Texas Constitution Section 11d Bail Denial | Ex parte Washington (2026)

Ex parte Otha Gary Washington, 14-26-00245-CR, November 03, 2026.

On appeal from 179th District Court, Harris County, Texas

Synopsis

Article I, section 11d(b) of the Texas Constitution permits denial of bail when clear and convincing evidence establishes that bail cannot reasonably ensure the safety of the community, law enforcement, and the alleged victim. Evidence of the charged firearm assault, the alleged victim’s fear of retaliation and death, and two prior aggravated-assault convictions supported denial of habeas relief even though the State presented no evidence of a risk of willful nonappearance.

Relevance to Family Law

Although Ex parte Washington is a criminal habeas case, its reasoning is directly relevant to family-law matters involving alleged domestic violence. The same evidence supporting preventive detention—firearm use, the alleged victim’s contemporaneous statements of fear, prior family-violence convictions, and escalating conduct—may also become critical in protective-order proceedings, temporary-orders hearings, conservatorship disputes, possession restrictions, and requests for supervised access. Family-law counsel should promptly obtain the criminal pleadings, bail-denial motion, hearing transcripts, exhibits, judgments, offense reports, body-camera evidence, and any resulting no-contact orders.

The bail ruling does not itself adjudicate whether family violence occurred, nor does it control the different burdens and statutory inquiries governing protective orders or conservatorship. Nevertheless, the underlying evidence can materially affect findings under the Texas Family Code concerning family violence, child safety, conservatorship presumptions, possession restrictions, and protective measures. Conversely, counsel representing the accused should prevent a criminal detention determination from being presented in family court as a final merits adjudication and should distinguish the evidence, burdens, and issues applicable in each forum.

Case Summary

Fact Summary

Houston police responded to a reported shooting in progress at an apartment during the early morning of January 31, 2026. Officers found Washington, who matched the reported description of the suspected shooter, in a bedroom. They found a woman in the bathroom with gunshot wounds to both shins.

At the hospital, the woman told officers that she feared retaliation and being killed by “Gary,” whom she identified as her boyfriend. Washington was charged with aggravated assault of a family member involving a firearm.

The State moved to deny bail under article I, section 11d of the Texas Constitution. At the bail hearing, the State introduced evidence of two prior second-degree felony convictions arising from offenses committed in 2017: aggravated assault with a deadly weapon identified as a firearm and aggravated assault of a family member with a firearm. The trial court found by clear and convincing evidence that granting bail would be insufficient to reasonably ensure the safety of the community, law enforcement, and the alleged victim.

Washington later sought habeas relief, alleging that the failure to set bail violated his state and federal constitutional rights. At the habeas hearing, the trial court incorporated the evidence from the earlier bail hearing without objection and again found that bail would be insufficient to address the relevant safety concerns. It denied habeas relief.

Issues Decided

• Whether the trial court abused its discretion by concluding that clear and convincing evidence supported denial of bail under Texas Constitution article I, section 11d(b).

• Whether the absence of evidence showing a risk of willful nonappearance required the trial court to grant habeas relief.

• Whether the charged offense, the alleged victim’s expressed fear of retaliation and death, and Washington’s prior aggravated-assault convictions sufficiently supported the trial court’s safety determination.

Rules Applied

Article I, section 11d applies to specified offenses, including aggravated assault involving the use of a firearm. Tex. Const. art. I, § 11d(a)(3)(B).

Under section 11d(b), a person charged with a qualifying offense may be denied bail after a hearing if the State proves either:

1. By a preponderance of the evidence, that granting bail would be insufficient to reasonably prevent the person’s willful nonappearance in court; or

2. By clear and convincing evidence, that granting bail would be insufficient to reasonably ensure the safety of the community, law enforcement, and the alleged victim.

The constitutional provision directs the court to consider:

• The likelihood of the accused’s willful nonappearance;
• The nature and circumstances of the alleged offense;
• The safety of the community, law enforcement, and the alleged victim; and
• The accused’s criminal history.

Because the appeal arose from the denial of habeas relief, the Fourteenth Court reviewed the trial court’s ruling for abuse of discretion. Under Ex parte Segovia, 690 S.W.3d 771, 775 (Tex. App.—Amarillo 2024, no pet.), the appellate inquiry is whether the habeas ruling was arbitrary or unreasonable. The reviewing court examines the record in the light most favorable to the ruling. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006).

The court also relied on Ex parte Nimnicht, 467 S.W.3d 64, 69 (Tex. App.—San Antonio 2015, no pet.), for the proposition that a prior conviction for an offense similar to the charged family assault can demonstrate dangerousness and a propensity for recidivism.

Application

The court first recognized that section 11d was a new constitutional provision, effective in November 2025, with little appellate authority interpreting it. The court therefore applied established habeas principles and reviewed the evidentiary record in the light most favorable to the trial court’s ruling.

The willful-nonappearance factor did not support detention. Neither party meaningfully emphasized that issue, and the record contained no evidence that Washington had threatened not to appear or otherwise posed a flight risk. A police officer specifically acknowledged that Washington had not said anything indicating that he would refuse to come to court.

That deficiency was not dispositive because section 11d(b) provides alternative grounds for denying bail. The State did not have to prove both a risk of willful nonappearance and a safety risk. It could obtain bail denial by satisfying the separate clear-and-convincing standard applicable to safety.

The remaining considerations supported the trial court’s ruling. The nature and circumstances of the charged offense were particularly serious: Washington allegedly shot his girlfriend twice. The alleged victim’s statement that she feared retaliation and death from her boyfriend “Gary” supplied evidence of a continuing threat to her safety. The trial court could reasonably understand “Gary” as a reference to Washington’s middle name.

Washington’s criminal history further strengthened the State’s showing. His two prior aggravated-assault convictions included firearm-related conduct and an aggravated assault against a family member. The trial court could reasonably conclude that those convictions demonstrated recidivism concerns and increased the danger associated with releasing him.

Thus, even assuming all four constitutional factors were relevant to the safety inquiry, three supported detention. The absence of evidence under the willful-nonappearance factor did not render the trial court’s safety finding arbitrary or unreasonable.

Holding

The Fourteenth Court held that the trial court did not abuse its discretion by denying habeas relief. The charged firearm assault, the alleged victim’s fear of retaliation and death, and Washington’s two prior aggravated-assault convictions permitted a reasonable finding, by clear and convincing evidence, that bail would be insufficient to address the safety concerns identified in article I, section 11d(b).

The court also held that the lack of evidence concerning willful nonappearance did not require release on bail. Willful nonappearance and safety are alternative grounds for denying bail under section 11d(b); therefore, a sufficient safety showing can support detention without proof of flight risk.

The court affirmed the habeas judgment.

Practical Application

For family-law litigators, Washington underscores the importance of developing a complete and admissible safety record rather than relying exclusively on the charged offense. Contemporaneous statements expressing fear of retaliation, the use or access to firearms, prior similar offenses, and evidence of repeated intimate-partner violence may carry substantial weight across criminal and family-law proceedings.

In a protective-order case, counsel for the applicant should seek the evidence presented at the section 11d hearing rather than relying solely on the fact that bail was denied. The offense report, body-camera footage, medical evidence, photographs, witness testimony, prior judgments, and recorded statements may help prove family violence and the likelihood of future family violence under the Family Code.

In a conservatorship or possession dispute, the underlying safety evidence may support temporary restrictions, supervised possession, neutral exchanges, firearm-related protections, or other narrowly tailored safeguards. Counsel should connect the evidence to the child’s circumstances and the governing Family Code standards rather than assuming that danger to an intimate partner automatically resolves the best-interest inquiry.

For the accused parent or spouse, the strategic response should focus on the distinction between an interlocutory criminal safety determination and a final family-law merits determination. Counsel should evaluate whether the alleged victim’s statements are admissible, whether the prior convictions are sufficiently similar and temporally probative, whether the alleged conduct involved the child, and whether less restrictive protections can address any demonstrated risk.

Counsel should also coordinate carefully across proceedings. Testimony at a protective-order or temporary-orders hearing may affect the pending criminal prosecution, while positions taken in the criminal case may undermine proposed safety plans or requests for possession in family court. Fifth Amendment concerns, discovery limitations, protective orders, and no-contact conditions should be evaluated before presenting the client as a witness.

Checklists

Developing a Safety Record

• Obtain the indictment, complaint, probable-cause affidavit, and State’s section 11d motion.
• Secure transcripts and exhibits from both the bail-denial hearing and any habeas hearing.
• Request offense reports, 911 recordings, body-camera footage, photographs, and medical records.
• Identify contemporaneous statements reflecting fear, threats, retaliation, stalking, or anticipated future harm.
• Determine whether firearms were allegedly used, displayed, possessed, or readily accessible.
• Obtain certified copies of relevant prior convictions and family-violence findings.
• Identify prior protective orders, bond conditions, no-contact orders, and documented violations.
• Connect the evidence to the safety of the spouse, children, other household members, and exchange participants.
• Prepare evidence addressing why ordinary bond conditions or less restrictive measures would—or would not—sufficiently manage the risk.

Using the Criminal Record in Family Court

• Plead the relevant Family Code grounds rather than relying solely on the existence of criminal charges.
• Authenticate criminal judgments, hearing exhibits, recordings, and official records.
• Analyze hearsay objections and applicable exceptions before offering the alleged victim’s statements.
• Distinguish allegations, probable-cause determinations, bail findings, convictions, and final family-violence findings.
• Explain how the evidence bears on conservatorship, possession, access, protective relief, or the child’s best interest.
• Request narrowly tailored temporary relief supported by the evidentiary record.
• Confirm whether existing criminal bond conditions overlap or conflict with requested family-court orders.
• Draft orders that clearly address exchanges, communications, geographic restrictions, supervision, and firearm concerns.

Responding to a Section 11d Safety Finding

• Emphasize that a bail ruling is not a final adjudication of guilt or a substitute for findings under the Family Code.
• Challenge the admissibility, reliability, and context of the evidence underlying the safety determination.
• Separate the willful-nonappearance inquiry from the safety inquiry.
• Address each constitutional factor individually rather than making a generalized request for release.
• Distinguish prior offenses by age, circumstances, victim, disposition, or lack of similarity when the record permits.
• Present evidence of compliance with prior court orders, treatment, stable housing, employment, and structured supervision.
• Propose concrete conditions addressing identified risks instead of merely asserting that the accused is not dangerous.
• Preserve objections to incorporation of evidence from prior hearings.
• Obtain express findings and ensure that the appellate record contains all incorporated exhibits.

Coordinating the Criminal and Family Cases

• Confer with criminal counsel before calling the accused as a witness.
• Evaluate Fifth Amendment implications before submitting affidavits or live testimony.
• Review bond conditions before proposing possession schedules or direct communications.
• Avoid family-court orders that inadvertently require conduct prohibited by a criminal no-contact order.
• Consider whether supervised possession, protected exchanges, or third-party communication can accommodate both proceedings.
• Monitor changes to bail status, charging decisions, protective orders, and criminal-case settings.
• Advise the client that communications in the family case may be discoverable or usable in the criminal prosecution.
• Preserve confidentiality and comply with restrictions governing sensitive criminal-justice and medical records.

Citation

Ex parte Otha Gary Washington, No. 14-26-00245-CR (Tex. App.—Houston [14th Dist.] Nov. 3, 2026, no pet. h.) (mem. op., not designated for publication).

Full Opinion

Read the full opinion.

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