Emergency? Call Now The short answer. Yes. On November 4, 2025, Texas voters added Section 11d to Article I of the Texas Constitution. For nine listed offenses, including murder, capital murder, aggravated robbery, aggravated sexual assault, and indecency with a child, a judge must deny bail before trial if the prosecutor makes one of two showings at a hearing. Before 11d, the question at a bail setting was almost always how much. Now, in these cases, the question can be whether at all. You are entitled to a lawyer at that hearing. Tex. Const. art. I, § 11d.
For most of my career a bail hearing in Bexar County was a hearing about a number. The judge heard the charge, heard about the man’s job and his family and his ties to San Antonio, and set an amount. If the family could raise it, he went home and fought his case from his own kitchen table. If they could not, he fought it from the Bexar County Adult Detention Center.
Section 11d changed the question in a narrow set of cases. In those cases the hearing is no longer about an amount. It is about a door, and whether it stays open at all.
Which charges does Section 11d apply to?
The section is a closed list. If the accusation is not on it, 11d does not apply, and the older bail law still governs.
Offenses covered by Tex. Const. art. I, § 11d(a)
| Offense | Note |
| Murder | Penal Code § 19.02 |
| Capital murder | Penal Code § 19.03 |
| Aggravated assault | Only if the accused caused serious bodily injury, or used a firearm, club, knife, or explosive weapon during the assault |
| Aggravated kidnapping | Penal Code § 20.04 |
| Aggravated robbery | Penal Code § 29.03 |
| Aggravated sexual assault | Penal Code § 22.021 |
| Indecency with a child | Penal Code § 21.11 |
| Trafficking of persons | Penal Code § 20A.02 |
| Continuous trafficking of persons | Penal Code § 20A.03 |
Read the aggravated assault line twice. A bare aggravated assault charge is not enough. The State has to be alleging serious bodily injury or one of four named weapons. That distinction is worth fighting about at the front of a case, and most people never know it is there.
What does the State have to prove?
Two separate roads, and they do not carry the same weight. The prosecutor only has to win one.
The two showings under § 11d(b)
| What the State must show | Burden of proof |
| That bail is not enough to reasonably prevent the accused from willfully failing to appear in court | Preponderance of the evidence |
| That bail is not enough to reasonably ensure the safety of the community, law enforcement, and the alleged victim | Clear and convincing evidence |
Notice the word the drafters used in subsection (b). A person to whom the section applies shall be denied bail if the State makes its showing. That is not a suggestion to the judge. Which means the whole case, for the months or years before trial, can turn on one hearing that happens in the first week.
What does the judge have to consider?
Subsection (e) lists four things: the likelihood of willful nonappearance, the nature and circumstances of the alleged offense, the safety of the community and of law enforcement and of the alleged victim, and the criminal history of the accused.
Three of those four are about what is written on the offense report. One of them, criminal history, is about a man’s whole life on paper and nothing else. Nobody in that courtroom is required to say out loud that he has worked the same job for eleven years, or that he is the person who drives his mother to dialysis, unless someone shows up to say it. That is the work.
Does the State have to put on live witnesses?
No. Subsection (d)(2) says the section does not require any testimonial evidence before the judge rules. In practice that can mean the State proceeds on an affidavit and a printout.
That cuts both ways, and this is the part I want you to understand. If the State can proceed on paper, so can we. An employer’s letter, a lease, a pay record, a treatment record, a proposed release plan with an address that is not the complainant’s address, and a specific set of conditions the judge can impose instead of a denial. Paper gathered in three days is worth more here than argument delivered in ten minutes.
What if the judge grants bail anyway?
Then subsection (c) requires two things. The judge must set bail and conditions of release that go no further than what is reasonably necessary to prevent willful nonappearance and to protect the community, law enforcement, and the alleged victim. And the judge must prepare a written order with findings of fact and a statement of the reasons for the decision.
Written findings are a gift to the accused, whatever the outcome. They create a record. A record is what an appellate court reads.
What has not changed
Section 11d(f) says a person is entitled to be represented by counsel at the hearing. Section 11d(d)(1) says the section does not limit any right you already had to contest a denial of bail or the amount of bail set. The older denial provisions in Article I, Sections 11a, 11b, and 11c are still on the books and still have their own procedures and time limits. And the presumption of innocence is untouched. A man can be held without bail and still be innocent. Those two facts live together uncomfortably, and they always have.
Why the first 48 hours matter more than they used to
Evidence is perishable. Surveillance systems overwrite themselves, usually inside of two weeks. Witnesses move. Phones get wiped and traded in. That has always been true, and it is why I have written before about the first 48 hours after a felony arrest in Bexar County .
Section 11d raises the cost of waiting. The 11d hearing happens early, and the mitigation package that might keep the door open has to be assembled before it. There is no version of this where a family calls a lawyer in week three and gets those days back.
What I do in an 11d hearing
I get the offense report and the probable cause affidavit and I read them for what is missing rather than what is there. I go after the aggravating element, because on several of these offenses the applicability of 11d depends on it. I put on the accused’s life in documents. I hand the judge a specific alternative: these conditions, this address, this monitoring, this reporting schedule, this surrender of passport. Judges deny bail when the only alternative offered is nothing.
I will not tell you that works every time. It does not. No honest lawyer will tell you otherwise. What I will tell you is that a hearing where nobody showed up for the accused is a hearing he was always going to lose.
If someone you love is in custody on one of these charges
Call me. I answer my own phone at 210-663-3750 . Bring the cause number if you have it, the name of the court, and the date of the magistration. If the setting is already on the calendar, tell me that first.
Related reading: how bail works in Texas , murder defense , and where I practice.