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| {{DISPLAYTITLE:{{PAGENAME}} of the Texas Constitution–discussion page}}__NOTOC__This page is available for comment and discussion regarding the page ''{{PAGENAME}} of the Texas Constitution''. | | {{DISPLAYTITLE:Article I, Section 11 of the Texas Constitution (''<small>"Right to Bail"</small>'')}}{{Texas Constitution|text=Adopted February 15, 1876: |
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| ==Amendments 2025==
| | All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law. |
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| This section, proposed by [https://capitol.texas.gov/BillLookup/History.aspx?LegSess=89R&Bill=SJR5 SJR 5], will be voted on at the 2025 constitutional amendment election.
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| ==Tribune ==
| | Sections [[Texas Constitution:Article I, Section 11-a|11-a]], [[Texas Constitution:Article I, Section 11-b|11-b]], [[Texas Constitution:Article I, Section 11-c|11-c]], [[Texas Constitution:Article I, Section 11-d|11-d]], and [[Texas Constitution:Article I, Section 13|13]] of Article I also directly govern bail for those accused of criminal offenses. |
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| This proposition would require judges to deny bail in certain cases for individuals accused of committing specific felonies, such as murder, aggravated assault and indecency with a child. The state would have to demonstrate that bail is not enough to prevent the defendant from being a flight or public safety risk. Defendants, who are legally presumed innocent, would also be entitled to the right to an attorney during their bail hearings.
| | The sections reflect the tension between the constitutional presumption of innocence and public safety concerns. |
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| The proposal is part of a broad legislative package that Texas Republican leaders have said is needed to reduce violent crimes committed by people out on bond and to curb the ability of “activist judges” to set “weak bail.” Civil rights groups said keeping more people behind bars would add to overcrowded jails without actually improving public safety, while also pointing to a U.S. Supreme Court ruling that says “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”
| | This section provides for the right of any defendant charged with an offense, other than a capital offense where the proof is evident, to be released on bail. |
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| Under the Texas Constitution, most defendants have the right to be released on bail except for certain cases, such as those charged with capital murder or accused of certain repeat felonies.
| | Consequently, a defendant charged with a noncapital offense may not be denied release on bail unless another provision of the constitution specifically authorizes that denial. |
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| ==HRO==
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| Supporters say:
| | None. |
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| By requiring judges to deny bail for certain cases
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| involving felonies such as murder, aggravated sexual
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| assault, and human trafficking, Proposition 3 would
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| prevent high-risk offenders from committing additional
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| crimes while awaiting trial. Pretrial releases on low bail or
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| personal recognizance can allow dangerous individuals to
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| remain in the community, as high-risk defendants who can
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| afford bail may be released, even if they pose a significant
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| threat to public safety. By limiting this authority to only
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| the most serious offenses, the constitutional amendment
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| would ensure that only those individuals who posed the
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| greatest risk were denied bail.
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| The proposed constitutional amendment also
| | * ''Ex parte Varnado'', 215 S.W.2d 165, [https://texaslegalguide.com/images/215_SW2_165.pdf#page=2 166] (Tex.Crim.App. 1948) ("[T]he omission of the words 'or the presumption great' materially changed the rights of a prisoner in the question of bail. . . . Since the opinion in Ex parte Smith, supra, the rule seems never to have been departed from, that if the evidence is clear and strong, leading a well-guarded and dispassionate judgment to the conclusion that the offense has been committed; that the accused is the guilty agent, and that he would probably be punished capitally if the law is properly administered, bail should be refused, otherwise bail should be granted.") |
| would provide a distinct threshold for denying bail by
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| establishing two evidentiary standards: a preponderance of
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| the evidence for nonappearance and clear and convincing
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| evidence for public safety. The evidentiary structure is
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| compatible with the federal Bail Reform Act of 1984 and
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| consistent with existing constitutional precedent, which
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| could help protect the amendment from legal challenges.
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| Additionally, this determination could only be made after
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| a judge found probable cause that the defendant had | |
| committed the underlying offense. This discretionary | |
| approach would apply multiple evidentiary standards
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| that the state must meet before a judge could deny bail, | |
| balancing public safety concerns with the constitutional
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| rights of the accused. Proposition 3 would give judges the
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| tools to make informed decisions about pretrial detention,
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| ensuring that detention was based on specific findings and
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| grounded in the required evidentiary standards.
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| Proposition 3 also would include several procedural
| | * ''Ex parte Ezell'', 40 Tex. 451, [https://texaslegalguide.com/images/040_Tex_451.pdf#page=9 459] (1874) ("In all of the first constitutions of the several American states many provisions for the protection of personal rights and liberties were inserted, most of which related to freedom from illegal restraint and the insurance of a speedy and impartial trial for alleged offenses. They were for the most part extracted from the . . . . If we look back through the long struggle against the tyranny and oppressions by which these great rights were secured, it will be found that the grievances complained of related to the treatment of prisoners before trial and conviction, and not after.") |
| safeguards to protect defendants’ rights. Defendants
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| would have the right to be represented by counsel at bail
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| denial hearings, ensuring legal representation during this
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| critical stage of the pretrial process. Additionally, if a
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| judge determined that probable cause existed for one of
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| the charged offenses and that the applicable evidentiary
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| standard was met, the defendant would retain the right
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| to appeal the decision. Current law also requires that | |
| prosecutors meet certain indictment timelines under the
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| Code of Criminal Procedure to protect a defendant’s right
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| to a speedy trial. If these deadlines were not met, a judge
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| would have to lower a defendant’s bond amount.
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| Critics say:
| | |seo_title=Article I, Section 11 of the Texas Constitution ("Right to Bail") |
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| | |seo_keywords=Article 1 Section 11, Texas Bill of Rights, pretrial bail |
| Proposition 3 could lead to longer pretrial detentions
| | |seo_description=All prisoners shall be bailable by sufficient sureties except for capital offenses when the proof is evident. |
| for individuals who had not been convicted of a
| | |seo_image_alt=Texas Bill of Rights |
| crime, increasing financial and personal burdens and
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| undermining the presumption of innocence. The proposed
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| constitutional amendment also could be ineffective at
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| addressing its stated goal of increasing public safety,
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| as high pretrial incarceration rates have been shown
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| to be associated with increased recidivism, difficulty
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| reintegrating into the community, and poorer long
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| term outcomes for defendants. The proposition could
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| exacerbate racial disparities in the state’s criminal justice
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| system, as people of color are already overrepresented in
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| Texas jails.
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| Creating evidentiary standards for denying bail
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| without establishing a specific timeline by which this
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| determination must be made also could lead to delays in
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| trial proceedings, causing alleged offenders to be held for
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| longer without meaningful recourse and undermining
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| defendants’ right to a speedy trial.
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| Texas judges already have the discretion to deny
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| bail to potentially dangerous individuals by setting
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| cash bonds at amounts that effectively prevent release.
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| Additionally, Texas consistently ranks among the states
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| with the highest pretrial detention rates even as violent
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| crime rates have decreased, suggesting that the current
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| system already provides for substantial pretrial detention.
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| Increasing reliance on pretrial detention could exacerbate
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| overcrowding in county jails, which are often understaffed
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| and struggling with limited resources. This strain on
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| resources could ultimately limit the effectiveness of the
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| criminal justice system, potentially leading to higher
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| taxpayer costs without commensurate public safety
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| benefits.
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| Other critics say:
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| Proposition 3 should include a requirement for
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| judges to consider the “least restrictive conditions” that
| | [[Category:Criminal Procedure]] |
| would reasonably ensure public safety and the defendant’s
| | [[Category:TxCon ArtI Sec]] |
| appearance in court, rather than requiring judges to
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| impose conditions that are “necessary only” to reasonably
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| prevent the person’s wilful nonappearance or ensure public
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| safety. This approach would create procedural safeguards
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| to ensure that pretrial detention was reserved for truly
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| high-risk cases and reduce the risk of unnecessarily lengthy
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| incarceration for lower-risk defendants.
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| == TLC ==
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| Comments by Supporters:
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| • Establishing a procedure for judges to deny bail in cases
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| involving felonies such as murder, aggravated sexual assault,
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| and human trafficking would prevent high-risk offenders from
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| committing additional crimes while awaiting trial. Pretrial
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| releases on low bail or personal recognizance can allow
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| dangerous individuals to remain in the community, as high-risk
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| defendants who can afford bail may be released even if they
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| pose a significant threat to public safety.
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| • Since 2021, there have been at least 162 homicide cases filed in
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| Harris County against defendants awaiting trial for a previous
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| offense while free on bond at the time of the homicide.
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| • Limiting application of the amendment to only the most
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| serious offenses ensures that only the individuals who pose
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| the greatest risk are denied bail.
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| • Denial of bail is successfully utilized in similar circumstances in
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| the federal court system and in many other states.
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| • The proposed amendment provides a distinct threshold
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| for denying bail by requiring the state to demonstrate by a
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| preponderance of the evidence that granting bail is insufficient
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| to reasonably prevent a person's wilful nonappearance in
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| court or demonstrate by clear and convincing evidence that
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| granting bail is insufficient to reasonably ensure public safety.
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| This places a clear burden on the prosecution and conforms
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| with the burden of proof required for detaining a defendant
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| without bail under the federal Bail Reform Act of 1984, which
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| was found constitutional in United States v. Salerno.
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| • Defendants would have the right to be represented by counsel
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| at bail denial hearings, ensuring legal representation to
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| safeguard the defendant's rights during this critical stage of
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| the pretrial process.
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| • A defendant would retain the right to appeal a judge's decision
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| regarding bail.
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| • Under the current system, pretrial release is effectively denied
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| by means of bail being set so high that a defendant cannot
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| possibly make it. The proposed amendment provides a more
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| honest way of accomplishing this.
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| Comments by Opponents:
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| • The proposed amendment would lead to longer pretrial
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| detentions for individuals who have yet to be convicted
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| of a crime, increasing the financial and personal burdens
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| of detention on these defendants and undermining the
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| presumption of innocence.
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| • The proposed amendment could be ineffective at addressing
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| its stated goal of increasing public safety, as high pretrial
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| incarceration rates have been shown to be associated
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| with increased recidivism, difficulty reintegrating into the
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| community, and poorer long-term outcomes for defendants.
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| • The proposed amendment could exacerbate existing racial
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| disparities in the state's criminal justice system.
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| • Texas judges already have the discretion to effectively deny
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| bail to potentially dangerous individuals by setting cash bonds
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| at amounts that these defendants cannot pay.
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| • Texas consistently ranks among the states with the highest
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| pretrial detention rates, suggesting that the current system
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| already provides for substantial pretrial detention.
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| • Increasing reliance on pretrial detention could exacerbate
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| overcrowding in county jails, which are often understaffed and
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| struggling with limited resources, potentially leading to higher
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| taxpayer costs without commensurate public safety benefits.
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| • Failing to set a specific timeline by which a bail determination
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| must be made could lead to delays in trial proceedings, causing
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| alleged offenders to be held for longer without meaningful
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| recourse and undermining defendants' right to a speedy trial.
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| • A better approach would be to require judges to consider the
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| "least restrictive conditions" that would reasonably ensure
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| public safety and the defendant's appearance in court. This
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| approach would ensure that pretrial detention is reserved
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| for truly high-risk cases and reduce the risk of unnecessarily
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| lengthy incarceration for lower-risk defendants.
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| • The proposed amendment requires a judge to consider the
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| criminal history of a defendant when making a decision to
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| deny bail, which means that offenses committed long ago
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| could be used against the defendant, even those that were
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| nonviolent in nature.
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