Texas Moves to Restrict Cashless Bond and Reverse Federal Court-Ordered Misdemeanor Bail Reform
by Matt Clarke
Recent legislation has helped Texas Attorney General Ken Paxton (R) challenge federal court-ordered misdemeanor bail reform that expanded the availability of personal recognizance (PR) bonds.
Texas was never friendly toward PR bonds. The general rule was that, once arrested, you pay or you stay—in jail. The result was severely overcrowded jails where people charged with nonviolent misdemeanors languished for months, or even years, awaiting a trial date.
The situation was heaven-sent for prosecutors with weak cases who could let indigent defendants stew in jail a few months before approaching them with a “sweetheart deal,” such as “plead guilty now for time served and be released today or wait in jail another six months or more for a trial date.” As previously reported in PLN, many people in the Harris County jail pleaded guilty to misdemeanor drug charges even though the substances they possessed were not drugs. They just wanted to get out of jail. [See: PLN, June 2017, p.52.]
The situation was ripe for federal civil rights lawsuits seeking bail reform. A successful challenge to the bail system in Houston (Harris County) withstood appeal. See: ODonnell v. Harris County, 892 F.3d 147, 900 F.3d 220 (5th Cir. 2018). This helped challengers to the Dallas system succeed in getting a preliminary injunction, per Daves v. Dallas County, 341 F.Supp.3d 688 (2018).
The consent decree entered in the ODonnell case included such items as requiring a bail hearing within 48 hours of arrest with the defendant represented by an attorney, including one paid for by the state if the defendant cannot afford one. It required the release of persons charged with misdemeanors on a PR bond unless they were being held for assault, a repeat DUI, bond forfeiture or revocation, or a new charge while on bond, probation, or parole. There were other requirements intended to reduce the number of no shows at court appointments and the number of arrests for failure to appear.
The reforms ordered in Daves were similar to the reforms in the O’Donnell consent decree with some additional relief for felony defendants.
In response to the court-ordered reforms, the 2021 Texas Legislature passed Senate Bill (SB) 6, reforming bail procedures on a statewide basis, including newly restricting persons charged with any of several violent felonies from any kind of bail and disallowing PR bonds for others charged with violent felonies. Thereafter, the Daves court held that it was unable to determine the impact of the statewide bail reform on the plaintiffs’ civil rights and dismissed the case as moot. See: Daves v. Dallas County, 64 F.4th 616 (5th Cir. 2023).
In 2025, the Legislature further reformed bail by enacting SB 9. Based on the enactment of SBs 6 and 9, Paxton sought to intervene in the ODonnell case and have it also dismissed as moot in light of the statewide bail reforms. On October 30, 2025, the ODonnell court granted Paxton permission to argue his case for dismissal. See: ODonnell v. Harris County, 808 F.Supp.3d 738 (S.D. Tex. 2025).
Combined, the SB 6 and 9 reforms do address many of the issues in the ODonnell consent decree but also add several misdemeanors to the list of charges requiring cash bail. The reforms do require a bail hearing within 48 hours of arrest but notably do not require an attorney for the defendant or give any person charged with a misdemeanor the right to a PR bond.
Texas politicians have made much political hay touting the evils of releasing “criminals” on PR bond. However, in granting Paxton’s request to intervene, the ODonnell court noted that court-appointed monitors had reported no significant increase in recidivism and a multimillion-dollar savings for Harris County as a result of the consent decree.
Sadly, common sense has rarely changed the mind of a Texas politician.
Other sources: Houston Public Media, The Marshall Project
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Related legal case
ODonnell v. Harris County
| Year | 2025 |
|---|---|
| Cite | 808 F.Supp.3d 738 (S.D. Tex. 2025) |
| Level | Court of Appeals |