Texas Constitution talk:Article I, Section 11-d

This page is available for comment and discussion regarding the page Article I, Section 11-d of the Texas Constitution.

Amendments 2025

This section, proposed by SJR 5, will be voted on at the 2025 constitutional amendment election.

Texas Tribune

"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 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.”

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."

HRO

Supporters say:

By requiring judges to deny bail for certain cases involving felonies such as murder, aggravated sexual assault, and human trafficking, Proposition 3 would prevent high-risk offenders from committing additional crimes while awaiting trial. Pretrial releases on low bail or personal recognizance can allow dangerous individuals to remain in the community, as high-risk defendants who can afford bail may be released, even if they pose a significant threat to public safety. By limiting this authority to only the most serious offenses, the constitutional amendment would ensure that only those individuals who posed the greatest risk were denied bail.

The proposed constitutional amendment also would provide a distinct threshold for denying bail by establishing two evidentiary standards: a preponderance of the evidence for nonappearance and clear and convincing evidence for public safety. The evidentiary structure is compatible with the federal Bail Reform Act of 1984 and consistent with existing constitutional precedent, which could help protect the amendment from legal challenges. Additionally, this determination could only be made after a judge found probable cause that the defendant had committed the underlying offense. This discretionary approach would apply multiple evidentiary standards that the state must meet before a judge could deny bail, balancing public safety concerns with the constitutional rights of the accused. Proposition 3 would give judges the tools to make informed decisions about pretrial detention, ensuring that detention was based on specific findings and grounded in the required evidentiary standards.

Proposition 3 also would include several procedural safeguards to protect defendants’ rights. Defendants would have the right to be represented by counsel at bail denial hearings, ensuring legal representation during this critical stage of the pretrial process. Additionally, if a judge determined that probable cause existed for one of the charged offenses and that the applicable evidentiary standard was met, the defendant would retain the right to appeal the decision. Current law also requires that prosecutors meet certain indictment timelines under the Code of Criminal Procedure to protect a defendant’s right to a speedy trial. If these deadlines were not met, a judge would have to lower a defendant’s bond amount.

Critics say:

Proposition 3 could lead to longer pretrial detentions for individuals who had not been convicted of a crime, increasing financial and personal burdens and undermining the presumption of innocence. The proposed constitutional amendment also could be ineffective at addressing its stated goal of increasing public safety, as high pretrial incarceration rates have been shown to be associated with increased recidivism, difficulty reintegrating into the community, and poorer long term outcomes for defendants. The proposition could exacerbate racial disparities in the state’s criminal justice system, as people of color are already overrepresented in Texas jails.

Creating evidentiary standards for denying bail without establishing a specific timeline by which this determination must be made also could lead to delays in trial proceedings, causing alleged offenders to be held for longer without meaningful recourse and undermining defendants’ right to a speedy trial. Texas judges already have the discretion to deny bail to potentially dangerous individuals by setting cash bonds at amounts that effectively prevent release. Additionally, Texas consistently ranks among the states with the highest pretrial detention rates even as violent crime rates have decreased, suggesting that the current system already provides for substantial pretrial detention. Increasing reliance on pretrial detention could exacerbate overcrowding in county jails, which are often understaffed and struggling with limited resources. This strain on resources could ultimately limit the effectiveness of the criminal justice system, potentially leading to higher taxpayer costs without commensurate public safety benefits.

Other critics say Proposition 3 should include a requirement for judges to consider the “least restrictive conditions” that would reasonably ensure public safety and the defendant’s appearance in court, rather than requiring judges to impose conditions that are “necessary only” to reasonably prevent the person’s wilful nonappearance or ensure public safety. This approach would create procedural safeguards to ensure that pretrial detention was reserved for truly high-risk cases and reduce the risk of unnecessarily lengthy incarceration for lower-risk defendants.