Texas voters overwhelmingly passed an amendment to the state constitution Tuesday that expands the list of criminal offenses for which judges must deny bail if certain standards are met.
The amendment’s passage is the culmination of a years-long effort by lawmakers and interest groups who have advocated for stricter bail policies — predominantly Republicans, like proposition author state Sen. Joan Huffman, R-Houston.
Regardless, Proposition 3 — like all constitutional amendments — got on the ballot after the approval of two-thirds of both the Texas Senate and House.
Proposition 3 isn’t the only bail-related legislation taking effect this year. State lawmakers also passed a bill that restricts who can be let out on cashless personal recognizance bonds and a bill preventing cities and counties from using public funds to bail out defendants.
Here’s what happens now.
Changes in court
The Texas Constitution guarantees defendants the right to bail, unless they’re charged with a capital offense. The constitution already allowed but did not require judges to deny bail for a person accused of a felony committed while they were out on bail for a prior felony, among other circumstances.
This amendment requires judges and magistrates to deny bail to people accused of certain violent or sexual felonies.
The offenses affected by Propostion 3 are: capital murder, murder, aggravated assault causing serious bodily injury or using certain weapons, aggravated kidnapping, aggravated robbery, aggravated sexual assault, indecency with a child, human trafficking and continuous human trafficking.
"This is giving the courts a new tool that they did not have before, that in these enumerated offenses, if there is a public safety risk or proof that they are not gonna show up to court, that they then can hold them without any amount of money that will let them out,” said Lisel Petis, the policy director for the criminal justice and civil liberties team at the R Street Institute.
It’s up to a prosecutor to prove, by a preponderance of the evidence, that the accused is a flight risk. The prosecutor must prove by clear and convincing evidence — a higher standard of proof — that the accused is a public safety risk.
There must be a hearing over whether to grant or deny bail, during which the accused person is entitled to an attorney. If a judicial officer does grant bail, they have to write up their findings in a statement supporting their decision.
Public safety
Proposition 3 supporters, including many law enforcement officers and prosecutors, say the amendment will bolster public safety by preventing the most violent individuals from reoffending on bail.
That’s a concern that elected officials like Gov. Greg Abbott, Lt. Gov. Dan Patrick and others have aimed at urban, bluer areas like Houston and Dallas and Democratic judges they’ve accused of being, “soft on crime.”
The bail bond industry has also come under fire for its role in helping people who might later reoffend get out of jail. Holding people in jail doesn’t help the bail industry, said Ken Good, an attorney who specializes in bail law and a board member for the Professional Bondsmen of Texas.
But, he said, it helps public safety, which is why his organization supports the amendment.
“The bail industry doesn't decide who has bail set for them, but sometimes we get blamed for bonding out someone that bail was set for,” Good said. “I think this will keep the focus on resolving criminal cases and getting justice for victims.”
Opponents, including civil rights and criminal justice organizations, say the majority of people let out on bail follow the law, and higher-profile cases of violence committed on bail are more rare. Opponents also argue keeping more people in pretrial detention can lead to high rates of reoffending and other negative socioeconomic outcomes — especially for low-income people that aren’t always able to afford bail.
These groups advocate instead for community-based care that addresses the root causes of crime and imposing the least restrictive conditions for bail as the state constitution requires. Denying bail or unconditional release aren’t the only options, Petis said.
“Maybe they'll get an ankle monitor or they'll get some pretrial services or supervision,” she said. “There's different components even past that — or they may still get a high cash bail amount.”
Jail capacity and presumption of innocence
Some Proposition 3 opponents say they worry denying bail may be used as a form of punishment before trial, violating the presumption of innocence to which a defendant is entitled.
The idea that someone’s innocent until proven guilty is a widely recognized right, although it’s not enshrined in the U.S. Constitution, and some like Good say innocence is not a factor in the bail setting phase.
But organizations like The Bail Project say now that Proposition 3 has passed, protecting presumed innocence and due process should be the priority.
“The work now shifts to every courtroom: judges, prosecutors, and defense counsel must apply these protections rigorously and consistently so that freedom – not incarceration – remains the default before trial,” Nicole Zayas Manzano, deputy director of policy at The Bail Project, said in a press release.
The mandatory denial of bail for some defendants also means more people across the state may remain in jail pretrial — though people disagree on the scope of that impact.
Nick Hudson with the American Civil Liberties Union of Texas told Houston Public Media about 40,000 out of more than 800,000 yearly arrests in Texas would be affected by Proposition 3 — only about 5%.
Still, it’s a cause for concern in a state where county jails are dealing with overcrowding, said Jenny Carroll, a criminal law professor at the Texas A&M University School of Law.
“Now, who's gonna pay for it?” Carroll said. “Well, obviously the person who's detained is going to pay for it in terms of losing their liberty, but the taxpayer is also going to pay for them because county jail systems are supported by your and my taxes.”
Toluwani Osibamowo is KERA’s law and justice reporter. Got a tip? Email Toluwani at tosibamowo@kera.org.
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