According to the Legislative Budget Board (LBB), the fiscal implications of SJR 5 indicate no significant cost to the State of Texas beyond the standard expense of placing the proposed constitutional amendment on the ballot. The estimated cost of publication for the resolution in statewide newspapers, as required by law, is approximately $191,689.

From a state-level operations perspective, the Office of Court Administration (OCA) concluded that the additional responsibilities resulting from the amendment, such as conducting hearings to determine whether bail should be denied, could be managed with existing judicial resources. This suggests that the procedural burden on state courts is expected to be absorbed without the need for additional appropriations or staffing.

However, the potential fiscal impact on local governments is more complex and less predictable. If more individuals are held without bail while awaiting trial, local jails may experience increased inmate populations and longer detention durations. This could translate to higher costs for county governments, which typically fund and operate local detention facilities. While this impact is acknowledged, it is considered indeterminate due to a lack of available data on the number of individuals likely to be affected and the specific costs associated with their detention.

In summary, while the fiscal impact on the state is minimal and manageable, local jurisdictions could experience increased financial pressure from housing more pretrial detainees, although the exact scope and cost of that impact remain unclear.

SJR 5 proposes a constitutional amendment to require denial of bail to individuals accused of certain serious felony offenses if the state demonstrates by clear and convincing evidence that release would be insufficient to prevent flight or ensure public safety. While this proposal is a response to high-profile cases involving pretrial release of violent offenders, and it includes procedural safeguards such as written judicial findings and the right to counsel, it ultimately creates a rigid mandate that substantially infringes on the principle of Individual Liberty and raises significant constitutional and due process concerns.

The resolution expands the state’s authority to detain individuals before trial without bail by making denial mandatory when certain criteria are met and specific offenses are charged. This shift from discretionary to compelled denial of bail increases the risk of pretrial incarceration for individuals who have not been convicted of a crime and who are presumed innocent under the law. It weakens judicial discretion and may result in disproportionate impacts on marginalized or lower-income defendants unable to mount a full defense at the bail stage. Even though the standard of “clear and convincing evidence” is higher than probable cause, it still allows for significant liberty deprivation prior to adjudication.

Moreover, the list of offenses to which this provision would apply is broad, ranging from capital murder to certain aggravated assaults and trafficking-related offenses. While many of these crimes are undoubtedly severe, their inclusion in a constitutional mandate for bail denial, regardless of individualized circumstances, raises the likelihood of misuse or overapplication. Without a mechanism for periodic review, judicial override, or narrow tailoring of the offense list, the amendment risks embedding overly punitive pretrial practices into the state constitution.

The fiscal note also highlights potential downstream effects. While the state anticipates no significant fiscal impact, local governments may face increased jail costs from a rise in the number and duration of pretrial detainees. This would disproportionately affect counties with already limited detention resources, and could intensify overcrowding and strain on local justice systems. These local costs are not accounted for in the bill and contribute to the policy concerns surrounding its implementation.

To bring the resolution closer to alignment with constitutional and liberty principles, several key amendments are needed. These include narrowing the scope of offenses to only the most egregious and demonstrably flight-risk or high-danger cases; reinstating more robust judicial discretion; and requiring additional due process protections such as periodic review of bail status, data reporting on bail denial rates, and mechanisms to prevent systemic disparities. A sunset provision and legislative oversight would also help ensure the policy’s future effectiveness and accountability.

Until such amendments are adopted, SJR 5 represents an overly broad constitutional expansion of state pretrial detention powers that undermines foundational liberty protections. For these reasons, Texas Policy Research recommends that lawmakers vote NO on SJR 5 unless amended as described above.

• Individual Liberty: This resolution poses a significant threat to individual liberty. By mandating denial of bail for individuals accused of certain felony offenses prior to a conviction it erodes the constitutional presumption of innocence. The bill converts what is currently a discretionary judicial function into a required deprivation of liberty, even when a defendant might otherwise qualify for release under carefully tailored bail conditions. While it includes procedural safeguards (e.g., a hearing, “clear and convincing evidence” standard, right to counsel), these measures do not fully offset the danger of institutionalizing pretrial detention for a broad class of people based solely on the offense charged, not on individualized assessments of risk or flight. This is particularly troubling because the Constitution has traditionally protected the right to bail as a safeguard against arbitrary state detention.
• Personal Responsibility: The principle of personal responsibility is not directly addressed in the resolution. While proponents may argue that holding individuals pretrial for serious offenses reinforces accountability, the policy is reactive and preventative, not corrective. It does not encourage or foster responsible behavior by the accused—it instead assumes irresponsibility based on the nature of the charges, not proven conduct.
• Free Enterprise: Though the bill does not regulate commerce, it could indirectly affect the labor force and productivity by increasing the number of people held in jail pretrial. Individuals unable to make bail—many of whom are employed—may lose jobs, housing, or family stability due to extended incarceration before trial. This effect disproportionately harms lower-income defendants, possibly reducing labor market participation and increasing reliance on public assistance post-release.
• Private Property Rights: There is no direct or indirect effect on private property rights. The resolution deals strictly with criminal procedure and pretrial detention and does not implicate issues such as eminent domain, property seizure, or ownership regulation.
• Limited Government: The resolution shifts significant authority to the state by making denial of bail mandatory in certain cases. This eliminates the judiciary’s discretion to evaluate risk on a case-by-case basis and substitutes a constitutionally embedded, inflexible rule. The state’s power to detain individuals pretrial, without conviction, is dramatically expanded, creating the potential for abuse or overreach. Further, by placing these provisions into the Texas Constitution, the legislature limits future policy flexibility and forecloses the ability to make statutory or administrative adjustments in response to new data or unintended consequences. This rigid, preemptive use of state power is fundamentally at odds with the concept of a government limited in both scope and duration of authority.

• HJR 15 (Same As)
• SJR 17 (Same As)