Texas Supreme Court stays lower court ruling, temporarily reviving Gov. Abbott's order restricting jail release

The Texas Supreme Court has revived Gov. Greg Abbott’s order restricting the release of some jail inmates during the coronavirus pandemic.

On Saturday, the high court stayed a state district judge’s ruling from Friday night that blocked Abbott’s order. The district judge cited unconstitutional provisions and an overreach of executive power in her temporary order against Abbott. The Supreme Court’s order is also temporary, with responses due to the court Monday evening.

The legal battle stems from an Abbott order issued last month during the state disaster. The governor’s order prohibits judges from releasing jail inmates accused or previously convicted of a violent crime without paying bail — banning no-cost, personal bonds which can include conditions like regular check-ins. Under Abbott’s order, those accused of the same crimes and with the same criminal history could still be released from jail if they have access to cash. A no-cost release can still be considered for health or safety reasons after a chance for a hearing is given, though some attorneys said that can take weeks.

A state attorney has said Abbott’s order was prompted by concerns of mass jail releases as local officials worked to reduce the number of people in disease-prone lockups. Abbott said after his order that “releasing dangerous criminals in the streets is not the solution.” Legal scholars and civil rights attorneys immediately questioned the constitutionality of the order, however.

On Wednesday, Harris County’s misdemeanor judges and criminal defense organizations sued Abbott in Travis County district court, arguing the gubernatorial directive violates the constitutional separation of powers between the executive and judicial branch and keeps only poor defendants in jails.

After a virtual hearing on Friday, state district judge Lora Livingston blocked enforcement of Abbott’s order for all judges. She repeatedly questioned the order’s effect on public safety and the governor’s ability to issue a blanket order telling judges how to handle individual bail decisions.

“Everyday a judge makes a decision in a case about whether or not bond is appropriate,” she said. “I’m just trying to figure out how this emergency affects that judicial decision making.”

A spokesperson for Abbott did not respond to requests for comment on Friday’s ruling. On Saturday, Abbott filed an emergency motion for a stay and a petition for review in the Texas Supreme Court. The court granted the emergency, temporary stay of Livingston’s order, and will conduct a further review.