Denial of Bail in Texas: Changes in Bail Rules for Certain Crimes

Texas Proposition 3: New Bail Rules for Certain Crimes

Texans have approved an amendment to the Texas Constitution to allow for the denial of bail in certain cases. 61.5% of the 2.9 million votes counted were in favor of a new requirement for Texas judges to deny bail to individuals accused of certain offenses, when the court find the accused is a danger to others or unlikely to willingly return to court.

In this article, we will explore the allegations to which the denial of bail applies, what triggers the denial of bail, the burden of proof to deny bail, and what prosecutors and defense attorneys will be focusing on under this new framework.

Why Proposition 3 Required a Constitutional Amendment

Texas Proposition 3 amended the Texas Constitution itself—specifically Article I, Section 11—which meant it required extraordinary steps to become law.

The Texas Constitution has long guaranteed a right to bail for most offenses. Before Proposition 3, judges could deny bail only for capital murder cases where the evidence was strong, or in limited circumstances involving violations of certain protective orders. For virtually every other offense, no matter how serious, defendants had a constitutional right to some form of bail.

To expand bail denial to more offenses required changing the Constitution itself, which Texas law makes deliberately difficult:

• The Legislature needed a two-thirds supermajority in both the House and Senate to propose the amendment
• The proposal then went to Texas voters in a statewide election
• Voters approved Proposition 3, making it part of the Texas Constitution

This high bar for changing fundamental rights reflects the importance of bail in our legal system. The founders understood that requiring someone to sit in jail for months or years before trial—when they’re still presumed innocent—is an extraordinary deprivation of liberty that should only happen under strict limitations.

The Federal Backdrop

The U.S. Supreme Court addressed this tension in United States v. Salerno, 481 U.S. 739 (1987), which upheld federal preventive detention laws. The Court ruled that the Eighth Amendment prohibits excessive bail, but doesn’t guarantee bail in all cases. Governments can deny bail entirely for compelling interests like public safety—as long as proper due process protections exist.

Texas Proposition 3 follows this constitutional framework. It doesn’t automatically deny bail; it requires hearings, imposes high evidentiary burdens on prosecutors, and includes specific procedural safeguards. Whether these protections are sufficient will likely be tested in courts for years to come.

Expect a Motion to Deny Bail in the Following Cases

Proposition 3 doesn’t apply to all violent crimes or even all felonies. Texas Constitution Article I, Section 11d(a) creates a precise list of nine offense categories. Understanding these categories—and their specific limitations—is critical for anyone facing charges.

1. Murder (Texas Penal Code Section 19.02)

All murder cases now fall under Proposition 3. Murder is intentionally or knowingly causing the death of another person, or intending to cause serious bodily injury and committing an act clearly dangerous to human life that causes death. With over 1,000 murder cases filed annually in Texas courts, this provision affects a significant number of defendants.

2. Capital Murder (Texas Penal Code Section 19.03)

Capital murder—the most serious offense in Texas law—was already grounds for bail denial under limited circumstances before Proposition 3. Capital murder involves murder plus an aggravating factor: killing a police officer, firefighter, or judge; murder during certain felonies like kidnapping or robbery; murder for hire; or multiple murders. While less common than other offenses (about 336 cases filed in fiscal year 2024), these cases now face the full procedural framework of Proposition 3.

3. Aggravated Assault—But Only Specific Types

Not all aggravated assault cases fall under Proposition 3, even though aggravated assault is the most common serious offense in Texas (over 27,000 cases annually in the combined “aggravated assault or attempted murder” category, according to the Office of Court Administration).

Under Texas Penal Code Section 22.02, aggravated assault occurs when someone causes serious bodily injury to another or uses or exhibits a deadly weapon during an assault. But Proposition 3 only applies to aggravated assault cases where:

• The defendant caused serious bodily injury (injury creating substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of any bodily member or organ), OR
• The defendant used a firearm, club, knife, or explosive weapon during the assault

This means many aggravated assault cases are not covered by Proposition 3, including:

• Aggravated assault on a public servant (unless serious bodily injury or specified weapons were involved)
• Aggravated assault with a deadly weapon other than the four listed (such as a vehicle or blunt object)
• Aggravated assault in which the defendant only threatened serious bodily injury without displaying on of the four named weapons.

For defendants and their attorneys, determining whether a specific aggravated assault case falls within Proposition 3’s scope is the first critical question.

4. Aggravated Kidnapping (Texas Penal Code Section 20.04)

Aggravated kidnapping—not simple kidnapping—is covered by Proposition 3. This occurs when someone intentionally or knowingly abducts another person with intent to hold them for ransom, use them as a shield or hostage, facilitate a felony or flight after a felony, inflict bodily injury or violate or abuse them sexually, terrorize them or a third person, or interfere with a governmental or political function.

Aggravated kidnapping is distinguished from simple kidnapping by the specific intent requirements and the circumstances of the abduction. While Texas doesn’t separately track these cases in public statistics, aggravated kidnapping charges are serious and relatively uncommon compared to offenses like assault or robbery.

5. Aggravated Robbery (Texas Penal Code Section 29.03)

Aggravated robbery occurs when someone commits robbery (theft by force or threat) and causes serious bodily injury, uses or exhibits a deadly weapon, or causes bodily injury or threatens or places in fear of injury or death a person who is 65 years or older or disabled. With robbery cases declining from about 6,800 in FY 2021 to under 6,000 in FY 2024, these prosecutions have become somewhat less common.

Important distinction: Only aggravated robbery falls under Proposition 3. Simple robbery under Texas Penal Code Section 29.02 is not covered, meaning defendants charged with robbery without the aggravating factors still have a constitutional right to bail under traditional rules.

6. Aggravated Sexual Assault (Texas Penal Code Section 22.021)

All aggravated sexual assaults, which are sexual assaults that involve sexual assault committed under aggravating circumstances: causing serious bodily injury or attempting to cause death, threatening or placing someone in fear of death or serious bodily injury, using or exhibiting a deadly weapon, acting with another person, administering a drug without knowledge, or committing the offense against certain vulnerable victims (children under 14, elderly persons, disabled persons).

Texas court statistics combine aggravated sexual assault of children with indecency with a child cases, showing over 5,000 combined cases annually. There’s some ambiguity in how the statistics separate aggravated sexual assault of adults, which may be tracked in different categories.

7. Indecency with a Child (Texas Penal Code Section 21.11)

This is critically different from the other categories. While most Proposition 3 offenses are limited to “aggravated” versions, the amendment covers all indecency with a child cases, regardless of the level of conduct.

Indecency with a child includes two types of conduct:

• Indecency by contact: Touching any part of a child’s genitals, anus, or breast with intent to arouse or gratify sexual desire
• Indecency by exposure: Exposing one’s genitals, anus, or any part of one’s female breast knowing a child is present, with intent to arouse or gratify sexual desire

Both contact and exposure offenses fall under Proposition 3, making this the broadest category in the amendment. With over 5,000 cases annually in the combined child sexual offense category, this provision potentially affects thousands of defendants.

8. Trafficking of Persons (Texas Penal Code Section 20A.02)

Human trafficking prosecutions have surged in recent years, increasing nearly 78% from FY 2021 to FY 2024 (from 194 to 345 cases). This reflects enhanced law enforcement focus on trafficking, specialized prosecution units, and federal-state cooperation.

Trafficking of persons involves knowingly trafficking another person with the intent or knowledge that the trafficked person will engage in forced labor or services, including sexual conduct or prostitution. This is distinct from smuggling, which involves illegal movement across borders; trafficking is about exploitation and forced servitude.

9. Continuous Trafficking of Persons (Texas Penal Code Section 20A.03)

Continuous trafficking is a more serious offense than single-incident trafficking. It occurs when someone engages in trafficking of two or more victims during a period of 30 or more days. This offense carries enhanced penalties and is specifically designed to target organized trafficking operations rather than isolated incidents.

While Texas courts don’t separately track continuous trafficking in public statistics, the offense is explicitly covered by Proposition 3, meaning defendants charged under Section 20A.03 face potential bail denial.

How the New Bail Process Actually Works: Not Automatic Denial

Proposition 3 does not automatically deny bail for the nine covered offenses. This is perhaps the most important thing to understand: the amendment creates a process, not an automatic result.

The word “if” appears in Article I, Section 11d(b) for a reason: “A person to whom this section applies shall be denied bail pending trial if the attorney representing the state demonstrates…” The state must affirmatively prove its case at a hearing. If they fail to meet their burden of proof, you have a constitutional right to bail. Furthermore, the accused is entitled to be represented by counsel at the hearing.

The State’s Two Pathways to Bail Denial

Prosecutors can pursue one of two different arguments, each with its own evidentiary standard:

Pathway #1: Flight Risk (Preponderance of the Evidence)

The state must prove “by a preponderance of the evidence” that granting bail is insufficient to reasonably prevent your willful nonappearance in court.

What “preponderance of the evidence” means: This is the lowest standard of proof in civil and criminal proceedings. It means “more likely than not”—essentially anything over 50/50. If the judge thinks there’s a 51% chance that no bail conditions can prevent you from fleeing, the state wins on this standard.

Defense strategy: Challenge every assumption about flight risk. Show the judge:

• You have deep community ties (family, employment, property ownership)
• You have no history of failing to appear in court
• You have appeared for all previous court dates in this case or others
• You don’t have the means to flee (no passport, no financial resources for flight)
• You’re willing to accept GPS monitoring, surrender your passport, check in daily with pretrial services
• You have family members willing to serve as third-party custodians

Pathway #2: Public Safety (Clear and Convincing Evidence)

The state must prove “by clear and convincing evidence” that granting bail is insufficient to reasonably ensure the safety of the community, law enforcement, and the victim.

What “clear and convincing evidence” means: This is a significantly higher standard than preponderance. While not as high as “beyond reasonable doubt” (the criminal trial standard), the judge must be substantially certain, not just barely convinced.

This is your better battleground. The clear and convincing standard is much harder for prosecutors to meet, especially when you can propose specific, verifiable bail conditions.

What the state must prove:

• You pose a genuine, specific threat to community safety, law enforcement, or the victim
• The threat is based on evidence, not speculation
• No combination of bail conditions can reasonably mitigate that threat

That last element is critical. Even if you allegedly committed a violent offense, if GPS monitoring, curfews, no-contact orders, weapons prohibitions, substance abuse treatment, and other conditions can reasonably ensure safety, the state hasn’t met its burden.

Defense strategy: Propose comprehensive, concrete safety measures:

• GPS ankle monitoring with real-time tracking and alerts
• Home confinement with exceptions only for court, attorney meetings, medical care, employment
• No-contact orders with specific victims and witnesses
• Weapons prohibition and surrender of all firearms
• Regular drug and alcohol testing
• Mental health evaluation and treatment as a condition of release
• Third-party custodian supervision
• Regular in-person check-ins with pretrial services

Present these not as vague possibilities, but as specific, verified plans with named providers, costs, schedules, and enforcement mechanisms.

What the court is required to consider to deny bail:

The court is required to consider:

• the likelihood the person will willfully not appear (Preponderance of the Evidence)
• the nature and circumstances of the alleged offense
• the safety of the community (Clear and Convincing Evidence)
• the safety of law enforcement (Clear and Convincing Evidence)
• the safety of the victim (Clear and Convincing Evidence)
• the criminal history of the accused (Clear and Convincing Evidence).

The Hearing: Documentary Evidence, Not Necessarily Live Testimony

The new law “may not be construed to require any testimonial evidence before a judge or magistrate makes a bail decision.” That means, while a hearing is required, the hearing may proceed through proffers and arguments by counsel.

What this means in practice:

• Hearings can proceed entirely on affidavits, police reports, criminal history records, and other documents
• Neither the state nor the defense is required to present live witnesses
• You can still call witnesses if you choose—the amendment doesn’t prohibit testimony, it just doesn’t require it
• Hearings will likely be faster than traditional evidentiary proceedings

Why this matters for your defense: Written advocacy becomes absolutely critical. Your attorney’s motions, affidavits, and documentary submissions may be your entire case. This means preparing:

• Detailed defense motions explaining why bail should be granted
• Affidavits from family members about your ties to the community
• Employment verification letters on company letterhead
• Lease agreements or mortgage documents proving stable housing
• Character reference letters from employers, community members, clergy
• Treatment records showing ongoing mental health or substance abuse treatment
• Proposed bail conditions with specific provider names and contact information

Don’t expect to tell your story in person at the hearing. Put it in writing, with supporting documentation.

If the Judge Grants Bail: Strict Requirements and Protections

When a judge decides to grant bail despite the state’s arguments under Proposition 3, Section 11d(c) imposes mandatory obligations designed to protect public safety while preserving your liberty rights.

The Judge Must Set Appropriate Bail and Conditions

Under Section 11d(c)(1), the judge must set bail and impose conditions of release “necessary only” to reasonably:

• Prevent your willful nonappearance in court, AND
• Ensure the safety of the community, law enforcement, and the victim

That word “only” is critical. It means judges cannot impose excessive or unnecessary conditions. Bail and conditions must be narrowly tailored to these two specific purposes and nothing else.

Examples of appropriate conditions:

• GPS ankle monitor with geo-fencing around victim’s residence/workplace
• Home confinement with specified exceptions (court, medical, work, attorney meetings)
• Specific no-contact orders naming victims and witnesses
• Complete weapons prohibition with requirement to surrender all firearms to law enforcement
• Surrender of passport and any other travel documents
• Regular check-ins with pretrial services (daily, weekly, etc.)
• Substance abuse testing on a set schedule
• Mental health evaluation and participation in treatment
• Third-party custodian supervision with financial responsibility

What would be excessive or inappropriate:

• Conditions unrelated to flight risk or safety (such as requirements having nothing to do with the offense)
• Unnecessarily restrictive conditions when less restrictive options would accomplish the same goals
• Bail amounts so high they’re effectively a denial (if you can’t possibly pay it, it’s not really bail)
• Conditions that make it impossible to prepare a defense (such as restrictions on communicating with your attorney)

If conditions are excessive, you have the right to challenge them as unconstitutional, even under Proposition 3.

The Written Order Requirement

The new law requires judges who grant bail to “prepare a written order that includes findings of fact and a statement explaining the judge’s or magistrate’s justification for the grant and the determinations required by this section.”

What must be in the written order:

1. Findings of fact: Specific facts the judge found to be true. For example:

• “Defendant has resided continuously in Dallas County for 18 years”
• “Defendant has been employed at ABC Manufacturing for 12 years”
• “Defendant has no prior failures to appear on any charges”
• “Defendant has three minor children residing with him”
• “Defendant has no history of violent offenses prior to this charge”

2. Statement of justification: The judge’s reasoning for why bail is appropriate despite the state’s arguments. For example:

• “While the alleged offense is serious, the state failed to demonstrate by clear and convincing evidence that no bail conditions could ensure public safety given defendant’s lack of criminal history and willingness to accept GPS monitoring with home confinement”
• “The state presented no evidence that defendant poses a flight risk beyond speculation, while defendant presented substantial evidence of community ties”

3. Specific determinations: How the bail amount and conditions satisfy both constitutional requirements—preventing nonappearance AND ensuring safety.

Your Rights Remain Protected

The new law explicitly preserves existing legal protections: The amendment “may not be construed to limit any right a person has under other law to contest a denial of bail or to contest the amount of bail set by a judge or magistrate.”

What this means:

• You can file a writ of habeas corpus challenging bail denial
• You can appeal excessive bail amounts
• All other constitutional and statutory protections remain intact
• This amendment is purely additive—it doesn’t eliminate procedural rights you already had

What If Bail Is Denied? Your Options and Next Steps

If the judge denies bail under Proposition 3, you’re not out of options. Texas law provides several avenues for challenging the denial:

1. Immediate Writ of Habeas Corpus

Your attorney can file a writ of habeas corpus in the Texas Court of Criminal Appeals challenging the bail denial. The writ should argue that:

• The state failed to meet its burden under the applicable evidentiary standard
• The judge failed to adequately consider the four mandatory factors
• The findings of fact don’t support the conclusion that no bail conditions could work
• Less restrictive alternatives exist that weren’t adequately considered

Time is critical. The longer you remain in custody, the more it affects your ability to work with your attorney, maintain employment, care for family, and prepare your defense.

2. Request for Hearing on Changed Circumstances

If your circumstances change—you secure better employment, a family member offers to serve as custodian, you complete a treatment program, or new evidence emerges—you can request a new bail hearing. Changed circumstances can justify reconsideration even if bail was initially denied.

3. Pretrial Motions Based on Extended Custody

If you remain in custody for an extended period awaiting trial, your attorney can file motions arguing that the delay violates your speedy trial rights or that the prolonged detention without conviction is effectively punishment before trial.

4. Leverage in Plea Negotiations

While not ideal, the reality is that extended pretrial custody significantly affects plea negotiations. Prosecutors know that defendants in custody face pressure to resolve cases quickly. Your attorney should use time-served credits and the conditions of your confinement as leverage in any plea discussions.

What Effective Defense Looks Like

Defending against bail denial demands specific knowledge, preparation, and strategy that goes far beyond traditional bail practice:

1. Immediate Case Assessment and Classification

Defense attorneys need to see if a case type falls under the new law, and be prepared for the prosecution filing a motion to hold your client without a bond.

2. Rapid Evidence Gathering

With hearings often scheduled quickly, your defense team must gather substantial evidence in days, not weeks:

• Employment records and verification letters
• Property ownership or lease documentation
• Family affidavits about ties to the community
• Prior court appearance records
• Financial records showing inability or unlikelihood of flight
• Character references from employers, clergy, community members
• Treatment records for mental health or substance abuse
• Proposals from GPS monitoring companies, pretrial services, third-party custodians

This evidence must be formatted as admissible affidavits and documents, not casual statements.

3. Understanding and Challenging the State’s Evidence

Your attorney must understand which evidentiary standard the state is pursuing and prepare to challenge their proof:

If the state argues flight risk (preponderance):

• Challenge assumptions about your ability or intent to flee
• Show the state’s evidence is speculative, not factual
• Present affirmative evidence of community ties
• Demonstrate your history of court appearances
• Show financial inability to flee

If the state argues public safety (clear and convincing):

• Hammer on the higher evidentiary standard—prosecutors must be 70-75% certain, not just barely convinced
• Show that specific bail conditions can mitigate any alleged risk
• Challenge the state to explain why GPS monitoring, home confinement, no-contact orders, and supervision won’t work
• Present expert evidence about the effectiveness of monitoring technology
• Show your lack of violent criminal history
• Demonstrate your willingness to accept any reasonable condition

4. Proposing Comprehensive Bail Conditions

Never just argue for bail—always propose specific, concrete conditions:

• GPS monitoring: Name the specific vendor, explain the technology, show how geo-fencing works, provide costs
• Home confinement: Specify the exact address, name exceptions (court, medical, attorney, work), explain verification methods
• Third-party custodian: Identify the specific person, explain their relationship to you, show their financial resources and willingness to be responsible
• Treatment programs: Name specific providers, show enrollment capacity, provide schedules and costs
• Check-in requirements: Specify frequency, location, method of verification

Vague promises don’t work. Judges need to see that you’ve done the homework and have a real, implementable plan.

5. Mastering Written Advocacy

Since these hearings can proceed without live testimony, your written submissions may be your entire case. Be prepared with.

• Detailed legal briefs explaining the applicable evidentiary standards
• Well-drafted affidavits that tell your story persuasively
• Professional supporting documents (employment letters on letterhead, not handwritten notes)
• Visual aids when helpful (maps showing proximity to family, charts showing court appearance history)
• Proposed orders for the judge to sign if bail is granted

6. Protecting the Appellate Record

Your attorney must think beyond the immediate hearing:

• If bail is granted, ensure the judge issues the required written order with findings of fact
• If bail is denied, ensure the record clearly shows what evidence the state presented and whether it met the applicable standard
• Preserve all objections and legal arguments for potential appellate review
• Request specific findings if the judge’s ruling is unclear

Time Is Critical: Contact Us Today

Bail hearings can be scheduled quickly, and the evidence needed to support your release takes time to gather and prepare properly. Don’t wait until the day before the hearing to start building your case. Don’t assume that bail will be granted just because you have ties to the community or no prior record. Don’t assume the state will fail to meet its burden.

Expect prosecutors are prepared to argue for bail denial, and they’re doing it successfully in courtrooms across Texas. You need a criminal defense attorney who’s equally prepared to fight back.

Contact Varghese Summersett now for a confidential consultation. We’ll review your charges, explain whether Proposition 3 applies to your case, discuss your options for fighting bail denial, and develop a comprehensive strategy for your defense.

The bail hearing may be the most important court appearance of your life. Make sure you have experienced criminal defense counsel who knows how to win it.

Your freedom depends on it.