Inmates’ attorneys challenge Gov. Greg Abbott’s order banning some jail releases, say it’s unconstitutional

_{Editor’s note: This story has been updated throughout.}

Gov. Greg Abbott’s order restricting the release of some Texas jail inmates during the coronavirus pandemic is being challenged in federal court. Civil rights attorneys filed a court motion Wednesday arguing that the order unconstitutionally discriminates against poor defendants and takes away judges’ power to make individual release decisions.

Abbott issued an order Sunday that suspended much of the state’s bail laws and banned the release of people in jail accused or previously convicted of violent crimes without paying cash bail. Those inmates could still walk free if they have access to cash. Texas counties, including Harris and Dallas, have been sued in federal court for bail practices that have been deemed unconstitutional for using cash bail systems that often keep poor defendants in jail before they are convicted.

Abbott’s order was intended to keep violent criminals off the streets at a time when officers and the public had enough to worry about, he said, but it immediately drew rebukes from attorneys and Democrats who said it only kept poor people in jail. Several legal scholars and advocates questioned the constitutionality of such an order, and a legal challenge was expected.

On Wednesday, in an ongoing federal lawsuit over Harris County’s felony court bail practices, attorneys representing inmates filed a motion for a temporary restraining order against Abbott’s order. The motion asks U.S. District Judge Lee Rosenthal to order Harris County felony judges to ignore Abbott’s order that bars them from releasing someone without cash bail until a full federal hearing can be held.

“The text of the Order purports to block release of presumptively innocent individuals even if state judges conclude that there is no individualized basis for their pretrial detention — but only for those who cannot pay,” the motion said.

Abbott said Tuesday that his legal team and the attorney general’s office worked for days on the order to ensure it met “constitutional muster.” His order “doesn’t focus on how deep somebody’s pocketbook is. It has to do with how serious the crime they committed,” he said. A spokesperson for the governor did not immediately respond to questions about the court challenge Wednesday.

The new coronavirus has raised alarm in prisons and jails, whose close quarters and often unsanitary conditions can allow for diseases to easily spread. An outbreak in the jails could not only be dangerous for those behind bars, but could also take up valuable hospital space. And the virus has already hit Texas jails, with one positive test and dozens more with symptoms in Harris County as of Tuesday, and 17 positives in Dallas.

Local officials have worked to shrink their jail populations during the pandemic, with Harris County considering a large-scale release of some of its nearly 8,000 jail inmates last week. (The county judge has since ordered a large release while still following Abbott’s order.) But some law enforcement officials have expressed concerns that releasing people awaiting trial in jail 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.

But his order only bans the release of some inmates on personal bonds, which don’t require payment for release and in which conditions like drug testing or regular check-ins are sometimes implemented. It does not prevent the release of those on cash bail — which is where the constitutional challenge comes in.

“The order … permits release of any and all arrestees, including those charged with the most serious offenses, as long as they are required to pay money,” the federal court motion stated. “… The result is the automatic pretrial detention of the indigent without any individualized process.”

The attorneys who filed the motion said the order results in the same unconstitutional system the federal courts already struck down in Harris County in an earlier lawsuit.

In a lawsuit filed against Harris County’s misdemeanor courts in 2016, federal judges ruled that cash bail practices in the low-level criminal courts discriminated against poor defendants. The judges are now under a federal court agreement to release most low-level defendants automatically on no-cash, personal bonds. Abbott’s order conflicts with that directly, because although a misdemeanor arrestee may be charged with a low-level, nonviolent offense, under his order, a conviction of a violent crime in their past would preclude them from being released on a personal bond.

The misdemeanor judges said Tuesday they would still release most low-level defendants on no-cost, personal bonds — following the court order, not Abbott’s, because the federal court decree outweighs a governor’s order.