Quick Answer
If a judge is being asked to hold you or someone you love with no bail at all, Texas law now allows that, but only in nine specific cases and only after a hearing where the prosecutor has to prove something first. Being charged is not enough. The State carries the burden, and you have a constitutional right to a lawyer at that hearing.
The nine offenses are murder, capital murder, aggravated assault in two specific situations, aggravated kidnapping, aggravated robbery, aggravated sexual assault, indecency with a child, trafficking of persons, and continuous trafficking of persons. All of this comes from Proposition 3, which voters approved on November 4, 2025, adding Section 11d to Article I of the Texas Constitution.
If the charge is not on that list, Section 11d does not reach the case at all. Below is what the prosecutor has to prove, what the hearing looks like, when it happens, and what a defense lawyer can put in front of the judge to get bail set.
What Proposition 3 Changed
Before November 2025, Article I, Section 11 of the Texas Constitution promised that “all prisoners shall be bailable by sufficient sureties,” with one carve-out for capital offenses “when the proof is evident.” Three narrow exceptions had been added over the years for repeat felons, bail-condition violators, and protective-order violators. All three were permissive: a judge could choose to deny bail.
Section 11d is different in a way most coverage missed. It says a person to whom the section applies shall be denied bail once the State carries its burden. The ballot language said it out loud: “requiring the denial of bail.” This is the first mandatory pretrial detention provision in the Texas Constitution.
The amendment passed with 1,809,465 votes in favor, or 61.14 percent.
Varghese Summersett handles these hearings in Fort Worth, Dallas, Southlake, and Houston, and has published its own statewide analysis of 238,000 Texas bonds. The firm brings more than 100 years of combined experience, six Board Certified attorneys, and a team of more than 70 people to a hearing that now decides whether you fight your case from home or from a cell.
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The Nine Offenses That Can Cost You Bail
Section 11d(a) says the section “applies only to a person accused of committing one or more of the following offenses.” The list is closed. A judge cannot add to it because a case is disturbing, and a prosecutor cannot argue a tenth offense into it.
Read the phrase “one or more” carefully. A single qualifying count anywhere in the charging instrument pulls the whole case under Section 11d, even when the other counts would not.
| Offense | Penal Code | Offense Grade | Covered in Full? |
|---|---|---|---|
| Murder | § 19.02 | First degree (second degree on a sudden passion finding) | Yes |
| Capital murder | § 19.03 | Capital felony | Yes |
| Aggravated assault | § 22.02 | Second or first degree | No. Two conditions only |
| Aggravated kidnapping | § 20.04 | First degree (second degree on a safe release finding) | Yes |
| Aggravated robbery | § 29.03 | First degree | Yes |
| Aggravated sexual assault | § 22.021 | First degree, 25 year minimum in some child cases | Yes |
| Indecency with a child | § 21.11 | Second degree (contact) or third degree (exposure) | Yes, both subsections |
| Trafficking of persons | § 20A.02 | Second or first degree (two conflicting 2025 versions are on the books) | Yes |
| Continuous trafficking of persons | § 20A.03 | First degree, 25 years to life | Yes |
Aggravated assault is the one with a fence around it
Section 11d does not cover every aggravated assault. It reaches the offense only if the person “caused serious bodily injury, as that term is defined by general law, to another” or “used a firearm, club, knife, or explosive weapon, as those terms are defined by general law, during the commission of the assault.”
Those four weapon words point to definitions in the Penal Code, and they are not equally broad. Under Penal Code § 46.01, a “club” is an instrument specially designed, made, or adapted to inflict serious bodily injury or death by striking a person, including but not limited to a blackjack, nightstick, mace, or tomahawk. A baseball bat swung in a fight does not automatically qualify, and neither does a vehicle, a brick, boiling water, or a pair of fists. “Knife” is defined broadly as any bladed hand instrument capable of inflicting serious bodily injury or death by cutting or stabbing, so improvised edged objects may fall inside it.
This matters because aggravated assault with a deadly weapon under Penal Code § 22.02 can be committed with objects that are not on that list. If you are charged with using a car as a deadly weapon and the complainant did not suffer serious bodily injury, the State cannot reach Section 11d at all.
Indecency with a child is covered in full
Section 11d names indecency with a child without limitation, so it reaches both subsections of Penal Code § 21.11. Indecency by contact is a second-degree felony. Indecency by exposure is a third-degree felony carrying two to ten years.
Both now trigger a mandatory no-bail hearing. Hold that thought, because it becomes the strangest feature of the amendment once you see what was left off.
The Standard the State Has to Meet
Being charged with a listed offense does not deny you bail. It only opens the door. Section 11d(b) puts the burden on “the attorney representing the state” and gives the prosecutor two routes with two different standards of proof.
Route one: willful nonappearance, by a preponderance of the evidence
The State must show by a preponderance of the evidence after a hearing that “the granting of bail is insufficient to reasonably prevent the person’s wilful nonappearance in court.”
Preponderance is the lowest standard there is. More likely than not. But read the wording. The Constitution does not say nonappearance. It says wilful nonappearance. The State has to prove a risk that you will choose not to come back, not just a risk that you will not be there. Someone who misses a setting because the jail released him with no court date, or because his lawyer had the wrong date, has not willfully failed to appear.
The defense answer here is documentary and it gets built fast: length of residence, family in the county, employment records, a history of making every setting, a surrendered passport, an ankle monitor offered up front.
Route two: danger, by clear and convincing evidence
The State must show by clear and convincing evidence after a hearing that “the granting of bail is insufficient to reasonably ensure the safety of the community, law enforcement, and the victim of the alleged offense.”
Clear and convincing is a real step up. It is the same standard Texas uses to take away a parent’s rights. The judge has to come away with a firm belief that the State is right.
Now look at the conjunction. The final text says community, law enforcement, “and” the victim. The version the Senate passed said “or.” The word changed in the House. On its face, the ratified text reads as requiring all three, not the easiest one. The Texas District and County Attorneys Association has told prosecutors to address each category when the evidence allows, while arguing that the better reading is that a risk to any one group should be enough. That the State’s own association felt the need to hedge tells you the language is worth fighting about.
What the judge is required to weigh
Section 11d(e) lists four factors the judge or magistrate must consider on either route:
- The likelihood of the person’s wilful nonappearance in court
- The nature and circumstances of the alleged offense
- The safety of the community, law enforcement, and the victim of the alleged offense
- The criminal history of the person
Criminal history is one factor out of four. It is not a trump card, and your lawyer should say so on the record when the State treats it like one.
What an 11d Hearing Looks Like and When It Happens
The timeline moves faster than most families expect
Within 48 hours of an arrest, you go before a magistrate at what Tarrant County calls central magistration. That is where bail is first addressed and where a prosecutor can signal that the State intends to seek denial. The hearing itself is often set within days, sometimes before the case is even indicted. Families who wait for the first district court setting frequently miss it.
That is the practical problem with this amendment. The most consequential bail decision in the case gets made in the first week, when the defense knows the least.
No live testimony is required
Section 11d(d)(2) says the amendment does not “require any testimonial evidence before a judge or magistrate makes a bail decision.” Prosecutors proceed on offense reports, affidavits, criminal history printouts, and the Public Safety Report, created by Senate Bill 6 in 2021 and expanded by Senate Bill 9 in 2025. You may never cross-examine the detective. What you can do is attack what the paperwork actually says and put your own affidavits and records in front of the court.
You are entitled to a lawyer at the hearing
Section 11d(f) is one sentence: “At a hearing described by this section, a person is entitled to be represented by counsel.” That is a constitutional right attached to the earliest stage of a case, and it is worth invoking clearly if a magistrate tries to move quickly.
The written order is required from the judge who grants bail
This surprises people. Section 11d(c) requires findings of fact and a written justification from a judge or magistrate “who grants a person bail in accordance with this section,” not from one who denies it. The Senate version had it the opposite way. As ratified, the paperwork friction falls on release. How far that provision reaches, whether to every bail setting on a listed offense or only to a grant after the State has invoked Section 11d and lost, has not been decided.
Section 11d has no deadline, but Article 17.151 still exists
Section 11a gives a defendant real deadlines: the denial order must issue within seven days of incarceration, it is automatically set aside if there is no trial within sixty days unless the defense asks for a continuance, and there is an express appeal to the Court of Criminal Appeals. Section 11d contains none of that.
What Section 11d does not displace, at least not on its face, is Article 17.151 of the Code of Criminal Procedure, which requires release on personal bond or reduced bail if the State is not ready for trial within 90 days on a felony. Its exceptions say nothing about constitutional bail denial. Whether a constitutional command to deny bail overrides that statute is an open question, and it should be raised in every one of these cases.
Why the Salerno comparison cuts for the defense
In United States v. Salerno, the Supreme Court upheld federal pretrial detention as regulatory rather than punitive. But it leaned on safeguards the federal statute has and Section 11d does not: detention was discretionary, the accused could cross-examine the government’s witnesses, the judge had to make written findings supporting detention, review was immediate, and the Speedy Trial Act capped the detention. The distance between that scheme and Section 11d is itself a due process argument.
The Offenses Proposition 3 Left Out
This is where the amendment stops making sense as a ranking of danger.
| Offense Not Covered | Penal Code | Offense Grade |
|---|---|---|
| Continuous sexual abuse of a young child or disabled individual | § 21.02 | First degree, 25 years to life, no parole |
| Continuous sexual abuse, two or more victims, new in 2025 | § 21.03 | First degree |
| Sexual assault of a child (any child under 17) | § 22.011(a)(2) | Second degree, first in narrow cases |
| Sexual assault of an adult | § 22.011(a)(1) | Second degree, first in narrow cases |
| Compelling prostitution of a child | § 43.05(a)(2) | First degree |
| Sexual performance by a child | § 43.25 | Up to first degree |
| Attempted murder | § 15.01 with § 19.02 | Second degree |
| Manslaughter and intoxication manslaughter | § 19.04, § 49.08 | Second degree |
| Robbery | § 29.02 | Second degree |
| Kidnapping | § 20.03 | Third degree |
The child sex offense problem
Read the two tables together and the result is hard to defend on any theory of dangerousness.
Indecency with a child by exposure is a third-degree felony. It is on the mandatory no-bail list. A judge cannot even grant straight probation on it, because Article 42A.054 excludes all of Section 21.11 from judge-ordered community supervision, which leaves deferred adjudication and a best-interest finding. It is still the least serious offense in the indecency statute.
Continuous sexual abuse of a young child requires an actor 17 or older who commits two or more acts of sexual abuse over a period of thirty days or more against a child under fourteen or a disabled individual. It is a first-degree felony punishable by twenty-five years to life, and a person convicted of it is never eligible for parole. It is not on the list.
Sexual assault of a child under Section 22.011(a)(2) covers any child under seventeen. It is not on the list either, while aggravated sexual assault under Section 22.021 is. The line between those two statutes is mostly the child’s age, under fourteen, or a separate aggravating fact. So two nearly identical allegations land in different places. A thirteen-year-old complainant opens the door to a no-bail hearing. A fifteen-year-old does not.
There is a practical wrinkle on top of that. Texas courts have long held that indecency with a child by contact merges into a sexual assault count when both rest on the same act and the same body part. That means an indecency count is usually available on the same facts as a sexual assault of a child count, and one indecency count is all Section 11d needs.
Attempted murder
Criminal attempt under Section 15.01 is its own offense, one punishment category below the offense attempted, which makes attempted murder a second-degree felony. Section 11d(a)(1) says murder. It does not say attempted murder, and the amendment contains no attempt, solicitation, or conspiracy catch-all.
The straightforward reading is that a person accused of attempted murder is not a person accused of murder, so Section 11d does not apply. Expect the State to argue otherwise, and expect this to be one of the first questions Texas appellate courts answer.
Why the List Looks the Way It Does
The nine offenses are not the product of anyone ranking Texas felonies by danger. They are what survived a drafting structure that got replaced halfway through the session.
Senate Joint Resolution 5, as filed by Senator Joan Huffman and as passed by the Senate 28 to 2 in February 2025, had no list at all. It covered a person accused of “a sexual offense punishable as a felony of the first degree,” a “violent offense,” or continuous trafficking of persons, and it borrowed both definitions from Section 11a. Section 11a has defined “sexual offense” since 1993 as exactly three things: aggravated sexual assault, sexual assault, and indecency with a child.
Sexual assault was in the source definition the whole time. But the first-degree-felony filter on top of it knocked out the ordinary sexual assault case and every indecency case, because sexual assault is normally a second-degree felony and indecency is second or third.
The resolution then sat in the House for nearly three months, a full month of it before the bill was even referred to committee. In May 2025 the House Criminal Jurisprudence Committee reported a substitute that threw out the category-and-filter structure and wrote the closed list of nine named offenses instead. It put indecency with a child back on by name. It never put sexual assault back on. Continuous sexual abuse of a young child had never been inside the borrowed definition, so it was never in view at any stage. The House adopted the resolution 133 to 8 and the Senate concurred 31 to 0.
That is the whole answer. The gaps are drafting residue, not policy.
Six changes between the Senate version and the ratified text
| Senate version | Ratified text | Who it helps |
|---|---|---|
| A judge “may” deny bail | A person “shall be denied bail” | The State |
| The judge “determines” | “the attorney representing the state demonstrates” | The accused |
| Clear and convincing evidence on both prongs | Preponderance on nonappearance, clear and convincing on safety | The State |
| Community, law enforcement, “or” the victim | Community, law enforcement, “and” the victim | The accused |
| “the person’s appearance in court as required” | “the person’s wilful nonappearance in court” | The accused |
| Written findings from the judge who denies bail | Written findings from the judge who grants bail | The State |
Constitutional text is read by its words. When a legislature changes a word between versions, that change is presumed to mean something. All six of these are live arguments in a Texas courtroom right now.
What This Means for a Real Case
Expect prosecutors to charge around the list
Because Section 11d(a) applies to anyone accused of “one or more” listed offenses, a single indecency count added to an indictment for sexual assault of a child pulls the entire case under the mandatory provision. If a count appears to exist mainly to trigger a no-bail hearing, that is worth putting on the record and litigating.
Sections 11a, 11b, and 11c still apply
The older provisions did not go away. A person under criminal justice supervision for a prior felony who picks up a new sexual assault charge can still be denied bail under Section 11a(a)(4), and that route carries the seven-day and sixty-day protections Section 11d does not provide. Knowing which provision the State is proceeding under changes the deadlines, the standard, and the appellate route.
The State can appeal a bail order too
Senate Bill 9 amended Article 44.01 of the Code of Criminal Procedure to give prosecutors a right to appeal a bail order they consider insufficient, in substantially the same offense categories Section 11d covers. Winning bail at the hearing is not always the end of it, which is another reason the record built that day matters.
Whether it reaches older cases is unresolved
Senate Joint Resolution 5 contains no applicability clause and no separate effective date. Whether Section 11d reaches offenses committed before November 4, 2025 has not been decided, and the argument that it should not is available.
Conditions of release are the real battleground
Section 11d(c) obligates a judge who grants bail to impose conditions “necessary only” to prevent willful nonappearance and protect safety. A lawyer who walks in with a concrete package gives the court a documented way to say yes: GPS monitoring, a curfew, surrender of passport and firearms, no-contact terms, a third-party custodian, employment verification.
Bond amounts vary depending on the circumstances, and on a listed offense the number is usually high. The conditions attached often matter more than the dollar figure.
What is at stake is not abstract. Open-ended detention costs people jobs, housing, and custody arrangements, and it makes helping your own lawyer nearly impossible. A person sitting in county cannot walk an investigator through a scene, find a witness, or pull a phone record.
What to Expect From Varghese Summersett
Bail used to be a fifteen-minute conversation. Under Section 11d it is a contested hearing with evidence, and it can decide whether you fight your case from home or from a jail cell for a year or more. It happens in the first days after an arrest, often before a family has found a lawyer.
When you call us on a listed offense, the first hours go to the things that expire. We get the offense report and the Public Safety Report, pull employment and residence records, identify a third-party custodian, and line up a monitoring provider before the hearing instead of after. We put the State to its burden on the correct standard, and we make the record on the willfulness requirement and on the fact that the amendment names the community, law enforcement, and the victim, not just one of the three. If the ruling goes the wrong way, the issues are preserved for a pretrial writ.
Varghese Summersett is a team of more than 70 people across four Texas offices, including six Board Certified attorneys and former prosecutors who have handled these charges from both sides. We answer the phone around the clock, because bail hearings do not wait for business hours.
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Frequently Asked Questions About Denial of Bail in Texas
What is an 11d hearing?
An 11d hearing is the proceeding created by Article I, Section 11d of the Texas Constitution, where a prosecutor asks a judge or magistrate to deny bail entirely in a case involving one of nine listed offenses. You are entitled to a lawyer. The State carries the burden, and live testimony is not required, so the evidence is often documentary.
Does being charged with one of the nine offenses mean I will be denied bail?
No. The charge only makes Section 11d available. The prosecutor still has to prove willful nonappearance by a preponderance of the evidence or a safety risk by clear and convincing evidence. If the State does not carry that burden, the judge must set bail and impose only the conditions necessary to address those two concerns.
Why is sexual assault of a child not on the list when indecency with a child is?
The Senate version covered sexual offenses punishable as first-degree felonies, using definitions borrowed from Section 11a. Sexual assault is normally a second-degree felony, so that filter knocked it out. When the House replaced the structure with a closed list of nine named offenses, it added indecency with a child by name and did not add sexual assault. Continuous sexual abuse of a young child was never in the borrowed definition at all.
How long can I be held if bail is denied under Section 11d?
Section 11d itself sets no time limit and no automatic release date, unlike Section 11a. Article 17.151 still requires release on personal bond or reduced bail if the State is not ready for trial within 90 days on a felony, and its exceptions do not mention constitutional bail denial. Whether Section 11d overrides that statute is unsettled. The other remedies are a pretrial writ of habeas corpus and a new hearing on changed circumstances.
Can bail be denied for attempted murder in Texas?
Section 11d lists murder and capital murder. Criminal attempt under Penal Code Section 15.01 is a separate offense, and the amendment has no attempt or conspiracy catch-all. The better reading is that Section 11d does not apply to attempted murder, though a prosecutor may argue otherwise until an appellate court decides it. Bail may still be denied under Section 11a or 11b if those apply.
Talk to a Lawyer Before the Hearing, Not After
The bail hearing is now one of the most consequential settings in a Texas felony case, and it happens before most families have even found a lawyer. If someone you love has been arrested on one of these charges, the window to build the record is measured in days.
Call Varghese Summersett at 817-203-2220 for a free and confidential consultation, or send us a message. We answer around the clock.
