Texas Constitution Section 11d: What the New Bail Law Means for You

For 150 years, the Texas Constitution guaranteed that virtually every person accused of a crime had the right to bail. That changed on November 4, 2025, when Texas voters approved Proposition 3 — adding Section 11d to Article I of the Texas Constitution. If you or someone you love is facing serious criminal charges in Texas, understanding this new law is essential.

The Old Law: Bail Was Almost Always Available

Under the original Texas Constitution, bail was available in nearly every case. The only exception was capital murder where the state was seeking the death penalty and a judge determined the "proof is evident" — a very high standard. For every other offense, no matter how serious the allegations, judges were constitutionally required to set some amount of bail.

Over the years, the Legislature added narrow exceptions. Section 11a allowed bail denial for defendants with multiple prior felony convictions, but it required a full evidentiary hearing within seven days of arrest and expired after 60 days — procedurally demanding and rarely effective. Sections 11b and 11c addressed bond condition violations in family violence cases. These provisions were limited in scope and frequently fell short in practice.

The fundamental rule remained: Texas courts had to give you bail.

What Changed: Section 11d and Proposition 3

Section 11d, approved by more than 61 percent of Texas voters, changes that for nine specific categories of offenses. For the first time, judges can hold defendants without bail pending trial based on public safety — not just the risk they won't show up to court.

The nine offenses covered are: murder, capital murder, aggravated assault (with important limitations), aggravated kidnapping, aggravated robbery, aggravated sexual assault, indecency with a child, trafficking of persons, and continuous trafficking of persons.

One critical detail most people miss: not all aggravated assault cases qualify. Section 11d only applies to aggravated assaults where the defendant caused serious bodily injury, or used a firearm, club, knife, or explosive weapon. An aggravated assault involving a different type of deadly weapon, or a threat without causing serious injury, may not fall under this provision at all. The distinction matters enormously.

Bail Denial Is Not Automatic

This is the most important thing to understand: Section 11d does not automatically deny bail just because you are charged with one of the listed offenses. The state must file a motion and prove its case at a hearing. You are entitled to have an attorney represent you at that hearing.

The state has two pathways to deny bail, each with a different standard of proof.

The first pathway is based on the risk you won't appear for trial. The state must prove by a preponderance of the evidence — meaning more likely than not — that no bail conditions can reasonably ensure your appearance in court. This is the lower of the two standards.

The second pathway is based on public safety. The state must prove by clear and convincing evidence — a significantly higher burden — that no bail conditions can reasonably ensure the safety of the community, law enforcement, and the victim. Clear and convincing evidence requires the judge to be substantially certain, not just barely convinced. That is a meaningful distinction, and it is your best battleground.

If the state cannot meet its burden, you have a constitutional right to bail.

What the Judge Must Consider

The law requires the court to weigh several specific factors: the likelihood you will willfully fail to appear; the nature and circumstances of the alleged offense; the safety of the community, law enforcement, and the victim; and your criminal history. The court must also review a Public Safety Report generated by the state's pretrial system, which compiles your criminal history, pending charges, supervision status, and prior failures to appear.

If Bail Is Granted

When a judge grants bail after a Section 11d hearing, the law imposes strict requirements. The judge must issue a written order containing specific findings of fact and an explanation of why bail is appropriate. Bail conditions must be narrowly tailored — they can only address the risk of nonappearance and public safety. Excessive or unrelated conditions can be challenged.

If bail is denied, you are not out of options. Your attorney can file a writ of habeas corpus, seek reconsideration if your circumstances change, and pursue other procedural avenues to fight continued detention.

What This Means If You Are Facing These Charges

Section 11d hearings are different from standard bail hearings. The rules of evidence apply. The state will be prepared. You need to be too.

The most effective defense at a Section 11d hearing combines strong documentary evidence of your ties to the community — employment, family, stable housing, no prior failures to appear — with a concrete, specific bail proposal. Vague promises don't move judges. A named GPS monitoring vendor, a specific third-party custodian, a detailed home confinement plan — these are the kinds of proposals that demonstrate you can be released safely.

The time to begin building that case is immediately after arrest. Evidence takes time to gather. Affidavits take time to prepare. Do not wait until the day before the hearing.

The Bottom Line

Section 11d represents the most significant change to Texas bail law in a generation. It gives judges a tool they have never had before — the ability to hold defendants without bail based on public safety grounds in serious cases. At the same time, it preserves important procedural protections. The state must prove its case. You have a right to counsel. And if bail is granted, it must be reasonable and targeted.

If you are facing charges that fall under Section 11d, the stakes at your bail hearing are higher than they have ever been. Having experienced criminal defense counsel who understands this new framework is not optional — it is essential.

Brent Chapell is a Board Certified criminal appellate attorney and former state Appellate Chief and federal prosecutor. Chapell Law, PLLC represents clients in Houston and throughout Texas. Call today for a free consultation.