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Editor’s Note: In recent weeks, Texas Policy Research has received significant feedback via email, social media, and direct contact from Texans on both sides of Proposition 3. This commentary explains our reasoning in full and addresses several misconceptions that have circulated since the election. As always, our analysis is guided by principle, not partisanship.
Texans have made their voices heard. With 61 percent of the vote, they approved Proposition 3, a constitutional amendment allowing judges to deny bail to defendants accused of certain violent or sexual felonies. That result reflects what every Texan knows instinctively, that public safety is one of government’s most basic and legitimate responsibilities and that violent offenders should never be given another chance to harm innocent people while awaiting trial.
At Texas Policy Research, we agree completely with that goal. Public safety is not only legitimate; it is essential to the proper role of government. We also stand with the families who have lost loved ones at the hands of repeat offenders who should never have been released on bond. Their grief is real, their loss profound, and their demand for justice entirely justified.
Our disagreement with Proposition 3 is not about the goal of keeping Texans safe; it is about how that goal is pursued. The amendment fixes the wrong problem and risks expanding government power in ways that undermine due process, judicial discretion, and the flexibility needed to address crime effectively.
Rejecting False Claims and Clarifying Who We Are
Some critics have alleged that because Texas Policy Research opposed Proposition 3, we somehow aligned ourselves with “Soros-funded” or left-leaning groups that also voiced opposition. That accusation is patently false.
Texas Policy Research is an independent, nonpartisan, Texas-based organization. We have never received or sought funding from George Soros, the ACLU, the Texas Civil Rights Project, or any similar organization. Our work is supported entirely by Texans who share our belief in open government, constitutional fidelity, and limited, accountable governance.
Everything we publish is guided by five consistent liberty principles: individual liberty, personal responsibility, private-property rights, free enterprise, and limited government. These principles, not partisan loyalties or political personalities, form the foundation for every policy analysis we produce.
We are proud of that independence. In a healthy republic, people and organizations can reach the same conclusion for different reasons. Agreement on a single issue does not imply coordination or shared motives.
What Proposition 3 Actually Does
Proposition 3 adds Section 11d to Article I of the Texas Constitution. It allows, and in some cases requires, judges and magistrates to deny bail to individuals accused of nine violent or sexual felonies, including murder, aggravated assault, aggravated kidnapping, aggravated robbery, aggravated sexual assault, indecency with a child, and human trafficking.
Prosecutors must show by a preponderance of the evidence that bail would not ensure a defendant’s appearance or by clear and convincing evidence that bail would not ensure public safety. Judges must hold hearings, issue written findings, and consider the nature of the offense, the risk of flight, community safety, and the defendant’s criminal history.
At first glance, that may sound like a needed improvement. But those same standards already existed under Article I, Sections 11a–11c of the Texas Constitution and Article 17.15 of the Code of Criminal Procedure. Judges already had the authority to deny bail for violent or repeat offenders. Proposition 3 did not add new tools; it constitutionalized existing procedure, making it permanent and very difficult to change if unforeseen problems emerge.
Accountability, Judicial Activism, and the Real Problem
The tragedies that motivated Proposition 3 were not caused by a lack of constitutional power. They were the result of judicial inconsistency and prosecutorial failure. Some judges have simply refused to use the authority they already have to keep dangerous offenders detained. That is a problem of accountability, not of constitutional structure.
This is the essence of judicial activism, when judges substitute personal or political judgment for the law as written. Judicial activism undermines the rule of law because it creates unequal outcomes and leaves citizens uncertain whether justice is being applied consistently. When that happens, the public understandably demands change, but too often the solutions offered, such as Proposition 3, attempt to legislate away poor judgment instead of demanding accountability for it.
Conservative Judge Austin Reeve Jackson of the 114th District Court, a member of The Federalist Society, expressed this clearly:
“Instead of giving judges the discretion that we want—which is the discretion to deny bail for the most serious and violent offenders, it instead takes away our discretion and makes detention mandatory in cases where it is not always appropriate, while doing nothing to address the underlying harm of judges not having the authority to deny bail to violent and repeat offenders.”
Instead of rewriting the Constitution to counteract judicial negligence, Texas should focus on reforms that strengthen accountability and ensure existing laws are applied consistently and transparently.
The State Commission on Judicial Conduct could be better empowered to review complaints against judges who repeatedly disregard statutory bail standards or who fail to consider public safety as required by law. This is not about punishing judges for isolated decisions but about establishing a pattern of oversight that discourages ideological rulings at the expense of the law.
The Legislature could also establish a Judicial Performance Review system, modeled on frameworks already used in other states, to publicly report statistics on bail decisions, conviction rates, and repeat offenses committed by defendants released on bond. These reports would not dictate outcomes but would allow Texans to evaluate judicial performance based on consistent data, not anecdote or rumor.
District attorneys also play a key role in bail decisions, and their performance should be measured and reported with the same transparency. Requiring regular reporting on bail recommendations and case outcomes would enable voters to understand whether prosecutors are using their discretion responsibly.
Finally, voters should have better access to information about the records of their local judges and prosecutors. The Texas Office of Court Administration and the Secretary of State could make judicial data publicly accessible in a single online portal. With clear, nonpartisan information, Texans could make informed decisions at the ballot box about who is faithfully applying the law.
Accountability begins with transparency. If Texans can clearly see which judges and prosecutors are applying the law fairly and which are not, they can hold them accountable through oversight, elections, and, when necessary, removal. That is how to fix judicial activism: by restoring trust in enforcement and oversight, not by permanently expanding government power.
Principled Conservative and Constitutional Opposition
Texas Policy Research was not alone in its opposition to Proposition 3. Several conservative and liberty-minded organizations and activists reached the same conclusion independently. Grassroots America – We the People, Texas Eagle Forum, and the Libertarian Party of Texas all opposed Proposition 3 on principled grounds.
Texas Eagle Forum argued that the amendment “is not the proper way to solve the issue of activist judges and district attorneys,” that “solutions for this type of issue are much better handled in statute,” and that “laws are more easily corrected or enhanced if they aren’t working.” The Libertarian Party of Texas likewise stated, “We oppose mandatory bail denial because each case should be judged individually, preserving presumption of innocence and protecting liberty against government overreach.”
While these organizations approached the matter from slightly different perspectives, they shared the same belief that real reform must come from enforcing existing law and ensuring judicial accountability, not from embedding procedural detail permanently in the Constitution.
Addressing the Texas GOP Platform
It is also fair to note that the Republican Party of Texas platform includes a plank calling for bail reform. It urges that bail be based on a person’s danger to society, risk of flight, and criminal history, and that district attorneys and judges stop setting bail that is egregiously low. It further limits personal-recognizance bonds to first-time, non-violent offenders.
Texas Policy Research agrees with that intent. Where we differ is in the method used to accomplish it. Proposition 3 seeks to enforce those priorities through a constitutional amendment, while we believe they are best achieved through statute and oversight. Legislating by constitutional amendment eliminates flexibility and prevents future legislatures from adjusting policy as circumstances change. True accountability is achieved when judges and prosecutors face consequences for failing their duty, not by permanently expanding state power.
Constitutional Concerns: The Eighth and Fourteenth Amendments
Our opposition also stems from legitimate constitutional concerns rooted in the Bill of Rights.
Eighth Amendment, United States Constitution:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The Eighth Amendment prohibits excessive bail and forbids using pretrial detention as punishment before conviction. Bail exists to ensure that defendants appear in court, not to serve as punishment for alleged crimes.
Fourteenth Amendment, United States Constitution:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The Fourteenth Amendment guarantees that no person shall be deprived of liberty without due process of law. It requires fair hearings, access to counsel, and individualized determinations before the state can restrict a person’s liberty.
Although Proposition 3 mandates hearings, written findings, and representation, it also creates a constitutional presumption of detention for certain offenses. That presumption risks eroding the Eighth Amendment’s protection against excessive bail and shifting the burden of proof from the state to the accused, undermining the Fourteenth Amendment’s guarantee of due process. A government that exercises legitimate authority must also restrain itself within constitutional limits.
Supporting Victims and Strengthening Accountability
Nothing in our opposition to Proposition 3 diminishes our compassion for victims or our belief in justice. We stand with families who have lost loved ones to repeat violent offenders who should never have been released. We agree that the system must be reformed to prevent such tragedies, but that reform must focus on judicial accountability and the enforcement of existing law, not on expanding detention power at the expense of flexibility and due process.
Public safety and due process are not enemies; they are complementary. The strongest justice system protects both.
Recognizing the Passion on Both Sides
Few issues on the 2025 ballot generated as much passion as Proposition 3. There were deeply held convictions on both sides, driven by the desire to keep Texans safe and ensure justice for victims. That passion is a sign of civic health; it shows that Texans care profoundly about their communities and their Constitution.
At Texas Policy Research, we respect that passion and the intentions behind it. Our role, however, is not to echo partisan sentiment or to follow political momentum. Our responsibility is to stand on principle, to evaluate every proposal through the lens of limited government, accountability, and constitutional restraint. We will continue to do so, regardless of who holds power or how politically popular a position may be.
The Path Forward
Now that Proposition 3 has been adopted, Texans must ensure that it is implemented responsibly. Judges must apply the new provisions consistently and fairly, prosecutors must exercise discretion with integrity, and lawmakers should monitor pretrial detention data, fiscal impact, and outcomes to determine whether the amendment truly improves safety.
Texans can be both safe and free. Public safety is a legitimate and essential function of government, but liberty, accountability, and constitutional restraint are what make that power just. Proposition 3 addresses a real problem, but it does so with the wrong tool. True reform begins not with permanent constitutional changes but with enforcing the laws already in place and holding those entrusted to uphold them accountable.
“Texans expect honest, principled analysis of how government uses its power,” Jeramy Kitchen, President of Texas Policy Research, said. “That’s what we’ve tried to provide here; not partisan spin, but a constitutional perspective that values both safety and liberty.”
Texas Policy Research will continue to advocate for policies that balance safety with liberty, enforce accountability at every level of government, and uphold the constitutional principles that keep Texas strong and free.
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