Under current law, the Texas Constitution guarantees bail to an accused person except in narrow circumstances governed by statute and case law. Senate Joint Resolution 5 proposes to amend Article I, Section 11 of the Texas Constitution to require denial of bail pending trial for persons accused of certain violent or sexual felonies when the state’s attorney proves by clear and convincing evidence after a hearing that bail would not reasonably ensure the accused’s appearance in court or the safety of the community, law enforcement, or the victim. The amendment applies specifically to allegations of murder, capital murder, aggravated assault causing serious bodily injury or involving a weapon, aggravated kidnapping, aggravated robbery, aggravated sexual assault, indecency with a child, trafficking of persons, and continuous trafficking of persons. These enumerated offenses define the narrow set of cases in which bail must be denied under the proposed constitutional provision. Before denying bail, the state’s attorney must present clear and convincing evidence at a pretrial hearing. The accused is entitled to be represented by counsel at that hearing. Judicial officers who grant bail under these circumstances must prepare a written order including findings of fact and a statement explaining their justification for granting bail and how the release conditions will reasonably prevent nonappearance and ensure safety. Supporters of the amendment contend that it bolsters public safety by keeping the most dangerous accused offenders in custody pending trial, reducing the risk of new violent offenses committed while out on bond. They point to cases where alleged violent defendants released on bail later committed additional serious crimes and argue that mandatory denial in high‐risk cases protects communities. Opponents argue that enshrining these bail restrictions in the state constitution expands pretrial detention and limits judicial discretion, raising due process concerns. Critics note that bail policy can be addressed by statute or court rule and caution against mandating detention for accused persons who have not yet been convicted, potentially imposing unnecessary hardship and burdening the justice system.
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