Texas Moves Toward Smarter Pretrial Detention, But More Is Needed

Passed yesterday by the Texas House, Senate Joint Resolution (SJR) 5 is a constitutional amendment that would expand the state’s authority to use preventative detention in certain cases. The measure now heads back to the senate for approval before voters ultimately determine its passage into law in November.

SJR 5 represents a meaningful shift in Texas’ approach to pretrial justice. If approved by the senate and voters, it would allow judges to detain individuals accused of serious crimes without bail when there is evidence they are likely to flee or that they pose a danger to the community. More than half of states already allow preventative detention for a wider range of violent offenses beyond capital murder, reflecting a broader national trend away from income-based detention and toward risk-based decisions.

A notable improvement in the final version of the resolution is the inclusion of a right to counsel for individuals subject to preventative detention. Ensuring access to legal representation at this critical stage is essential to protect due process and maintain public trust in the system.

However, while SJR 5 addresses concerns about releasing high-risk individuals based solely on their ability to pay, it does not resolve the longstanding issue of low-risk individuals who remain in jail because they cannot afford even minimal bail.

In Texas, many people charged with nonviolent, low-level offenses are incarcerated pretrial—not because they are dangerous or likely to flee, but because they lack the financial resources to secure release. This practice contributes to overcrowding in local jails and imposes significant economic and social costs on individuals, families, and communities. When individuals lose employment or housing due to unnecessary detention, their chances of reoffending often rise.

To address this, Texas should adopt additional measures that create a more balanced and equitable pretrial system. Requiring officers to issue citations rather than arrest individuals for fine-only offenses is one practical step. Establishing a presumption of release for low-level, nonviolent defendants—unless there is a clear reason for detention—would also help reserve jail space for those who pose a real threat to public safety.

Local jails across Texas are under increasing pressure, both financially and operationally. Detaining people unnecessarily drains public resources and diverts attention away from addressing serious crime. Every dollar spent holding someone who does not need to be in jail is a dollar diverted from supervising violent offenders, improving court processing times, or expanding mental health and substance abuse support—strategies more likely to impact public safety and community well-being.

SJR 5 is a step in the right direction, as it recognizes that public safety decisions should be based on risk rather than wealth. But meaningful bail reform requires a comprehensive approach that includes both the ability to detain high-risk individuals and strong protections against the unnecessary detention of those who pose little to no public threat.

The broader conversation about pretrial justice must continue until the amendment reaches Texas voters in November. Public safety and fairness are not opposing goals; in fact, they are connected. Ensuring both will require continued action beyond this ballot measure.