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An eleventh-hour proposal asking voters to amend the state Constitution to automatically deny bail to certain repeat offenders collapsed on Wednesday, with Democrats staving off adoption of the measure despite one more attempt by proponents to resurrect it and convince a handful of lawmakers to flip their votes.
Senate Joint Resolution 87, part of a broader package stiffening the state’s bail laws, fell short on Tuesday of the 100 votes necessary to put a constitutional amendment on the ballot, winning votes from all present Republicans and nine Democrats. It failed, 97 to 40, after an intense debate that saw Democrats pleading with their colleagues to stand firm and reject the measure, which they called unconstitutional and an unfunded mandate on county jails that would not meaningfully improve public safety. Proponents argued that it was necessary to protect the public from dangerous repeat offenders.
“There is a special place in hell for the individuals who are responsible for the crimes that we’re speaking about here today,” Rep. Erin Gamez, D-Brownsville, said in opposition to the proposal. “I am fearful of the special place that we’re going to find ourselves in if we continue to stray away from the Constitution.”
After the resolution failed, proponents, including Gov. Greg Abbott’s office, worked to get a handful of Democrats on board. On Wednesday morning, Rep. David Cook, R-Mansfield, alerted the House that there would be a motion brought to take a new vote on SJR 87. But the resolution stalled when proponents failed to convince a lawmaker who voted no on the measure to raise the motion to reconsider in time.
Under the state Constitution, almost everyone who is arrested has the right to be released on bail. The limited exceptions are people charged with capital murder and those accused of certain repeat felonies or bail violations. According to the U.S. Constitution and the U.S. Supreme Court, bail cannot be excessive, and pretrial detention largely should not be considered the default unless the defendant is a flight or safety risk, as criminal defendants are still legally presumed innocent.
The House last week adopted major legislation to reshape the state bail system, including the centerpiece of the broader bail package, Senate Joint Resolution 5, which would ask voters to approve a list of violent offenses for which, in certain cases, judges must deny bail. Lawmakers in both parties overwhelmingly supported that resolution, which was painstakingly negotiated for months and remains a top priority for Abbott.
SJR 87, meanwhile, was unveiled with just over two weeks left in session. It sprinted through the Senate, leading some Democrats to accuse Republicans of “moving the goalposts” on bail reform.
The resolution “was filed just days ago at the end of session and rocketed over to the House,” Rep. Joe Moody of El Paso and the top Democratic negotiator on bail, said Monday. “And I’ll tell you this, too, about moving the goalposts on bail: We passed strong bail reform on the high end already, and now they suddenly want this.”
SJR 87 would have automatically detained and denied bail to anyone accused of certain felonies if they had previously been convicted of a felony or were out on bond at the time of the alleged offense. The resolution would have required a judge to find “probable cause” — a relatively low burden of proof — that the defendant committed one of the listed offenses, which include murder, aggravated assault and human trafficking.
The proposal previously failed, 93 to 32, on its first vote on the floor Monday, with 19 Democrats declining to take a position by marking themselves “present” or not at all. Democratic Reps. Bobby Guerra of Mission and Mihaela Plesa of Dallas on Tuesday flipped their yes votes, with Guerra switching to oppose the proposal and Plesa refraining from voting at all.
Proponents of the measure argued that requiring automatic denial of bail was necessary to rein in judges letting dangerous defendants out on bond and to protect the public from people who commit more crimes while out of jail before trial.
“If we do not pass it, we will not be able to properly constrain judges who would release certain very dangerous people on the streets of our cities, our towns and our counties in the state of Texas,” Rep. Mitch Little, R-Lewisville and the proposal’s House sponsor, said on the floor Monday. “That is the moral conundrum we are in: Are we willing to allow the law to remain unchanged and put more people at risk?”
Debate on the measure signaled the likelihood of the vote becoming future campaign material against Democrats who declined to lend the resolution their support.
“This is indefensible,” Little said Tuesday after describing numerous cases of violent crime committed by people let out on bond. “For those of you who try to go back to your districts and defend it, you will fail. It is indefensible in every regard.”
The House agreed unanimously to name the measure, “Jocelyn’s Law,” after Jocelyn Nungaray, a 12-year-old Houstonian whose alleged killers were found to have entered the United States illegally from Venezuela. (The suspects were out on federal custody, not on bail, at the time of the crime.)
“We’re talking about an effective class of people that amounts to 0.0084% of our population,” Little said. “That is a number that is so infinitesimally small that it will not matter to you unless you are Paul Castro and your son David is shot in the head on the freeway in Houston for no reason at all. It is a number that will not matter to you unless you are Alexis Nungaray and your daughter is gone forever.”
Democrats and civil rights advocates denounced the measure, arguing that it obliterated defendants’ due process rights and judges’ discretion to consider whether someone is a flight or public safety risk.
Rep. Jolanda Jones, D-Houston, argued that the proposal “removes discretion from judges, shields prosecutorial failures and punishes people based on accusations and not convictions.”
“In America, you’re innocent until proven guilty,” she added. “That is not just a phrase — it’s a constitutional guarantee. We should not be amending the Texas Constitution to throw that principle away.”
“Why not lock up all people accused of crimes indefinitely for fear that they may do something?” Moody said Tuesday. “I guarantee a handful of lives will be saved by doing that, too. But at what cost? At the cost of our liberty — the cost of the state inflicting immense, life-destroying punishment on people who haven’t been convicted of anything.”
As Moody spoke against the measure on Monday, Rep. Harold Dutton Jr., D-Houston, lined up at the chamber’s back microphone to ask questions in opposition to the proposal. His favorite refrain about the Senate, as members well know, goes, “If they won’t respect us, they need to expect us.”
“This just isn’t about the bad policy contained in SJR 87,” Moody said, highlighting several bipartisan House criminal justice bills that have languished in the Senate. “This is about the dignity of this chamber, and I see Mr. Dutton standing at the back mic. Mr. Dutton, this is an ‘expect us’ moment.”
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