Can I Get Out of Prison While My Appeal Is Pending?


People who have been convicted of a crime have a right to file an appeal. Because it can take several months or more for an appeal to make it to court, most people want to know if they can wait out this process at home or if they’re required to stay behind bars.

There is a process for seeking bond pending appeal in Federal cases but it is rarely granted. Under Texas law, courts have the authority to grant bail pending appeal except in certain felony cases.

This means it’s generally up to the judge’s discretion whether to grant an individual’s bail, which means they must post a certain amount of money in exchange for the right to leave prison while their case is pending.

Bail is designed to ensure the defendant shows up for their trial in the future. If they fail to show, they forfeit their bail money. Depending on the seriousness of the crime, bail can be quite expensive.

Judges Have Discretion to Grant Bail Pending an Appeal

In Texas, judges generally have broad discretion to allow someone to leave prison pending an appeal. However, the law restricts this authority in cases where a defendant is appealing a felony conviction punishable by 10 years or more in prison.

Additionally, an individual convicted of certain serious crimes isn’t eligible for bail pending an appeal. These crimes include murder, sexual assault, and various crimes involving children.

Judges in Texas also have the authority to deny a person bail if they believe there are legitimate concerns about the person failing to appear when their appeal goes to court.

When judges permit someone to leave prison pending an appeal, they can also impose certain conditions on the person’s release. For example, they might require the person to wear an ankle monitoring bracelet or to check in with a probation officer on a regular basis.

Bail Pending Appeal Depends on the Crime and the Sentence

The likelihood of getting released from prison while your appeal is pending depends largely on the nature of the crime involved in your conviction, along with what kind of sentence you received.

As stated above, some offenses are specifically listed in the Texas statutes as being too serious for a person to be released while their appeal is pending. The reason for this is that lawmakers have a concern that anyone facing a lengthy prison sentence is a much higher flight risk. Additionally, someone convicted of murder or assault could pose a danger to other people if allowed to move about freely while their case is pending.

On the other hand, the crime itself doesn’t necessarily have to be violent for a judge to deny a person bail while their appeal is pending. For example, a white-collar criminal convicted of financial fraud is unlikely to harm anyone while living in society during their appeal. However, someone sentenced to years in prison for fraud might be tempted to make a run for it rather than face the possibility of a long prison sentence.

Other Factors Courts Consider When Deciding to Grant Bail

It’s important to keep in mind that a post-conviction request for bail is much different than the same request prior to the original trial. When someone asks the court to let them out of prison while their appeal is pending, the person has already been convicted of a crime.

Because there is no presumption of innocence at play in an appeal, the burden is generally on the defendant to convince the court that they should be allowed to post bail while their appeal is pending.

In addition to following the rules set forth in the statutes, Texas courts will also consider a number of factors when determining if someone should be released from prison while their appeal is pending.

  • Criminal History
    Some of the additional factors the court may look at include if the person has any criminal history. Someone with a clean record is probably going to qualify for bail over someone with a history of convictions.
  • Failure to Appear in Court
    Courts will also look at whether the individual has failed to appear in court in the past. If the person has a history of failing to show up, the court probably won’t grant them bail while their appeal is pending.
  • Ties to the Community
    Additionally, the court may consider what kind of ties the individual has in the community. For example, if the person has children enrolled in the local schools or works a job located in the area, that person is probably less likely to violate the terms of their bail.
  • Merits of the Appeal
    The court may also look at the likelihood of success for the appeal. If the defendant’s case is very weak, the court might deny bail because the defendant is unlikely to be successful on appeal.

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Media Contact:

Dallas Best Criminal Appeals Lawyers
Broden & Mickelsen, LLP
(T): 214-720-9552


Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case.



Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.