Defendants new to the criminal justice system in Texas often don’t understand the hazards of being on pretrial conditions of bond. People generally think you simply find a bondsman, pay them 10 percent of the bond amount, then do a quick walk through the local county jail and wait for your case to get resolved. Few defendants understand how easy it is for a judge to issue an order of arrest and place them back in jail indefinitely, and few defense attorneys properly explain this process to their clients. If you are out on bond facing criminal charges, here’s a few pointers.
First, expect to log in some serious time while waiting for your case to get resolved. You might be surprised to find out that defendants on conditions of bond have to report to the same system as those who have already been found guilty of a crime — the Adult Probation Department. This means that on a monthly or even weekly basis you have to drive to a probation office. You also have to submit to drug tests just like you would while on probation. You can get drug tested at court, when you go to meet your probation officer, or you may get a call for a random drug test at any time. And remember, you haven’t been convicted of crime!
Most courts reset cases every four or five weeks, and many criminal cases last longer than six months. So a defendant can easily expect to come to court five or more times before their case is disposed, and can expect as many trips to the probation office to meet with a probation officer, provide job and other compliance information, and submit a specimen for drug analysis. Seeing as each of these trips requires significant time driving to and from either court or the probation office, parking, and often long periods of waiting for a reset, you could easily spend a full week’s worth of time — 40 hours or more — just to get your case resolved. You can imagine how frustrating the process can be for a person falsely accused of a crime who finally gets a dismissal from the District Attorney’s Office after spending hours and hours of their time in court and having to continually subject themselves to the indignity of urinating into a cup in front of a probation officer.
The second thing all persons on bond should do is read their conditions of bond and ancillary conditions of bond carefully! These documents list out for the defendant all the things that you cannot do while waiting for your case to be resolved. Some conditions of bond will not surprise you — no drug use, faithfully work at suitable employment, remain in Texas, regularly report to your probation officer, and notify probation of any address change. But you might be surprised to learn that while on conditions of bond for a felony you may be prohibited from consuming alcohol, possessing a firearm, or providing a diluted drug test sample. Some courts presume that even a diluted negative drug test result is an indication of drug use. These courts will not hesitate to order your arrest on a mere “dilute” finding.
Third, even prescribed mediations can get you in trouble. Although prescribed drugs are normally okay to consume as long as you give the probation officer a copy of your active prescription, some courts have very strict polices regarding prescribed narcotics. So don’t assume anything — consult your attorney and the probation officer regarding the court’s stance on any prescribed medications.
Finally, if your conditions of bond are problematic, you must object! Once you sign them, there is no way to fight a subsequent order of arrest, even if the condition is unreasonable or violates your due process rights. Make sure raise any issues you have with the conditions of bond with your attorney and inquire whether an objection can be made. Once you’ve signed off on the conditions, you have to live with them whether they are reasonable or not.
Horror stories abound — some defendants have been arrested for testing positive for a controlled substance for which they had a valid prescription. Other defendants have posted a bond but could not be released from jail because the pretrial conditions of bond were so restrictive on where they could live that they had no place to stay without immediately being in violation (this can happen to a person accused of a child sex crime). These stints in jail can last a week or months, depending on the alleged violation and the crime your accused of.
How can the judges do this, you many wonder, especially since we operate in a legal system where every defendant is presumed innocent.
The answer is that Article 17.40 the Texas Code of Criminal Procedure allows the court to “impose any reasonable condition of bond related to the safety of a victim of the alleged offense or to the safety of the community.” Although a defendant is supposed to have the right to a hearing on an alleged violation, the court will almost always issue the order of arrest at the suggestion of the probation office — so you’ll be sitting in jail long before your attorney can set the matter for a hearing.
And — here’s the most frustrating part — by the time you go to court for your hearing, there’ s a good chance the judge will just let you out, reasoning that you’ve learned your lesson. Because many defendants arrested on an alleged violation of bond end up getting released within a few weeks, it is extremely difficult to appeal the judge’s decision to arrest in the first place. From a defense attorney’s point of view, you want your client out of jail as quickly as possible, but getting him or her out deprives you of the chance to file a pretrial writ of habeas corpus, since the issue is rendered moot once the court releases the client. Because of this weird “Catch 22” there is hardly any solid case law on a defendant’s due process rights while on conditions of bond and, therefore, no real way to hold a judge accountable.
But I have faith in the defense bar. I personally believe that statutory provisions giving courts de facto unfettered discretion to deprive a defendant of his liberty prior to a finding of guilt do in fact violate that defendant’s due process rights. Although the procedural hurdles are high, there are ways to successfully raise this type of claim through a pretrial writ of habeas corpus.