Ballot Language:

The constitutional amendment authorizing the denial of bail to a person who violates certain court orders or conditions of release in a felony or family violence case.

HJR-6 History

Enabling legislation is HB 3692

In this case, I think it is helpful to read the Background and Purpose for the enabling legislation from the Criminal Jurisprudence Committee Report:

Current law provides for detention without bond in felony cases under certain circumstances, but not in certain circumstances involving misdemeanors. However, in certain instances the accused violates the condition of a bond or a protective order or commits certain misdemeanor offenses relating to the safety of the victim or the safety to the community. House Bill 3692 is intended to provide increased protection to victims of family violence in cases where there is a violation of a protective order or a violation of conditions of bail by authorizing the denial of bail.

In Texas, there are few exceptions to a defendant’s right to bail, as it should be.

A person accused of a crime generally is guaranteed the right to post bail to secure release from jail pending trial. Texas Constitution, Art. 1, sec. 11 states that all prisoners shall be bailable unless accused of a capital offense when proof is evident. However, Texas Constitution, Art. 1, sec. 11a allows courts to deny bail under certain circumstances. Under this provision, a judge has the discretion to deny bail if the defendant is accused of:

• a felony and has been convicted of two prior felonies;
• a felony committed while on bail for a prior felony for which the defendant has been indicted;
• a felony involving the use of a deadly weapon after being convicted of a prior felony; or
• a violent or sexual offense committed while on probation or parole.

Bail may be denied in these circumstances only after a hearing and upon presentation of evidence substantially showing the guilt of the accused. Under Texas Constitution Art. 1, sec. 13, excessive bail cannot be required.

In addition, in 2005, voters approved Proposition 4 (SJR-17) which expanded the denial of bail to a person accused of a felony who had already had their bail revoked or forfeited.

The amendment, in an effort to curb family violence, seeks to allow judges to deny bail to a person accused of a misdemeanor in violation of a protective order involving family violence, again, if the person had already had their bail revoked or forfeited.

What constitutes a violation of a protective order?

• committing an act of family violence or an act related to stalking;
• communicating in certain ways with a protected person or a member of the family or household;
• going near certain places described in the order, including the residence or work of a protected individual or member of the family or household or the child care, residence, or school of a protected child; or
• possessing a firearm.

The enabling legislation says that before a judge denies bail, he must consider:

• the order or condition of the bond;
• the nature and circumstances of the offense;
• the relationship between the victim and the accused;
• the criminal history of the accused; and
• any other facts relevant to determining whether the accused posed an imminent threat of family violence.

That is a lot of information for a voter to have to absorb but the Texas Constitution is set up to require voter approval on any change, which is a very good thing.

In an article in the Austin American Statesman, a good case is made to oppose the amendment.

Under current Texas law, the only defendants ineligible for bail are those accused of capital crimes. In addition, judges are provided discretion to deny bail to those who have been both charged with a felony and convicted or indicted for a previous felony. To deny bail, there must be “evidence substantially showing the guilt of the accused.”

Prop 13 obliterates this, and opens the road for many innocent men to be held without bail. Under Prop 13, a Texas father can be booted out of his house on an ex parte protective order and then be jailed without bail for violating the order by calling his own children or going to their Little League game.

It is true that protective orders can be a useful tool to help protect battered women. However, as the Family Law News, the official publication of the State Bar of California Family Law Section, recently explained:

“Protective orders are increasingly being used in family law cases to help one side jockey for an advantage in child custody … [the orders are] almost routinely issued by the court in family law proceedings even when there is relatively meager evidence and usually without notice to the restrained person.”

These orders have become so commonplace that the Illinois Bar Journal calls them “part of the gamesmanship of divorce.”

BigJolly says: This is a tough one for me. On the one hand, I know father’s that have been victimized by spouses in divorce cases exactly as outlined in the Statesman article. On the other, I know victims that have been violently brutalized by their estranged spouses. I suspect that I am not alone in that.

In the end, I’m going to vote for the amendment, knowing full well that there will be an occasional abuse of it by a scorned wife or an overzealous judge. Domestic violence is arguably the most volatile of all crime and we cannot simply wait for a violent act to occur before taking action.

For those that argue that this law will overburden an already overcrowded system, I just don’t believe the numbers are that large. Besides, you need to spend your time ending the war on drugs to make a serious impact on overcrowding.

Click to read comments for and against.

From the Texas Legislative Council Summary (note: 131 page pdf file):

Comments by Supporters: The proposed amendment would allow a judge to determine whether a defendant poses an unacceptable threat to a victim of domestic violence or to the community and, if so, to deny the defendant bail, which would protect the victim and the community in a way that a bail bond, community monitoring, or electronic monitoring could not.

Domestic situations are often inherently volatile and subject to rapid escalation of violence. For that reason, a victim of domestic violence may be in need of extra protection. In providing for the denial of bail in misdemeanor cases in which the defendant violates a condition of release or in cases in which the defendant violates a court order designed to protect the victim or community, the proposal provides necessary protection to victims of domestic violence and to the community.

The denial of bail may be the only means to ensure victim or community safety in cases in which the defendant is willing to violate conditions of release or court orders. The proposed amendment and the legislation that it authorizes are necessary to keep dangerous defendants off the streets and away from their victims.

Comments by Opponents: The right to bail is an important constitutional right that should not be taken away lightly, particularly in the absence of an act of violence or a threat. Amending the constitution to authorize a denial of bail establishes a means to punish defendants through confinement before they are found guilty by a jury. Furthermore, this state should not curtail the right to bail because it is an invaluable tool in preventing jail overcrowding.

The proposal is specific to family violence. While abhorrent, family violence is a subcategory of violence against a person, which is dealt with adequately in other sections of the Penal Code. Punishing an offense based on the victim’s status represents a retreat from the reforms made to the Penal Code in the mid-1990s, which emphasized the seriousness of the criminal act rather than the status of the victim.