Background: In my co-authored column, From a Felony to a Phone Call: Texas Prop 13 Will Allow Innocent Men to Be Jailed Without Bail (Ft. Worth Star-Telegram, Austin-American Statesman, 10/22/07), Mike McCormick, Executive Director of the American Coalition for Fathers and Children, and I criticized a Texas Proposition which drew wide support from many state newspapers. Unfortunately, our column was the only published opposition I saw, against a slew of editorials and op-eds in favor. Reflecting again the weakness of our movement, Proposition 13 passed with Texas voters by a wide margin on Tuesday. Proposition 13 is a dangerous measure which will harm innocent men by greatly eroding the rights of those accused of domestic violence. The measure grants judges the ability to hold without bail those accused of nonviolent, trivial, or accidental violations of temporary restraining orders.
Under current Texas law, the only defendants ineligible for bail are those accused of capital crimes. In addition, judges are provided discretion to deny bail to those who have been both charged with a felony and convicted or indicted for a previous felony. To deny bail, there must be “evidence substantially showing the guilt of the accused.’ Prop 13 obliterates this, and opens the road for many innocent men to be held without bail. Like many states, Texas has adopted aggressive arrest procedures on domestic violence calls. The result has been that men are sometimes arrested for misdemeanor domestic violence based on thin evidence. After the arrest, Emergency Protective Orders are entered against the accused, typically barring him from going home or having any contact with his children. Fathers can violate the orders by innocent acts such as calling their own children, accidentally running into them and their mother in the mall, or going to their Little League games. Under Prop 13, judges will have the power to incarcerate without bail men who violate their EPOs. Moreover, the Proposition lowers the evidence standard from Substantial Showing to Preponderance of the Evidence, which can rapidly degenerate into a “he said/she said’ contest that men usually lose. Even worse, Prop 13 also encourages the legislature to pass a law which would allow fathers who violate temporary ex parte protective orders to be jailed without bail. Women can obtain these orders by claiming their male partners abused them, and the men are then booted out of their own homes without ever having a chance to defend themselves in court. To learn more about Proposition 13, click here.
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