Automatic denial of bail for some migrants fails to pass Texas House

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The Texas House on Wednesday rejected a novel proposal asking voters to amend the state Constitution to automatically deny bail to any unauthorized migrant accused of certain felonies, with Democrats holding firm to jettison the final piece of Gov. Greg Abbott’s priority bail package.

Senate Joint Resolution 1, the last measure still eligible for House approval out of a broader package tightening the state’s bail laws, fell far short of the 100 votes necessary to put a constitutional amendment on the ballot, winning support from all Republicans and just two Democrats — Rep. Joe Moody of El Paso, the top Democratic negotiator on bail, and Rep. Richard Raymond of Laredo. The final vote was 87 to 39, with four Democrats declining to take a position and marking themselves present.

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 legally presumed innocent.

Last week, lawmakers overwhelmingly approved the centerpiece of the broader bail package, Senate Joint Resolution 5, in addition to Senate Bill 9, ushering in a sweeping crack down on the state’s bail system that Abbott had pursued across several sessions. SJR 5, if the Senate concurs on the House’s version as expected, will ask voters in November to require judges to deny bail, in certain cases, for the most violent offenses.

“We’ve been working hard on this for a long time,” Abbott said to reporters on the House floor last week. “Too many people have been murdered because of the broken bail system that we’ve had, and the members of the House stepped up and did what they needed to do for their constituents, which is to cast a vote that’s going to save lives in their districts.”

But on Wednesday, Democrats denied Abbott the full legislative package he’d pushed for by rejecting SJR 1 and Senate Joint Resolution 87, a last-minute proposal to automatically deny 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 House took meaningful steps to enact smart, evidence-based reforms that empower our justice system to keep communities safe, while successfully rejecting ugly, discriminatory bills that would have dragged Texas backwards,” Rep. Gene Wu, D-Houston and chair of the House Democratic Caucus, said in a statement Wednesday.

SJR 1 previously failed to top the 100-vote threshold last week and was repeatedly postponed until Wednesday, the last day the House could give final approval to any Senate proposals.

Top lawmakers spent the week trying to cobble together an agreement that could win sufficient Democratic buy-in, but ultimately fell flat. Many Democrats said in the lead up to the Wednesday vote that there was no amendment that could overcome their apprehension about the legislation.

“To many members, no matter what the JR says, the rhetoric itself is toxic to the point that I don’t know if there is a changing it to pass,” Moody told The Texas Tribune last week.

“The idea that the JR continues to foster the rhetoric that immigrants are here only to do violence or rape your wives and daughters,” he said, was preventing most Democrats from supporting the proposal. Last week, Moody had decried “dehumanizing” and sometimes “nakedly racist” language laced throughout political debates about immigration.

Republican leaders framed the measure as a step to protect the public from dangerous unauthorized migrants, who they argued were a de facto flight risk given how they entered the country.

“We try to be a very generous country,” Rep. John Smithee, R-Amarillo and chair of the House Criminal Jurisprudence Committee, said last week. “But when you come into our country, and you harm our citizens, then we have an interest in making sure that we protect other citizens so that you don’t harm them as well.”

Democrats pointed to their overwhelming backing of SJR 5 as evidence of their commitment to public safety — an attempt, in part, to head off future political attacks for their rejection of SJR 1 and SJR 87.

“Democrats took a firm stand on public safety,” Moody told The Texas Tribune last week, calling SJR 5 the “strongest constitutional amendment that’s ever been proposed on bail denial.”

“It was done in a way that has legal process and due process for those that are accused,” he added. “Democrats should be proud of their vote on that, and I think that’s what they should go home and talk about — not respond to the rhetoric of fear.”

Bail is a legal tool used around the country to incentivize people accused of a crime to appear at their court hearings. Defendants can pay the full bail amount, which is refundable if they go to all their hearings, or they can pay a nonrefundable partial deposit to a bail bond company that fronts the full amount. People who cannot afford to pay a deposit or their bail are often left detained for weeks or months, even though bail amounts are not meant to serve as a form of punishment.

SJR 1 would have required judges to automatically deny bail and detain anyone “not lawfully present in this country” who was accused of certain election felonies, drug-dealing crimes and the most serious violent felonies, including murder, sexual assault, human trafficking and aggravated robbery.

The legislation defined a person ”not lawfully present” as any migrant who does not enter the United States through a port of entry, or who overstays a visa or other protected status. It considered U.S. citizens, lawful permanent residents and those granted asylum, refugee or military parole statuses to be “lawfully present.”

On Wednesday, in a last-ditch bid to win more Democratic votes, Smithee introduced an amendment to the resolution to also consider T and U status holders — who are victims of human trafficking and other crimes — and Deferred Action for Childhood Arrivals recipients as lawful residents. The amendment also removed the term, “illegal alien,” from the resolution. It was adopted 93 to 30.

All other non-citizens would have been subject to automatic detention if a judge found probable cause that they committed one of the listed offenses.

Republicans said the legislation would save lives by keeping dangerous defendants locked up.

“They’re released out into the public, and those end up being the most dangerous people that we have out there,” Smithee said last week, evoking the murder of Jocelyn Nungaray, a 12-year-old Houstonian whose case became a national GOP talking point when the two men charged with her killing were found to have entered the United States illegally from Venezuela. (They were out on federal custody, not on bail, at the time of the crime.)

“We know that what we’re doing now is not working,” he said. “The human tragedy that has occurred because we’ve had this law school debate about rights — what about the rights of these victims? What about Jocelyn Nungaray? What were her rights?”

Rep. Janie Lopez, R-San Benito and a mental health professional, urged the House to adopt the resolution for the sake of crime victims.

“The trauma does not end when the crime is committed. It resurfaces again and again, especially when their abuser walks free while awaiting trial,” she said Wednesday. “Victims live in a constant state of fear, not healing, not recovering, surviving — just barely.”

Democrats in opposition to SJR 1 argued that it would unconstitutionally violate immigrant defendants’ equal protection rights and undermine due process by barring judges from making individualized analyses of each case. And they argued that the magistrates responsible for bail do not have the training nor resources to determine defendants’ immigration status.

“SJR 1 is unconstitutional, and it unfairly targets the immigrant community,” Wu said in a brief interview last week.

Rep. Erin Gámez, D-Brownsville, added in an interview last week that the proposal would constitute “an unfunded mandate on our already overcrowded jails. Border communities that are taking the brunt of this are receiving absolutely no extra compensation to handle this burden the rest of the state only talks about and doesn’t see.”

Adoption of SJR 5, some also argued, made SJR 1 unnecessary.

“If you think somebody’s a flight risk, then fine,” Rep. Ann Johnson, D-Houston, told The Tribune last week, emphasizing that SJR 5 would already require judges to deny bail to defendants accused of the most violent crimes and who may be a flight or safety risk. “But you shouldn’t just make that determination based on somebody’s immigration status.”

Moody added that functionally, anyone who would have been subject to SJR 1 would already be detained by SJR 5 or by a federal Immigration and Customs Enforcement hold. Unauthorized migrants accused of a crime and subject to an ICE detainer are required to be held for an additional 48 hours so that they can be transferred to federal custody.

“Our system deals with both dangerous people we need protection from and people who’ve simply made a mistake — and, unfortunately, those who are falsely accused,” Moody said in a statement Wednesday. “The balance we struck on bail will treat each of them appropriately instead of sweeping all of them up together. This is a big win for all Texas communities.”

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