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. 鈥檚 priority bail package.
, the last measure still eligible for House approval out of a tightening the state鈥檚 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 鈥� Rep. of El Paso, the top Democratic negotiator on bail, and Rep. 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 the centerpiece of the broader bail package, , in addition to , ushering in a sweeping crack down on the state鈥檚 bail system that Abbott had pursued across several sessions. SJR 5, if the Senate concurs on the House鈥檚 version as expected, will ask voters in November to require judges to deny bail, in certain cases, for the most violent offenses.
鈥淲e鈥檝e been working hard on this for a long time,鈥� Abbott said to reporters on the House floor last week. 鈥淭oo many people have been murdered because of the broken bail system that we鈥檝e 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鈥檚 going to save lives in their districts.鈥�
But on Wednesday, Democrats denied Abbott the full legislative package he鈥檇 pushed for by rejecting SJR 1 and , 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.
鈥淭he 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,鈥� Rep. , 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.
鈥淭o many members, no matter what the JR says, the rhetoric itself is toxic to the point that I don鈥檛 know if there is a changing it to pass,鈥� Moody told The Texas Tribune last week.
鈥淭he idea that the JR continues to foster the rhetoric that immigrants are here only to do violence or rape your wives and daughters,鈥� he said, was preventing most Democrats from supporting the proposal. Last week, Moody had decried 鈥渄ehumanizing鈥� and sometimes 鈥渘akedly racist鈥� 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.
鈥淲e try to be a very generous country,鈥� Rep. , R-Amarillo and chair of the House Criminal Jurisprudence Committee, said last week. 鈥淏ut 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鈥檛 harm them as well.鈥�
Democrats pointed to their overwhelming backing of SJR 5 as evidence of their commitment to public safety 鈥� an attempt, in part, to head off future political attacks for their rejection of SJR 1 and SJR 87.
鈥淒emocrats took a firm stand on public safety,鈥� Moody told The Texas Tribune last week, calling SJR 5 the 鈥渟trongest constitutional amendment that鈥檚 ever been proposed on bail denial.鈥�
鈥淚t was done in a way that has legal process and due process for those that are accused,鈥� he added. 鈥淒emocrats should be proud of their vote on that, and I think that鈥檚 what they should go home and talk about 鈥� not respond to the rhetoric of fear.鈥�
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 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 鈥渘ot lawfully present in this country鈥� 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 鈥漬ot lawfully present鈥� 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 鈥渓awfully present.鈥�
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 鈥� who are victims of human trafficking and other crimes 鈥� and Deferred Action for Childhood Arrivals recipients as lawful residents. The amendment also removed the term, 鈥渋llegal alien,鈥� 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.
鈥淭hey鈥檙e released out into the public, and those end up being the most dangerous people that we have out there,鈥� 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.)
鈥淲e know that what we鈥檙e doing now is not working,鈥� he said. 鈥淭he human tragedy that has occurred because we鈥檝e had this law school debate about rights 鈥� what about the rights of these victims? What about Jocelyn Nungaray? What were her rights?鈥�
Rep. , R-San Benito and a mental health professional, urged the House to adopt the resolution for the sake of crime victims.
鈥淭he trauma does not end when the crime is committed. It resurfaces again and again, especially when their abuser walks free while awaiting trial,鈥� she said Wednesday. 鈥淰ictims live in a constant state of fear, not healing, not recovering, surviving 鈥� just barely.鈥�
Democrats in opposition to SJR 1 argued that it would unconstitutionally violate immigrant defendants鈥� 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鈥� immigration status.
鈥淪JR 1 is unconstitutional, and it unfairly targets the immigrant community,鈥� Wu said in a brief interview last week.
Rep. , D-Brownsville, added in an interview last week that the proposal would constitute 鈥渁n unfunded mandate on our . 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鈥檛 see.鈥�
Adoption of SJR 5, some also argued, made SJR 1 unnecessary.
鈥淚f you think somebody鈥檚 a flight risk, then fine,鈥� Rep. , D-Houston, told 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. 鈥淏ut you shouldn鈥檛 just make that determination based on somebody鈥檚 immigration status.鈥�
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.
鈥淥ur system deals with both dangerous people we need protection from and people who鈥檝e simply made a mistake 鈥� and, unfortunately, those who are falsely accused,鈥� Moody said in a statement Wednesday. 鈥淭he 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.鈥�
This article originally appeared in at .
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