Texas Supreme Court sides with Abbott after judge halted his order restricting jail release

Mike Chiari The Texas Tribune

The Texas Supreme Court ruled in favor of Gov. Greg Abbott’s order restricting jail release during the coronavirus pandemic. But the justices didn’t address the overarching questions of whether the order is unconstitutional or gubernatorial overreach, instead ruling that the county judges who brought the lawsuit were the wrong ones to challenge the order.

“The question of [the order’s] legal effect when weighed against the Constitution and other sources of law is a question for judges to decide when properly asked by parties to do so,” the court said in its ruling on the governor’s order Thursday.

But the ruling also indicated that if judges were to face prosecution for their individual bail decisions, they could successfully challenge it based on their judicial decision making.

The final ruling comes after the court initially halted a state district judge’s decision to block Abbott’s order earlier this month. The state district judge ruled that the order violated constitutional separation of powers between the executive and judicial branches and went beyond what Abbott is allowed to do in a disaster situation.

Abbott’s order was issued in late March as county officials worked to shrink their populations in disease-prone jails as the coronavirus spread throughout the state. It suspends a large swath of law on bail practices and prohibits judges from releasing jail inmates accused or previously convicted of violent crimes 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.

The order drew immediate backlash from Democrats and criminal justice reform advocates, who argued it enhanced a system of wealth-based detention — allowing people with money to be released and leaving those who can’t afford bail to stay in crowded and often unsanitary jails and risk more exposure to the virus. Federal courts have knocked Texas bail practices in multiple counties for discriminating against poor defendants. Legal scholars also questioned Abbott’s authority to suspend criminal laws during a disaster.

But Abbott has defended his action, arguing that “releasing dangerous criminals in the streets is not the solution” to the coronavirus spreading in lockups. After the ruling, Texas Attorney General Ken Paxton said in a statement that the decision “rightfully protects the health and safety of Texans from the unlawful release of potentially thousands of dangerous individuals into our communities.”

A group of conservative lawmakers and some law enforcement officials have also sided with the order, arguing that it keeps more people accused of violent crimes off the streets where police are already stretched thin. Abbott said in a Texas Tribune interview that the order was not about how much money someone had, though the order only prevents release on bonds that don’t require cash up front.

State attorneys argued in court that the order was to prevent mass releases of inmates. Harris County officials at the time were considering releasing more felony defendants from the jail, but the criminal district judges still halted the county judge’s order that was ultimately issued to align with Abbott’s for those accused of nonviolent crimes. The reasoning was based on separation-of-powers arguments similar to the ones made against Abbott’s order.

Earlier this month, Harris County judges and criminal defense organizations sued Abbott and Paxton over the order, claiming it stripped away judicial discretion and that Abbott does not have the right to suspend criminal law during a disaster. State district judge Lora Livingston agreed and issued a temporary order halting any enforcement of the order against judges.

The next day, the Texas Supreme Court blocked her order, also temporarily, while it reviewed the case. The final ruling Thursday focuses on the judges as plaintiffs, not the main issues raised in the lawsuit. The state has said better plaintiffs would be pretrial arrestees.

“We conclude the judges lack standing, which means the trial court lacked jurisdiction to order their requested relief, even temporarily,” the ruling stated.

One focus of the briefings filed to the Supreme Court was on how and if the governor’s order could be enforced. The Harris County judges said in their lawsuit that they could be prosecuted if they continued to release people on personal bonds. But the state said that Paxton’s tweet that he would not stand for violations of the order does not constitute a threat of enforcement. Kyle Hawkins, the state solicitor general, said that “if anyone is tasked with enforcing [the order], it is local district attorneys.”

The American Civil Liberties Union of Texas, representing the judges in the lawsuit, said if there was no interest in enforcement, the state district judge’s order halting the order wouldn’t hurt anything anyway. After the ruling, legal director Andre Segura said in a statement that it was clear Abbott overstepped by a trying to take over judicial roles. The lawsuit will continue at the district level, a spokesperson for the organization said.

“Importantly, the court found that neither the Governor nor the Attorney General has any teeth by which to enforce this Executive Order, and that prosecuting judges for following the Constitution would raise serious problems,” Segura said. “The Governor should heed the advice from both sides of the aisle and rescind this misguided Executive Order.”

In its ruling, the court said judges could claim judicial immunity in any criminal proceeding, but it said that doesn’t make the order “toothless.” Although the court didn’t decide on the merits of whether Abbott can issue an order that impedes individual judicial decisions, the justices said to the extent the order is followed, it can be enforced against judges by a higher court’s ruling.

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