“Liberty is precious to Americans, and any deprivation must be scrutinized.”
When Texas Supreme Court Chief Justice Nathan Hecht uttered those words during a 2017 joint meeting of the state House and Senate, he was illustrating a two-pronged problem with the state’s bail system: we jail too many people simply because they can’t afford their freedom, and we don’t keep enough people in jail who threaten our safety.
As an example of the latter, Hecht cited the tragic murder of Damon Allen, a Texas highway state trooper. Allen was killed when the driver of a car he pulled over for speeding on I-45 fired at him with a rifle. The man who shot him that day (he was later convicted of capital murder for the offense) had been freed on a felony money bond for assaulting a sheriff’s deputy.
Tragedies like this, combined with a national surge in crime since the COVID-19 pandemic, and a flurry of local headlines highlighting a spate of violent, repeat offenders back out on the streets after making bail, have furnished a narrative among tough-on-crime commentators and politicians that judges in Texas currently wield too much discretion over bond decisions. In fact, the opposite is true. Judges in Texas are constrained by the state Constitution, which guarantees that very few people can be denied bail initially unless they are charged with capital murder. Defendants with substantial resources, such as the infamous example of multi-millionaire Robert Durst, can secure their release even when high bond amounts are set.
The Legislature has plans to change that. A bipartisan measure, known as Senate Joint Resolution 44, sponsored by state Sen. Joan Huffman, a Houston Republican, would amend the state Constitution to allow judges to deny bail for those accused of murder as well as other “major offenses,” including kidnapping, robbery, sexual assault and assault with a deadly weapon. It would also apply to defendants charged with repeated human trafficking offenses.
If the amendment, which has already cleared the state Senate 30-1, wins the support of twothirds of the House, it would be placed on the statewide November ballot for voters to decide if the constitutional change is warranted.
If voters approve the amendment, the pre-trial system would look something like this: within 72 hours of a qualifying criminal case being filed, prosecutors seeking to deny bail would be forced during a hearing to show actual, physical evidence — not an offense report, not a probable cause statement, not a proffer to present exhibits at trial for immediate acceptance or rejection — that a defendant is a public safety threat. A magistrate or judge would then decide whether to grant or deny bail. That judge would have to appoint a lawyer for a defendant who doesn’t have one at the hearing. The judge would also have to issue a written opinion explaining the reasoning for denying bail. And a judge who decides to grant bail must apply the “least restrictive” conditions possible to ensure that the defendant would make their next court appearance.
Previous versions of this proposed amendment failed to clear the House two years ago, when the Legislature last met, and it’s yet unclear whether the proposal’s language has been altered enough to win the requisite support of House Democrats. Opponents of the measure argue only a small subset of defendants accused of violent crimes go on to commit new offenses and that the overhaul would invite abuses and unjust confinement based on prejudice. Currently, they argue, judges can set strict bond conditions and employ tools such as ankle monitors to protect the public and ensure defendants don’t miss court dates.
This board has called for such a change to the Constitution that would allow more truly dangerous people to be held without bond. We believe Huffman’s proposal is both tough and smart on crime. On its own, it would protect public safety while also maintaining critical guardrails for defendants’ due process rights. We urge the House to pass it before the end of the legislative session and allow voters to have the final say this fall.
Even with this change, however, the Legislature’s work on criminal justice and public safety is not complete. The state needs more criminal courts to move cases forward, more funding for pretrial services and more restrictions on bail bondsmen who undercut judges’ bond decisions by allowing defendants to pay a minimal percentage of the amount required for release.
One constitutional amendment won’t instantly make us safer. In a perfect world, lawmakers would mirror states such as Illinois and eliminate cash bail altogether, moving Texas closer to a criminal justice system where people aren’t detained simply because they can’t afford not to be. Anyone who cares about respecting basic rights and keeping our communities safe should be support reforms that prevent those unjust detentions and keep those who truly pose imminent threats behind bars.
