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
KEEL, J., delivered the opinion of the Court in which KELLER, P.J., and
HERVEY, RICHARDSON, NEWELL, WALKER, and MCCLURE, JJ., joined. YEARY, J.,
filed a dissenting opinion. SLAUGHTER, J., concurred.
OPINION
Appellant was arrested on August 23, 2020, for assault on a public servant. The
trial court set his bonds at a total of $2,250,000. Appellant could not post bonds in that
amount and unsuccessfully sought their reduction. After he had been detained for 90 days
without having been indicted, he filed an application for writ of habeas corpus under
Code of Criminal Procedure Article 17.151 seeking reduction of the bonds to an amount
he could afford or release on personal bond. See TEX. CODE CRIM. P. art. 17.151, § 1(1)
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(a defendant who is detained in jail accused of a felony “must be released” on personal
bond or by reducing the required amount of bail if the State is not ready for trial within 90
days). The habeas court then reduced the bonds to $1,500,000. Appellant appealed the
habeas court’s failure to reduce the bonds to an amount that he could afford, and the court
of appeals affirmed the habeas court’s order. Ex parte Lanclos, No. 09-20-00296-CR,
2021 Tex. App. LEXIS 1763, at *5 (Tex. App.— Beaumont March 10, 2021) (mem. op.,
not designated for publication).
We granted review to determine whether the court of appeals erred in denying the
relief required by Article 17.151 Section 1. It did. Accordingly, we reverse the judgment
of the court of appeals and remand the case to the habeas court for immediate further
proceedings consistent with this opinion.
The court of appeals held that the habeas court did not abuse its discretion by
reducing Appellant’s bonds to $1,500,000 because Appellant did not present evidence
about his financial resources other than his wife’s affidavit saying they could not afford
bonds of $2,250,000 and that the bail bond companies she had spoken to would not post
bonds in that amount. Ex parte Lanclos, 2021 Tex. App. LEXIS 1763, at *4-5. The court
of appeals said the habeas court could have reasonably concluded that evidence of
Appellant’s financial circumstances was inadequate, and the reduction of the bond
amount to $1,500,000 was not an abuse of discretion. Id. at *5.
But Article 17.151 is mandatory; if the State is not ready for trial within 90 days of
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the beginning of the defendant’s detention, the defendant accused of a felony must be
released on personal bond or by reducing the required bail amount. TEX. CODE CRIM. P.
art. 17.151, § 1(1). Without an indictment, the State cannot be ready for trial under
Article 17.151. Kernahan v. State, 657 S.W.2d 433, 434 (Tex. Crim. App. 1983). Under
those circumstances, the judge has only two options: either release the accused on
personal bond or reduce the required bail amount. Ex parte Gill, 413 S.W.3d 425, 429
(Tex. Crim. App. 2013) (citing Rowe v. State, 853 S.W.2d 581 (Tex. Crim. App. 1993)).
If the court chooses to reduce the amount of bail required, it must reduce it to an amount
that the record reflects the accused can make. Rowe, 853 S.W.2d at 582 n.1; see also
Kernahan, 657 S.W.2d at 434 (Article 17.151’s requirement that the detainee be released
by reducing the amount of bail means that bail must be reduced to an amount the detainee
can afford to pay). The court of appeals erred in failing to require Appellant’s release on
bond that he could afford.
The State argues for dismissal of the appeal because Appellant’s writ was not
sworn to. See TEX. CODE CRIM. P. art. 11.14(5). But the State did not move to dismiss
the writ in the trial court, and the lack of a sworn pleading does not require its dismissal at
this late stage. See Golden v. State, 991 S.W.2d 859, 862 and n.2 (Tex. Crim. App.
1999).
The State also contends that Appellant received the relief he requested in the form
of a reduced bond amount and that the court of appeals properly concluded that Appellant
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did not meet his burden of showing his inability to make bail in the amount set. We
rejected similar arguments in Gill. 413 S.W.3d at 431. Specifically, we held that the
court of appeals relied on factors irrelevant to Article 17.151 like the lack of evidence
about a defendant’s income or how much bond another defendant could afford. Gill, 413
S.W.3d at 431. The court of appeals in Gill also erred in considering factors that did not
support the denial of release under Article 17.151, such as previous reductions of bail
amount by the court and the prior history of felonies by the appellants. Gill, 413 S.W.3d
at 431. We concluded that the trial court abused its discretion in failing to release the
defendants on personal bond or bond they could afford. Id.
The State argues that Article 17.151 has been suspended by executive order. See
The Governor of the State of Tex., Exec. Order No. GA-13, March 29, 2020, 45 Tex.
Reg. 2368, 2369 (2020). The executive order reads in relevant part: “Article 17.151 of
the Texas Code of Criminal Procedure is hereby suspended to the extent necessary to
prevent any person’s automatic release on personal bond because the State is not ready for
trial.” The executive order suspends Article 17.151 only to the extent that it calls for
releasing defendants on personal bond. It does not suspend Article 17.151’s release of
defendants on bonds they can afford.
The State also argues that Article 17.151’s exception in Section 2(4) applies. See
TEX. CODE CRIM. P. art. 17.151, § 2(4). The exception applies to a defendant who is
“being detained for a violation of the conditions of a previous release related to the safety
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of a victim of the alleged offense or to the safety of the community under this article.” Id.
The record does not support application of the exception. Nothing suggests that
Appellant is being detained for violation of conditions of a previous release, much less for
violating conditions of a previous release related to the safety of a victim of the alleged
assault or related to the safety of the community. The State nevertheless invokes the
exception on the basis of two statements in the record.
The first statement cited by the State was made at the original bond hearing, before
90 days had expired, in the context of outlining Appellant’s criminal history. The
prosecutor told the habeas court that misdemeanor charges were pending against
Appellant and that Appellant was on community supervision. “So he’s violated the
conditions of his [community supervision] and the bonds associated with his release and
things.” The second statement cited by the State was made in the Article 17.151 hearing
by Appellant’s attorney who said that Appellant had “a couple of misdemeanors that are
unrelated to the offense, but I think it’s three offenses total. And it’s the same conduct,
just three different complainants.”
For the sake of argument, looking at these statements in the light most favorable to
the State’s position, they show that Appellant was on bond for two or more misdemeanors
and on community supervision for some other offense. But they do not show that
Appellant’s present detention had anything to do with a prior release. Even assuming that
commission of a felony while on bond for an unrelated misdemeanor would invoke the
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exception–a doubtful proposition–the record here does not substantiate the assault
charges against Appellant. There is no complaint, warrant, description, or statement of
probable cause for the accusation Appellant faced. Given that nothing in the record
substantiates the assault charges, it is impossible to say that Appellant violated the
conditions of any release due to those charges, so there is no basis for invoking the
exception.
As for Appellant being on community supervision, Article 17.151 section 2(4)’s
exception is invoked only by “a violation of the conditions of a previous release[.]” TEX.
CODE CRIM. P. art. 17.151 § 2(4). It is not invoked by a violation of conditions of
community supervision. Community supervision is not a release. Rather, it is the
placement of a defendant under a continuum of programs and sanctions during a period of
deferred criminal proceedings or in lieu of incarceration and/or fine. See TEX. CODE
CRIM. P. art. 42A.001(1). Plus, a defendant can be placed on community supervision
without being released from jail because he is already out of jail at the time of the
placement or because he will stay in or return to jail as a condition of probation. See TEX.
CODE CRIM. P. art. 42A.302.
The dissenting opinion objects to granting Appellant relief because the record is
silent about what bond he could afford. But that’s irrelevant. Article 17.151 does not
condition a defendant’s release on his proving how much bond he can afford. See Gill,
423 S.W.3d at 431. Rather, it mandates his release—either on personal bond or by
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reducing the required bail amount—period. Anyway, the record is not silent on this point.
The attorney and the first writ application suggested that Appellant could afford no more
than $150,000, and at the Article 17.151 hearing the attorney told the habeas judge that
Appellant had a job in the plants, at least he did before his incarceration. Additionally,
the record shows what Appellant cannot afford—$1,500,000—because he never posted it.
The habeas court’s only question was where is Appellant from, and hearing
“Hardin County,” the judge responded, “I don’t guess I need to hear anything else from
Mr. Lanclos, do I?” The attorney agreed “because the circumstances of 151 sort of make
it different than needing to hear a bunch of evidence.” The judge concurred. “I just need
to come up with a number lower than what it is.” But Article 17.151 requires more than
coming up with a lower number. It mandates release. The habeas court abused its
discretion in picking a number that frustrated Article 17.151’s mandate to release
Appellant.
Appellant was detained in jail on felony charges without indictment for more than
90 days. He was entitled to release under Article 17.151. Accordingly, we reverse the
judgment of the court of appeals and remand the case to the habeas court for Appellant’s
bond to be set in an amount he can afford to pay. No motions for rehearing will be
entertained.
Delivered: June 30, 2021
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