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Houston Criminal Defense Attorneys – Texas Code of Criminal Procedure Art. 1.053 – Brian Foley Board

Houston Criminal Defense Attorneys – Texas Code of Criminal Procedure Art. 1.053 – Brian Foley Board Certified in Criminal Law in Houston, Texas.


Everyone has heard the phrase, “Crime doesn’t pay.” Well that can be more true than you thought. Money plays an important role in the criminal justice system in America. Maybe unfortunately so. The first thing that happens when you get arrested is you will go before a magistrate judge where they will assign you a bond. You guessed it. A bond is money that you pay to get out of jail. If you don’t have any money the court can give you a personal recognizance bond. This is typically referred to as a PR bond.

If you get arrested in Houston, Texas for a misdemeanor charge the judge is most likely going to give a PR bond. If the charge is a DWI or an Assault Family Violence they may not grant this type of free bond. These are also referred to as bail. Bail and Bond are used synonymously in Texas and in felony cases it is almost always a surety bond.

A surety bond is a bond that is paid by a bail bondsman. Normally the bail bondsman will charge you 10% of the bond amount. So if your bond is $10,000 you will have to come up with $1,000 and pay it to a bondsman. The bondsman signs a surety bond which is an agreement with the court to pay $10,000 if you fail to appear in court at your scheduled court date.


You can also accomplish this by paying a “Cash Bond.” The advantage to a cash bond is that when the case is over win or lose you get the money back. A cash bond is where the defendant or a friend or relative of the defendant pays the full bond amount which is deposited into the accounts of the district clerk’s office. This means in our example above that you pay all $10,000 to the district clerk. The bad part about this is that you are out the $10,000 for the entirety of the case. This is money that you could be using to pay bills, or hire an attorney. I typically suggest a surety bond for clients that are not wealthy. For wealthier clients tying up capital in this way is probably the cheaper option.

So how does the judge determine your ability to pay a bond and set one. There are other requirements later on in the code that discuss the bond factors. But today we are focusing on Texas Code of Criminal Procedure Art. 1.053 which requires the court to only look at your “present ability to pay.” This provision was added in 2019 and effective January 1, 2020. It reads, “Except as otherwise specifically provided, in determining a defendant’s ability to pay for any purpose, the court shall consider only the defendant’s present ability to pay. That means if you were an oil executive at Enron but you’re currently bankrupt, then it doesn’t matter what you prior ability to pay or generate income was. You currently can’t afford to pay money into the criminal justice system.



The court considers ability to pay when setting your bond amount, whether to appoint a public defendant, and whether to waive court costs or reduce probation fees.

In a DWI case a conviction can lead to a state traffic fine of $3000 for a first time offender. There are crime stoppers fees, blood test repayment fees, and court costs in addition to any fine that the court may impose. For felony cases the range of fines usually goes up to $10,000. In all these instances the court must follow Article 1.053 and consider the defendant’s “present” ability to pay.


Texas Code of Criminal Procedure Art. 1.053. PRESENT ABILITY TO PAY. Except as otherwise specifically provided, in determining a defendant's ability to pay for any purpose, the court shall consider only the defendant's present ability to pay. Added by Acts 2019, 86th Leg., R.S., Ch. 1352 (S.B. 346), Sec. 3.01, eff. January 1, 2020.


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