Harris County judges, ACLU sue Greg Abbott over order limiting jail releases during pandemic

Gov. Greg Abbott’s order restricting the release of some jail inmates during the new coronavirus pandemic is facing a second court challenge arguing his order violates the constitutional separation of powers and discriminates against poor criminal defendants.

Harris County’s misdemeanor judges, criminal defense organizations and the NAACP of Texas sued Abbott and Texas Attorney General Ken Paxton on Wednesday in Travis County district court. The plaintiffs are represented in part by the American Civil Liberties Union of Texas and the Texas Fair Defense Project.

Last month, Abbott issued an executive order that suspended much of the state’s bail laws and prohibited the release of people in jail accused or previously convicted of violent crimes without paying bail. The order largely banned judges across the state from releasing such defendants on no-cost, personal bonds, which can include conditions like drug testing and regular check-ins. The attorney general’s office has said no-cost release could be considered for individuals based on health or safety reasons after a chance for a hearing is given, which some attorneys said takes weeks.

But under Abbott’s order, people accused of the same crimes with the same criminal history could still quickly be released from jail if they had access to cash. The lawsuit argues Abbott’s order ignores constitutionally mandated separation of powers by taking away judges' discretion. It also states the order creates an unconstitutional wealth-based system, similar to those that federal courts have slammed in Texas counties.

“The harms of this order are not abstract: poor people are being detained pretrial with no way to escape a possible jail outbreak,” said Amanda Woog, executive director of the Texas Fair Defense Project, in a statement announcing the lawsuit. “The governor has overstepped his legal authority, and this is causing significant harm on the ground.”

A spokesperson for Abbott did not immediately respond to questions about the lawsuit Wednesday, but the governor said in an interview with The Texas Tribune last month that his legal team and the attorney general's office worked for days on the order to ensure it met "constitutional muster." He said his order "doesn't focus on how deep somebody's pocketbook is. It has to do with how serious the crime they committed."

Across the state and country, officials have worked to shrink jail and prison populations as the new coronavirus has taken hold. With often unsanitary conditions and crowded living spaces, lockups are especially susceptible to the spread of the virus. Officials worry an outbreak behind bars could overwhelm local hospitals.

In Texas prisons, more than two dozen had tested positive for the virus as of Tuesday, with more than 10,000 inmates essentially quarantined due to possible exposure. In the Harris County jail, three inmates and a dozen jail employees had tested positive.

But some law enforcement officials and conservative lawmakers have raised concerns that releasing people awaiting trial in jail on violent charges, or with violent histories, would create more of a public safety threat, not less of one. That concern is at least partially what prompted Abbott's order Sunday, he said at a press conference. Since it limits judicial discretion, however, and only restricts release for those who can't pay their bail, legal challenges were expected.

Lawyers in an ongoing federal lawsuit over Harris County's bail practices asked the court to order judges who oversee felony cases to ignore Abbott’s order that bars them from releasing someone without cash bail.

Harris County's misdemeanor judges didn't have to be told. The 16 judges are already under a federal court agreement that allows for the automatic release of most low-level defendants without collecting bail payment. The agreement was made after federal courts found that the county's misdemeanor bail system unconstitutionally discriminated against poor people and kept them in jail.

After prosecutors started requesting denial of no-cost bonds because of Abbott's order, the judges said they would instead follow their rules made in agreement with the federal court — with one judge stating in his court that "we all know that federal trumps state, that’s law school 101."