In bail talks, lawmakers close in on Texas GOP goal of keeping defendants in jail

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After struggling for years to gain enough bipartisan support to tighten the state’s bail laws, Texas Republicans appear closer than ever to achieving their elusive goal of amending the state Constitution to keep more defendants behind bars pretrial.

GOP leaders see the issue as a matter of life and death, arguing that stricter bail laws are needed to curb violent crime tied to defendants who are out on bond. Critics, led by civil rights groups and progressive Democrats, view the bail crackdown as an infringement of the civil liberties of defendants who are legally presumed innocent and an unfunded mandate to counties who could see their jail populations soar.

The push to stiffen Texas’ bail laws has been largely spearheaded by Gov. Greg Abbott, who has named the issue an emergency item for three straight sessions. But the effort has repeatedly stalled in the House, thwarted by Democrats who have killed GOP bail measures by running out the clock or denying the two-thirds support needed from both chambers to put a constitutional amendment before voters.

Fresh off a victory on school vouchers — his other top priority — Abbott has zeroed in on the bail measure, which he recently painted as one of the most important pieces of legislation this session.

“There are thousands of bills that are working their way through the Legislature,” Abbott said in Houston last week. “None of them have the deadly consequences as much as this legislation — to amend the Constitution to keep these deadly, dangerous, violent criminals off the streets.”

Lawmakers this session are actively negotiating a package that could win support from all 88 House Republicans and at least 12 Democrats, the minimum threshold to reach two-thirds of the 150-member House.

The measure is set to mirror past proposals that would have given judges the option to deny bail in a wider array of violent offenses. But the House’s lead negotiator said that for some cases, the measure could go even further by requiring judges to withhold bail, rather than giving them discretion to do so.

Under the state Constitution, defendants — who are legally presumed innocent — are largely guaranteed the right to pretrial release, except in limited circumstances, such as when charged with capital murder.

Automatically denying bail is a new proposal that has not appeared in any legislative drafts this session. It was a recent demand of Abbott’s, who abruptly called for the more far-reaching standard during his Houston stop last week.

Even with the stiffer policy on the table, lead negotiators on bail from both chambers expressed optimism about reaching an agreement that could win enough support to clear the House.

“We’re close to an agreement,” Rep. John Smithee, R-Amarillo and chair of the House Criminal Jurisprudence Committee, said in an interview Tuesday, adding that he was hopeful the package would move through his panel this week with less than a month of session left. “We’ve made a lot of progress. We’ve narrowed a lot of the issues down.”

Sen. Joan Huffman, R-Houston and the longtime sponsor of bail-related legislation in the upper chamber, said in a statement Monday that she was “optimistic” one of the measures would “soon advance to the House floor for a record vote.” Huffman’s bail amendments have routinely breezed through the Senate with bipartisan support, most recently passing the chamber on a 28-2 vote earlier this year.

At least some House Democrats are cautiously on board, though the situation remained fluid as of Tuesday afternoon without a compromise proposal for lawmakers to scour. Rep. Gene Wu, D-Houston and chair of the House Democratic Caucus, told The Texas Tribune Tuesday that he anticipated reaching a “reasonable” agreement lacking the “most extreme” proposals.

“It’s something our communities have been asking for for a while,” Wu said. “I’m expecting an agreement that probably the bulk of the body will vote for.”

The proposal’s momentum in the House this session reflects a yearslong shift in Texas away from efforts to curtail mass incarceration, reduce wealth-based detention and keep nonviolent offenders out of jail. Instead, under Abbott and Lt. Gov. Dan Patrick, state leaders have swerved toward a tough-on-crime approach to legislating, including through bills that would likely grow the state’s incarcerated population, increase penalties for various crimes and exempt police from deadly conduct charges. And while they have failed to amend the Constitution’s bail provisions, GOP lawmakers have approved more modest changes restricting access to cashless personal bonds, needing only majority support to send the legislation to Abbott’s desk.

As recently as 2021, a constitutional amendment tightening the state’s bail laws — similar to this session’s measure — won the requisite 100 votes in the House, but died as a casualty of a Democratic walkout over a voting bill.

“There’s some added pressure on the Democrats to get it done, just simply because this is a really big problem, and it’s a bipartisan issue,” said Nikki Pressley, Texas state director of Right on Crime at the Texas Public Policy Foundation. “People feel unsafe, and we’re seeing stories all the time, over and over, of people getting out on bond and then seriously hurting someone.”

When the bail provisions died in 2021, Abbott called a special session. This time, Patrick has said he would force a special session if the Legislature failed to agree on bail measures.

“If these bills do not pass the House, I see no reason for us not to go to a special session and another special session and another special session,” Patrick said in February and again in March. “We will not leave here until these bills pass the House, period. If it takes two years, we’ll keep coming back.”

It is unclear whether Abbott’s proposal to require pretrial detention in some cases will make it into the final measure, though Huffman and Smithee both expressed support for it.

That proposal raised alarm among civil rights advocates, who called it an attack on liberty and the constitutional guarantee to due process. And it sparked accusations from Democrats that Abbott was moving the goalposts and looking to keep bail reform as a campaign issue ahead of the 2026 elections.

“Obviously, he doesn’t want us to solve the problem,” Rep. Ann Johnson, D-Houston, said in an interview Tuesday, arguing that automatic denial of bail “completely supersedes” the judicial discretion needed in the courts. “He wants to make this a divisional issue between Republicans and Democrats, and so he’s demonizing my community around public safety.”

In pushing for the bail provisions, Abbott has called out several Harris County Democrats by name, highlighting violent crimes in their districts allegedly committed by people out on bond. Johnson, the former chief human trafficking prosecutor in Harris County, introduced her own legislation to expand the cases in which judges could deny bail, proposing a narrower set of offenses than the GOP legislation, with many of the same violent charges. Her proposal also sets deadlines for when judges must deny bail and would allow defendants to appeal such orders to the Court of Criminal Appeals. The amendment has not received a committee hearing.

An Abbott spokesperson reiterated that the governor was pushing to automatically deny bail in certain cases to rein in “activist judges” setting “weak bail.”

“Governor Abbott will work with the Legislature to require judges deny bail to criminals charged with capital murder and other heinous violent crimes,” Abbott press secretary Andrew Mahaleris said in a statement Tuesday. “Democrats must choose — support the safety of the citizens they represent, or the criminals who kill them.”

What the bills would do 

The Senate this session has approved four bills to keep criminal defendants accused of certain violent crimes behind bars while they await the resolution of their cases.

Bail is a legal mechanism used around the country to incentivize defendants who have not been convicted to appear at court hearings. Defendants can pay the full bail amount, which is refundable if they go to all their hearings, or they can pay a nonrefundable partial deposit to a bail bond company that fronts the full amount. Defendants who cannot afford to pay a deposit or their bail are often left detained for weeks or months.

The upper chamber’s main bail measure, Senate Joint Resolution 5, would amend the Texas Constitution to allow judges to deny bail under an expanded list of criminal charges, including murder, aggravated kidnapping, robbery or assault with a weapon.

Republican leaders, along with crime victims and their supporters, said the legislation is necessary to keep dangerous people behind bars before their trials. They pointed to numerous examples of defendants accused of violent crimes being released on bond and then committing new crimes, including a number of high-profile murder cases in Harris County.

In negotiations on the package, Democrats have sought to narrow the list of charges where judges could deny bail to avoid sweeping in defendants who aren’t a public safety threat or flight risk. They have also tried to include language that instructs judges to use the “least restrictive means” to secure public safety and ensure a defendant appears in court.

Under his push to automatically deny bail, Abbott would require defendants to prove to a judge that they are not a threat to public safety and will appear in court to get bail.

“Judges have far too much discretion to set easy bail on dangerous criminals,” he said at a news conference last week surrounded by the families of crime victims. “This shifts the burden for repeat violent criminals to prove that they are not a danger to the community before they're released.”

Smithee, the House Criminal Jurisprudence chair, said that Abbott’s proposal was “appropriate” in certain cases, arguing that some judges were shirking their duty by letting dangerous defendants out on low and no bond. The ongoing discussions, he added, centered on defining the offenses that would qualify for automatic denial of bail.

“It’s certainly reserved for the most egregious offenses,” including murder and human trafficking, he said. “The bill really needs to do two things: One, it needs to give good judges the ability to do their job — in other words, to protect the public. And on the other hand, it needs to rein in some of the judges who’ve neglected to do that.”

Chuck Cook, whose elderly mother, Rosalie Cook, was stabbed and killed by a man who had nearly 70 prior arrests and was out of jail on two cashless bonds, urged lawmakers to “picture my mother’s face and make a decision accordingly” as they considered bail legislation.

“My mom died a lonely, painful death,” Cook said by Abbott’s side last week. “The system is supposed to be designed to protect the public and, most importantly, the most vulnerable. The system failed my mother.”

Civil rights advocates slammed both Abbott’s proposal and the existing legislation, arguing that the measure would undermine defendants’ constitutional right to due process and swell the state’s already overcrowded jails without improving public safety.

“Pretrial detention tears families apart, drains public resources and punishes people who haven’t been convicted of anything,” Nick Hudson, senior manager of policy and advocacy at the American Civil Liberties Union of Texas, said, noting studies finding that pretrial detention is associated with an increased likelihood of later committing a crime. “All Texans should be worried about an attack on their right to be free before trial. Anybody can be accused of an offense.”

Hudson also criticized Abbott’s proposal for automatic denial of bail, which he said “just totally inverts the basic idea of innocent until proven guilty.”

Kirsten Budwine, an attorney at the Texas Civil Rights Project, argued that the legislation would “make Texans less safe by destabilizing the lives of legally innocent people.” She cited the 1987 U.S. Supreme Court ruling stating that “liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”

“This bail package blatantly disregards that by doing the opposite — making pretrial detention the norm and liberty the exception,” she said, noting the stories of people who spent months in pretrial detention for crimes they did not commit. “People spend days, months and even years in jail just for the prosecutor to drop the case. But at that point, the harm has already been done.”

Smithee said it is a balancing act to craft a constitutional amendment that can satisfy the push to crack down on bail practices without going so far as to alienate Democrats and Republicans alike. The forthcoming package, he said, “operates within those confines.”

Disclosure: Texas Public Policy Foundation has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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