IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0243-21
EX PARTE ALLEN CHRISTOPHER LANCLOS, Appellant
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE NINTH COURT OF APPEALS
HARDIN COUNTY
YEARY, J., filed a dissenting opinion.
DISSENTING OPINION
The court of appeals in this case rightly observed that the appellate standard for
reviewing a trial court’s resolution of a motion to reduce the amount of bail required under
Article 17.151 of the Texas Code of Criminal Procedure is an abuse of discretion. Ex parte
Lanclos, No. 09-20-00296-CR, 2021 WL 895837, at *2 (Tex. App.—Beaumont Mar. 10,
2021) (mem. op., not designated for publication) (citing Ex parte Gill, 413 S.W.3d 425,
428 (Tex. Crim. App. 2013)); TEX. CODE CRIM. PROC. art. 17.151. It is true that this Court
said in Rowe v. State, 853 S.W.2d 581, 582 (Tex. Crim. App. 1993), that:
Article 17.151 provides that if the State is not ready for trial within 90 days
after commencement of detention for a felony, the accused “must be released
either on personal bond or by reducing the amount of bail required[.]” Thus
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the trial court has two options: release upon personal bond or reduce the bail
amount.
Moreover, in Gill, the Court observed that the trial court’s “decision-making process”
under Article 17.151 must “result[] in the accused’s release.” 413 S.W.3d at 430. But none
of this changes the fact that, if the trial court opts to satisfy Article 17.151 by reducing the
amount of bail required, it must make a finding of fact with respect to what amount of bail
the accused can afford so as to effectuate his release.
As is the case whenever the application of law turns on the resolution of a factual
question, it is sometimes necessary for an appellate court to determine which party bears
the burden of proof upon that fact issue. See Atty. Gen. Op. H-1130 (1978) (“The amount
of reduction necessary to release the defendant will depend on the facts of each case.”). In
the instant case, the record was silent with respect to what amount of bail Appellant could
afford, such that the trial court was given no guidance with respect to how substantially to
reduce Appellant’s bail. Whether the trial court abused its discretion in reducing
Appellant’s bail by only $750,000, from $2,250,000 to $1,500,000, then, will depend upon
which party bore the burden of establishing how much bail Appellant could afford.
The court of appeals effectively placed that evidentiary burden on Appellant:
Lanclos presented no testimonial or documentary evidence regarding his
assets and financial resources. * * * Based on this record, the trial court
could have reasonably concluded that Lanclos’s evidence regarding his
financial circumstances was inadequate and that it was justified in reducing
Lanclos’s total bonds from $2,250,000 to $1,500,000.
Lanclos, 2021 WL 895837, at *2. In other words, the absence of any evidence with respect
to how much bail Appellant could actually afford was a circumstance that cut against a
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conclusion that the trial court abused its discretion in failing to reduce the bail amount
sufficiently under Article 17.151.
Placing the evidentiary burden on the accused to show what the appropriate bail
reduction would be certainly makes sense. After all, he is the beneficiary of the bail
reduction provision contained in Article 17.151. Moreover, he is in the best position to
know, and to prove, what his own financial resources are, and hence, the amount of bail
reduction that would ensure his release under that provision. The Court today fails to
explain why the trial court erred in reducing Applicant’s bond only to the extent that it did
given this paucity of proof. In fact, the Court reverses the court of appeals without ever
directly mentioning which party should bear the burden of proof.
The Court acknowledges the State’s argument that “the court of appeals properly
concluded that Appellant did not meet his burden of showing his inability to make bail in
the set amount.” Majority Opinion at 3. The Court simply responds: “We rejected similar
arguments in Gill. 413 S.W.3d at 431.” Id. But the Court did not discuss which party had
the burden of proof in Gill, or for that matter, in any of the other opinions over the years
that have construed Article 17.151. We have simply never addressed the question squarely.
Perhaps there is a good reason we have never before addressed whose burden it is
to establish an inability to make bail in the set amount. In every case that has come before
us up until now, there was evidence in the record that showed that the accused could not
meet the bail amount even as reduced. See Gill, 413 S.W.3d at 427 (record testimony that
“the extent of [Gill’s] financial wherewithal was the $100 in his jail commissary account”);
Rowe, 853 S.W.2d at 582 (the record showed that the accused could not make bail in any
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amount); Kernahan v. State, 657 S.W.2d 433, 434 (Tex. Crim. App. 1983) (the record
showed that the accused had no money or available assets—at all). In none of these cases
was the record silent with respect to the accused’s ability to make bail even at the reduced
amount, as here. And there was therefore, in those cases, no need for the Court to address
whether the accused had an evidentiary burden.
In the face of a record that simply does not speak to whether Appellant could afford
bail in the reduced amount, I cannot fault the court of appeals for concluding that the trial
court did not abuse its discretion. I therefore respectfully dissent.
FILED: June 30, 2021
PUBLISH