Arrested the podcast that tells you what really happens after an arrest, hosted by Brick Criminal Defense Attorneys. We talk to the people who've lived it, worked in it and been shaped by it, whether you're facing charges or just want to understand your rights, your options and the smart moves that could change everything, we've got your back.

Speaker 2:

Hi. So this is so you Got Arrested. Sponsored by Brick Criminal Defense, scott. What I would like to talk about today are some of these changes to the law that the state legislature has implemented. We touched on one last week when we talked about the changes to the vape pen law and to the selling of non-THC vape pens. But specifically, what I want to talk about today is the state legislature has made huge changes when it comes to somebody's ability to make bail.

Speaker 3:

That's correct, and so it's weird because we've changed what a term means. Five years ago, when legislature was passing new laws, they talked about bail bond reform, and what that meant then was they wanted more people to get out on bond. But now all these laws that were ceremoniously passed by Governor Abbott there over in Harris County under the guise of bond reform, they mean people not being able to get a bond at all.

Speaker 2:

Yeah, and you know it used to be the case that we would have these bond reforms to kind of address the issue of jail overcrowding. You know there's a reality in that the jails can only hold so many people, and so the idea was that we would have this bail reform so that people with lower level offenses, maybe nonviolent crimes, could make bail a little bit easier, to alleviate some of the overcrowding. You would even see some local jurisdictions you know some local DAs who would have things like site and release on like low level drug cases. And if you could explain to the audience what like a site and release, release.

Speaker 3:

for some reason it's controversial. It really shouldn't be controversial. The only thing here in Bexar County that site and release is used for is some criminal trespasses and some possession of marijuana. That would be class B misdemeanors. And what cite and release means is that instead of taking you to jail and booking you and you have to get bond, they give you a ticket and you have to appear in court. Okay, so it saves.

Speaker 3:

The officer is able to get back on the street quickly, because the officer when they take somebody to jail, they have to sit there with them through the booking process, so they're not on the street. So we don't want officers off the street on these minor offenses. And when the criminal trespasses, what they were using the site and release for are the homeless people that are sleeping in doorways and things like that. We're not talking about somebody criminal trespassing in somebody's house or anything like that. We're talking about homeless people who have no place to stay, who pick up frequently criminal trespass cases, and so the idea was let's get the officers right back on the street and just have them come in with a citation rather than being arrested and booked.

Speaker 2:

Right, and a lot of those things were passed in response to issues like jail overcrowding or you. You know you're constantly rearresting homeless people who are sleeping in that doorway, but with these latest reforms, it seems like the consequence may be that more people end up staying in jail right, yeah, and so, and let's be clear, these are what most local governments don't like.

Speaker 3:

Let's be clear, these are what what most local governments don't like Unfunded mandates, ok, so so our jail is still has crowded issues? Ok, not to, it's a separate topic. We are reaching critical mass in the prison system here in Texas too. We built a lot of prisons when George Bush was governor and we haven't built any since, and there's really no spot in the budget to build more prisons. But if you're going to make more and more people serve longer prison sentences, then we're going to have to build more prisons. But but but I digress Our jail has overcrowding issues here in Bayou County, not along with staffing issues, sure, so we actually there's sometimes wings where there's empty wings of the jail that we could put more people in, but we don't have the staff to monitor those parts.

Speaker 2:

Well, and it's funny that you mentioned that you know, here in Bexar County, because just earlier today I was at a DA's office in a rural jurisdiction you know one of these small counties and we were talking about these bail reforms and one of the prosecutors was saying well, I know, in places like Bexar County they have a lot of space at the jail, but we just don't have that at our local county jail. And I was telling him no, actually that's not true. I mean, I think you know staffing issues and having bed space is a problem for a lot of jails throughout the state.

Speaker 3:

There's been some counties like so. Bandera County was one that saw this coming and built a bigger facility, and now they charge other counties money.

Speaker 3:

They make money, the county makes money there in Bandera by housing other people, counties, prisoners, and so there is something to be said about that. But I don't know that we have the space or ability to do that Because, remember, even if we build more space at the Barrett County Jail, we have staffing issues that have to be addressed. You're going to have to pay those detention officers more money and give them some benefits if you want to keep staffing levels to where they need to be Right, and you know the reform to the ability to make bail.

Speaker 2:

We're going to get into the details of it, but one of the first things to know is that we have a constitutional provision here in the state of Texas that addresses this and that comes up a lot. So, just so people know, here in the state of Texas you have a constitutional right to bail under our state constitution for just about every offense other than capital murder. Now there are some exceptions where if you're out on a felony family violence case and maybe you have a bond violation that goes to the safety of the victim, they can hold you without bail. But by and large, if you're arrested for an offense here in the state of Texas, you have a constitutional right to bail.

Speaker 2:

And where I see this play out a lot are on cases like murder cases. You know that are not capital murder cases or they're just murder cases or like these serious sex cases, and the defendant gets out on bail and people get outraged. You know, a lot of times I'll read these news articles online and the comments underneath and people are saying well, how does? How did they let somebody like that out? Well, they have a constitutional right to bail. Now, with some of these reforms, that's going to have to change, right, right, so so what?

Speaker 3:

we're about to talk about today, about situations where you're not going to be able to have bond. So's a little bit more complicated and we'll get into that. It's not law yet because it has to be passed in a constitutional amendment, so it's Proposition 3. It'll be on the ballot this November. Now all the people who promulgated these new laws are saying we're confident it'll be passed at a 90% rate. So I'm assuming it will be passed. But even once it's passed and it doesn't just become law that next day, there has to be some things that happen which are beyond my pay grade.

Speaker 2:

Has to be implemented. Yeah, I don't know how the legislature does all that Right, right, right. So some of these changes that we're talking about are so substantial that we're actually going to amend the Texas Constitution so that these new laws can take effect. So let's kind of go through some of them. So it used to be the case that you were not entitled to bail on a capital murder, but now the list of cases where you're not entitled to bail has expanded pretty substantially.

Speaker 3:

So old-timers like us call them 3G cases. So basically, anything that's got an aggravated in front of it ag robbery, ag assault and kidnapping, any kind of sex case those are cases that you are not eligible for probation on, and those are the cases that they're putting in this constitutional amendment that now you're not going to be entitled to a bail for. Now, in order to, the prosecutor has to jump through some hoops to deny you bail on it, and so what it is is they either have to prove by a preponderance that the bond will not ensure attendance of the person in court or, by a clear and convincing standard, that bond won't ensure the safety of the community.

Speaker 2:

Okay, so when we talk about a preponderance, a preponderance is kind of a legal term that we use in courts and that's just that the evidence that you're not going to appear slightly outweighs the evidence that you are going to appear. Think of like the scales of justice and it slightly tips in one side or the other. Whichever side you know it's tipping towards. That's the preponderance. So it's not as much evidence as required for like a conviction, where it's proof beyond a reasonable doubt. This is just think of it as like 51% on one side and 49% on the other and the preponderance is to that they are not likely to appear in court. So, scott, you know I enjoy doing these podcasts with you because you were a prosecutor for 20 years. You know off the top of your head. Can you think of how a prosecutor might go about showing that, well, this candidate, this person, this defendant, they're not a good candidate for bail because they may not appear in court?

Speaker 3:

Right. So here's some common things that I would look at as a prosecutor is one does he have a criminal history and has he not appeared to court before? Does he have any what we call FTAs failure to appears? Okay, and of course, if he's got some of them, I'm going to prevail on my proof issue. The other thing is kind of need to have a place to live, so so if you're homeless, it's the scale is tipped against you because we don't know how to reach you if you don't appear in court. And so these are things I would look at and I would be arguing to the judge. He's got no ties to the community. We don't know where he's going to go when he gets out of here, judge. There's no bond that can ensure his attendance in court.

Speaker 2:

Right. And then the other thing that we're looking at is the prosecutor can show by clear and convincing evidence that the granting of bail is insufficient to ensure the safety of the community, law enforcement or the victim of the alleged offense. Now, that clear and convincing evidence, that's another standard that we use in the law. It's most commonly used in CPS cases where the state is coming in and trying to remove the children from a parent or trying to terminate the parent's rights. They have to show, by clear and convincing evidence that the parents' rights should be terminated or the children need to be removed, and that is a firm belief that that allegation or that proposition is true. So, as a prosecutor, how might you show by clear and convincing evidence, that the granting of bail is insufficient to secure the safety of the community?

Speaker 3:

So back to the same thing again. I'm going to look at criminal history, but a lot of the people, like a lot of our clients, don't really have much criminal history. So then I'm going to struggle as a prosecutor if there's no criminal history to show that no bond will ensure the safety of the community. Now, but I do argue. Frequently I have argued that the nature of the crime is so shocking and offensive, so Obscurely violent crime or For whatever reason, animal cruelty cases shock the sensibility of the community more than anything.

Speaker 3:

We seem to do to each other for some reason, and so those types of I had one time where I was trying to convince a court on a protective order hearing that just one incident was enough to say that he was a danger of committing a murder because he bit a portion of his girlfriend's finger off Right and that was kind of like oh my God, right, that's pretty bad.

Speaker 2:

The mindset that it must take to engage in that kind of behavior may tend to show a violent temperament, or whatever the case may be.

Speaker 3:

Right. But it also gets back to something we talked to. I don't know how many episodes are. So if you're riding down on your, you displayed a gun but you didn't fire it. So now you've got an aggravated assault aggravated assault, but on the way down you started cursing at the officer and say if I wasn't in cuffs I'd be kicking your butt, and things like that. Okay, I'm going to use that and most judges are going to find my way as a prosecutor when they see that somebody's acting up like that because here they've been arrested for a violent crime and they're mouthing off and acting the jerk and the fool on the way down to the station.

Speaker 2:

And you know, the change in the law is such that, like I said, it used to be the case that you could be denied bail just for capital murder, but now it's this litany of offenses, and so you know, plus it also gets back that it's in there that if you're on bond for a felony and pick up another felony, you may not be entitled to a bond under these new laws.

Speaker 2:

Same standards and with regard to that provision, does it matter what the felonies are? No, okay. So it could be a scenario where somebody gets arrested for drugs and then they post bail and they're out. Maybe they're an addict and they have more drugs on them down the road. They get arrested for that, so under the change in the law, they could be denied bail possibly.

Speaker 3:

Correct. And also, if you're on probation for a felony and pick up a new felony, you probably aren't going to be entitled to a bond anymore. Right Now, remember, the judge can still give you a bond. Sure, there's a difference between saying you're not entitled to something and you can't ever get it Right. So we can still maybe work our magic on certain cases, but it's going to be a lot harder. And part of these provisions is the state government is wanting to grade the papers of what's going on in these big cities, right?

Speaker 2:

And the issue is, these provisions aren't saying that bail is prohibited. It's just saying that you're no longer entitled to it, which is why that constitutional provision that says you're entitled to bail is going to have to be changed Correct, and so we'll address more of the changes when it comes to these bail issues after the break. This is so you Got Arrested by Brick Criminal Defense.

Speaker 4:

The attorneys of Brick Criminal Defense have helped over 5,000 clients move on with their lives. When an arrest or accusation turns your life upside down, we have the knowledge, experience and integrity to get your life back on track. Traditional legal ethics, modern legal tactics the best defense possible to get you through the criminal justice system. Search Brick Criminal Defense to see our reviews and find out why so many of our clients have trusted us to fight for them. Brick Criminal Defense helping our clients move on with their lives.

Speaker 2:

Okay, so we're back and we're talking about the changes in the law that affect your ability to make bail on certain types of cases. Now, earlier you made a comment that I thought was interesting. You said that these changes kind of give the legislature the ability to grade the papers of, maybe, the judges or the prosecutors. An aggravated robbery, aggravated assault with a deadly weapon. The judge has to prepare a written order explaining their justification for granting that bail.

Speaker 3:

Right. And so when the state is asking them not to give them a bail, if they just refuse, if the judge goes along with that and refuses to give bail, they don't have to do any written findings. But if they find against the state, now that magistrate or judge has to make written findings as to how the DA didn't meet their burden. So basically the magistrate is saying the DA didn't do what they're supposed to do, so it's trying to kick everything onto the DA.

Speaker 2:

Right Coming from the defense side. I mean to me you know that that does seem slanted. If a judge denies my request for bail, the judge doesn't have to explain his reason for that, you know, with a written order. But if the judge denies the state's request for denial of bail, the judge has to explain themselves. It doesn't seem right to me, but I'm sure there's a reason behind that. It's not?

Speaker 3:

that it doesn't seem right. It is slanted. Let's just be clear on it. It's definitely slanted. And it's worse than that because then, if the judge denies the prosecution's argument, the prosecution can then demand that a district judge review their findings of the lower magistrate, and that district judge has to make a ruling within one business day Right.

Speaker 2:

So that is an additional change in the law. Now the new law is that if a magistrate sets bail at a certain amount or whatever, the prosecution can ask for a review of that decision and take it up to a district court judge who does a review, and they have to do that review within 24 hours and we'll do nothing but piss off all the district court judges, because there's a reason.

Speaker 3:

They created the magistrates to do this because they have enough work on their docket with all the cases they have filed. They wanted the magistrates to be able to handle the bond stuff Right. So it's going to piss everybody off. Now what I've been told? Because, obviously, even though this is not law yet, we're not waiting until this law is passed to figure out how we're going to do it Right. So what they've done Magistrate Nahara is our bail bond person here in Bexar County They've created another position for and they're not calling them magistrates anymore, they're calling them associate judges. Woody Halston is going to be, is going to. I talked to him today. He's going to be the other new judge. Ok, there's no place to put him. We don't know what courtroom. There's no courtrooms left, so so, but we're going to have another judge, but they're not calling them magistrate anymore, they're going to call them associate judges. I am not familiar. I was speaking with somebody who's higher up at the DA's office for lunch yesterday and I told her I'm not sure that gets you around it?

Speaker 2:

I don't know that it does because it says district court.

Speaker 3:

I'm not saying it doesn't.

Speaker 2:

It says district court judge.

Speaker 3:

It does say district court judge. So I don't know why saying associate judge somehow gets you around it. But but they're smarter than I am. I'm sure they know what they're doing. Uh, but but I I think that that that's not as easy to fix as some people think it is, and you know the.

Speaker 2:

The. The idea is, um, that, uh, I guess people had a huge concern about defendants charged with violent crimes being allowed to make bail, and so this is the state's way of trying to address that issue. But, like so many things, when these new laws are passed, there may be unintended consequences, like we talked about the overcrowding at the jail, and so, like so many things, we're just going to have to wait to see how it plays out, you know, once it's implemented and it starts being acted on in the courts.

Speaker 3:

Right and I need to say something to the whole community. Right now. There's everybody. It's easy to sit there and say we need to throw everybody under the jail and nobody should get out on bond until one of your loved ones picks up a case Sure, sure and then all of a sudden like and I've heard it out of people's mouths time and time again like why didn't think they were going to go so hard after my son? Okay, well, that's not the way it works. It's not like we create this, these new laws, to make sure people don't get out. Oh, but we're, we're going to give your son special consideration, and it's just like. I don't want to get too far down a rabbit trail here, but there was a bunch of people who voted for the current administration and had illegal relatives here in the country and then, when their relatives were deported, said well, I didn't think they were going to deport my sister. What did you think was going?

Speaker 2:

to happen Well and ideally. You want the laws applied fairly and equally to everyone. You know people should not be exempt from the laws.

Speaker 3:

And I'm not saying that you're that that if you're be one, we look at every case individually. So, yes, if there's a kid who brandishes a gun, but he's been a good kid his whole life and he did one stupid thing, yes, that should be a consideration, but it's just a consideration. Right, and you did one stupid thing, yes, that should be a consideration, but it's just a consideration. The law still means that that kid may not get bond. And the message for everybody out there is under these new laws, if you pick up one of these violent crimes, even if you think you had a legit self-defense, you may not get out of jail. No matter how good we are at what we do down at Brick, we might not be able to get you out. And in the appropriate time I need to talk about if they're talking about more things they want to pass in the next legislative session or even in a special session.

Speaker 2:

Well, and one of the things that I thought was interesting is not only did they change the rules for getting bail on these more serious cases, but they also changed them with regard to some misdemeanors. So specifically, there is a change that on some misdemeanors, like a terroristic threat, which is a class A misdemeanor, it's punishable by up to a year in county jail. But by and large, almost all those cases, you're going to get probation and unlawful possession of a firearm. They've also changed that to where again, you're eligible for bail but you're no longer eligible for a PR bond.

Speaker 3:

Can you explain what a PR bond is In general, if my bond is set at $20,000, I got to go to a bond company and come up with 10% $2,000 in order for them to do the bond to get me out. Or if I have plenty of money, I can put up that $20,000 myself and get it back. You're never getting the $2,000 back from the bond company if a bond company does it. But for people who were sitting in jail for over 30 days if it's a misdemeanor, 90 days if it's a felony, they were entitled to what was called personal recognizance bond or PR bond, meaning you pay a nominal fee like 300, 500 bucks and you get out on bond because you've been sitting in jail and your case hasn't been filed or indicted yet. During COVID they eliminated some of those PR bond provisions and now they've pushed to make some of those things more permanent and some of these lesser crimes that you just discussed.

Speaker 2:

Yeah, and so the scenario that Scott's describing is imagine a scenario where you're arrested for a serious crime, like a felony let's say it's a drug case, right, and you're in jail and that case is not filed, it's not indicted, it's not presented to a grand jury and you're just stuck there waiting. Um, so you know it, we have a law here in the state of Texas that says hey, if it gets to 90 days and the state still has not indicted that case, presented it to a grand jury, gotten it into court, you're entitled to a PR bond. And the reason for that is we don't want people stuck in custody indefinitely while the state's just waiting to file the case. And a lot of times there's reasons why that case isn't filed, like in drug cases. Maybe they're waiting on the lab report. But you don't want people stuck in custody while the bureaucracy of filing a case plays out. So we have these mechanisms in place to say hey, if your case isn't filed in a timely manner, you're entitled to a PR bond.

Speaker 3:

Right and historically, texas is one of the few states that requires every felony to be presented to a grand jury and the reason that came about is wealthy landowners. Back in old times, texas, when it first became a state, if they were trying to get some sheep herders land, they would just arrest them on trumped up charges and take their land. While they're sitting there in custody.

Speaker 2:

I wasn't aware of that.

Speaker 3:

Yeah, yeah. So that's why Texas requires all this and why the PR bonds and all were put into place is because people were getting their land stolen by getting arrested on charges that were never going to go anywhere, right, and they just they were just stuck in custody while the case was playing out, right, so so it's a it's. It's a really sacred tradition in our state that we want citizens to go and look at these charges to make sure you're not being held wrongfully. Right, and it's a great thing about Texas, right, yeah, right.

Speaker 2:

Right, yeah, so you know, these, these changes, like so many things, may have good intentions, but we'll we'll wait to see what the actual consequences of some of these things might be. You mentioned earlier that there's another change where if you're on probation for a felony and you get charged with another felony, you could be held on bond and again, just to be clear, held without bond. To be clear, this could be a situation where maybe somebody is caught with a personal use amount of, let's say, cocaine or heroin, somebody with addiction issues. Personal use amount of, let's say, cocaine or heroin, somebody with addiction issues. They take probation and then, while they're on that probation, they fall off the wagon and they get caught with a little more of a controlled substance. That's a felony. They could be denied bail in that situation.

Speaker 3:

Now, hopefully, I'm hoping that fairness and justice still prevail, and my friend that I had lunch with always had a saying just because you can doesn't mean you should. But there's also higher ups in the DA's office who feel like, well, if you can, we definitely should, and I don't agree with that method of prosecution. But I think that, yeah, in those kinds of cases, I think most of the prosecutors that we deal with all through our area are fairly reasonable about yeah, yes, I could insist that they don't get a bond, but I'll be fine with a bond Right Now. What was happening in the past, what some of these laws are trying to correct, is the DA's office was just saying I'll leave it up to the judge. Well, now, if you're leaving it up to the judge, you can be said to be abdicating your responsibility, right right, right.

Speaker 2:

Which is why they're telling these prosecutors hey, you can ask for a review, Right Like. You can't just pawn this off on the judge and say well, that was the judge's decision, Exactly by law. You're now entitled to that review, so it's switched.

Speaker 3:

So we've heard all the time when somebody commits a crime, why did that judge let that person out, right? How many times we heard stuff like that all the time? Now it's going to be switched to. Why did the DA's office not keep that person in custody, right? That's the whole purpose of a lot of this stuff is to make big city DA's look bad.

Speaker 2:

OK, that's my opinion. Hold them more accountable, at a minimum. Ok, all right, there you go, that's a more diplomatic way.

Speaker 2:

So there was also another change in the law. We were talking about that scenario where the state does not file your case in a timely manner and you're getting out on that PR bond because the state's just not ready to proceed and we just don't want to hold you indefinitely. So it used to be the case that when you got that PR bond, when they said, hey, the state was not ready on your case in time, you're out that later on the state was not supposed to come back and set bail at some new high amount and you get rearrested and have to post bail. That law has also changed. The new provision says that the judge or a magistrate who's presiding in that court even if you got out on one of those PR bonds can come in after the fact and say, well, wait a minute, I think this person should be forced to post a new bond and put up money.

Speaker 3:

And I would hope that the practice of that would be not until the case has actually been filed, because that would defeat the purpose of all of this.

Speaker 2:

The purpose of the law.

Speaker 3:

Yeah, but so in theory, I think that the way that's meant to be worked is later on, after you've been released on a PR bond, now you've been indicted or the misdemeanor is filed and now they think the bond is not sufficient. But I would also hope that that point. So if somebody's been out for 90 days and done nothing wrong and been good, I would hope that that would be a consideration, but I can't promise you.

Speaker 2:

Right, right. And what the actual statute says is that it's during the course of action, that's when this bond can be changed. So I don't know if that means that a case is indicted or not, but that's another big change that's coming.

Speaker 3:

Right, and so I'm looking at the clock here because I want to make sure before we get out on this topic is so as part of these laws being passed. Lieutenant Governor Dan Patrick said either at the next session or we're going to call people back for a special session because they want to make another part of this denial of bail that if you're not here legally, you're not entitled. Legally you're not entitled to a bail.

Speaker 2:

Okay, and so that didn't get passed this last legislative session, but they're not letting it go and I expect you're going to see that coming down the pike in the next year or two is that if you're not here legally, you're going to sit until your case is disposed of, like you mentioned, I think the current laws as they are may effectuate that by virtue of the fact that you can show like, hey, this person's not likely to return for court, they're not here legally, and so you know it may be something that's already going to be accomplished. You know, even if it's not enacted this new law is not enacted down the road.

Speaker 3:

Right. So when I first left the DA's office the second time I don't know like 2019, the DA's office was asking for astronomically high bonds on misdemeanor family bonds cases if somebody wasn't here legally and I would say that's not really constitutional. But now it's kind of about to be.

Speaker 2:

It is constitutional now? Well, not yet. It hasn't passed November. It's going to be.

Speaker 1:

It's going to be.

Speaker 2:

So we appreciate your time with us today. Hopefully we've addressed some issues and shed some light on the new laws. You can always reach out to us at 210-874-5080. This is so. You Got Arrested with Brick. Criminal Defense.

Speaker 1:

Thanks for listening to. So you Got Arrested. If you found this podcast helpful, share it with someone who needs to hear it. For more legal insights and real talk from the front lines of the Texas justice system, follow us and subscribe. And remember brick criminal defense has your back. For more information, visit us at brckdefensecom.