Lanclos, Ex Parte Allen Christopher

Opinion

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 LANCLOS — 2

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 LANCLOS — 3

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 LANCLOS — 4

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