SIXTY-SEVENTH DAY — MONDAY, MAY 19, 2025

TABLE OF CONTENTS

House Journal Supplement — April 30, 2025

Pages

CSSB 9 S226

CSSJR 1 S250

CSSB 9 DEBATE - SECOND READING
(Smithee, et al. - House Sponsors)

CSSB 9, A bill to be entitled An Act relating to the confinement or release of defendants before trial or sentencing, including regulating charitable bail organizations, and the conditions of and procedures for setting bail and reviewing bail decisions.

REPRESENTATIVE SMITHEE: Thank you to the members for indulging us as we try to explain this bill. It's a very important bill. I think it's probably the most important bill—not only that I've ever worked on—but, as far as I know, I've never voted on any legislation more important than what we're getting ready to consider, because it holds the key to life or death for some very wonderful people—some very innocent people. I wish that every one of you could have been with Senator Huffman and me the week before last as we were allowed to sit in on a roundtable with Governor Abbott and a number of the families of victims—mainly young children who had been brutally murdered. We also had some women there who were rape survivors. We listened to their stories. If you had been there, you would have heard those stories. That's why I wish you could have been there.

Here's just a couple of them. If you had been there, you would have met Scott. Scott was the father of Naomi. Naomi was brutally murdered here in Travis County. The individual—the man who performed the act—had five prior felony convictions. He had most recently been arrested on a weapons charge, and he was out on a personal recognizance bond. While out on the personal recognizance bond, he murdered little Naomi. You would have met Jim and Connie, who were parents of Christopher. Back in 2020, he was 26 years old. He was robbed and murdered by a gang of five. Two of those murderers were out on bail at the time. It took them 37 days to find the body of Christopher. One other person that you would have met was Sophia. A very impressive young African-American woman who had started a multi-million dollar business. She's an entrepreneur here in the Austin area. She was attacked by a man she did not know, who raped and tortured her for a number of hours. Fortunately, they were able to apprehend the defendant. He was convicted of the crime, but inexplicably—after he had been found guilty by a jury verdict—he asked the judge if he could be released on bond pending his sentencing. The judge released him on a $75,000 bond, which cost $7,500 to be released. Once he was released, he has never been able to be apprehended again. He remains on the loose, and he happened to steal her identity at the time. He got her identity documents, and he's been tormenting her ever since with identity theft and has basically destroyed the multi-million dollar business that she built up. This is what crime has done to some of our families.

What all of these cases, and so many more, have in common is they are a result of what Governor Abbott has called a "broken bail system." CSSB 9 is a comprehensive bill that has developed both in the senate, with the assistance of the governor, and with many members here in the Texas House. I am going to yield now to some of the members of the house who have been working on this legislation with us together, and let them explain––it's a very detailed bill––the various aspects of CSSB 9.

REPRESENTATIVE LOUDERBACK: My entire career I've been fighting crime and criminality. Due to a location on a major thoroughfare, Jackson County was a rural county seriously fighting the cartels as a drug trafficking corridor and a human trafficking corridor—we encountered a lot of bad hombres. I stand before you today because we truly need significant reforms to our system of bail. Reports show that since 2019, over 200 criminal cases in the greater Houston area involved defendants released on low-cash or no-cash bonds who subsequently assaulted or killed another person. Those victims' lives were changed forever. Some of their lives were ended, and their families were left to wonder how on earth their killer was out on our streets. As a sheriff, I had to answer these questions on a regular basis as to how they were able to get out and commit another crime, another felony. How did they get out of jail? How did they get out? I had to tell them, "Our bail system." I can speak, as a law enforcement officer, about the frustration we feel when the hard work of Texas investigators to protect the public is diminished or outright jeopardized by parties in our criminal court system. Some of whom have released violent criminals back into our streets, many times beating the reports that have to be produced. A study in Dallas examining 464 arrests from 2021 found that 56 percent of individuals charged with violent crimes or weapons law violations were released on bail on their own recognizance. This included about 34 percent of those arrested for murder. I will repeat that more plainly: One in three suspects arrested for murder was out on bail and back on Dallas County streets in no time. The numbers tell the story here. We have a crisis in our state of violent offenders that our law enforcement agencies have worked hard to identify and arrest that are going right back into our communities. There's an old saying in the law enforcement world, "Meet you on the elevator before you get back out, back to the street." It doesn't have to be this way. It seriously does not have to be this way. I ask you to vote for CSSB 9, because one aggravated robbery is too much. One assault is too much. One murder is far too much. We can do better. We can do better as a state. This bill is a great step in restoring trust in law enforcement and our criminal justice system.

REPRESENTATIVE LITTLE: I'm going to take a few minutes to explain some of the more technical components of this bill. You may or may not be aware that there is an overlap between the work that magistrates do and the work that judicial district court judges do. One of the components of the bill is that we're going to prohibit certain magistrates from reducing bonds set by district courts so there's not a conflict between decisions reached by district courts and magistrates in ways that harm public safety. Another component of this bill is to require magistrates to consider the public safety report and to ensure the appearance of the defendant before making any type of decision to release that defendant on a felony offense. One of the most important components of this bill that I believe you need to consider is the appellate remedy. From time to time we're going to see magistrates or district judges make mistakes or make bad decisions about bail concerning violent offenses. CSSB 9 is going to equip the prosecutor and the state prosecuting attorney with the ability to appeal those decisions and leave that defendant in jail for a period of 20 days while that decision goes up on appeal to determine whether public safety is served by continuing to confine that defendant. It's going to require the judge to document and make certain findings to support that decision of holding the defendant on bond or even releasing the defendant on bond. Giving the state the ability to appeal insufficient bail orders for specified violent felony offenses is going to be important. It's going to make the people in our districts back home safer, and it's going to protect us from ongoing violent conduct from people who are repeat violent offenders. Thank you, and I encourage you to vote in support of CSSB 9.

REPRESENTATIVE MOODY: I'm going to walk through real quick Sections 17, 18, 19, and 20 of CSSB 9. As we heard this bill in committee, the father of a young murder victim talked about how he was unable to get particular information about whether certain individuals—or the individual in this case—was complying with his bail conditions. It was a question that, I think, stumped a lot of us, thinking, "Well, we have a lot of victim-centric information flow in our criminal justice system to make sure that they're informed, they know when hearings are, and they know what's going on." The district attorney's office is supposed to keep in touch with them. We looked through the statute that night, and we realized there was a glaring loophole. This is information that was not provided to victims. You'll see on page 18—that information is now going to be provided as part of the victim's rights. They get to know whether these people are complying with their bail conditions. That's an important response to some of the concerns that we heard in committee. In the following section, we're going to require that the Office of Court Administration bail form is going to be used in a certain list of offenses. You'll find that on page 20 of your bill. I apologize—page 21 of your bill. And then, another victim-centric portion is in Section 19, relating to notice to submit information to magistrate bail consideration. These are when we're talking about victims of family violence, stalking, harassment, and terroristic threat. So that's even more information. Then we have a repealer in Section 20. That repeals a previous iteration of when a bail report deadline was due, which is now moved by the rest of these terms in the bill. So it's being repealed. That brings us to the enacting portion of the bill. Now, you've been walked through the different provisions.

This is a large piece of legislation. Again, I think we've gathered a lot of input. There are pieces to this that I certainly think could create issues with efficiency in our courts, but I think we've struck a balance here to make sure there is accountability when these decisions are being made, that there are structures in place, and that we're going to make sure that we have answers for those victims of crime. That's the component that I want to discuss with you here at the end. I certainly intend to vote yes on this. I look forward to the conversation about the bill.

SMITHEE: I hope you have a better understanding of the bill. It does a lot of things, but everything in this bill has been carefully thought out. We've worked hard to work with both the senate and the governor to ensure that we finally get this done. We've tried—Mr. Moody reminded me—we've tried this for five sessions. This is the fifth session we've worked on this. In those five sessions that have transpired, we've had a number of senseless murders and other crimes committed that would have been prevented if this legislation had passed. So I would just ask for your prayerful consideration as you consider this, and I'll be glad to address any questions.

REPRESENTATIVE COOK: Mr. Chairman, under the bill there's a definition for clear and convincing evidence. Is that correct?

SMITHEE: That's correct.

COOK: Can you tell the body what your understanding is of the definition—with regard to what "clear and convincing" evidence is?

SMITHEE: Well, it's defined at least twice in statute. Once in Chapter 41 of the Civil Practice and Remedies Code, and also in the Family Code. But we have one instance of clear and convincing evidence in this statute, and that is what a—well, it's actually a constitutional amendment that accompanies one of the constitutional amendments. The prosecution must prove clear and convincing evidence that the defendant is a flight risk or else is a security risk to society. That would have to be—right now, as it's worded, it would have to be done by clear and convincing evidence. "Clear and convincing" is somewhere between "preponderance of the evidence" and "beyond a reasonable doubt." Basically, "clear and convincing" would mean that—the courts have defined it as meaning enough sufficient evidence that would yield a firm belief in conviction of the truth in the matter asserted.

COOK: That's how the courts have interpreted it. Is that correct?

SMITHEE: That's correct. It's well-developed in case law and in common law, so I think the feeling of everyone is that we don't need to define it again in this statute.

COOK: My understanding is that there is an amendment to remove "clear and convincing" from this bill?

SMITHEE: There will be an amendment to remove that language.

COOK: Okay, great. Thank you for that. The reasoning behind the amendment is that by putting it in statute, we might inadvertently limit or shift how courts interpret the term in other legal contexts or risk conflicting with future appellate rulings. Is that a fair summary of why we're removing it?

SMITHEE: Yes, I think that's absolutely correct. We're trying to avoid confusion in the event of any appellate proceedings.

COOK: Chairman, under your bill, a magistrate in a county with over 200,000 residents would be prohibited from granting bail to defendants who are already out on bond, parole, or community supervision for a felony that they commit, when they commit a new felony. Is that correct?

SMITHEE: Well, the way it works is that in those counties that are over 200,000, a magistrate will not be able to release a defendant. A judge could still release a defendant on bail. That is my understanding based on that language. A regular district judge could execute that release, but not a magistrate.

COOK: In addition to that, if someone has already been previously convicted of two prior felonies and served prison, they would be ineligible for release by a magistrate under this bill. Is that correct?

SMITHEE: Yes, and what this responds to, Mr. Cook, is that there are some individuals who really have no business being released back onto the streets. We're just trying to put in an extra safety measure here to make sure that we capture the right individuals and that the individuals who should not be on the streets are not just simply allowed back on the streets.

COOK: You also included safeguards for those that are subject to an immigration detainer issued by ICE. That's part of this bill as well. Is that correct?

SMITHEE: Yes, it recognizes the reality that if you are in a country illegally—in fact, if you meet the definition of an "alien" in federal statute—if you commit one of these more serious crimes, there's going to be an ICE detainer on you. What that means is that when the state is finished with you, you're not finished, because then you've got to go into the custody of ICE.

COOK: With regard to certain crimes, I believe there are provisions in this bill that also bar the release of a defendant if they're charged with certain violent crimes such as murder, capital murder, aggravated kidnapping, or aggravated sexual assault. I mean, we're taking a hard stop on those crimes, is that correct?

SMITHEE: Yes. It's what are traditionally referred to as 3G offenses. They are the offenses that are particularly dangerous—murder or aggravated offenses like aggravated rape or aggravated assault, which are typically referred to as 3G offenses. Those offenses are fairly well-defined.

COOK: With regard to those crimes, those bail decisions will be made by district judges that are accountable to the voters and not magistrates, is that right?

SMITHEE: Right. There may be some instances where bail would be appropriate in those instances, but we want to make sure we have a district judge making those decisions.

COOK: Someone with electoral responsibility or accountability.

SMITHEE: Electoral responsibility, and also training in the law.

COOK: There's also a new notification process; is that correct? Where someone who commits a new felony while on bond for another felony—it triggers notice when a defendant is brought before a magistrate. It's not just simply that they're charged, but that notice is invoked. That's different from current law. Is that correct?

SMITHEE: Yes. What we want to make sure of is if an individual is out on bail in one court and they commit a felony in another jurisdiction, the first court is made aware of that second offense so that the court can consider whether or not to revoke bail. It's basically a better transparency mechanism to make sure that if a defendant is in more than one court or is in more than one proceeding, we have transparency between those proceedings so we get a full picture of the risks that defendant poses to society.

COOK: That notice is going to go to a designated individual for each county. Is that correct?

SMITHEE: Yes, the county designates an individual who is responsible for communicating that to the applicable court.

COOK: And it must take place prior to the next business day?

SMITHEE: That's right.

COOK: Finally, when a new felony is committed while someone is out on bail for a prior felony, the court handling the earlier case must reevaluate the original bond under this new bill as well. Is that correct?

SMITHEE: That's correct.

COOK: That's a new statutory requirement?

SMITHEE: Yes.

COOK: Okay. Chairman, let me make sure that I understand the structure that you've put in place there. Under this bill, if a magistrate sets bail on a felony case, but the magistrate serves a court that doesn't have jurisdiction to try that offense, a district judge can now step in and review that decision. Is that correct?

SMITHEE: That's correct.

COOK: It doesn't matter if the defendant has already been indicted or if the case is still in the prefiling stage, so long as the charge would lie in that county and a district judge is there that can review the magistrate's bail decisions. Is that right?

SMITHEE: That's correct.

COOK: Your bill also requires the local administrative judge in each county to establish a process for their jurisdiction—their county—is that correct?

SMITHEE: That's right.

COOK: Okay, and that process is for the district clerk to notify all district judges when a request for bail review comes in from the state's attorney. Did I read that correctly in the bill?

SMITHEE: That's correct as well.

COOK: Once a district clerk receives that request, the district judge has to review the original bail order no later than the next business day, right?

SMITHEE: Right.

COOK: If the judge decides to increase the bail or add additional conditions for someone who isn't currently in custody, they can't just issue a warrant. They have to issue a summons to give that defendant reasonable time to show up first—just for a due process protection—is that correct?

SMITHEE: That's accurate.

COOK: And during the review, the district judge is required to consider all applicable factors, such as bail duration, prior proceedings, and new conditions. They weigh the facts and the rules properly before making a change. Is that right?

SMITHEE: Correct.

COOK: All right. This provision just adds a level of oversight that I think the public has been requesting, especially when bail decisions are being made at the lower levels. I just want to say that I appreciate you providing that safeguard, and I, too, will be voting in favor of CSSB 9. I think it's a great bill. I just want to say thank you, Mr. Chairman, for all of your work. I know you spent a great deal of time with regard to CSSB 9 and I just want to say thank you.

SMITHEE: Well, thank you for your help on the bill. You've had a tremendous input and influence on the bill and we appreciate that.

REPRESENTATIVE WALLE: Thank you, Chairman Smithee, for your work on the bill. I just wanted to flesh out—I know Representative Cook asked some specific questions, and I want to flesh this out a little bit more. As you know, it is true that denying somebody bail—their life, their liberty—it's a very serious matter. Is that correct?

SMITHEE: It is a very serious matter.

WALLE: And we have to have some constitutional safeguards—statutory safeguards—so that we're not unjustly holding somebody, detaining somebody, and taking their liberty away. We have to have some safeguards for that. Is that correct?

SMITHEE: It's all about balancing. As you know, Mr. Walle, we want to keep the right people in jail and get the other people out of jail, if possible.

WALLE: To that point—the right people out of jail, the right people in jail—I get that. I just wanted to flesh out some of the specific numerated crimes that CSSB 9 prohibits release for. Right now, CSSB 9 prohibits release on personal bond and release without financial requirements for defendants charged with the following offenses, even if it is their first offense. I want to start there. Even if it's their first offense, CSSB 9 prohibits the release on personal bond for somebody that's "murder arising from the manufacturer delivery of Penalty Group 1-B substances." Is that correct?

SMITHEE: That's correct.

WALLE: Also somebody who's been alleged to have committed terroristic threats is chargeable as a Class A misdemeanor or higher, is that correct?

SMITHEE: Yes.

WALLE: Violations of certain court orders or conditions of bond, is that correct?

SMITHEE: That's right.

WALLE: And unlawful possession of a firearm by a felon, is that correct?

SMITHEE: That's correct.

WALLE: Okay. It also prohibits bond for individuals on parole if they commit a felony.

SMITHEE: Well, actually, let me correct you. It doesn't prohibit bail for those individuals, but by a personal recognizance bond. So you're going to have to post a monetary bail bond—and it could be in really any amount set by the court. Right now, a lot of the time, a defendant is released on personal recognizance. So we're trying to tighten that up a little bit for some of these more serious crimes.

WALLE: Okay so for somebody—particularly financial bail—for somebody that commits a felony, assault, deadly conduct, or disorderly conduct involving the discharge of a firearm in public, the display of a firearm, or another deadly weapon in public to alarm people. Is that my understanding as well?

SMITHEE: I think so. I think that's the way it's worded.

WALLE: Okay. I just wanted to make those clarifications so that the public is aware of what we're doing this morning.

SMITHEE: I think what we're trying to do is stop this revolving door, where—

WALLE: I get that. I get that. Particularly folks that are—these are for folks who have committed their first offense. That's my understanding.

SMITHEE: Yes.

WALLE: Okay. And then this applies, as mentioned, to populations over 200,000? Is that my understanding for counties?

SMITHEE: Well, that's a different provision in the bill. That just says that for a county over 200,000, a magistrate cannot make a decision to release a defendant charged with committing serious crimes. It has to be a district judge who makes that decision.

WALLE: So let me clarify that. In counties with populations over 200,000, a magistrate appointed under Chapter 54 of the Government Code may not release a defendant on bail if the defendant was on bail, parole, or community supervision for a felony and is then charged with a new felony. Is that correct?

SMITHEE: That's correct.

WALLE: And has two or more felony convictions resulting in TDCJ imprisonment, is that correct?

SMITHEE: Correct.

WALLE: Is subject to an ICE detainer?

SMITHEE: Yes.

WALLE: Or is charged with murder, capital murder, aggravated kidnapping, or aggravated sexual assault. That applies to counties with populations over 200,000. Is that my understanding?

SMITHEE: That's right. Now, if you're under 200,000, a magistrate can make that decision.

WALLE: On that—now, why would we limit—why would this provision not apply statewide?

SMITHEE: Well, that's a good question. You know, I mean, it came that way from the senate, and there did not appear to be any good reason to change it. I would say there are two reasons. One is that most of the problems that we're seeing today with bail—most, not all—most of the problems are occurring in counties over 200,000.

WALLE: But that doesn't mean that it doesn't happen in other counties with less than 200,000, right?

SMITHEE: No, I've got an instance where it's happened. I mean, I can't really cite the name, but I know it's happened in a county of less than 200,000. It's much more rare. The other issue is the available resources—the resources that are available. A number of rural counties in the state have no individual district judge. It's basically a circuit judge that covers several counties.

WALLE: A judge that travels around to multiple counties.

SMITHEE: It seemed like a logical place to break off the population was at 200,000.

WALLE: That is a concern of mine. Particularly, if we're concerned about public safety, we should be concerned about rural communities that have these issues as well. You mentioned that this seems to be more prevalent—there's a lot of media coverage, and rightfully so, of very egregious evildoers that do this evil offense—and we want to hold those folks accountable. I get that. I guess my concern would be: If it applies for my county and Harris County, it should apply to a rural community as well if that's happening in a rural community. Because I'm concerned about the victims of crimes in Harris County just as equally as I would be for a rural community—in your community, in the Panhandle, or in West Texas. That's my only concern with this provision of the bill—is it applied statewide? We'll come back to that point. Let me also flesh out—I know Representative Little talked about the appeals portion of the pretrial detention. So CSSB 9 allows prosecutors to appeal bail amounts they consider insufficient for certain serious offenses or felony offenses committed out on bail for another felony offense. Is that my understanding of the bill?

SMITHEE: Right.

WALLE: Defendants who are already in custody must remain incarcerated during the appeal—is that my understanding?

SMITHEE: That's correct. Up to 20 days.

WALLE: Up to 20 days. I was going to get to that. The Texas Supreme Court must adopt rules for expedited appeal procedures in which rulings must be issued within those 20 days. Is that my understanding?

SMITHEE: Right.

WALLE: A district judge—either in a county where the defendant is being tried or where the felony charge will be filed—may modify a bail decision made by a magistrate of a court without jurisdiction over the offense, regardless of whether the former charges have been filed. Is that my understanding of the bill?

SMITHEE: I think that's the language in the bill, yes.

WALLE: The local administrative judge must create a procedure for district clerks to notify district judges when a request to review a bail decision is received, and district judges must act by the next business day. Is that my understanding?

SMITHEE: Well, there are two provisions. One is basically an appeal from a magistrate's decision to a district judge. That's in one section. The other section is if a bail decision is made that the prosecutor feels is inadequate—or an insufficient amount of bail—then they will have an expedited appeal to the court of appeals.

WALLE: If the judge decides to modify a bail decision, the judge must issue a summons for the defendant to appear and give the defendant a reasonable opportunity to appear before issuing an arrest warrant is that—

SMITHEE: Yes, and that would mean that if a magistrate set bail at $1,000—it was posted, and then that was appealed to the district judge—the district judge said, "No, that's not enough. You need $10,000 in bail in this case. The defendant would be given reasonable notice and an opportunity to post the additional amount of bail before they would be brought into custody.

WALLE: There are some other key provisions that CSSB 9 includes, and that would be—and I think this has been mentioned several times—a standard of proof that CSSB 9, again, codifies clear and convincing evidence as the standard required to establish the firm belief or conviction in the truth of allegations used to justify the tension or bill conditions.

SMITHEE: Mr. Walle, that's correct, except there's an amendment coming. We discussed this with Mr. Cook a moment ago on the exchange to take the "clear and convincing" definition out of the bill.

WALLE: Why would we do that?

SMITHEE: Well, the consensus was that the clear and convincing standard is well-developed in common law and in case law. It's used primarily in family law cases. We felt like the consensus among those that were working on it was that we might create confusion if we further defined it in this particular statute.

WALLE: Then what standard of proof would we be using?

SMITHEE: Well, we would use the clear and convincing standard. There's nothing that—

WALLE: In practice, but not codified?

SMITHEE: Well, no. Clear and convincing is in CSSJR 5. So what this was doing, instead of defining it as the standard in the Constitution, we were defining it in statute. But as I say, the consensus was better that it's developed in common law—there was no need to further define it.

WALLE: I understand that. Just again, to keep fleshing this out—if a defendant previously released on bail for a felony was recently charged with a new felony, CSSB 9 requires an electronic notice to be sent out by the next business day to a designated individual in the county so that the court may consider revoking, modifying, or reevaluating the previous bail decision. I think that was touched upon by Representative Cook––it's my understanding.

SMITHEE: Yes, I think we discussed that.

WALLE: CSSB 9 mandates that bail organizations submit monthly reports to the Office of Court Administration detailing specific charge and bond information, including whether any bond forfeitures have occurred. Is that my understanding?

SMITHEE: Yes, this is the section that deals with these nonprofit organizations that take nonprofit money and provide funding for bonds for defendants.

WALLE: Okay. And I think we've mentioned on the record that that doesn't happen. There's a dispute that it happens or doesn't happen—

SMITHEE: Well, there's no dispute that we do have the nonprofit organizations out there that do this. The dispute was over whether any taxpayer funds are going to these organizations.

WALLE: That's a good clarification. So we're just codifying what's already prohibited under current law; is that my understanding?

SMITHEE: That was the last bill.

WALLE: For the last bill?

SMITHEE: Yes, the last bill. Now, this bill is just beefing up the reporting requirements. These groups are already required to report to the Office of Court Administration, so this is just giving a little more detailed information to OCA so they can evaluate whether the law is being followed.

WALLE: Then, to that point—the bill, as you mentioned, required the OCA to report any suspected violations of this requirement to the county sheriff?

SMITHEE: That's correct.

WALLE: And then there's a section on victim notifications on bail compliance. CSSB 9 gives victims, guardians of victims, or close relatives of deceased victims the right to be informed whether a defendant has complied with bail. Is that my understanding as well?

SMITHEE: That's right. It's a victim's rights provision that allows—if a defendant has violated bail, I think everyone agrees that the victim has the right to know because it could affect the victim's safety. It could affect—if the victim is still living, or the family of the deceased victim—it would be something that they would want to know.

WALLE: I think that's a good thing. I think victims do need to be notified. I have no issues there, but again, just trying to flesh this out. CSSB 9 also expands the responsibilities of Texas courts and the OCA through new reporting requirements. Is that my understanding?

SMITHEE: There are some new reporting requirements. I don't think they're onerous by any means.

WALLE: No, I'm not suggesting that, but I just wanted to flesh that out too. Under CSSB 9 the public safety report system must now include additional data points and support broader access to prosecutors and district attorneys. Is that what this reporting requirement does?

SMITHEE: Yes. We're trying to get full transparency in the criminal justice system so that everyone who is making these decisions has all the information they need to make a good decision.

WALLE: Additionally, CSSB 9 requires that the public safety reporting system be configured to integrate county or municipal jail records in case management systems. Logistically, that's important as well because, obviously, you have the Office of Court Administration, but I'm not sure what Harris County does differently than Fort Bend or—

SMITHEE: Well, one of the problems is that the various counties have different software in place and it's very difficult to get this information out there. But we have 254 counties and we want to make sure that whatever county you're in, you get all the information that you need in order to make an informed decision if you're making any kind of bail decision.

WALLE: To that point, the bill allows the Office of Court Administration to provide reimbursement grants to local governments for integration costs, but only if funds are appropriated by the legislature. Is that my understanding?

SMITHEE: Exactly. The counties are going to have to do some software updates to get this system fully implemented, and we would anticipate—I don't know if it's in the current budget; you would have more idea of that math than I would—but I would anticipate at some point that we would help the counties out on that so it doesn't become an unfunded mandate.

WALLE: To that point—do you anticipate in negotiations—I serve on the Appropriations Committee, but do you have any knowledge about any reimbursements that some of the counties would have to incur globally? For integration and the software integration—that's one. But also new staff, additional prosecutors, additional jailers, and additional space in our jails. Did we flesh that out in the bill as well?

SMITHEE: I think that it's probably too early to know what the cost would be. I think it would probably be better to retroactively reimburse that at some point. We still don't have a good handle on that. As far as additional costs that these reforms will impose on counties, I would say this: We were very careful in this bill. Sheriff Louderback, I think, deserves a lot of credit because he's managed a jail. He's run a jail, and he knows where to go to get the information. We actually went into detail looking at each county in the state—their jail capacity, their available jail capacity. We looked at the number of cases that have been generated in the past, and each of these classifications of felonies, to see what population impact we might have. We basically designed the bill and the whole package to fit the capacity that we've got. We're trying to be mindful of that. We don't want to have to go out and build new jails or make counties build new jails, but there may be additional costs on some of these to counties because—

WALLE: Just to flesh this out on the costs to local counties and the jails—look, we run the largest jail system in the state in Harris County that also commingles as the largest mental institution in the state. We prescribe millions of dollars, probably, of prescription drugs that some of these folks need. They need that medication. Was there any discussion with any of the counties on implementation of this? This is a monumental bill, and—look, I'm going to support the bill, let me just say that. But I do want to flesh these things out so that Texans are aware of what we're about to do in a few minutes. Were any of the counties consulted on these changes?

SMITHEE: Well, I know we did have testimony, I think, in the committee—or shortly after that. We have had a number of counties contact us with suggestions as to how we could reduce the cost some, and we've tried to follow those. I would say this: Most of the offenses, and most of the defendants, that are covered in this legislation are already going to be held in custody in jails. This is basically trying to ensure that those that slip between the cracks and are released because of a bad decision or whatever—that we are able to keep those defendants incarcerated. So I don't think this is going to be a big increase to the number of inmates that we're housing in Texas, because most of those that fit into these categories are already there. We're just aiming for a few that are slipping through the cracks, and those, unfortunately, are the ones that can do a lot of damage to people. It can ruin people's lives. It can kill people and ruin their lives.

WALLE: I certainly agree with that sentiment. No argument on that point.

SMITHEE: I think, to address your point—I've talked to Senator Huffman on this—and I think very possibly when we come back next time, we're going to have to look at helping some of the counties out on this because we'll have a lot better data at that point to know how much additional cost there is. There is no more function of government, in my opinion, more important than protecting our innocent citizens. I think we have to do that. We basically spend what we have to spend to protect our people.

WALLE: I agree with that sentiment. We need to hold people accountable for the crimes they commit, but I also know that we have a Constitution, and we do have a constitutional—it's the bedrock of our criminal judicial system, and we have to strike that balance. I understand the need to strike the balance in these bills and enumerate certain crimes like murder, terroristic threat, violations of certain conditions on bond, and possession of firearms. I don't think you'll get any argument from any people—or at least from me—that folks that are repeat offenders should be held accountable and should have a shorter leash, I guess—if you want to call it—than being let out on bond while they're awaiting trial on other crimes. So when they commit subsequent crimes, it's a problem. I get that. Again, I just want to come back to the county threshold. The 200,000 and the magistrate issue—is there any sentiment—either on the senate side or at least from you that's carrying the bill on this side—that we can apply this bill statewide? Because I'm almost positive—I don't have any proof, but I'm almost positive—this would be an issue in other parts of the state as well, not just in Harris County.

SMITHEE: Well, it's not an issue to the extent that it is in the larger counties. It's not just Harris County. I think Travis County has been a problem, and Dallas County to some extent. So that's where the problem has been. That's what we're trying to address. I would say this, Mr. Walle: I think that it is probably a good place to start at 200,000, and then next session, we can reevaluate and see if that number needs to be raised, lowered, or eliminated altogether. Like I said, it came from the senate that way. We're just trying to avoid a conference committee on this so that we can finally get this done. It seemed like there was a logical reason to keep it at 200,000 for two reasons.

WALLE: I think you mentioned earlier that you're going to include an amendment that takes out "clear and convincing." Well, you're already going to go to conference, I assume, by making changes. Am I wrong in my assessment on that? You're going to accept the amendment, and you're going to change the bill, so you'd have to go to conference. I don't know—you tell me if I don't know my rule book correctly.

SMITHEE: Well, we've been working with Senator Huffman and the senate on this. I'm going to have an amendment that will have some cleanup language in a moment—including removal of "clear and convincing." That amendment has been cleared with the senate and the governor's office, so we're hoping that the senate will simply concur with the bill if it is fortunate enough to pass here.

WALLE: I appreciate your time, and I appreciate your work on it. I know the folks who have worked on it have tried to put some good restraints on this so that we're not incarcerating or detaining folks without due process. I appreciate your time.

SMITHEE: I appreciate you reading the bill in so much detail.

REPRESENTATIVE J. JONES: I just want to clarify some things related to charitable bail. Is it true that under CSSB 9, charitable bail organizations are only prohibited from posting personal bonds, not monetary bonds? Is that accurate?

SMITHEE: They're not prohibited from posting monetary bonds.

J. JONES: Can charitable bail organizations still post a cash bond for a person charged with a violent felony, like aggravated assault?

SMITHEE: Yes, if they can under current law, I think they will still be able to do that. I think all we're trying to do with charitable organizations in this bill is just increase the reporting requirements.

J. JONES: Under what circumstances can a charitable bail organization lose its ability to post bail?

SMITHEE: I think that's a decision that's going to be made locally. Basically, what OCA—or the Office of Court Administration—does is collect the information and compile the information. Then they report it to the local authorities. If a charitable bail organization is violating the law in a repeated pattern, they could probably be prohibited from doing that in the future.

J. JONES: Is the law merely reporting? You said, "if they're violating the law repeatedly." What is that law? Is it that they have to report and they're not reporting?

SMITHEE: My understanding is that there are a number of requirements imposed on charitable bond organizations on how they operate. We're not trying to eliminate those organizations at all. Nobody really wants to do that. I think what we're saying is—well, first of all, they don't get any taxpayer money. Secondly, they need to be transparent through the Office of Court Administration with their operations. You know, there's a real problem in those areas, because any nonprofit or charitable organization—you have a potential for fraud where money is being contributed and it's not being used the way it's intended. I think there are a number of concerns that we're trying to address to make sure that there's full transparency with those organizations that are purporting to do bond.

J. JONES: Now, are charitable bail organizations going to—are they going to be audited or something by somebody? If so, who?

SMITHEE: No—

J. JONES: So if you don't like what bails that they're making, then you can go in and try to find a reason to stop them from being able to post bonds?

SMITHEE: Mr. Little just pointed out—and it's true—in current law, the mechanism is already there to suspend one of these organizations from operating in the state if they violate the rules that apply to them. Really all this does with charitable bond organizations is just beef up the reporting requirements. It doesn't eliminate them; it doesn't stop them from doing what they do. It just beefs that up.

J. JONES: The charitable bail organizations have to report every bond they post each month?

SMITHEE: Well, I can't remember exactly what they have to report, but there's a prescribed report that they have to file with the Office of Court Administration.

J. JONES: Then does this sound right—

SMITHEE: You're correct.

J. JONES: They have to submit a monthly report to OCA by the tenth of each month listing each defendant, charge, cause number, bond amount, jurisdiction, and any failures to appear on bond or forfeiture? That now means that the charitable bail organizations must track the people that they post bonds for. Is that what you're saying?

SMITHEE: They already do that. They already have to track the name of the defendant and the cause number of the case. Now we're adding that they have to put in there each charge for which the bond was paid, so we'll have an idea of what the bonds are being posted for, the category of offense for each charge, and the amount of the bond paid.

[Amendment No. 1 by Smithee was laid before the house.]

SMITHEE: This is an amendment that has been discussed at length among those who've been working on the bill. As I told Mr. Walle, it's been cleared with the senate and with the governor to make sure that it doesn't endanger the status of the bill. It's what I would call a technical amendment. The first part, paragraph one—the first change is simply restructuring a sentence to hopefully make it a little clearer. The second part is we're taking out the clear and convincing standard definition, which I discussed earlier. On page 13, line 20, we're making clear that on deferred adjudication cases that––the language didn't fit before, so we're clearing that up. The only other thing is that on appeal there should be a de novo standard applied to the appeal to the district court.

REPRESENTATIVE BRYANT: Mr. Smithee, I'm not an expert on this bill, but none of the people who are up here asking the questions are. So I thought I'd come up and ask you. There's apparently a standard in the bill, as it is currently written, requiring––and correct me if I'm wrong––clear and convincing proof that the defendant is likely to flee, likely to commit a crime, and, maybe, some other things if the judge is going to deny bail. Is that correct?

SMITHEE: Well, it's not in this bill, Mr. Bryant. It's in CSSJR 5, which is another piece of legislation. All we have done—and we did this after the bill had come over from the senate—is we added a statutory definition of "clear and convincing." All we're removing now, through this amendment, is the definition of "clear and convincing." The clear and convincing standard—it doesn't affect that standard as it applies to CSSJR 5.

BRYANT: Could you just explain—what is the impact of removing "clear and convincing"?

SMITHEE: None, as far as I know. I wouldn't be doing it if I thought there was an impact. The consensus was that it is a term that is well-defined—not only in other statutes, but it's also defined by common law to mean "sufficient evidence to yield a firm belief or conviction of the truth of a matter." It's much higher than a preponderance of the evidence. That's the purpose. It was to avoid the confusion. Also, it didn't really fit in CSSB 9 because it related to CSSJR 5. So by virtue of being in the Code of Criminal Procedure, it would have, I think, caused some confusion because I don't know of any other proceeding in criminal law where we apply a clear and convincing standard. Honestly, it was put into CSSJR 5 to try to, basically, tighten up the rights of the accused. It was not to hurt the accused; it was to protect their rights so that for certain things, like the propensity to cause injury to other people in the future, you would have to have more than just a preponderance of the evidence.

REPRESENTATIVE COLLIER: Chair Smithee, you said that this amendment removes the definition of "clear and convincing." Then, I heard you say that it's a common law definition?

SMITHEE: Yes.

COLLIER: So it's not defined in statute?

SMITHEE: It is defined, as I mentioned a moment ago, in two statutes that I'm aware of. Well, it's defined, maybe, at least once in the Family Code and also in Chapter 41 of the Civil Practice and Remedies Code as it relates to exemplary damages. But it's a very well-developed standard of proof.

COLLIER: I know, yes, absolutely. But is it defined in the Texas criminal code?

SMITHEE: As far as I know, it's not statutorily defined in the Code of Criminal Procedure.

COLLIER: Okay. So the judges who have been using clear and convincing—now, that definition was crafted based on case law? Is that what you're saying?

SMITHEE: Yes.

COLLIER: So does that mean that case law could also change the definition of "clear and convincing" if it's not defined in statute?

SMITHEE: Well, I suppose it could. But once a definition of a standard of proof is established in common law, it's very unlikely that it will ever change.

COLLIER: But is that possible?

SMITHEE: Particularly because it's statutorily defined in other places in the statutes.

COLLIER: But it's not in the Code of Criminal Procedure?

SMITHEE: No.

COLLIER: Which means that it could—because it's not impossible—be changed in case law by the judges.

SMITHEE: Well, we don't use clear and convincing evidence anywhere in the Code of Criminal Procedure or in the Penal Code, as far as I know. It's only being used in this context in CSSJR 5. So it really doesn't fit in the Code of Criminal Procedure to have the definition in there, because there's nothing in that code––you know, if we were to say it applies in this code—there's nothing in the code that applies. I'm just saying it's kind of an orphan here. It really doesn't belong in CSSB 9, and it really doesn't belong in the Code of Criminal Procedure.

COLLIER: Is "clear and convincing" a higher standard than "beyond a reasonable doubt"?

SMITHEE: It's lower. It's between "a preponderance of the evidence" and "beyond a reasonable doubt."

COLLIER: Okay. So it's "preponderance," "clear and convincing," and then "beyond a reasonable doubt"?

SMITHEE: Yes.

COLLIER: Okay. Does your bill—or does your amendment—anywhere reference the Family Code or the Civil Practice and Remedies Code for the definition?

SMITHEE: No.

COLLIER: No? Okay. And you didn't want to do that?

SMITHEE: Well, I mean, it really doesn't fit in here because, like I say, the language appears in a joint resolution that would go into the Constitution. The thought was it's best that it not be defined in the Constitution but that we rely on the common law definition.

COLLIER: Okay.

SMITHEE: But by any means, it's going to be a higher standard than preponderance of the evidence, which—we were trying to elevate that on some of those elements.

COLLIER: And that's for decisions regarding bail?

SMITHEE: Yes, under CSSJR 5. Just those decisions.

COLLIER: Okay, but for your bill—it did say, based on this amendment, that you would use a clear and convincing standard?

SMITHEE: We still do.

COLLIER: Okay.

SMITHEE: That doesn't change. We just had the definition. Like I say, it just didn't relate to the bill or to the Code of Criminal Procedure, so the judgment was it should probably be removed.

COLLIER: Let me ask you about the public safety report.

SMITHEE: Yes.

COLLIER: Is this the one that was created by OCA and Arnold Ventures?

SMITHEE: The public safety report—basically yes, OCA is involved. But it's basically a compilation of the information that is relevant to a criminal defendant. It would include the federal crime history, the state crime history—those types of things.

COLLIER: Do they ask whether the defendant graduated from high school?

SMITHEE: You know, I don't know the answer to that.

COLLIER: Do they ask whether the defendant came from a two-parent household?

SMITHEE: I don't know that either. I think, in some cases, it will vary. It will in some, and in others, it may not.

COLLIER: What do you mean vary?

SMITHEE: I mean, the information that's contained in the report can vary from county to county or from defendant to defendant.

COLLIER: Okay. So the questions are not the same for the public safety report?

SMITHEE: As far as I know.

COLLIER: I mean, I thought that's what we were trying to do here.

SMITHEE: That's not covered in the bill. That's not part of this bill.

COLLIER: Your amendment mentions a public safety report.

SMITHEE: Yes. We're just talking about trying to make those reports more transparent to the courts that are involved so that everyone involved has the sufficient information. It really has nothing to do with this amendment at all.

COLLIER: Well, you mentioned it in the amendment. The word is underlined, so that's why it's relevant to my question. I'm just asking about the public safety report. It sounds like it's not a consistent form, and it's used differently across various jurisdictions, which may not yield the results that you're looking for—in terms of expectations and continuity across jurisdictions, if it's different. I guess you can verify that if it's a different form.

SMITHEE: The only thing that report is designed to do is to provide more information to the prosecutor and to the judge or the magistrate in making bail determinations at this stage of the proceedings. That's all it's designed to do—try to get in their hands any information that might be relevant or helpful or help them make a very good decision.

[Amendment No. 1 was adopted.]

[Amendment No. 2 by Cook was laid before the house.]

COOK: Members, this amendment simply applies to making magistrates available to be able to make decisions when the district judge is not available. It's limited, as written in the amendment.

MOODY: Just so we can flesh it out so everybody understands. In CSSB 9, there's a provision that precludes magistrates from reducing bond or modifying the conditions of bond set by a district judge, right? There's a blanket restriction, correct?

COOK: That's correct. Yes.

MOODY: So what your amendment would do is it would sit underneath that blanket restriction. It would say, however, that the district judge that set the bond—let's say they're in trial as they tend to be—wants to refer to a magistrate at their choosing because there's an issue related to conditions of bond, but maybe not the amount of bond. Your amendment would permit that limited referral to a specific case for a specific amount of time for efficiency purposes. But it would still preclude that magistrate from reducing the bond.

COOK: That is correct.

MOODY: Okay. They would have a few things at their disposal in those circumstances. They could increase it, and they could modify the conditions. So if there are certain conditions—let's say they've been compliant with them and they want to reduce reporting to once a month instead of every week. That's a modification that would be permitted under that amendment and something that the judge could refer for that limited purpose. Correct?

COOK: Yes. I would anticipate that this would occur in an event where a judge is in trial and unavailable to review a specific case and, therefore, does a limited referral for just as you explained.

MOODY: Okay. For those following, there was a blanket restriction. This is going to give a very limited opportunity for the district judge who set the bond. We're not talking about anyone who's unfamiliar with the case. This is the one who set the bond. They can refer to the magistrate of their choosing. And again, there's accountability there because we know who's sending the magistrate to do the work. They wouldn't be allowed to reduce it, but if there were conditions that needed to be modified—either up or down—that magistrate could then do that, or they could actually increase the bond as well.

COOK: That is correct.

COLLIER: Representative Cook, thank you for that dialogue. I want to make sure that the amendment says what you're saying it says. Because it says, "a magistrate described by Articles 2A.151(5)-(14) may modify, but may not reduce, the amount or conditions of bond set by a judge"––the dialogue you just had seemed to suggest that you were only referring to the amount. However, the way the amendment reads is that the magistrate could not reduce the amount or the conditions. Is that what you're saying—that the magistrate cannot reduce the conditions of bond either?

COOK: Yes, that's how it is written. It says it "may modify, but may not reduce the amount or conditions of bond."

COLLIER: I thought what I just heard you discuss with Speaker Pro Tempore Moody was that the magistrate could adjust the conditions and reduce them, but you're saying they cannot.

COOK: That's correct. They would not be able to reduce—as far as removing a condition or anything like that.

COLLIER: So it could not reduce the conditions of the bond under this proposed amendment?

COOK: "May not reduce the amount."

COLLIER: Well, no, because it reads "amount or conditions."

COOK: That's how I read it.

COLLIER: Well, if you didn't want them to reduce the conditions, I think you would have to change that sentence because it reads, "they may modify, but may not reduce, the amount or conditions"––are you saying that they could modify the conditions down?

COOK: They could not eliminate them. As far as modifying, it goes directly to the amount of the bail that's been set.

COLLIER: And you're saying they could not reduce. So if it's a $100 bail, they couldn't reduce it to $50, right?

COOK: That is correct.

COLLIER: And if their conditions were an ankle monitor and reporting every two weeks, they couldn't say, "ankle monitor and only report once a week"?

COOK: Yes, they would not be able to lower the condition. That's correct.

COLLIER: Okay, so you can't reduce the amount or conditions?

COOK: That's correct.

COLLIER: All right, because that's how it reads.

COOK: Yes, ma'am.

COLLIER: And then this is for a circumstance. Can you tell me a circumstance where a magistrate would be used in this situation?

COOK: I think the most common example would be if a district judge has assigned, made bail, or made those terms and conditions and an attorney comes in and wants to modify those. If the district judge is not available, then that district judge—in limited circumstances, if he or she chooses to do so—may refer it to a magistrate for a specific defendant for a specific limited duration of time.

COLLIER: To modify the amount or conditions?

COOK: Without the reduction language. That's correct.

COLLIER: So essentially, all that magistrate could do is increase?

COOK: Correct.

COLLIER: It couldn't reduce, but they can only increase. So if the defendant's attorney wants to go before the magistrate, they would be going before the magistrate only for an increase.

COOK: That's correct.

COLLIER: Why would they do that?

COOK: Most likely it would probably be, as far as an increase, a district attorney that was trying to move it to increase.

COLLIER: Oh, the district attorney would do it. Now, is there an opportunity for the defense attorney to object to the use of a magistrate in this particular circumstance?

COOK: That's not part of the amendment. You would have to look at the bill to make that determination, but that's not part of the amendment.

COLLIER: Well, do you contemplate that as being part, or would you accept a friendly amendment to your amendment? Because you're creating a circumstance that does not exist in the bill, right?

COOK: That is correct.

COLLIER: All right. So right now, magistrates cannot do this.

COOK: That is correct.

COLLIER: But your amendment—they would be able to do it, and so my question is: Could the defense attorney object to the use of a magistrate if that's all that's available? Because the only relief they can get is an increase, which is probably not what they want?

COOK: Correct.

COLLIER: Is there a provision in here, or would you accept an amendment, that would allow a defense attorney to object to the use—just like you do for visiting judges? You can object to the use of a visiting judge.

COOK: That's not part of the amendment.

COLLIER: Okay. I'm asking if you would accept a friendly amendment to allow that process to happen?

COOK: I would probably defer to Chairman Smithee with regard to––

COLLIER: But is this amendment yours?

COOK: My position is it's not part of this amendment, so, no, I would not accept it. If you wanted to amend the bill itself, then I believe you would need to speak with Chairman Smithee about that.

COLLIER: Okay.

[Amendment No. 2 was adopted by Record No. 2928.]

[Amendment No. 3 by Plesa was laid before the house.]

REPRESENTATIVE PLESA: This amendment removes the population threshold, thereby applying the provisions of CSSB 9 uniformly across all counties in Texas regardless of their population size. This amendment addresses instances that have happened in counties that have less than 200,000 people. I believe it is favorable to the author.

SMITHEE: Yes. I'm not going to oppose this amendment. It is acceptable to the author. This will put all counties under the rule. This is the way the bill came over from the senate. The thing about it is there aren't that many cases, so I think it will have minimal effect that it would apply to. It's acceptable.

[Amendment No. 3 was adopted.]

[Amendment No. 4 by Zwiener was laid before the house.]

REPRESENTATIVE ZWIENER: My amendment is quite simple. It strikes the sections of this bill related to charitable bond organizations. Members, we already have some rules in place requiring reporting for charitable bond organizations. We passed those four years ago in 2021. We do not need to put a bigger burden on these nonprofits. Members, quite frankly, this is unfair. We do not put any similar requirements on individuals choosing to pay bonds. Pick your bad billionaire of choice—George Soros, Elon Musk, Jeff Bezos. They could pay the bond for every person in Texas and would not be required to do any reporting. However, we are requiring this onerous reporting of nonprofit organizations. Members, this is unnecessary.

The other thing I want to add is in my community, in Hays County, our charitable bond organization is saving us money. Hays County has spent $35 million since 2018, sending inmates out of county to be held elsewhere. Members, that is not because our jail isn't big enough. We actually built a new jail. It is because Hays County cannot compete with other nearby areas to hire jailers. Members, we've made it harder for counties to raise funds. Now we can't keep enough jailers. Now our counties are having to spend more money to send our folks out of county. The charitable organizations that are helping folks who they consider to be low-flight risk bond out and await their trials are saving my county money. I'm asking you to vote yes on this amendment to make sure we're not putting onerous, unnecessary requirements on those nonprofits.

LITTLE: My understanding is that charitable bail organizations already have to disclose the name of the defendant and the cause number of the case that they're engaged in. Is that right?

ZWIENER: That is my understanding of the law we passed just in 2021.

LITTLE: And all this bill would do is require those same organizations to identify the charge, the category of offense, and the amount of the bond paid. Right?

ZWIENER: It is also asking them to try to track bond forfeitures, which is forward-looking and adding a different level of reporting requirements. I also have questions about what this data is going to be used for or what story it is going to be used to tell. The fact that we're putting this level of scrutiny just on nonprofits, I think, is unfair and just not in the spirit of equality that we enjoy here in the United States.

LITTLE: Well, Representative Zwiener, if a charitable bail organization paid bond for a series of defendants who then skipped out on that bond and didn't report back, isn't that something that we want to know?

ZWIENER: I think that charitable bond organization would run out of money and then not be able to continue to do that work. I think that natural consequence is plenty. Members, this amendment is about making sure we don't put unfair requirements on 501(c)(3)s and making sure that we can have fewer people in our jails so that we don't have to spend $35 million extra, like we have in Hays County, to try to keep pretrial detainees just because they're low income.

SMITHEE: I'm going to move to table this amendment. What we've tried to do is strike a balance here. We're not stopping nonprofit bail organizations from operating. We're just asking for full transparency so we know what they're doing and how they're doing it. This is important not only to the state and the criminal justice system, but it's also important to the donors that donate to these organizations to make sure their money is being spent the way they intended it to. Just like any nonprofit, there has to be accountability. We want to make sure these organizations that are doing this are doing it in compliance with the law.

[Representative Smithee moved to table Amendment No. 4.]

ZWIENER: These reporting provisions are designed to be a trap for nonprofit organizations to fail. Please vote no against the motion to table. Treat everyone who is helping pay for bond the same way. If it's good enough for George Soros and Elon Musk, it's good enough for our charitable bail organizations. Vote no.

[The motion to table prevailed by Record No. 2929.]

[Representative Cook moved to reconsider the vote by which Amendment No. 2 was adopted by Record No. 2928. The motion to reconsider prevailed, and Amendment No. 2 was withdrawn.]

SMITHEE: Thank you, Mr. Speaker. This is the first piece in a series of very important legislation designed to fix the broken bail system.

[CSSB 9, as amended, was passed to third reading by Record No. 2390.]

CSSJR 1, A joint resolution proposing a constitutional amendment requiring the denial of bail under certain circumstances for illegal aliens charged with certain offenses punishable as a felony.

REPRESENTATIVE SMITHEE: This is the final piece in the package that has been put together. It addresses a special category of criminal defendants. These are people who are in this country illegally, either by virtue of having entered the country illegally or else are staying after their authorization has expired.

We took this resolution—it came from the senate. We were a little bit concerned with the definition of what constitutes an "illegal alien." We didn't want to capture any of the people that we shouldn't be capturing here, so we refined that definition as it is written in the most recent version of the SJR. We also dealt with the problem—or the situation—where the senate had basically applied this to any felony. Well, we looked through the felonies. The Legislative Council had inventoried all the felonies that we have in Texas. Here's the list. It's about 30-some odd pages with probably 30 felonies on each page. It goes from everything from operating a crane elevator without a license to slandering a savings and loan. Those are all felonies that are on our books. They go all the way from the Agriculture Code through the Business and Commerce Code, Health and Safety Code, Penal Code—they're all over—Natural Resources Code. They're all over. These aren't people that we necessarily need to lock up and throw away the key. Somebody that slanders a savings and loan—okay, we agree. So we went through carefully and tried to pick out the offenses that pose either a real threat to the safety of society or a threat, basically, to our system of government. After we had done that—it may not be a perfect list, but we tried to match that with the impact that this would have on the justice system. So we limited those felonies down to the ones we considered essential.

Now, let me just say this about the resolution, which I think needs to be said: This deals only with people who are here illegally. They are covered under federal law. Virtually––really as far as I know everyone who is covered by this fact is covered by federal law. And particularly with the Laken Riley Act that passed earlier this year, and Sheriff Louderback can explain it more than I can because he's dealt with this for years, but what happens is the federal statute defines "alien" basically as anyone who it not a citizen or maybe a lawful permanent resident, but I think it's just a citizen—there's a very broad class of alien.

Now, if you're an alien and you are arrested for any of these crimes—these serious crimes, and the Laken Riley Act expanded that list of crimes—you automatically are subject to a detention hold by ICE. ICE will place a hold on an individual. They can't be released for any reason, and you can post a bond, but you can't get out of jail if you're in that category. So almost everyone that this resolution would apply to is already covered under the Immigration and Naturalization Act, and they're not going to get out of jail. They're ultimately going to end up in the detention or custody of ICE. The purpose of this is to capture that very small group that may slip between the cracks. These are going to be people who are in the country illegally and who have committed some very, very serious crimes—or at least are accused of committing those crimes. There has to be a finding of probable cause by a court—not just a grand jury but a court—that there is probable cause that the acts alleged have been committed.

This resolution in the senate was entitled the Jocelyn Nungaray Act. We're all aware of the tragic case of Jocelyn that occurred last year—brutally assaulted, murdered, and her body just left for dead. Such a tragic occurrence. We've had the opportunity to visit members of her family who are really involved now in trying to make a positive change as a result of what happened to Jocelyn. We're not trying to be unfair here or difficult, but we do want to protect our little girls, our little boys, our mothers, and everybody that is vulnerable in this society from these things that can happen.

REPRESENTATIVE ROMERO: I think that everybody agrees that we should all protect young people regardless of who that perpetrator is. So in the United States v. Salerno, the supreme court chief justice, William Rehnquist, wrote, "In our society liberty is a norm, and detention prior to trial or without trial is the carefully limited exception." Can you talk to us about CSSJR 1 with the respect to liberty being the norm for people that are affected by it? And are you aware that the U.S. Constitution requires the judges to make individualized determinations about whether a person poses a flight risk or danger to society before denying bail? And do you believe that this complies with that requirement?

SMITHEE: I think it does. For example, we're essentially doing this now, Mr. Romero—the federal government is doing this. Once they put a detainer, there's no release until ICE determines that the individual can be released.

ROMERO: So what's the purpose of the bill if it's already being done now? Why would you take an additional step if you just stated it's already current law?

SMITHEE: Well, it's already current law, but we still have very real cases of people—for lack of a better term—slipping through the cracks. Those are typically the people that are causing the major problem and imposing the biggest risk to the security and safety of our citizens.

ROMERO: Can you tell me where those cracks occurred, Chairman Smithee?

SMITHEE: They can occur if ICE misses a detainer—sometimes in your sanctuary cities where you don't have someone reported. There are a number of ways the system can fail to detect those individuals.

ROMERO: But we're talking about folks that are already incarcerated at this time, correct? So they would have already been in our county jails, not a city. So it wouldn't be a sanctuary city because it's not cities; it's a jail.

SMITHEE: Some sanctuary cities don't notify ICE in the event of a detention. Or they don't even make an effort to determine if the person is illegal or not. That just happened in the past.

ROMERO: But if it's one of these particular crimes that this bill entails, as you laid out, these persons would not be in a city jail; they would be in a county jail at that point. Is that not correct?

SMITHEE: Yes. This level of offense would be in county jail.

ROMERO: So this does not have anything to do with sanctuary cities per se—

SMITHEE: No.

ROMERO: So can you point to specific offenses for which denial of bail would be required under CSSJR 1? And when you were working on this bill, did you consult any findings or expert testimonies showing a link between immigration status and actual pretrial behavior?

SMITHEE: I do know that it's hard to have any real statistical study because of the ICE detainers. It would be hard to go out and do a study of whether people who are in the country illegally are more of a serious flight risk than those who aren't.

ROMERO: Wouldn't you have the data to show you who those persons are that were released?

SMITHEE: The data is going to be misleading because most of these people, as I mentioned, are already subject to an ICE detainer. But common sense says, and generally, one of the factors that is considered in determining whether someone is a flight risk would be their roots in the community—whether they have family in the community, a home in the community, or a job in the community. In most cases, a person—not every case, certainly, but in many cases—a person who is in the country illegally doesn't have those roots. It's not, as I say, in all cases. But it's the case in many.

ROMERO: So without the study showing those that have received the ICE hold, are you aware of any other data that shows a pattern that shows that these people maybe failed to appear in court in larger numbers or that those persons are more dangerous to public safety as compared to other folks that are of this immigration status?

SMITHEE: Yes, I would just give you this: During the Biden Administration there was a policy that when an illegal alien was apprehended, many of them had been instructed to simply claim asylee or refugee status when they were apprehended. The practice was to write a citation basically requiring them to appear in court, sometimes as far as five to seven years later. I know the appearance rate for those who were cited was not good at all. It depends on what time period you're looking at, but in most time periods it's around 10 to 15 percent of the persons who receive a citation that actually show up for their hearing.

ROMERO: Understood. And those persons would have a hold of some sort if they didn't go to trial. But my question was if you believe that these persons present a higher risk to public safety as compared to others? Just because they didn't show up to their court date, it wouldn't seem to me—other than just not going through that civil procedure—they didn't necessarily do that. I'm going to move on to a different question, Chairman, if you don't mind. Why did your bill categorically forbid granting bail or pretrial release? Is expanding the ability of judges to deny bail through an individualized assessment of flight risk or dangerousness inadequate to achieve the state's objective in these cases? What alternatives to categorical pretrial detention were considered for the people described in your bill—such as supervised release with GPS monitoring as an example?

SMITHEE: I would say this: The federal government doesn't do any GPS monitoring. If we bond someone out who is here illegally and who is accused of committing a crime, basically what we're doing, Mr. Romero, is we're giving them a head start on the federal authorities—that's all we're doing. We're saying, "Okay, you're out of jail. You probably only have 24 to 48 hours to escape and get away." And they may very well do it. I'll give you an example. I mentioned in my opening remarks a moment ago on another bill a young lady who was raped in Williamson County. The rapist, after conviction—the rapist, he was an illegal alien—he was allowed out on bond, and he hasn't been seen since. We don't know where he is. He may be causing havoc in another part of the state, in another part of the country, or he may be back in another country. We don't know.

ROMERO: Chairman, I have other concerns, and some of those want to ask more questions. I do have deep concerns about defining "illegal alien" and some of the folks you left out, which I want to come up and discuss with you while others ask and maybe, potentially, through some amendments. I think you have folks that are DACA recipients that are not in the definition as those people who have status. I think that those of us that know these kids, or even maybe our own children, have gone to school with them and know that these are some of the best and brightest people that we have in our state. I think that your bill, in defining "illegal alien," left those folks out and left them in a position where they feel that they're at more risk than anyone else. In effect, these people see themselves as U.S. citizens. I'll talk to you about that, but I want to do that through the amendment process.

REPRESENTATIVE GÁMEZ: I appreciate the discussion we're having today because we're about to presumably ask the body to do something of great constitutional magnitude that not only affects the Texas Constitution but has implications on the United States Constitution as well. So I think what you were discussing a minute ago with Chairman Romero was the individual process and the detail that each defendant who is brought forward—each accused who is brought forward is entitled to when undergoing a bail hearing. You'd agree with me that, categorically, under the United States Constitution, each individual is entitled—under a magistrate or a court—to individually determine their circumstance on a case-by-case basis, correct?

SMITHEE: Not necessarily. I think someone who is here illegally is entitled to—

GÁMEZ: So prior to what you're doing here today, you'd agree with me that under the United States Constitution, each individual is entitled to an individualized case-by-case analysis of their accusation in regard to bail—prior to what you're trying to do here today?

SMITHEE: No, I don't.

GÁMEZ: In which instance is someone not entitled to an individualized analysis of their case?

SMITHEE: You asked me about constitutionality. I think that someone—

GÁMEZ: Is each person constitutionally entitled to an analysis of whether or not they're a flight risk, the nature and circumstance of their crime, or whether they're a danger to society? Are those not the enumerated factors that each individual is entitled to under a bail analysis?

SMITHEE: You're asking me two different questions. One: You're talking about bail analysis, and you're talking about due process under the Fifth Amendment.

GÁMEZ: Okay, let's talk about bail. Right now, as we stand here cloaked under the United States Constitution—is each individual not entitled to a case-specific analysis of their circumstances?

SMITHEE: That is not in the Constitution.

GÁMEZ: So right now, would you please give me and example—absent this legislation—where an individual is not entitled to a case-by-case analysis of their specific circumstances regarding bail?

SMITHEE: Let me just say this: If you've got an ICE detainer on you, you're not getting bail.

GÁMEZ: Chairman, I'm just asking you to answer the question. Would you please explain to me, aside from the legislation that you're trying to pass here today, where in the United States Constitution an individual is not entitled to a case-specific analysis of whether or not they're a flight risk, the nature and severity of their crime, or whether or not they're a danger to society? Isn't it true that each person is entitled to that analysis, as we stand here today?

SMITHEE: Well, let me finish answering your question. That's only fair. What I would tell you is, to my knowledge, there is nothing in the United States Constitution that deals—says what you just said, or deals with what you've just said.

GÁMEZ: It's your opinion that there's no constitutional right to bail?

SMITHEE: Let me finish. Hold on, let's not talk over each other—let me finish.

GÁMEZ: I know. I'm getting just as frustrated. I agree.

SMITHEE: So you have the Fifth Amendment. The Fifth Amendment basically guarantees certain rights—a number of rights, multiple rights—to persons. Courts have determined the use of "persons" to indicate that it would apply to all persons, not just citizens. Other provisions apply to just citizens. What is due process, and what constitutes due process under the Fifth Amendment is generally left to the courts—both federal courts and state courts. To answer your question, we've had people that have briefed on the United States Supreme Court—briefing attorneys there that have reviewed this. We've specifically reviewed it with a constitutional lawyer and people who have actually been in the Supreme Court—working in the Supreme Court—who have told us that what we're doing here is constitutional.

GÁMEZ: Respectfully, can you please articulate a situation outside of this bill where individuals are not entitled to a case-by-case analysis of the factors surrounding their accusations for bail?

SMITHEE: Well, I gave you one—an ICE detention. I mean, you're in custody; you're in detention—

GÁMEZ: Right, which would absolutely make what you're trying to do here moot, obsolete, repetitious, redundant, excessive, and unnecessary because you've already articulated on a multitude of occasions that the federal government is already doing that, correct?

SMITHEE: Well, if they do, it doesn't affect anything. But as I told you, there are some that get through the system anyway. And they're released out to the public, and those end up being the most dangerous people that we have out there. They have caused, and they will cause, real harm. All I'm trying to do is protect these citizens. I mean, this is not a first-year law school discussion. We're talking about the real world here. We're talking about little boys and little girls who have been brutally savaged and raped and murdered. We can't keep doing that. We know that what we're doing now is not working. The human tragedy that has occurred because we have this law school debate about rights—what about the rights of these victims? What about Jocelyn Nungaray? What were her rights?

GÁMEZ: Respectfully, Chairman, staying on the bill. Stay on the bill.

SMITHEE: I'm on the bill.

GÁMEZ: Chairman Smithee, I believe earlier what you were articulating in regard to—the Supreme Court has analyzed that all persons are entitled to constitutional benefits. Is that correct? You were referring to equal protection, not exactly due process. Chairman Smithee, in crafting your definition of "illegal aliens" in the bill—what experts or agencies did you consult in crafting said definition?

SMITHEE: I know that we went through the speaker's office. We went through and talked to some immigration lawyers who are involved in this. We weren't really happy with the senate definition, so I think we refined that some. This is where we landed to try to land this population—or this class of people—who are here in this country illegally. And honestly, when you talk about visas—both permanent residency and temporary residency—you're talking about literally hundreds of status classes that you're dealing with. So it's a very complex issue that we tried to capture. First of all, our definition is narrower than what you have in federal law. Federal law doesn't really define "illegal aliens." It defines "alien," and that definition of "alien" is much broader than what we have here. That's why we use the term "illegal alien," because we wanted to narrow it from the federal statute, which requires detention and even more cases than what we're applying this to.

GÁMEZ: So in this case—in this instance—let's assume that there's not an ICE detainer on an individual who is brought forward. Meaning, in this case, for whatever reason, ICE hasn't pegged them in the system yet. They're brought forward, and they're about to be magistrated. Whose burden is it at this point to prove that an accused meets your definition of "illegal alien"?

SMITHEE: It's the prosecution's burden.

GÁMEZ: By what standard of proof?

SMITHEE: By, probably, preponderance more likely than not. Although if you can prove—

GÁMEZ: You'd agree with me that your bill does not articulate that? What standard of proof?

SMITHEE: We do not articulate a standard, but let me just say that this isn't really rocket science. What they're going to have to do—they have the burden to prove it, and they're going to have to put on evidence—

GÁMEZ: What type of evidence would they put on?

SMITHEE: Well, it's primarily going to be records that come from the federal government and that come from INS, ICE, and Customs and Border Patrol.

GÁMEZ: At this point, you'd agree with me, the accused has absolutely no legal obligation to comply or to violate their right to remain silent in this process—to participate in any inquisition in regard to their immigration status?

SMITHEE: I think they have that right, certainly. Because what you're going to have to do if you're the prosecution, as a practical matter, is you're going to have to have documentary evidence showing the immigration or non-immigration status of this individual. I will say, in those rare cases if the documentation turns out to be wrong or outdated, the defendant can always come back in and show that at the time.

GÁMEZ: Through what process of appeal or what mechanism? What right does the defendant have to contest that finding?

SMITHEE: It's not really an appeal, but the bond status or the bail status for this individual, if it's determined later—if nothing else, habeas corpus. There are several ways that you can bring this to the court's attention. It's not a permanent decision if it's not correct. We want it to be correct. But we don't want to put that in the Constitution.

GÁMEZ: What mechanisms do you intend for the magistrate or the district court to utilize to make this determination—this assessment—of immigration status?

SMITHEE: You're going to have the assessment with the federal documentation. Generally, it's an ICE document. The ICE document will tell you their status—immigration status, or citizenship status. Once that status is determined—and it will be documentary evidence––it's really a very easy call on the part of the magistrate to see whether they fit in the term. We try to make it as simple as possible to see if they fall into the category—the definition of an "illegal alien" that's defined in the SJR.

GÁMEZ: I guess we keep referring to these documents. I mean, ordinarily I can't just go to court and introduce a document, for example. There are evidentiary rules and procedures that prohibit this specific type of hearsay. Again, what are we asking our state agencies to do in compliance with federal agencies to come prove up these documents? I don't just go and say, "Here's someone's visa that's expired," right? That's a completely hearsay document. How do we intend for them to prove this up now?

SMITHEE: This is at the magistrate level, so—

GÁMEZ: Wherein the rules of evidence still apply.

SMITHEE: At the magistration level, the magistrate still has access to the criminal history, the public safety report, and a lot of other documents that aren't necessarily verified as evidence in the case, but has access to that information. This is just information that allows the magistrate to make a decision in accordance with the law.

GÁMEZ: Without reviewing verified documentation?

SMITHEE: It's official government records that have come in from probably ICE or—

GÁMEZ: Again, under the rules and evidence of procedure, these documents had to be proven up. I mean, that's the first thing—

SMITHEE: But I don't think that applies to the magistration hearing.

GÁMEZ: You don't believe the rules of evidence apply to a magistration hearing?

SMITHEE: Well, not necessarily, no. I mean, because a lot of rules don't apply. The magistrate is just setting bail in that situation.

GÁMEZ: So it's your understanding now that a magistrate can use unverified documents to make a federal determination about immigration status so as to restrict their right to bail?

SMITHEE: If it's a problem, the records can be verified with an affidavit very easily. I don't see that being an obstacle at all.

GÁMEZ: Again, documents with affidavits are not substantial evidence to prove up in court, with all due respect.

SMITHEE: They come under official government record, exception to hearsay, or business records, exception to hearsay. So, yes, they are admissible in a court, and they would be admissible in a magistrate's hearing.

GÁMEZ: So it's your contention now that they should utilize a business record affidavit to prove up these federal documents?

SMITHEE: There are several hearsay exceptions that would apply if we assume that the rules of evidence apply, which I don't believe they do.

GÁMEZ: Now that they're going to be making these determinations in regard to immigration status, what training do you anticipate that our Texas judges or magistrates should have over determining immigration status?

SMITHEE: I don't think they need any training to do this. I mean, all they have to do is look at the status that's revealed on their documentation and look at the constitutional requirement. It will be self-evident whether the person falls under this category or not.

GÁMEZ: Respectfully, Chairman Smithee, I would argue there are immigration judges who spend hours making this careful determination. Entire courts have been carved out alone to make these very carefully planned-out judicious determinations, and it's your opinion that a magistrate can simply do it? I believe you said, "it's obvious"? It feels quite demeaning and insulting to the process that we give at this point at the federal level to these individuals.

SMITHEE: Well, let me just say this—immigration can be a very complex matter, but we tried to make this categorization as simple as possible. I believe it is simple enough that once the documentation is obtained, it will be obvious. It will be evident as to whether a person falls in any of these categories or not.

GÁMEZ: Respectfully, Chairman Smithee, I agree with you that immigration determinations are an extremely complex matter, which is why I don't believe this SJR satisfies that with the way this is construed––placing this burden on our magistrates, who are already overworked and underfunded, and our district court judges, who, at this point, do not have the resources available to them to make that determination.

[Representative Romero raised a point of order against further consideration of CSSJR 1 under Rule 8, Section 1(a)(1), of the House Rules on the grounds that the caption fails to give reasonable notice of the subject of the proposed measure. The point of order was withdrawn.]

[Amendment No. 1 by Smithee was laid before the house.]

SMITHEE: This is a refining amendment. It basically tries to shorten the language that we already have in CSSJR 1 where we already have burglary and certain circumstances. This just changes that to say "burglary of a habitation, if the offense is punishable as a felony of the first or second degree," which would usually involve some extenuating factor.

[Amendment No. 1 was adopted.]

[Amendment No. 2 by Romero was laid before the house.]

ROMERO: This amendment—it's straightforward. It's a clarification that ensures that CSSJR 1 doesn't unintentionally sweep in people who are lawfully present in the United States under federal law. It enumerates every recognized category of legal presence—from lawful permanent residents to refugees––which were already included in the bill. It does not create a new category. It simply reflects what's already recognized under federal immigration law. Let's make sure that CSSJR 1 focuses on violent offenders and not those who are here lawfully.

REPRESENTATIVE GARCIA HERNANDEZ: I wanted to ask a couple of questions. The bill, as written—is it your understanding that there are particular individuals who may be granted the ability to be here in the U.S. but do not necessarily have status per the INA federal law that dictates––as far as what our immigration laws are here in the United States?

ROMERO: That's correct. There are some folks that have already started their residency applications that are not covered under the bill. There are those that are here that have humanitarian parole. There are some that are already under order of supervision by the federal courts. What we're trying to do here is just to ensure that all those, including those that have an application under the Violence Against Women Act—actually, we have so many folks here that have talked about how important it is that we address trafficking. Some of those folks that have been victims of human trafficking or violence should also be protected. Those are granted to women and children impacted by domestic violence. I think that there are some things—and I talked it over with Chairman Smithee. I'd hope that he can understand and agree that while there have been negotiations throughout the chambers, that he does not want to tie folks into this web when we're really going after the most violent criminals.

GARCIA HERNANDEZ: Thank you, Chairman. And I appreciate Chairman Smithee for, obviously, his work and others' in making sure that we got a committee substitute on this particular bill so that we could flesh out some of the definitions. I know that there was one that was added kind of clarifying "lawful presence," which, like I said earlier, is the instance of understanding that both of those are separate from each other. An individual can be granted the ability to be present here in the U.S. but not necessarily have status—it's very important. I understand that in that particular definition, they included individuals like asylees and refugees, but those are individuals that were actually given that status and not necessarily individuals that had pending applications. Correct?

ROMERO: That's correct.

GARCIA HERNANDEZ: I believe, in that definition, they also included U.S. citizens as well as legal permanent residents, or green card holders, as most people know them as well, correct?

ROMERO: It is included.

GARCIA HERNANDEZ: But my understanding is there is a particular enumerated list of individuals who are granted permission to be here in the U.S.—and I say that as somebody who actually practices immigration law—that is not included in these lists. You discussed one, which are the DACA applicants––the Deferred Action for Childhood Arrivals. These are a lot of individuals who, quite frankly, when I first started practicing law, submitted the first round of applications. These individuals continue to keep reapplying and allowing themselves—availing themselves—of this program, which to this point have passed judicial muster. They are individuals who have to go through background checks. They're not allowed to have any type of criminal offenses. If they do get caught up in any kind of criminal actions, they, in fact, are deported. Is that correct?

ROMERO: That's correct.

GARCIA HERNANDEZ: In addition to DACA, there's also deferred action. A lot of folks don't realize, but DACA is actually separate from deferred action. You could actually end up, maybe, not qualifying for DACA, but you can qualify under deferred action. These individuals are also not included and will be trapped into this particular bill. Is that correct?

ROMERO: That's also correct.

GARCIA HERNANDEZ: I know that there was also enumerated in this definition parole involving what we call "parole in place," which is for military members. But this particular bill did not include individuals who are also paroled under humanitarian parole, advanced parole, or temporary permission for any type of significant public benefit or humanitarian reasons. Is that correct?

ROMERO: I think that there's lots of concern that the definition did not include many of the different statuses as you described. The fact that it didn't have the Violence Against Women Act and victims of human trafficking—I think those things are of great concern, especially those for DACA. I mean, I have a brother and sister that came at that age, and they're, in effect, Americans. I would like to hope that this body can ensure that those people have the right to due process in the same way that the rest of us do as well.

GARCIA HERNANDEZ: Absolutely. I think one other particular category that falls into that same area are the individuals who are granted TPS protection, or what is called Temporary Protected Status. These particular individuals are given the ability to remain here in the U.S. or come to the U.S. because they, in fact, identify or come from a country that is facing war, disaster, or unsafe conditions. My understanding is that these particular individuals who don't really have a country to go back to could also potentially get caught up in this because they have not been enumerated in this particular definition that was added in the committee substitute. Is that correct?

ROMERO: Thank you, Representative, because that's exactly what this amendment is asking—that we can define this bill so that it protects those people that are already visible. They are in communication with our federal government. These are not people that are hiding. They're probably people that have already presented themselves through fingerprinting and even photo IDs in many cases. I hope the chairman and the members will adopt this amendment.

GARCIA HERNANDEZ: I agree, Chairman. Thank you so much for bringing this amendment. I look forward to voting for it.

SMITHEE: First of all, I appreciate Ramon bringing this, and I have a lot of respect for him. We've talked about this at length, but this definition was very carefully crafted. Our definition does not include a lot of people who are included in the federal statutes and the Immigration and Naturalization Act. Ours is much more restrictive. It is much more restrictive than the senate bill was. We tried to take out anybody who we felt had a lawful right to be in the country, as either a citizen or as a permanent lawful resident. We also took out the asylees and the refugees, who, as I say, those individuals are going to be subject to an ICE hold even though they are not subject to our resolution. So what I would just say is this: We're dealing with a class of people here that has radically changed over a number of years.

In the last 10 years, we have received a number of people in this country who came here not to get a job or to make a better life. They came here to harm us, either by distributing drugs to our children, trafficking young boys and girls, or committing other types of crimes. It's a very diverse group of people coming into this country today. We don't really know who all is here. We have people who very likely are here to subvert or even terrorize us who have come across the border. We hope not, but we expect we do. And so what I would say is this: The people in this amendment are individuals who have been given a special status—some sort of status with customs and immigration. But to get to this point in this resolution, there has to be probable cause that they have committed a very, very serious crime. They have to kill somebody, they have to rape somebody, or they have to traffic human beings––those are all very serious matters. And let me tell you, if you let some people—like a murderer—out of jail, they may or may not kill somebody else while they're on bail. But if you let a human trafficker out on bond, what do you think they're going to do the minute they get out? Traffickers are going to traffic. You let a drug distributor or drug dealer get out. What do you think they do when they get released? They start spreading poison to our children again. This is a balancing process. And I'll just say, this definition wasn't pulled out of the air. It was in consultation with immigration attorneys, and also, it was a collaboration with the senate and the governor's office. I can't just unilaterally agree to change it on the floor of the house.

GARCIA HERNANDEZ: I do appreciate—and I think a lot of members as well—concerns about what the original SJR looked like and the work that has been done in creating some definitions that add some additional individuals that we obviously do not necessarily want caught up in this particular instance. I don't think anybody disagrees that individuals who are coming here, or who are here, and causing harm that they need to be dealt with in whatever way that we need to deal with them. But I am concerned, and I do understand the amendment that Representative Romero has brought forward. I have just a few questions in regard to that.

In regard to the amendment that Representative Romero has forward right now, these particular individuals—I believe the humanitarian, the VAWA––the Violence Against Women Act—these are particular individuals that I fill out applications for on a regular basis. These are individuals who, quite frankly, because they are availing themselves of the laws here in the U.S., want to remain here. So, whatever it is, and of course, every application is different, and there are different things that you have to produce—evidence and thresholds that you have to cross in order to even be granted this relief. These individuals are essentially saying, "I want to remain here in the U.S. and comply with whatever it is that I need to comply with to remain here." Because, say, for instance, an individual—Violence Against Women Act. A woman who has been brought here against her will or even brought here illegally by a spouse from whom they've suffered abuse or even had their children abused as well in––instances of past cases that I have done for clinics, as an example. But these are individuals who, literally, may not even necessarily have another country to go to. So I understand the concern of flight risks in those other instances, and, of course, that goes to the underlying bill itself. But is it your understanding that individuals like those individuals that avail themselves of VAWA or humanitarian parole or those types of things—or even our deferred action applicants, our dreamers—that these are individuals who shouldn't necessarily be considered flight risks?

SMITHEE: In some cases, yes. I will say that all of these categories that are raised in this amendment, certainly there are some people in there that we should give special consideration to as far as immigration status is concerned, but that's not what this resolution's about.

GARCIA HERNANDEZ: Correct.

SMITHEE: These people don't get to this point unless there is probable cause demonstrated by evidence that they have committed a very, very serious crime and hurt somebody really badly in the United States of America. We try to be a very generous country, but when you come into our country and you harm our citizens, then we have an interest in making sure that we protect other citizens so that you don't harm them as well. That's all this is about.

GARCIA HERNANDEZ: I do quite a bit agree with you in some instances, Chairman. The biggest concern—because it seems like you're talking about them doing harm whenever they're being considered. This is an accusation. I don't necessarily want to get off, obviously, the amendment, but that is a big concern as well. Of course, I know this particular type of SJR is something that also was passed in Arizona, which, to my understanding, in the last two years, was struck down for being unconstitutional. So that's a concern as well. But I just wanted to speak specifically to the amendment itself in making sure that we have clarity. These are individuals that, quite frankly, don't want to have to leave the U.S. They've availed themselves of the process here because they don't identify or see other countries as being their country. They consider the U.S. as being their country and availed themselves as humanitarian parolees, as asylum refugees, VAWAs, all of these SIJs. All of these particular avenues are for individuals that availed themselves of the laws here in the U.S. They may not necessarily have status but want to be able to have a presence here. And so I just wanted to make sure that y'all were taking that into consideration here on this particular bill. And, of course, I believe this amendment is in the right direction of making sure that we include some of those individuals. I appreciate you taking the time to answer my questions.

[Representative Smithee moved to table Amendment No. 2.]

ROMERO: I think that some of the points that were brought up by Chairman Smithee are absolutely valid. The points where we disagree are that these are folks that have just come in. The folks that are in the part of this amendment are folks that have already been here and, for the most part, have presented themselves to the United States Government and said, "This is who I am." They're not hiding in the shadows, and that's why I think that they should be included in the declaration of those folks that could, at the very least, be entitled to their day in court. My concern is someone is undocumented or illegal, and just because now they're being held in court, prosecutors lean towards "we're going to get a final conviction despite that evidence not being as strong." And I think that's something that we've never done before since I've been here, where we're going to put a little bit of a shadow, we're going to tip the scales in the direction of injustice, and I really think for that reason—I hope, and I would pray—that you would consider this very minor amendment. This is a very minor amendment. This is just adding a few classes of people that already have protected status. If they commit that crime and if there's enough probable cause, to Chairman Smithee's point, they're not coming out anyway, guys. But I'm saying, for those that have been accused, and maybe the evidence isn't as strong, that we give them their day in court and don't already start to make them guilty before that's been proven.

[The motion to table prevailed by Record No. 2933.]

[Amendment No. 3 by Romero was laid before the house.]

ROMERO: This amendment is much more narrow than the prior one. This simply addresses those that have a deferred status, otherwise known as DACA. Members, if you want to take a position on those kids who have also presented themselves and are going to our schools—likely already going off to great careers—please support your DACA recipients.

SMITHEE: Mr. Romero and I have discussed this as well. The problem with DACA is it is the deferred action of childhood arrivals. It's not really what you would call "lawful presence" in the country. What it is is a deferred action on your status that allows certain individuals to stay in our country for a limited period of time. It has to be renewed. It's not a law. It was done by executive order by President Obama. It's subject, right now I think, to some court challenges. The current administration has indicated a willingness to suspend DACA. So if you're DACA eligible—or even if you're a DACA recipient—you are subject to the ICE hold. In other words, if you are accused or charged with committing a crime, particularly these crimes that are in our resolution, you will be subject to an ICE hold. You will not get out of jail. To that extent, this resolution doesn't really change anything. If we release them on the state level, the federal government will take custody of them under the hold. As I said, we narrowed the people that we're going to capture here over what the federal government does on ICE holds but also the senate version. We finally had to come down. Honestly, if you're a DACA recipient or a DACA-eligible person, that doesn't mean you're not going to commit a serious crime. If they do commit a serious crime—if there's probable cause to believe they've committed a serious crime—we don't want them back out on the streets. This doesn't apply to all DACA-eligible people. It just applies to those who have been found to have probable cause to have committed a very, very serious crime.

REPRESENTATIVE M. GONZÁLEZ: Listening to your opposition to the amendment made me think that if you said the federal government is already going to capture them in their use of DACA, we should just maintain the bill as a status quo. I guess my thing is, why not include them as an exemption? Because, as to your argument, the federal government is already going to do that?

SMITHEE: Well, as I've said, with all the other categories, everybody that we pick up in this, as far as I know, is going to be subject to an ICE hold. They will be subject to an ICE hold. The practical effect of this is it is not going to increase jail populations by any significant numbers. All we're aiming for are the people who don't get caught with detention. If we bail those people out, and they know there's a detention either coming or should have come, all we're doing is giving them a head start on the federal authorities. That's all we're doing.

M. GONZÁLEZ: I think the concern, Chairman, is that there are lots of members on this floor who have seen some of our DACA students be targeted at universities—currently, right now—through what's happening in the larger political climate. There's fear and anxiety around that. And by accepting this amendment, you would really be trying to say, "Okay, there are concerns about what's happening. There are certain students who are being targeted. We have seen news stories where they have been charged with something that they did not do. To make sure that they are not caught up accidentally, we are not going to keep those types of individuals. Let's make sure they're exempt for now."

SMITHEE: Well, we discussed this at great length. This wasn't done casually or carelessly. We discussed and seriously considered including DACA—not necessarily DACA eligible, but DACA recipients—in here. The consensus was that if even a DACA recipient has committed a crime of the magnitude that we've described in here, to err on the side of public safety and the safety of children and the vulnerable people in this state. We would go ahead and apply this even to DACA recipients because they are not permanently in this country. Once again, DACA basically is a program that is a grace program. It grants grace to people not in the country legally.

M. GONZÁLEZ: Chairman, I understand very clearly what DACA is. I understand that it is a deferred action program, but what I am trying to express to you and a lot of members on this floor is that we have anxiety, not exempting them because of them being targeted right now. They may not have actually committed a crime. So that being said, I appreciate you answering the questions.

GARCIA HERNANDEZ: I also had some follow-up questions from my colleague as well. Like I said earlier, I do a ton of DACA applicants. I've been doing it since the very beginning of the program. I've seen it transpire from when it was DACA—then DAPA was created. And then, of course, we know it ended up––the courts struck that down, but DACA is a program that is still being utilized right now. It doesn't accept new applicants, but those who qualified under the program can continue to keep applying every two years to renew it, always having to produce whether there's been any criminal instances. They have to go through the background check; they have to do the fingerprints and everything like that. That's how the federal government makes sure that these particular individuals who are availing themselves of this program are out working. They have work authorization in order to contribute to the economy, but if they ever get caught up in any type of particular criminal offenses, they, in fact, can lose their access to that program.

I do understand why exactly and how y'all have crafted it to include some individuals. I do feel like, in particular, DACA should be included as well. You said earlier about individuals who have come here to the U.S. and have built themselves, but DACA applicants—people who are currently under that program—these weren't adults that crossed over and came to our country. These are children who were brought by their parents. They didn't have a say one way or another of whether they wanted to come here to the U.S. So I understand the hesitance and the concern of a lot of people in our community. We see it even on a congressional level, where there seems to be some agreement on both sides of the aisle that there's something that we need to do for these particular individuals. I am concerned for us being able to avail ourselves—being able to avail ourselves of the U.S. Supreme Court case, which is the Salerno case, that says that each individual is entitled to having their determination on bond. These particular individuals—now, many of them, adults—were brought here as children and did not actually make the decision to come here to the U.S. Essentially, very similar to a lot of us—some of them close to my age now—who this is the only country they've ever known. Those particular individuals I don't necessarily want to see caught up. I just don't know if there's any way that we might be able to find middle ground in allowing these particular individuals in this instance. But I do think that they certainly should not necessarily be lumped in with all of the other categories of adult individuals who have entered this country when, in fact, many of them never had the choice to make it. So I'm just wondering if there may be any room for us to discuss that or have those particular individuals added to this.

SMITHEE: Well, I'll tell you we're not treating DACA recipients much differently than we are U.S. citizens here because if you're a U.S. citizen and you are accused of any of these crimes—the only difference is you have to prove two things on a U.S. citizen. You have to prove that they either pose a flight risk or they pose a danger to society. We take that away in this amendment because we believe that citizenship in the United States—whether it's acquired by birth or it's earned—is worth something. We're not trying to be unfair to anybody. We're really treating everybody pretty much the same. The point is: The only way you're going to get here is if you have probable cause that this person has committed a very serious offense. I keep saying that, but it is a very serious offense. We're not talking about applying this to jaywalking. These aren't "gotcha" crimes. These are killing somebody, raping somebody, or trafficking a little child. We want them off the streets until we know for sure whether the justice system has determined them to be guilty or innocent. We may err. We may make mistakes, but if we do, we want to make them in the interest of public safety. That's all we're trying to do here. We're not trying to single out anybody or be unfair to anyone, really.

GARCIA HERNANDEZ: Chairman, it's fair to say that we as U.S. citizens are not necessarily availed to the process that these individuals are going to be availed to. Therefore, DACA applicants are not being treated like U.S. citizens. They are going to be pulled into this particular bill where they are going to be not necessarily enumerated like U.S. citizens, green card holders, parolees of the military, and, I believe, asylum refugees that are actually granted the status as enumerated in that definition. Correct?

SMITHEE: Correct.

[Representative Smithee moved to table Amendment No. 3.]

ROMERO: I think a few things that must be said are the words that Chairman Smithee just used when he said that these people are not permanent to this country. And yet this bill, in including these DACA recipients—think about what we're asking here. To include DACA recipients—people who have been here since they were one or two years—what it does, in effect, determines that they are a flight risk, which is why bail should not be an option. In fact, I'll tell you all: The U.S. is their only home. Having two brothers and sisters that are Dreamers—it took them a long time to become U.S. citizens. It took them a long time to become legal permanent residents, but they got in line. They want to get in line. DACA recipients are the first who are willing to say, "I'm in line." The only thing this amendment says is: Don't put an extra barrier on top after CSSJR 5—which we just passed overwhelmingly. I want you guys to understand that this is a––they are not a flight risk.

REPRESENTATIVE MOODY: I kind of want to distill down what you just said. The underpinnings of CSSJR 1 is–– I think what's been stated here on the floor—correct me if I'm wrong—is that there are certain populations that are de facto flight risks.

ROMERO: Correct.

MOODY: We just finished up the debate on CSSJR 5, which includes—correct me if I'm wrong—all the offenses that we're discussing in CSSJR 1 as well.

ROMERO: Correct.

MOODY: So what you're asking the body is, where does this particular population fit? It doesn't mean, or you're not saying, that they shouldn't be held to account on any of these serious offenses. Are you?

ROMERO: Absolutely not.

MOODY: What you're saying is this population—the DACA population—who, as you stated, knows no other home than this place. They should be housed under the terms of CSSJR 5, which has individualized determination and not under an automatic denial of bail—which is defining them as a de facto flight risk. Is that correct?

ROMERO: That's right. I would hope that the body is listening and understands just how American these kids are. They have to prove every day that they're more American than anywhere else. When those kids say, "I'm not from Mexico or whatever other country. I'm not from there or here." They are not a flight risk. They are doing more to stay here, to be safe, to be secure, and to not break the laws. But if they end up in a position where they're accused of a situation like this, I don't think that they should be included. Because of CSSJR 5, to your point, they will be just like every other American, which is what they've been trying to prove their entire lives.

MOODY: That's what I want to distill down. This is not removing any of these individuals from accountability on serious offenses. It is saying, rather than an outright denial—which is based on flight risk or de facto flight risk—we would prefer this population be housed in the determination that would be made under CSSJR 5, which we just passed.

ROMERO: Absolutely. Speaker Moody, I think for the last two amendments that we've had—including this one—it's just simply about cleaning this bill up to a point to where folks that should not be included in it are clear. They're already addressed in CSSJR 5. These should be simple amendments. I would hope that the body would vote in favor.

REPRESENTATIVE ROSENTHAL: I just want to make really clear—and I'd like you to help me make really clear—the requirements to be a DACA recipient. Okay?

ROMERO: Well, I can tell you that the standards are higher than for you and me. We were born here with that privilege. I agree with Chairman Smithee that citizenship is worth something, and I think that every DACA recipient knows that they are being gifted an opportunity to remain in this country. They did so in their application process with the understanding that they would not commit a crime, they would not get themselves in any trouble, and they would remain a bright light in this country and continue to do the things we expect from them until something is proven otherwise. Otherwise a citizen, but without that documentation. Keep in mind, these kids have been waiting for over a decade—now going on two decades—and they've been played as a political football. We probably—those of us that represent Latino communities—we know many of these DACA recipients. We know how hard they're working. We know they're working in incredible jobs producing for our economy, and I just want this body to support them and see them as Americans, which they are. They know no other home, Representative Rosenthal.

ROSENTHAL: Thank you for that. Would it surprise you to learn that I have family members and close friends who are DACA recipients?

ROMERO: I would not be surprised.

ROSENTHAL: So you would not be surprised to learn that I consider them among the best of us. I certainly would never qualify for this program, but let me talk about the young man who's basically a family member—the best friend of my two kids. Okay? He was brought to this country when he was three years old. If you were brought to this country at three years old and had never known any life anywhere else and never had any family anywhere else—he lives in Houston, Texas today. Would you consider that person a flight risk? Where do they fly to? Where would they go?

ROMERO: No. I don't consider these persons flight risks. If you've been here since three years old and you're an adult, this is your home. Representative Rosenthal, that is the point we are making. I think it's been proven by these DACA recipients—by their success in life and by their advocacy for their other DACA recipient friends, colleagues, and family members. Therefore, I hope more folks can see and recognize who these kids are. Now look, if they make a––I think it was Speaker Moody's point––if they find themselves accused of these crimes, as Chairman Smithee has pointed out, and there's reasonable cause, they are already covered under CSSJR 5. This here is just simply a clarification amendment. I hope that the author agrees to not table it—which he already said he will—but the members have a choice to vote in support of this amendment.

ROSENTHAL: Here's the thing—one last question: To be a DACA recipient, the criminal record requirement is you must not have been convicted of a felony, a significant misdemeanor, or three or more misdemeanors. Can we say those are like traffic tickets? These recipients haven't even gotten three or more traffic tickets, and the young man I'm talking about has been here for three decades.

ROMERO: They know that if they commit any of those crimes—that are much lesser than these that exist in the base bill—would already be cause for them to be removed. I highly doubt that they would be in the position to be here where this bill would affect them. If they are, CSSJR 5 addresses it. We don't need another duplicate law that specifically targets them just because they weren't born in this country, even though this is their home. Thank you.

ROSENTHAL: Thank you very much. I don't know if it's apparent, but I feel strongly about this and will be voting for your amendment. Thank you for bringing it.

ROMERO: Thank you, Representative.

REPRESENTATIVE WALLE: In listening to the debate, Representative Romero, real-world reality can be very harsh for people—particularly with relationships. You could envision a very toxic relationship between a DACA recipient and a U.S. citizen or vice versa.

ROMERO: It can happen.

WALLE: This toxic relationship could impact the immigration status of somebody that is falsely accused of some type of abuse or some type of crime. Right?

ROMERO: Correct.

WALLE: Where a DACA recipient is, theoretically––this is hypothetical––innocent of any kind of abuse to the U.S. citizen. The U.S. citizen files a criminal complaint, calls the cops, or there's some type of domestic dispute, and there's a dispute on who is at fault.

ROMERO: Yes. I think that's the concern, Chairman Walle, that we just talked about. That's where the rubber meets the road—when someone is accused. That was even the point of order that we had. Somebody is accused, and it's not proven yet. I think that's to your point. If it's not proven, and it's simply because somebody wants to have an advantage or leverage—over their spouse in your case—I think that's a very dangerous place for those DACA recipients to be in.

WALLE: And as written, there would be no relief for that person––

ROMERO: They could be held without bail.

WALLE: That person committed a particular crime, in this case.

ROMERO: That's correct.

WALLE: I guess what you're saying—and what many of us believe—is that, of course, if you're charged with capital murder, some of these heinous crimes, or you're a repeat offender, that's going to cover itself in the other bills that we just passed here a few minutes ago. Is that correct?

ROMERO: That's correct. I think that DACA recipients are not the villain that has been made out from this front microphone all day. It is the people that cross this border and may have a detainer already. Maybe they didn't go to their court date, and now they're just out running around. That is not DACA recipients. Everybody knows where DACA recipients are. To your point—that toxic relationship, that false accusation, that lady who may end up in jail with no bond after having done absolutely nothing wrong when she actually is the victim. I think that is a very gross place and a blind spot that this bill has. We should address it.

WALLE: Let alone no bond, she or he would be detained indefinitely and more than likely fast-tracked to deportation because there may or may not be an ICE hold on them. They would be deported, even though they made their judicial––their criminal process hasn't been fleshed out.

ROMERO: I think the reason why I filed this amendment, Chairman Walle, is absolutely to point out how safe these individuals are. America is their home. They are not a flight risk, and they are definitely not a danger to society.

[The motion to table prevailed by Record No. 2933.]

[Amendment No. 4 by M. González was laid before the house.]

M. GONZÁLEZ: Members, we talk a lot about human trafficking and sex trafficking on this floor, and we have collectively come together to make sure that victims of human trafficking and sex trafficking are able to get the resources and support that they need. This amendment is no different.

Right now, we have what we call U visas and T visas that help survivors of human trafficking and sex trafficking when it comes to their status and when it comes to supporting law enforcement. This amendment is very simple. All it does is exempt them from CSSJR 1. They're still under CSSJR 5, but what we're saying is that because of their journey to this country, they are not a flight risk for the legal conversation that they need to have. Additionally, we are also saying that based on their status and accusation, they should not be able to not get bail.

Members, we need to be nuanced when we're creating legislation like this. T visas and U visas have been created for a reason. If we do not exempt them from this piece of legislation—while still under what most of us voted for, CSSJR 5—we are putting them at additional risk for continued victimization, something that they have already experienced in the most harmful of ways. Please consider adopting this amendment.

MOODY: You've outlined T visas and U visas here, and again, much like the prior amendment, this is not for creating a path of no accountability, but it's saying this particular population—who has authorized presence under these programs—would be looked at under the prior legislation that we had on the floor—CSSJR 5. Is that correct?

M. GONZÁLEZ: Exactly. They would still have a different bucket of due process.

MOODY: You mentioned that we've talked about trafficking. I don't know for how many sessions now—probably since 2013—we've had a myriad of bills about trafficking. You'd agree with me that those that are in the trafficking world—even the victims of trafficking—are a very complicated population?

M. GONZÁLEZ: Very complicated. I mean, this is why we have to be nuanced. For example, the victims or the survivors that have experienced human trafficking and sex trafficking historically have a criminal history because the people who have trafficked them have acquired them to do these acts. It's a very complicated situation. This is also why law enforcement helps grant these visas. So instead of putting them in a bucket, we are saying, "Wait, let's take a step back. Let's allow them to fall within the confines of CSSJR 5, but not put them in the bucket of CSSJR 1."

MOODY: I think you raise a very important point about those who are wrapped up in the trafficking system. Some of the things that we've looked at are the criminal records of some of those folks that you and I would consider—and this body has considered—victims of human trafficking, but because of the nature of that relationship with the trafficker, they probably have a criminal history that, if you take it in a vacuum, makes them look like they're here doing bad things. But you and I both know—and correct me if I'm wrong—these are folks that are being compelled to do bad things by their trafficker. Isn't that correct?

M. GONZÁLEZ: There was a story that I was reading right before this amendment that talked about a woman who was being held at gunpoint by her trafficker every single night, and then compelled to do actions that, of course, she didn't want to do. I think, again, when we make these broad pieces of legislation, they have a very real impact on human lives, specifically those who are most vulnerable. This is why this amendment is so critical. The absence of this amendment, members, means we should really consider what we're doing here today.

MOODY: In these two populations—we talked about T visas. U visas—we're talking about crime victims.

M. GONZÁLEZ: Yes.

MOODY: Right. People who can also be a very complicated population. These are folks that the federal government—for those two narrow instances—has said have lawful presence in this country. Is that correct?

M. GONZÁLEZ: Correct.

MOODY: For the purpose that they could be helping with the investigation.

M. GONZÁLEZ: In many cases, that is actually the case.

MOODY: They can be working on making sure that the real offenders are held to account.

M. GONZÁLEZ: Yes.

MOODY: So in CSSJR 5, we have all of the offenses that are housed in CSSJR 1, but we have a due process structure that would apply to those populations. Your amendment would simply take those who have been granted T visa or U visa status, remove them from an automatic denial, and move them over into some individualized review of their case—whether they're a flight risk or whether they're a danger. That's what it does.

M. GONZÁLEZ: That's exactly the point, and I think, again, good policy is nuanced. The fact that we are not allowing that type of nuance for people who have experienced really, really—I would even say traumatic experiences is beyond mean. So I'm hoping—and I want to apologize to the chairman. I didn't talk to him before I did this amendment. It was part of the larger Romero amendment. But as I was listening to Representative Romero, I couldn't just sit here and say, "Wait a second, we have to do something specifically in this area." I would hope that the chairman, and this body, will be nuanced enough to think, "Hey, we need to have this exemption." And again, not to disregard anything that's happened—they still fall into the CSSJR 5 bucket. But to say that the reasoning for CSSJR 1 is to say that they are a flight risk—that is literally not the case. They're people who have been trafficked here.

MOODY: I appreciate the nuance here. We're just making a determination as to which construct we're going to place certain populations. I think those who have been victims of trafficking—and those who are victims of crime in general—if they happen to be wrapped up in the criminal justice system in these serious cases, I think we should absolutely be utilizing the other structure that we talked about previously and not an outright denial. I thank you for the amendment.

M. GONZÁLEZ: I appreciate you and your leadership. I appreciate this conversation as a whole because, members, we cannot victimize people who have already been victimized through global sex trafficking and human trafficking.

REPRESENTATIVE MORALES SHAW: I think the difficulty that some of us are having with this measure is that we have a presumption of innocence in this country until proven guilty by a jury of our peers. The fear here is that this large net will certainly capture anyone and everyone possible. We do want––serious criminals, obviously, deserve to be punished and put in jail and all of those things. None of us disagree with that. One of the big concerns about these individuals that you're referring to, and that the DACA amendment is referring to, is the fact that these people can be arrested, not proven guilty, potentially deported, and have absolutely no remedy. Is that really the gist behind these amendments—that they have no recourse? If they have built their entire life here—whether they are a graduate student, whether they are a medical professional, whether they are an engineer, or whether they are a tradesman. If they are, for some reason, caught up in the criminal justice system and not proven to be guilty, have not had their opportunity to be heard in court, and have not had their due process—they, technically, could be deported out of this country without any of that. I just want to clarify. Is that the main gist behind your amendment and the other amendments? We are not trying to undo this proposed constitutional amendment, but those are really serious concerns that could affect our neighbors or some of the people who we contract with to do our services.

M. GONZÁLEZ: I think, Representative Morales Shaw, you're completely right. I mean, let's go back. Twenty minutes ago or 30 minutes ago, we passed CSSJR 5. That created the bucket for which we will reexamine bail. Now we have CSSJR 1, which denies bail for anyone who has this type of undocumented status. The reason it is being done is because they're making the assumption that undocumented people are a flight risk. Well, I think that's a big assumption when undocumented people are not a homogenous community, right? I'm sorry––it is not just one type of community. There are different variances when it comes to—did you come here as a two-year-old and, therefore, get Dreamer status or DACA status? Were you forced to come here through human trafficking? Were you tricked into coming here and then sex trafficked? It is a more complicated scenario that, unfortunately, this bill does not allow us to have nuance on. Again, I think what frustrates me is that nobody in this body is saying, "Let's have more crime." We all want our districts to be safe. We all want our communities and our families to feel like they are protected. But we also don't want to create laws that unjustly punish people in a way that victimizes them.

SMITHEE: Mr. Speaker and members, the amendment—as it is written right here—I think needs some work anyway. So just to fit into what we're doing, I've told Ms. González that I will work with her. What I've asked Ms. González to do is to withdraw the amendment, and she has agreed to do that. Since this is a constitutional amendment, if we receive more than a majority vote, it will pass to third reading. But it is not enough to adopt the joint resolution, so assuming we end up somewhere between 75 and 100 votes, then we will have 24 hours to try to come to some accommodation on this. So Ms. González indicates she wishes to withdraw the amendment.

[Amendment No. 4 was withdrawn.]

MOODY: Members, if I could just have your attention for a bit. I'm voting for this, but I'm not here to convince you to follow me. What I'd like to do is explain, as simply as I can, what it does—good, bad, and ugly. This resolution began as something that I would never vote for. The definition was so broad it swept up even some U.S. citizens. It also applied to all felonies. If "felony" sounds serious, you should know there are about 2,500 felonies you can be charged with in Texas. There was also no way to transfer people to federal custody. So this was a huge unfunded mandate to our local governments. The good is this: we have come a long way. The definition is much better. In order to get caught by this system, someone would have to enter at some place other than a port of entry—overstay a visa or other status. That person would have to not be a citizen, legal permanent resident, asylee, refugee, or military parolee. Then there would have to be probable cause that the person committed one of about 20 serious offenses—that represents less than one percent of the offenses that this SJR started with. Only then would bail be denied. After that, our locals would now be able to transfer them into federal custody.

Here's the bad: This does not include DACA. This does not include those who have been trafficked. This does not include victims of crime. It doesn't include those who have been given rights under the Violence Against Women Act. Those people would all still be captured by this JR that's in front of you. I don't think that it should capture them, and that's something that I fought hard against. But this applies to Dreamers and those others accused of these serious crimes. That category—accused Dreamers—is vanishingly small. It may well be zero. I don't want to sugarcoat that. I don't want to sugarcoat anything about what's written here. You've heard that debate over the last couple of hours.

Finally, the ugly. That's the rhetoric around topics like this. From Twitter to town halls, the language around immigration is toxic. It's dehumanizing, and, in some cases, it's nakedly racist. We talk about policy that's supposed to save lives, but this type of scapegoating led to a mass murder in my hometown just a few years ago. Since then, that rhetoric has gotten worse, not better. That makes it very hard to deal with just the policy on the paper. On a policy level, the concept here is not offensive. If a person has already broken our immigration rules, they're probably a flight risk as well. I get it. I get that, and that's why I'm voting for this. But I also get how incendiary this issue is. So it's a very reluctant vote from me. This is a vastly tighter proposal than what we started with. It's narrow enough that I don't think anyone who would've been out of custody before would be detained under it. And practically, if that does happen, it probably should. Members, I'll leave you with this. I would weigh all of these dynamics that we just discussed, and I would vote your conscience.

REPRESENTATIVE LITTLE: Members, I want to just walk through this briefly with you to explain why I think CSSJR 1 is important for you to support. You may be wondering yourselves, "Why is the conduct and the assailants that are addressed by CSSJR 5—why is that not good enough? Why is what we passed not good enough?" I want to share with you a brief story that actually pushed me over the edge to understand this issue a little bit better. We were in the Criminal Jurisprudence Committee hearing this bill late at night, and a story I had never heard was introduced by the district attorney for Comal County, Jennifer Tharp. There was a man named Sacramento De Jesus Martinez, and Mr. Martinez was abusive of his wife. He was subject to a protective order. He had been arrested for something that was violent, and he had been subject to an ICE detainer. So, of course, you'd think he's going to be turned over to ICE. Well, that's all well and good until the sheriff or someone else responsible simply doesn't relay that information to ICE. Mr. Martinez was turned loose on the offense for which he was being accused, and he went home to his apartment that he shares with his wife. He shot his wife in the head. Then he drove around Austin with her in the car. He went to buy cocaine from someone, thought it had been diluted with some other substance, and shot that person in the face. That person survived. He then went to another drug dealer, fired into a crowd of people, hurt someone else, and started driving south. He got to New Braunfels, stopped at a truck stop, commandeered an 18-wheeler with a man in it, shot that man four times, and then drove around while he bled until he crashed the 18-wheeler in San Antonio, where he was finally apprehended.

There is a narrow application here, members, that must deserve your attention. There are certain people for whom a flight risk or an ongoing threat to public safety is not immediately obvious. But a violent criminal does not deserve a reason to stay in the country. We have had a very robust discussion and debate so far about how our immigration system functions. That's an important conversation. It's an important conversation that we need to have as a country. It is not a conversation of this particular bill. This particular bill, the purpose of which is to ensure that people who are violent offenders, who are accused of—what I've come to call one of the Abbott nine offenses—murder, aggravated robbery, aggravated kidnapping, indecency with a child—the most serious offenses we have as a state—to make sure that those persons, if they also happen to not be legally present in the country, do not continue hurting other people. This is purely a public safety bill. I can understand the anxiety around the determination of who should be here or who should not be here and codifying that into law. The narrow application here, though, is if you are accused of these very, very serious crimes, then we deny you bail because you are not supposed to be here in the first place. I humbly ask for your support of CSSJR 1.

ROMERO: Members, no one is going to protect someone who commits the types of acts that epresentative Little just talked about—no one. Not a single member in this body would vote no on this measure if there's a thought that you're trying to protect someone who's doing those things. Absolutely no one here. The question is: Can someone be falsely accused? If so, is that enough to deny someone the right to a trial or the right to bail? I can assure you one thing—that the person that committed those crimes was not a DACA recipient.

The ask has been really simple. While it is narrow, and this is what someone has to be accused of, and, as Chairman Smithee said, have enough evidence to move on and so forth, it wasn't a DACA person. What we're asking for in some of these amendments that I've offered has been very, very small. The DACA people that I know are as American as every single one of us. I set the example of the Dreamers—they didn't apply for DACA because they were here sooner—was my own brother and sister. I know they know no other home than the United States of America, and they are not a flight risk. So we're not protecting––we're trying to tell you that those people should not be dealt with to the full extent of the law. Simply, let's have justice for those who may be falsely accused. I look forward to working with Chairman Smithee if we don't get to 100 votes today.

REPRESENTATIVE LOUDERBACK: Members, know this: I am for CSSJR 1. We need CSSJR 1, and we need bail reform in this state now. I spent my entire career fighting crime and cartel activity created by the crisis of the southern border. I know that the cartel threat is real, and it's in each and every one of our communities. I also know that many of you in this chamber have fought hard to pass laws protecting Texas and addressing the crisis at our southern border. I urge you to support this SJR. This is a critical component of our bail reform and border security efforts this session. This is a tough but measured approach to keep our citizens safe. We must remember that this SJR only targets the most serious, savage criminal offenses: murder, trafficking, kidnapping, sexual assault, and injuring our children. We're not locking up illegal aliens for minor offenses and throwing away the key. We're ensuring that our law enforcement—who risk their lives to get the bad guys—are not dealing with a revolving door of violent criminals back on the street. We are protecting the lives of young women like Jocelyn Nungaray, who senselessly lost her life. We cannot afford to keep wasting time and debating this issue while our constituents are in harm's way. It's time to do the right thing.

Members, this is a vote for public safety. This is a vote for justice and safer streets. This is a vote for Jocelyn and for all Texans who depend on us to keep them safe. Vote for CSSJR 1.

REPRESENTATIVE CANALES: I've sat, and I've listened to the debate, and this is a tough one. It is tough, but there's a level of logic here that's missing. One of the most fundamental things that a judge considers when he's going to determine whether you have the right to bail is whether you're a flight risk—but that's just one. The second one is a danger to your community. So take the flight risk out, and let's talk about these heinous crimes that you're associating with flight risk. Murder, aggravated sexual assault of a child, rape, armed robbery—why are we even giving those people bail? Why would we give them bail? They're a danger to the community. As I listen to this, it says, "Okay, we're going to fundamentally say you're a flight risk because you're here illegally." I would tell you I'm more interested in how big a danger you are to the community. Those crimes committed by someone who is an American citizen don't make that person any less dangerous. Think about it. I'm voting no because the hypocrisy of it doesn't withstand the smell test. If you've been found to have probable cause for aggravated sexual assault, continuous sexual assault of a child, well, you're just as dangerous as the guy who's here illegally that did it. Why would we pick one over the other? You want to get tough on crime? Let's deny all of them bail. Vote no on this piece of crap.

SMITHEE: We've talked a lot about this today, Mr. Speaker and members; probably all we need to talk. But let me just say this: Had we passed this constitutional amendment six years ago, there would be little boys and little girls still alive today who were tragically killed. The best time to have passed this would have been six years ago—or maybe eight years ago—but the next best time is today. I can promise you this: If we adopt this amendment, and the voters approve it, it will save innocent human life. Period. It will save innocent human life. It may be a little girl in another town, but it may be a little girl down the street. It might even be a little girl that you know or that's in your family. So I would just ask you to think about the rights of innocent people. We're a nation of rights. We believe in everyone's rights, but consider the rights of the innocent people who deserve to be protected from these senseless acts of violence. I would ask you to vote aye, to vote yes—actually I'm begging you to vote yes—for this resolution.

[CSSJR 1, as amended, was passed to third reading by Record No. 2935.]