By Staley Heatly
County Attorney in Wilbarger County
We have all seen it happen in our communities: A high-profile crime occurs and dominates local media coverage. The facts are horrific. The public is outraged. Then the perpetrator has bail set by a magistrate and promptly bonds out of jail. People are perplexed. How did someone accused of such a heinous act receive a bond? Whose fault is this? Why are judges and prosecutors letting this happen?
For 150 years, Texas prosecutors have been in the difficult position of explaining this aspect of the bail system to crime victims, their families, and the public at-large. This is because the Texas Constitution historically required that defendants be given bail in almost every case.[1] In fact, under the Texas Constitution of 1876, the only circumstance in which a defendant could be held without bail pending trial was in a capital murder case where the State was seeking the death penalty and a judge determined, after a hearing in which the “proof is evident,” that a jury was likely to return a death sentence.[2] All other crimes, no matter how heinous, were eligible for a bond. This has been a point of contention for public safety advocates for decades.
Over the years, changes have been made to the Texas Constitution that were meant to address public safety concerns and make it easier to hold certain dangerous defendants without bail. These changes, however, have involved a very narrow set of circumstances[3] or have had such strict procedural requirements that they are ineffectual.[4]
But things are changing. The Texas Legislature began making significant structural changes to the bail system starting in 2021. Those changes, which were expanded and improved in 2025, culminated with the passage of a constitutional amendment that permits judges to deny bail in certain circumstances. While that change has received the most attention, the structural reforms are almost as important. Together, they have created a more integrated bail system and provided prosecutors with additional tools and opportunities to protect the public.
How we got here
Meaningful changes to the Texas bail system did not occur overnight. Instead, they developed over several years. One of the most significant catalysts was the murder of Department of Public Safety (DPS) Trooper Damon Allen on Thanksgiving Day 2017. His murderer had previously been arrested for aggravated assault of a public servant and evading arrest with a motor vehicle and was out on bonds totaling just $15,500 at the time of the crime. The facts of the case, including the defendant’s history of violence, drew widespread attention and raised serious questions about how dangerous offenders were being managed within the existing system.
In response, in 2021, the Legislature passed Senate Bill 6, commonly referred to as the Damon Allen Act. While SB 6 did not make it easier to hold defendants without bail, it marked the beginning of a fundamental structural shift in how bail decisions are made. It moved the state away from its historical system in which bail was largely a standalone decision made by a local magistrate toward a more structured, statewide framework in which magistrates are required to consider standardized information and their decisions are captured in a centralized system. To effectuate that shift, SB 6 created the Public Safety Report System (PSRS), which generates a Public Safety Report (PSR) for defendants arrested for Class B offenses and above. The PSR is intended to provide magistrates with consistent, objective information about the defendant, including available criminal history and other background data, and it alerts the magistrate when the defendant is charged with an offense that is not eligible for a personal bond. By statute, the magistrate must review the PSR before setting bond.
SB 6 also imposed new requirements on magistrates, including mandatory training on bail law and procedure, and it limited their authority to set bond in certain cases. For example, when a defendant is accused of committing a felony while already on bond for a felony, the bail decision generally must be made by a district judge.[5]
These were significant reforms, but they remained reforms within a system that still required bail to be set in even the most serious offenses. Efforts to expand the ability of courts to deny bail during the 2021 and 2023 legislative sessions could not garner enough support to put a constitutional amendment on the ballot.
The breakthrough in 2025
The 2025 legislative session marked the culmination of these efforts.[6] The legislature passed Senate Bill 9, expanding and improving upon the Damon Allen Act, and voters approved a constitutional amendment authorizing courts to deny bail in certain circumstances. Before turning to those new constitutional provisions, it is important to understand what SB 9 accomplished. It continued the shift toward a more structured, statewide bail system and gave prosecutors additional tools to protect the public.
Specifically, SB 9:
• expanded the scope of information available through the PSRS;
• imposed additional restrictions on personal bonds;
• created a formal process for prosecutors to seek district court review of bail set by magistrates;
• established new notification and cross-county communication requirements;
• expanded the State’s ability to appeal bail-related rulings; and
• required that certain findings, particularly those related to failures to appear, be documented in judgments and dismissals.
Together, these changes have created a more structured and interconnected bail process that gives prosecutors meaningful opportunities to seek appropriate bail and conditions to better protect the public.
The expansion of the PSRS
While prosecutor interaction with the PSRS is generally limited to reviewing completed bail forms, it is important to understand what information magistrates now have when making bail decisions. SB 9 significantly expanded the information included in the PSR. The report now provides detailed information about the defendant’s involvement in the criminal justice system, including pending charges, prior failures to appear, current community supervision or parole status, whether the defendant is already on bail or participating in a pretrial intervention program, the existence of outstanding warrants, and whether the defendant is subject to a protective order.
The report also reflects whether the charged offense is eligible for a personal bond, identifies applicable statutory bond conditions, and indicates when an offense may qualify for denial of bail. This allows the magistrate, at the time of magistration, to determine whether a personal bond is permitted, whether bail may be denied, and what conditions may be appropriate.
The expansion of the PSR reflects a broader shift in how bail decisions are made. Rather than relying solely on the information available at the time of arrest, magistrates are now provided with a more complete and standardized picture of the defendant’s history, current status, and prior compliance with court orders. Once the bail decision is made, it must be documented through a certified bail form, which is required to be completed within 48 hours. Certification of the bail form triggers a series of required notifications, including notice to prosecutors, law enforcement, and, in appropriate cases, other jurisdictions.
Required notifications
SB 9 imposed several specific notification requirements tied to the nature of the offense and the defendant’s status. The magistrate must notify the prosecutor when bail is set in certain cases involving violence.[7] The list of violent offenses for which prosecutor notification is required is extensive and includes murder, kidnapping, trafficking of persons, continuous sexual abuse of a child, indecency with a child, sexual assault, injury to a child, and felony assaultive offenses, among others.[8] This prompt notification is particularly important now that prosecutors have the right to appeal or request district court review of a magistrate’s bail decision (discussed below).
Additional notifications are required when a defendant is already on bond for a felony. If the defendant is on felony bail in another county, the arresting jurisdiction must notify the county where the original case is pending so that the court can determine whether to modify or revoke the existing bond.[9] When the defendant is on bond for a felony in the same county, the magistrate’s authority to release the defendant is limited, and the matter must be addressed by the district court in which the prior case is pending or another court designated by that district court.[10]
These notifications are generated through the PSRS as part of the magistrate’s certification of the bail form, ensuring that the required information is transmitted to the appropriate parties.
District court review and the right to appeal
Prosecutors now have two new tools they can use for the review of bail decisions. First, prosecutors have the right to immediately seek district court review of bail set by a magistrate in any felony case.[11] The specific procedure for requesting review may vary by county depending on procedures established by the local administrative judge.[12] In general, the review process is initiated when the State notifies the district clerk in writing that it is seeking review of the magistrate’s bail decision. Once that request is filed, a district judge must review the bail decision as soon as practicable but not later than the next business day.[13]
As part of that review, the district judge is required to consider the factors set out in Arts. 17.09 and 17.15(a) of the Code of Criminal Procedure, as well as the information contained in the Public Safety Report.[14] If the district judge increases the amount of bail or imposes additional bond conditions for a defendant who is not in custody, the defendant must first be issued a summons and given a reasonable opportunity to appear before a warrant may be issued for the defendant’s arrest.[15]
Second, in a narrower category of serious cases, the State has the right to seek appellate review of bail decisions. Under Art. 44.01(a)(7) of the Code of Criminal Procedure, the State may appeal an order setting bail in cases involving murder, capital murder, aggravated assault (causing serious bodily injury or involving the use of a firearm, club, knife, or explosive device), aggravated kidnapping, aggravated sexual assault, indecency with a child, trafficking of persons, continuous trafficking of persons, and cases involving a defendant charged with a felony committed while on bail for another felony. These appeals are expedited, and the appellate court reviews the matter de novo, considering all available evidence rather than deferring to the lower court’s ruling.[16] This provides a meaningful mechanism to challenge bail decisions that do not adequately address public safety concerns.
Importantly, the new law does not require the State to first seek district court review before pursuing an appeal. This allows prosecutors to determine, based on the circumstances of the case and circumstances in their local court system, whether to proceed first through district court review or to seek immediate appellate relief.
Prosecutors in McLennan County recently successfully challenged a magistrate’s bail decision in a case involving indecency with a child by contact.[17] In that case, the magistrate set the defendant’s bond at $3,000 and failed to include any bond conditions. The State appealed, arguing that the bail was insufficient given the nature of the offense, that bond conditions were necessary to protect the victim, and that the magistrate had failed to consider the PSR as required by law. The appellate court ruled in the State’s favor and remanded the case to the magistrate with instructions to modify the bond amount, consider the PSR, and include bond conditions to protect the victim. (Ryan Calvert, the first assistant in McLennan County, tells us the new bail amount was set at $250,000 and an ankle monitor was added as a condition of bond.)
The court did not provide guidance on the specific amount of bail or bail conditions, noting that the appendix filed by the State in the case lacked a probable cause affidavit and thus failed to provide the appellate court with sufficient information to make the appropriate determination. While the statute authorizing these appeals does not require the State to submit any particular materials, this opinion makes clear that a de novo review is only as good as the record provided. If the court of appeals is going to meaningfully evaluate bail, it must have the facts necessary to do so. At a minimum, the record should include the PSR; the probable cause affidavit; and any relevant transcripts, findings, or orders. Without those materials, the appellate court may be forced to remand rather than resolve the issue directly. A copy of the appellate brief in the King case will accompany this article online as it serves as a useful template for a State’s appeal of an insufficient bond order.
Together, district court review and the right to appeal provide prosecutors with meaningful tools to challenge bail decisions and ensure that appropriate bail amounts and conditions are set to protect the public.
Denying bail
While SB 9 made important changes to the overall bail system, much of the attention surrounding bail reform has focused on the amendment to the Texas Constitution that permits judges to hold defendants without bail. This represents a significant change to our criminal justice system.
Article 1, §11d of the Texas Constitution now permits judges or magistrates, after a hearing, to deny bail for murder, capital murder, aggravated assault,[18] aggravated kidnapping, aggravated robbery, aggravated sexual assault, indecency with a child, trafficking of persons, or continuous trafficking of persons.[19] There are two nonexclusive pathways for the denial of bail in these cases, each with a different burden of proof.
First, a judge or magistrate may deny bail if he determines by a preponderance of the evidence that release on bail will not reasonably ensure the defendant’s appearance in court. Second, a judge or magistrate may deny bail if the State proves by clear and convincing evidence that release on bail will not reasonably ensure the safety of the community, law enforcement, and the victim of the alleged offense.
One issue worth noting is the use of the word “and” in the safety provision. Read literally, it could suggest that the State must prove that the defendant is a risk to all three (the community, law enforcement, and the victim). It remains to be seen how courts will ultimately interpret that language. The more practical reading, however, is that the inquiry should be driven by the facts of the case and that a demonstrated risk to any one of those groups should be sufficient. Until appellate courts provide clearer guidance, prosecutors would be well served to address each category when the evidence allows, while focusing their strongest proof where the risk is most apparent, often the victim.
The type of evidence needed for the bail denial hearing will depend on the pathway being pursued. When the focus is on nonappearance, the evidence should address the defendant’s history of failing to appear, ties to the community, and any circumstances suggesting a risk of flight. When the focus is on safety, the evidence should center on the nature of the offense; the defendant’s history of violence; protective orders; and any facts demonstrating a continuing risk to the victim, law enforcement, and the community.
For prosecutors, these are not just new options, they are a new responsibility. These hearings require preparation and evidence. While the rules of evidence do not generally apply in bail proceedings, they do apply in hearings to deny, revoke, or increase bond.[20] That means that prosecutors must be prepared to marshal whatever evidence they have available to support their theory for denying bail. It is important to note, however, that the judge or magistrate considering the matter is required to consider the Public Safety Report in making his determination. That report, which is clearly hearsay, will be a critical tool in these proceedings because it contains key information about the defendant’s criminal history, prior failures to appear, pending charges, supervision status, outstanding warrants, and protective orders. However, prosecutors should not simply rely on the information in the PSR during these hearings. It is important to gather as much evidence as possible to support a decision to deny bail.
The defendant is entitled to be represented by counsel at these hearings. In determining whether the applicable standard has been met, the court must consider the likelihood of the defendant’s willful nonappearance in court; the nature and circumstances of the alleged offense; the safety of the community, law enforcement, and the victim; and the defendant’s criminal history.
Regardless of which pathway is used, the focus should be on creating a clear and complete record. If bail is denied, that record must support the court’s ruling. If the court grants bail, it must issue a written order that includes findings of fact and a statement explaining the reasons for granting bail.[21] And remember, if bail is granted in a case involving one of the enumerated offenses, that decision does not end the inquiry. The prosecutor may seek district court review of the magistrate’s ruling or pursue an appeal, depending on the circumstances.
An important change regarding failures to appear
The law now requires that failures to appear be documented in judgments and dismissals.[22] In any case involving a Class B misdemeanor or higher, the judge must make an affirmative finding and include in the judgment or dismissal if the defendant willfully failed to appear after being released from custody. The finding must also include the number of times the defendant failed to appear. This is an important new requirement, and one that prosecutors should remain mindful of in every case.
Failures to appear are directly relevant to future bail determinations, particularly in hearings on the denial of bail where the court must assess the likelihood of nonappearance. If those failures are not reflected in the record, they will not appear in the Public Safety Report and will not go before the magistrate when the next bail decision is made. Prosecutors should remember this requirement and ensure that these findings are requested and accurately documented in final dispositions.
Conclusion
For decades, efforts to meaningfully change Texas bail law came up short. But in the last few years, that finally changed. Texas has moved away from a system where bail decisions were often made in isolation with limited information and toward one that is more structured and better informed. Prosecutors now have better tools to address both nonappearance and public safety, including, in appropriate cases, the ability to seek denial of bail. Used the right way, these tools give prosecutors a real opportunity to better protect victims, law enforcement, and the communities we serve.
[1] See Tex. Const. Art. 1, § 11. Bail. “All prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident; but this provision shall not be so construed as to prevent bail after indictment found upon examination of the evidence, in such manner as may be prescribed by law.”
[2] See Beck v. State, 648 S.W.2d 7, 9 (Tex. Crim. App. 1983) (“‘Proof is evident’ when there is clear and strong evidence, leading a well-guarded judgment to the conclusion that 1) the offense of capital murder has been committed; 2) the accused is the guilty party; and 3) the jury will both convict the accused and will return findings requiring a death sentence”).
[3] See Tex. Const. Art. 1, §11b. Denial of Bail for Violation of Condition of Release (added in 2005). This section applies only to those who have been arrested for a felony or for family violence who have subsequently violated a bond condition related to the safety of a victim of the alleged offense or to the safety of the community; Tex. Const. Art. 1, §11c. Denial of Bail for Violation of Protective Order Involving Family Violence (added in 2005).
[4] See Tex. Const. Art. 1, §11a. Denial of Bail After Multiple Felonies. This provision requires the State to make a “substantial showing” of guilt at a hearing within seven days of arrest of the defendant, and even if this difficult procedural step can be accomplished, the no bail order is good for only 60 days.
[5] See Tex. Code Crim. Proc. Art. 17.027.
[6] TDCAA honored Senator Joan Huffman with its Law & Order Award for her persistent efforts to make bail reform a reality.
[7] See Tex. Govt. Code §72.038(c-1).
[8] See Tex. Code Crim. Proc. Art. 17.03(b-3)(2) for the complete list of offenses involving violence that require prosecutor notification.
[9] Tex. Code Crim. Proc. Art. 17.027(a-1).
[10] Tex. Code Crim. Proc. Art. 17.027(a).
[11] Tex. Code Crim. Proc. Art. 17.029.
[12] Tex. Code Crim. Proc. Art. 17.029(c).
[13] Tex. Code Crim. Proc. Art. 17.029(d).
[14] Tex. Code Crim. Proc. Art. 17.029(e).
[15] Tex. Code Crim. Proc. Art. 17.029(f).
[16] Tex. Code Crim. Proc. Art. 44.01(f-1).
[17] See State v. King, No. 10-26-00053-CR (Tex. App.—Waco Feb. 25, 2026, no pet.) (per curiam order).
[18] Only if the aggravated assault caused serious bodily injury or if a firearm, club, knife, or explosive weapon was used during commission of the assault. Tex. Const. Art. 1, §11d(a)(3).
[19] Tex. Const. Art. 1, §11d.
[20] Tex. R. Evid 101(e)(3)(C).
[21] Tex. Const. Art. 1, §11d(c)(2).
[22] Tex. Code Crim. Proc. Art. 42.0195.