Texas Lawmakers Want to Revamp the State’s Bail System. Their ‘Regressive’ Plan Could Cause More Harm.

We speak to The Bail Project, a national charitable bail fund, about the proposed bill and how it could affect thousands of Texans.

By Matt Keyser
National Partnership for Pretrial Justice

Hervis Rogers gained internet fame in March 2020 when he stood in line for six hours to vote in the Democratic primary. Rogers, dressed in a white shirt and jeans, walked out of Texas Southern University at 1 a.m., the last person there to cast a ballot.

“I feel like it was my duty to vote,” Rogers said at the time, adding that he wanted to leave but opted to stay because he felt the system was designed to make him walk away.

But Rogers’ fame was short-lived. He was arrested by Texas Attorney General Ken Paxton’s office this past July, citing a draconian law that anyone out on a felony parole who “knowingly” votes can be punished by up to 20 years in prison.

Hervis Rogers. (Photo courtesy of the ACLU of Texas.)

Yes, Rogers was out on parole for a 1995 conviction for burglary and intent to commit theft. He only had months left on his parole. Rogers, 66, said he wasn’t aware of Texas law that made it illegal for him and others like him to vote.

He was jailed in Montgomery County on $100,000 bond, an exorbitant amount due to the voting charge—a second-degree felony under Texas law—and because of his previous history. Paxton’s office is prosecuting his case. (It should be noted that Paxton is free on bond since 2015 while facing felony fraud charges. Paxton is also reportedly under investigation by the FBI for abuse of power and accepting a bribe.)

With the help of The Bail Project, a national nonprofit organization that pays bail for people who can’t afford it, Rogers was released in July. His case is pending.

As the Republican-led Texas Legislature reconvenes for its second special session, lawmakers are considering a bill that would directly affect organizations like The Bail Project to help people like Rogers.

The bail bill, which has been called a “rollback” and “regressive” by critics, would double down on cash bail. The bill largely targets charitable bail funds and would limit their ability to bail out people who otherwise couldn’t afford to buy their freedom.

Charitable bail funds have historically existed in communities of color, said Twyla Carter, the director of policy for The Bail Project. These communities have “figured out how to pool their money, form an entity, and do it in an organized way. And they are now subjected to this legislation,” she said.

House Democrats fled the state at the start of the first session to break quorum and prevent a vote on a restrictive voting rights bill. By doing so, they’ve prevented any vote on Republicans’ bail restructuring efforts in the House.

As the ongoing wait continues for a vote on the Republican lawmakers’ attempts to remake Texas’ bail system, we spoke with Carter of The Bail Project to discuss the state’s current bail system, the proposed bill, and how those proposals would impact charitable bail organizations.

This interview has been edited for length and clarity.

NPPJ: Give us a quick rundown of what The Bail Project is.

Twyla Carter: The Bail Project is a national nonprofit organization on a mission to end cash bail and transform the pretrial system. We operate a revolving bail fund to help those in need while working at the policy level to advance systemic change. My role as the national policy director is to oversee our policy efforts at the federal, state, and local levels. We’re not only providing free bail assistance and community-based pretrial support day in and day out; we are also gathering human stories, data, and best practices to demonstrate what a community-based alternative to bail and pretrial incarceration could look like. Our ultimate goal is to eliminate cash bail and put ourselves out of work.

NPPJ: So if you don’t have jobs anymore that means you did your jobs.

TC: Right. And the converse is also true. The reason we have jobs is because cash bail has created a two-tiered system of justice. So we are working to address the root issues that make our intervention necessary in the first place. We truly are trying to put ourselves out of work.

NPPJ: Well, Texas is currently one of the states that’s keeping you all from losing your jobs.

Twyla Carter is the director of policy for The Bail Project.

TC: I think Texas has the most regressive bill that we’ve seen to date, for a number of reasons. At the most basic level, it expands the use of cash bail even though there is well-established evidence that these practices are racially discriminatory and that pretrial detention actually increases recidivism rates. The bill also attacks personal bonds, charitable bail funds, and it mandates the implementation of pretrial algorithms, predictive tools that data researchers and legal scholars have raised concerns about. It also flips on its head the presumption of innocence and release, because this bill presumes detention for many offenses and requires an accused person charged with a Class B misdemeanor or a higher category of offense to complete a financial affidavit to show that they cannot afford any amount of bail. When you combine all of that with the lack of a meaningful process that the Senate orchestrated to pass this regressive bill, it’s concerning.

It’s concerning that Texas lawmakers and proponents of these bills are touting approximately seven cases that the governor has cited of folks who were released and then committed heinous crimes. Ironically, all seven of those folks were bailed out by the bail bond industry. And yet the $2 billion for-profit bail industry is not subjected to this legislation. When you follow the money trail to see who the bail bondsmen donate to, it starts to make sense.

It’s concerning how lawmakers want to highlight things that occur in Harris County and apply that all across the state. It’s concerning that the narrative around the ODonnell case, which was bail reform for misdemeanors in Harris County, has been used as a talking point for why bail reform is bad for folks charged with felonies. When you think through the various talking points that are being used to push this legislation, it is misleading at best.

NPPJ: You mentioned the process to get the bill through and I’m curious what that process was.

TC: The process involved denying the people the ability to speak up and share their concerns. And it’s not just right now in this second special session, but during the regular session, too. Opponents of Senate Bill 21 came out in droves. And what we found on the ground on the Senate side was that when they had to have a public hearing, they locked the doors at 7 that night. They put bail reform as the very last item on the agenda so our folks didn’t get to testify until 4 a.m. If you weren’t in the door by 7, you were locked out as a member of the community if you wanted to testify about the bill.

The processes that are in place as they try to push through this regressive and, what I would deem and others have deemed, unconstitutional bill is what makes it very concerning.

NPPJ: Why do you think bail reform is such a high-priority item for Gov. Abbott and lawmakers now?

TC: I will not deny that there has been an increase in violent crime around the country. Where we disagree is the reason behind it. We know the pandemic has everything to do with why people are suffering and struggling more.

I think Gov. Abbott is the main person who’s been touting a handful of cases and saying that we need to prioritize public safety. And yet this bill does not do that. Anytime you have policies and practices and legislation that are rooted in wealth and cash bail, you will not actually addressing the root causes of crime—you are just ensuring that people without enough money, and particularly people of color, remain in jail.

NPPJ: Why is it that Texas is trying to push through this regressive bail bill when you have states like New Jersey, New York, even Washington D.C. that have largely done away with cash bail?

TC: It’s interesting. I think Texas would distinguish itself as a leader on criminal justice reform. I think Texans are proud of things in the past, and I do believe that Texas prides itself in doing things its own way.

From my perspective, this bill goes hand in hand with other regressive legislation like voting restrictions. The goal is to maintain the status quo.

NPPJ: For better or worse.

TC: For better or worse. I do think that Texas would like to see itself as a leader on these issues. But on this particular bill, it’s unsafe, unwise and I would even argue unconstitutional.

NPPJ: If this bill passes, how will it affect charitable bail organizations like yours?

TC: Our clients at The Bail Project are people who can’t even afford the 10 percent for the bail bondsman. We put up the full bail amount, reunite them with their families and connect them to services and resources based on their needs. And if a regressive bill like this passes, it directly affects organizations like ours and by consequence some of the most vulnerable people in our communities.

The fact they are attacking charitable bail funds is beyond offensive when you think of the sheer government overreach into independent nonprofit organizations. And I want to be clear: This legislation carves out churches; it carves out small bail funds that bail out three or fewer people in six months; it carves out family members; and it carves out bail bond agents. So, the only folks left are charitable bail funds, which historically have always existed in Black and brown communities. These communities have always pooled their money together to get a loved one home. They figured out how to pool their money, form an entity, and do it in an organized way. And they are now subjected to this legislation.

There are at least 14 charitable bail funds operating in Texas. So when you think about who’s carved out of this bill and who’s left standing, it’s the folks running these bail funds who want to help their families and fellow community members during a moment of need. And largely the people who operate these bail funds are the ones who will be subjected to this legislation, many are run by women of color.

NPPJ: Why go after charitable bail funds? If the state is going to double down on cash bail, why does it matter where the money comes from?

TC: We know there’s a coordinated attack by the bail bond industry, which donates to elected officials who then sponsor and push these bills. When you think of the fact that charitable bail funds are the community’s response to mass incarceration—to have this legislation target us is offensive.

Because even from a public safety standpoint, a bail bond company can still bail out whoever can afford their fee. But we can’t help people for free, even though, unlike bail bond companies, nonprofit organizations like The Bail Project also connect people to services and resources to address needs that might be leading to arrests in the first place. Isn’t that a more responsible intervention?

Texans should certainly be asking why we are expanding a cash bail system that we know is expensive, racially discriminatory, and counterproductive. And to make matters worse, why is it that lawmakers are targeting charities while giving free rein to private companies that profit from people’s desperation.

It’s unfair, certainly discriminatory in its implementation and in its creation, and it’s going to result in folks like Hervis Rogers unable to get out.

Read More From NPPJ on Bail Reform in Texas

While Texas Counties Pursue Bail Reform, the State Legislature is Pushing for a Rollback.

Will Texas Finally Tackle Bail Reform?

As Federal Courts Strike Down Bail Practices, Texas Must Reckon with Reform