By Jon English
Assistant Criminal District Attorney in Hays County
What local customs do you have in your county that you know are backed by the law … someplace in statute … but exactly where has become forgotten by time, replaced instead by, “That’s how we’ve always done it around here”?
As I awaited a recent verdict, I reminded myself to ask for the defendant’s bond to be revoked if the jury convicted him and for him to be taken into custody to await sentencing. That’s a very normal motion for the State to make in our county in violent felony cases. It probably is in yours, too. While our local defense attorneys will sometimes argue against the motion being granted, the authority to grant it isn’t ever challenged. It’s just “how we’ve always done it around here.”
But in this particular trial, the defense team wasn’t local. And many issues that were typically not debated at trial between members of the county defense bar and the State had been constantly and passionately contested throughout by these out-of-town attorneys. That meant that, even more than usual, we had to pull caselaw that provided authority for practically every aspect of the case.
While the jury deliberated, it occurred to me that this defense team was going to insist there was no authority for a judge to revoke bond post-conviction but pre-sentence. Because their client was able to make practically any bond amount, at the very least they were going to insist that he was entitled to a new bond as he awaited sentencing. I reached out to some of my coworkers hoping someone had already researched this issue for our office. We all had our guesses, but ultimately the final answer came back as, “I’m honestly not sure. That’s just how we’ve always done it.”
So I fired up the Westlaw machine and started digging into the research to find the answer. By the time I was done, I had fallen down a rabbit hole all the way back into the late 19th Century.
The rabbit hole
The first thought I had was to research the scope of the right to bail found in the federal Constitution. If that sounds rudimentary to you, you’re completely correct. I have to admit, I started this journey knowing next to nothing about issues surrounding the granting of bail. I spent the first seven years of my felony career prosecuting prison crimes with the Special Prosecution Unit (SPU), where practically all my defendants were already incarcerated. Bond was never an issue I had to deal with or learn about.
When I left the SPU and started prosecuting in my home county of Hays, I went from having practically all my defendants being locked up to practically all my defendants being on bond. All I knew was that the Eighth Amendment prevented excessive bail and that there were some crimes and circumstances under which bond could be denied.
The Supreme Court of the United States has not addressed the right to bail under the Eighth Amendment very often, but what we do know from the opinions it has issued is there is no absolute right to bail under the federal Constitution, only a right to be free from excessive bail.[1] However, the Texas Constitution provides that all “prisoners” have a right to bail, except in capital cases where proof is evident.[2] The term “prisoners” was used to differentiate between those who were incarcerated awaiting final disposition of their case, and those who had been finally convicted all the way through the appeals process.[3]
The Texas Constitution, somewhat confusingly, also provides for several instances where defendants are not eligible for bail in Article I, §§11(a)–11(c). The Code of Criminal Procedure once provided that all “prisoners” were eligible for bail unless denial of bail was explicitly permitted by the Texas Constitution or another statute, but the legislature changed the word “prisoners” to “persons” in 2021 without making a similar change to the wording of the Constitution.[4]
As my research continued, I was having difficulty finding cases that addressed the concept of a right to bail following conviction but before sentencing. When I came across a case called Watkins from the Tyler Court of Appeals, I didn’t feel so bad—because the court in Watkins was looking for the same authority I was, and it noted it couldn’t find any either.[5] But Watkins had an interesting statement in it from the court: It said the right to bail under the Texas Constitution applied only to defendants prior to conviction.[6]
The Tyler Court cited to an opinion by the Court of Criminal Appeals (CCA) called Laday from 1980.[7] When I looked at Laday, it cited to a series of CCA opinions that formed a chain of cases that stretched all the way back to 1874 and Ex parte Ezell from the old Supreme Court of Texas.[8]
Ex parte Ezell
Reading Ezell is painful. It is from an era that largely predates the use of grammatical and formatting tools such as paragraphs and punctuation. Not to mention the fact that the author of the opinion, Chief Justice Oran Roberts, talks kind of funny.
But the opinion thoroughly explains where the idea comes from that while bail is generally a right available to all prisoners, that right attaches only to prisoners before conviction.
In 1874, the Texas Constitution’s language was practically the same as it is today concerning the right to bail. It said that all “prisoners” had a right to bail, except in certain capital cases.[9] However, D.M. Ezell and John Ivey, the appellants in the case, were being held without bail pending the appeal of their conviction, pursuant to a statute that provided for incarceration until a final decision on appeal by the Supreme Court.[10]
The appellants contended that the statute that held them in jail was in direct conflict with the constitutional provision making all prisoners bailable.[11] They argued that the constitutional provision providing for bail for all prisoners was put in place to enlarge the rights of the prisoner that occurred at common law, not to restrict them.[12] According to Ezell and Ivey, in the court of the King’s bench in England, the court had sole discretion as to when to permit or deny bail, so a statute limiting that discretion and therefore decreasing the rights of the prisoner was counterintuitive.[13] Furthermore, they said, whenever something was a matter of discretion at common law, it became a matter of right under the Texas Constitution.[14]
And you have to remember, common law was, like, only a few weeks old or something at this point in ancient history. So they knew a lot about it back then.
Justice Roberts was evidently triggered by all this talk about the king’s bench and common law. No one was going to tell him what the common law or king’s bench was all about. He then unleashed a furious tirade aimed at providing a thorough legal education to all who would ever read his opinion (an audience which I assume consists entirely of the appellants and then, 150 years later, myself).
Roberts reasoned that if bail were to truly be applied to “all prisoners,” then you would only have to go the pen if you couldn’t pay bail, unless bail was set in an excessive amount, which would violate the Eighth Amendment of the Federal Constitution.[15] Roberts also pointed out that the constitution of 1845 of the Republic of Texas provided for exceptions to the right to bail made by the legislature.[16] With these two provisions in mind, Roberts found that it was constitutional for the legislature to make such a law restricting the right to bail.
When the right to bail applies
But there was still the issue of when the right to bail applied. Roberts came up with a magnificent quote arguing that what we’re talking about is an allegation made prior to conviction: “If we look back through the long struggle against the tyranny and oppressions by which these great rights were secured, it will be found that the grievances complained of related to the treatment of prisoners before trial and conviction, and not after.”[17]
He goes on to slam-dunk his opinion with a final quote from Hurd (who was some kind of legal philosopher I’ve never heard of): “Bail is only proper where it stands indifferent whether the party be guilty or innocent of the accusation against him, as it often does before his trial; but where that indifference is removed, it would, generally speaking, be absurd to bail him.”[18]
The record is silent as to whether Roberts made a “mic drop” motion with his hand after writing this passage.
One more piece of the puzzle was clarified by the Court of Criminal Appeals in 1912, when it stated that the term “after conviction” as used in
the Texas Constitution’s passage relating to the governor’s pardon power refers only to the determination of guilt by the jury.[19]
Of course, as you probably know already, there are also offenses and circumstances under which the court has discretion to set no bond based on the offense that has been committed, and the Code of Criminal Procedure allows for bond to be revoked for “good and sufficient cause.”[20] Being convicted of the crime for which you are charged certainly falls under that broad category, given the flight concerns, concerns over public safety, or concerns of the victim that can be activated in such a situation.
My grandmother had an expression: “going around your elbow to get to your thumb.” There’s bound to be an easier explanation for why a judge is allowed to deny bail and take a defendant into custody after conviction but before sentencing that doesn’t require citations to Old West-era caselaw. If not, the Old West cases are still good law.
But no law will ever replace everyone’s local customs. “How we’ve always done it around here” will always be the supreme law of the land.
[1] Broussard v. Par. of Orleans, 318 F.3d 644, 650 (5th Cir. 2003).
[2] Ex parte Ezell, 40 Tex. 451, 452 (1874).
[3] Ex parte Ezell, 40 Tex. 451, 452 (1874).
[4] Tex. Code Crim. Proc. Art. 1.07.
[5] Watkins v. State, 883 S.W.2d 377, 378 (Tex. App.—Tyler 1994, no pet.).
[6] Id.
[7] Ex parte Laday, 594 S.W.2d 102 (Tex. Crim. App. 1980).
[8] Ex parte Ezell, 40 Tex. 451 (1874).
[9] [A]ll prisoners shall be bailable upon sufficient sureties unless for capital offenses when the proof is evident; but this provision shall not be so construed as to prohibit bail after indictment found, upon an examination of the evidence by a judge of the supreme or district court, upon the return of the writ of habeas corpus, returnable in the county where the offense is committed.” Ex parte Ezell, 40 Tex. 451, 453 (1874).
[10] “This application is made in the face of the statute which provides, that ‘when the defendant appeals in any case of felony, he shall be committed to jail until the decision of the supreme court can be made.’ See Pas. Dig. Art.. 3185.” Ex parte Ezell, 40 Tex. 451 (1874).
[11] Ex parte Ezell, 40 Tex. 451, 452 (1874).
[12] Id.
[13] Id.
[14] Id.
[15] Ex parte Ezell, 40 Tex. 451, 455 (1874).
[16] Id.
[17] Ex parte Ezell, 40 Tex. 451, 459 (1874).
[18] Ex parte Ezell, 40 Tex. 451, 460 (1874).
[19] Snodgrass v. State, 67 Tex. Crim. 615, 641–42, 150 S.W. 162, 174 (1912).
[20] Tex. Code Crim. Proc. Art. 17.09.