Generally, a person who has been arrested without a warrant in Texas must be taken before a magistrate, who must determine whether probable cause exists to believe the person committed a criminal offense. If the magistrate determines that probable cause exists then the magistrate is required to read the person his or her rights, set bail, and impose bond conditions.
So, what's a bond condition? When a person is released from state custody following an arrest, a magistrate may place conditions on that person’s release in order to protect a victim of the offense or the safety of the community at large. Bond conditions might require a person who has committed a DWI offense to install an ignition interlock device, or they might require a person who has committed kidnapping to refrain from contacting the victim. Many advocates have suggested that bond conditions play a particularly important role when the person arrested is alleged to have committed an offense involving family violence, for the cycle of violence increases the likelihood that further offenses will occur.
In 2013, the Texas Legislature amended Section 411.042 of the Government Code to read as follows:
“The bureau of identification and records shall…collect information concerning the number and nature of protective orders and all other pertinent information about all persons on active protective orders, including pertinent information about persons subject to conditions of bond imposed for the protection of the victim in any family violence, sexual assault or abuse, or stalking case.”
The use of the word “shall” in this statute imposes a duty on the Texas Department of Public Safety (DPS), which maintains the bureau of identification and records.
The Legislature has granted DPS the authority to make rules relating to the collection of the information that it is required by law to collect. Subsection (g) of the same statute, also amended in 2013, states:
“the department may adopt reasonable rules under this section relating to…
(7) active conditions of bond imposed on a defendant for the protection of a victim in any family violence, sexual assault or abuse, or stalking case, and reporting procedures that ensure that information relating to the issuance, modification, or removal of the conditions of bond is reported, at the time of the issuance, modification, or removal, to:
(A) the victim or, if the victim is deceased, a close relative of the victim; and
(B) the local law enforcement agency for entry by the local law enforcement agency in the state's law enforcement information system.
Two and a half years after these changes to Section 411.042 took effect, the Department of Public Safety has yet to promulgate administrative rules pertaining to the collection of bond condition information in family violence, sexual assault/abuse, or stalking cases. Furthermore, DPS has yet to update its reporting systems so that the agency can fulfill its statutory duty to track bond conditions and report changes in bond conditions to victims and law enforcement.
Is this important? Why did the legislature impose this duty on DPS? I believe that the answer may be found in Section 25.07 of the Penal Code, which makes violation of a protective order, emergency protective order, or a condition of bond in a family violence, sexual assault/abuse, or stalking case a crime. A peace officer cannot make an arrest for a crime under Section 25.07 if he or she is unaware that a violation of a court order has taken place. A peace officer would typically become aware of such orders through reporting systems maintained by DPS. A related statute seems to confirm that the reporting of information relating to protective orders, emergency protective orders, and bond conditions serves “to ensure that an officer responding to a call is aware of the existence and terms” of such orders. This awareness protects the peace officer and the victim, and also allows the officer to make an arrest pursuant to Sec. 25.07 of the Penal Code, if appropriate.
Clearly, the Texas Legislature has authorized courts to issue protective orders and impose conditions of bond in order to protect crime victims and to suppress additional crime. The Legislature also sought to give protective orders and bond conditions additional muscle by enacting Section 25.07 of the Penal Code. The changes made in 2013 sought to increase enforcement pursuant to Section 25.07, but that goal seems to have been undermined by a state agency that has ignored its statutory duties and has taken no action in this area.
The good news here is that the Texas Legislature appears to be playing an active role in protecting crime victims and suppressing violent criminal behavior. The bad news is that some folks at the Department of Public Safety don’t seem to care about these things.