Texas voters approved Proposition 3 on November 4, 2025. It added a new section to the Bill of Rights in the Texas Constitution, Article I, Section 11d, and it changed who can be held in jail without bail while a case is pending.
Plenty has been written about it since, and some of it is wrong in ways that matter to a family trying to get someone home. The most common error is the offense list. Section 11d covers nine charges. Not violent felonies in general, and not sex offenses in general. Nine.
If this is your situation right now: someone you love has been arrested and a bail hearing is coming. That hearing is the first real fight in the case, and it happens fast. Kent Starr handles sex offense cases in Collin County and takes the consultation himself. It is free and confidential. Call (214) 982-1408.
The nine charges Section 11d covers
The amendment applies only to a person accused of one or more of these:
- Murder
- Capital murder
- Aggravated assault, but only if the person caused serious bodily injury or used a firearm, club, knife, or explosive weapon during the assault
- Aggravated kidnapping
- Aggravated robbery
- Aggravated sexual assault
- Indecency with a child
- Trafficking of persons
- Continuous trafficking of persons
Two of the nine are sex offenses: aggravated sexual assault under Penal Code Section 22.021, and indecency with a child under Section 21.11. Indecency covers both the contact form and the exposure form of that offense, so both fall inside Section 11d.
Being off the list is not the same as getting bail
Read this before the next section, because the next section is the one people misread.
Section 11d is one route to holding a person without bail. It is not the only one. Sections 11, 11a, 11b, and 11c of the same article still operate, and Chapter 17 of the Code of Criminal Procedure still governs bail amounts, bond conditions, and who may receive a personal bond. A charge that is not on the Section 11d list can still end in pretrial detention, or in a bail amount a family cannot reach, which comes to the same thing at the jail door.
So being off this list changes which rules apply and what the State has to prove. By itself it does not tell you whether anyone is coming home.
What is not on the list, including continuous sexual abuse under Penal Code 21.02
With that said, Section 11d is a closed list. These charges are not on it:
- Sexual assault under Section 22.011, when it is not charged as aggravated
- Continuous sexual abuse of a young child under Section 21.02
- Online solicitation of a minor under Section 33.021
- Possession or promotion of child pornography under Section 43.26
- Invasive visual recording, indecent exposure, and prohibited sexual conduct
The second one deserves a pause. Continuous sexual abuse of a young child carries a 25 year minimum and is one of the heaviest charges in the Penal Code, and the legislature did not put it in Section 11d. Child pornography is not on the list either. If you have read that Proposition 3 forces a judge to deny bail on those charges, that is not what the amendment says.
Say the next part precisely, though. Section 21.02 is not a listed offense. A separate listed count in the same case is. A continuous sexual abuse case is built out of predicate acts, and those predicate acts include indecency with a child and aggravated sexual assault, both of which are on the Section 11d list. If the State charges one of those counts alongside the 21.02 count, which it is allowed to do, the person is accused of a listed offense and a Section 11d hearing is available. Whether a listed count was added mainly to unlock that hearing is an argument to make at the hearing, not a reason to assume the count is not there.
What the State has to prove
Bail denial is not automatic. The amendment says a person to whom the section applies “shall be denied bail pending trial” if the attorney representing the State demonstrates, after a hearing, one of two things:
- By a preponderance of the evidence, that granting bail is not enough to reasonably prevent the person’s wilful failure to appear in court
- By clear and convincing evidence, that granting bail is not enough to reasonably ensure the safety of the community, law enforcement, and the alleged victim
Read the “or” between those carefully. The State does not have to prove both. Either showing, standing alone, requires the judge to deny bail. Several published summaries describe this as a two part test the State has to satisfy. It is not, and that difference is the whole ballgame at a contested hearing.
Note also that the two showings carry different weights. Wilful nonappearance takes only a preponderance of the evidence. Danger to the community takes clear and convincing evidence, which is the higher standard.
If the State fails to meet either standard, the judge may grant bail.
What the judge has to consider
Section 11d(e) tells the judge or magistrate what goes into that decision. Four things:
- The likelihood that the person will wilfully fail to appear in court
- The nature and circumstances of the alleged offense
- The safety of the community, law enforcement, and the alleged victim
- The person’s criminal history
That last factor drew objections while the resolution was moving through the legislature, because an old and nonviolent conviction can be put in front of the judge at a hearing about a new charge.
Other Section 11d rules that matter
The hearing does not require live testimony. Section 11d(d) says the amendment may not be construed to require testimonial evidence before the judge makes a bail decision. Section 11d does not itself spell out what may be considered instead, and other law and a court’s own procedures fill that in. But a defense that shows up expecting to cross-examine a witness may find there is no witness to cross-examine, and preparation has to account for that.
The written findings requirement runs toward granting bail, not denying it. Section 11d(c) requires a judge who grants bail to set conditions no broader than necessary and to prepare a written order with findings of fact justifying the grant. No matching paperwork requirement is attached to a denial. Some summaries have this backwards.
Your right to contest survives. Section 11d(d) says the amendment does not limit any right a person has under other law to challenge a denial of bail or the amount of bail set. Section 11d(f) gives a person the right to be represented by counsel at the hearing. That right is only worth what gets done with it, which is why who stands up at that hearing matters.
Where Section 11d sits next to the older rules
Texas already allowed bail to be denied in narrow situations. Section 11 covers capital offenses where the proof is evident. Section 11a allows a district judge to deny bail to certain people with prior felony history, including a person under the supervision of a criminal justice agency for a prior felony. Section 11b covers a person whose bail is revoked or forfeited for violating a release condition tied to safety. Section 11c covers protective order violations in family violence cases.
Section 11d does not replace any of those. It adds another route tied to the charge itself, and unlike Sections 11a through 11c it does not depend on prior felony history or on conduct while released.
When it took effect
S.J.R. 5, the resolution that put Proposition 3 on the ballot, did not include an effective date clause, and it did not include an applicability clause limiting it to offenses committed after a certain date. Under Texas law, an amendment approved by voters takes effect on the date the returns are officially canvassed, which happens no earlier than the 15th day and no later than the 30th day after the election. So it has been in force since late 2025. You may see January 1, 2026 cited as the effective date. That date does not come from the text of the resolution.
If a bail hearing is coming
A few practical things.
Find out the exact charge, not the general category. Aggravated sexual assault and sexual assault are different charges with different consequences under Section 11d, and the line between them can turn on a single element. Count how many counts were filed, too, for the reason described above.
Get a lawyer in place before the hearing rather than after. A right to counsel at the hearing does not do much if nobody has been retained when it happens.
Do not discuss the allegation in jail or with an investigator. Jail calls are recorded, and a recorded call can end up in front of the judge at exactly this hearing.
Understand that a denial is not the end of the case. The right to contest it is written into the amendment.
Talking to a Collin County defense lawyer
Kent Starr has practiced criminal defense in Collin County since 1997, and he handles sex offense cases, including indecency with a child and sexual assault of a child. He does every consultation himself.
If you are under investigation or have been charged, the first call should be to a defense lawyer, before anyone talks to an investigator. The consultation is free and confidential. Call (214) 982-1408.
This article is general information about a change in Texas law. It is not legal advice, and every case turns on its own facts.
References
- S.J.R. 5, 89th Texas Legislature, Regular Session (enrolled text)
- Texas Legislative Council, Analyses of Proposed Constitutional Amendments, 89th Texas Legislature
- Texas Constitution, Article I (Bill of Rights)
- Texas Penal Code, Section 22.021 (Aggravated Sexual Assault)
- Texas Penal Code, Section 21.11 (Indecency with a Child)
- Texas Penal Code, Section 21.02 (Continuous Sexual Abuse of Young Child or Disabled Individual)
Related Articles
Frequently asked questions
- What did Texas Proposition 3 do?
- It added Section 11d to Article I of the Texas Constitution. For nine specific felony charges, a judge or magistrate must deny bail before trial if the State makes one of two showings at a hearing. Texas voters approved it on November 4, 2025.
- Which sex offenses are on the Proposition 3 list?
- Two. Aggravated sexual assault and indecency with a child. Section 11d lists nine offenses in total, and seven of them are not sex offenses.
- Does Proposition 3 apply to continuous sexual abuse of a young child?
- Continuous sexual abuse of a young child under Texas Penal Code Section 21.02 is not one of the nine listed offenses, even though it carries a 25 year minimum, and several published summaries state otherwise. That is not the same as saying a Section 11d hearing can never happen in a 21.02 case. The predicate acts behind a 21.02 charge include indecency with a child and aggravated sexual assault, and if the State charges one of those counts in the same case, the person is accused of a listed offense.
- Does the State have to prove both flight risk and danger?
- No. Section 11d(b) is written in the alternative. Either showing on its own requires the judge to deny bail: wilful nonappearance by a preponderance of the evidence, or risk to safety by clear and convincing evidence.
- Is bail denial automatic under Proposition 3?
- No. There has to be a hearing, and the State carries the burden at it. If the State does not meet either standard, the judge may grant bail and must then prepare a written order with findings explaining that decision.
- If my charge is not on the Proposition 3 list, does that mean I will get bail?
- No. Section 11d is one route to holding someone without bail, not the only one. Sections 11, 11a, 11b, and 11c of the same article still operate, and Chapter 17 of the Code of Criminal Procedure still governs bail amounts and bond conditions. A judge who cannot deny bail outright can still set an amount a family cannot pay.
- Do I have a right to a lawyer at the bail hearing?
- Yes. Section 11d(f) says a person is entitled to be represented by counsel at the hearing. Section 11d(d) also preserves any existing right to contest a denial of bail or the amount of bail set.