A proposal that would require judges to deny bail for undocumented immigrants charged with certain felonies did not receive the two-thirds majority support needed May 19, although House members can take an additional vote later if more support is garnered.

“I’ve never voted on any legislation more important than what we’re getting ready to consider, because it holds the very key to the life or death of some very wonderful people, some very innocent people,” Rep. John Smithee, R-Amarillo, who sponsored the bills in the House, said May 19.

What you need to know

On the House floor May 19, proponents of the measures spoke of a “broken” bail system under which violent offenders are released from jail and continue committing crimes.

“As a sheriff, I had to answer these questions on a regular basis as to how a person got out and was able to commit another crime, another felony,” former Jackson County Sheriff and freshman Rep. AJ Louderback, R-Victoria, said May 19. “I had to tell them [it was the] bail system.”

Opponents of the proposals, including the American Civil Liberties Union of Texas and the Texas Civil Rights Project, have expressed concerns that tightening restrictions on bail would strip defendants of due process protections and limit judges’ authority to make case-by-case decisions.

House lawmakers adopted Senate Joint Resolution 5, which proposes amending the Texas Constitution to require judges to deny bail for certain violent offenses. If state senators approve the House’s amendments to SJR 5, it will appear on Texas voters’ ballots in November.

The House gave initial approval to Senate Bill 9, which would expand a list of offenses for which defendants could not be released on low-cost bonds; and SB 40, which would prohibit local governments from giving public money to nonprofits that help cover bail costs. House members must vote on these bills one more time before they can be sent back to the Senate.

The bail package is expected to be signed by Gov. Greg Abbott, who has deemed tightening bail laws an emergency priority for three straight sessions. In a social media post following the May 19 votes, Abbott called the bipartisan support of his priorities “incredible” and said Texas was “one step closer to saving lives.”

SJR 1, a proposed constitutional amendment that would require judges to deny bail for undocumented migrants accused of certain felonies, did not receive the 100 votes required to adopt the measure and place it on the ballot. House members can bring the proposal up for an additional vote as soon as May 20.

Zooming in

Under SJR 5, judges would be required to deny bail to defendants accused of certain violent offenses, including murder, human trafficking and aggravated sexual assault. The state would be required to demonstrate that a defendant is a flight risk or threat to public safety before bail would be denied. Defendants would also have the right to legal counsel in bail hearings, according to the legislation.

The measure approved by the House would go further than the Senate’s original proposal, which would give judges more discretion to deny bail.

“It may not be perfect, but it’s the best we can do to fix a system that’s been broken for a long time,” Smithee said on the House floor. “This bill has [Sen. Joan] Huffman’s name on it, … but it’s not her bill or my bill, or even the governor’s bill. This bill truly belongs to the families of the victims, and the victims themselves, who have suffered these needless tragedies.”

“We wouldn’t be here if there weren’t real life examples of people being released who plainly should not have been,” Rep. Joe Moody, D-El Paso, said before the vote on SJR 5.

Moody added that lawmakers should also adjust the state’s bail system to help people who commit lower-level crimes and cannot afford bail.

“That’s how the bail reform conversation started a decade ago,” Moody said May 19. “For every improperly released defendant who commits a serious crime, there’s 100 low-level offenders held when they shouldn’t be, whose lives are upended. We need to do both.”

House members adopted SJR 5 with a 133-8 vote May 19.

More details

SJR 1 proposes amending the state constitution to automatically deny bail to unauthorized immigrants charged with certain felonies. Just two House Democrats were in favor of the proposal on May 19, causing it to fall short of the two-thirds majority threshold needed for constitutional amendments.

The version proposed in the House includes a tighter definition of “illegal alien” than what the Senate approved, which Smithee said would prevent lawful permanent residents and people with other protected statuses from being swept up under the bill. Democrats asked that people with Deferred Action for Childhood Arrivals status and people who came to the U.S. to flee violence also be excluded, although their amendments were rejected.

Smithee said he would work with Democrats to expand the protected immigration classes referenced in the bill before the House takes another vote on SJR 1.

Rep. Erin Gámez, D-Brownsville, who voted against SJR 1, said local judges and magistrates who set bail do not have the resources or training to handle immigration decisions.

“There are immigration judges who spend hours making this careful determination—entire courts that have been carved out alone to make these very carefully planned-out, judicious determinations, and it’s your opinion that a magistrate can simply do it,” Gámez said May 19.

Moody said he voted for SJR 1 because it would limit the bill to about 20 felonies related to elections, drug and violent crimes. Under the Senate’s version of the legislation, Moody said, unauthorized migrants would be denied bail for any felony offense.

“If a felony sounds serious, you should know that there are about 2,500 felonies to be charged with in Texas,” Moody said on the House floor.

Moody added that he was concerned about the idea that all undocumented migrants are violent criminals.

“From Twitter to town halls, the language around immigration is toxic,” he said. It’s dehumanizing, and in some cases, it’s nakedly racist. We talk about policy that’s supposed to save lives, but this type of scapegoating led to a mass murder in my hometown just a few years ago, and since then, that rhetoric has gotten worse, not better.”

Also of note

SB 9 would expand on a 2021 state law that limited who is eligible for low-cost personal bonds. Under the bill, defendants would have to meet a higher bond if accused of unlawful possession of a firearm; violation of a family violence protective order; terroristic threat; or murder as a result of manufacturing or delivering fentanyl.

Rep. Mitch Little, R-Lewisville, said judges would be required to document their reasoning when determining whether to hold a defendant in jail or release them on bond. The state would also be able to appeal bail decisions. If a case is appealed, the defendant would remain behind bars for up to 20 days during litigation.

“From time to time, we’re going to see magistrates or district judges make mistakes or make bad decisions about bail concerning violent offenses,” Little said May 19. “[SB 9] is going to make the people in our districts back home safer, and it’s going to protect us from ongoing conduct by people who are repeat violent offenders.”

House members initially approved SB 9 with a 122-20 vote May 19. The proposal must receive one more vote before it can head back to the Senate.

In a statement following the vote on SB 9, the ACLU of Texas said the legislation would unfairly punish poor Texans.

“This bill violates basic principles of due process, keeps poor people in jail for being poor, and hands prosecutors a veto over judicial decisions,” said Nick Hudson, a senior policy and advocacy strategist for the ACLU of Texas. “Texas families deserve reforms rooted in evidence, fairness and public safety instead of fear.”

One more thing

SB 40 would prohibit the use of public funds to pay nonprofit organizations that cover bail costs. The legislation stemmed from allegations that Harris County has given nearly $2.1 million since 2022 to the Bail Project, an organization that helps low-income defendants meet bail.

In February, a spokesperson for the Bail Project told Community Impact that the organization does not accept public money. Funds received from Harris County were reimbursements, the spokesperson said, because state law allows refunds if a defendant appears at all required court dates.

“There was a dispute as to whether this was happening in Harris County. … We’re not here to adjudicate that today,” Smithee said on the House floor May 19. “We’re just saying that it shouldn’t happen in the future. This is not a good use of taxpayer money.”

SB 40 was initially passed with a 132-13 vote and will need a final vote before it returns to the Senate.