Harris County's misdemeanor judges won't follow Abbott's order limiting jail releases during coronavirus

Texas Gov. Greg Abbott has moved to restrict the release of people in jail during the coronavirus pandemic — but Harris County's misdemeanor judges aren't abiding by his executive order. Instead, they're following a federal court's orders for their bail decisions.

And those tied to the court have again raised skepticism that Abbott's order is even constitutional.

Instead of following Abbott’s recent executive order, a lawyer for the 16 criminal court judges that preside over low-level offenses in Texas’ largest county said in a Tuesday letter obtained by The Texas Tribune that the judges will continue to comply with practices solidified in a federal court agreement. That will allow for the automatic release of most misdemeanor defendants without collecting bail payment.

Before a lawsuit that spurred that agreement, the release of jail inmates accused of misdemeanors relied heavily on cash bail. Those practices were found unconstitutional in federal courts for discriminating against poor defendants, prompting a consent decree last year. Now, many Harris County defendants are required to be released on no-cost, personal bonds, which can include conditions like drug tests and regular check-ins.

Abbott’s order, issued Sunday, suspended much of the state’s bail laws and prohibited the release of people in jail accused or previously convicted of violent crimes from being released on these personal bonds. But Abbott's order only prohibits personal bonds, so those inmates could still walk free if they have access to cash.

In an interview with The Texas Tribune on Tuesday, Abbott said his order had nothing to do with bail reform efforts, which prompted Harris County's lawsuit.

"Bail reform efforts, among other things, are focused on making sure that you're not going to imprison someone just because they don't have any money, and you're not going to have a bifurcated system where the rich are gonna get to bail out and the poor are not," he said. "So this doesn't focus on how deep somebody's pocketbook is. It has to do with how serious the crime they committed."

A law professor overseeing the Harris County decree advised county officials this week that the federal court order supersedes the governor’s. And he also doubted the constitutionality of Abbott’s order.

“The Order is likely unconstitutional under state and federal law. But regardless of whether it is ultimately challenged and/or implemented, [it] does not affect any terms of the pre-existing … consent decree,” said Brandon Garrett of Duke University School of Law.

Abbott said in the interview Tuesday that his legal team and the attorney general's office worked on the order for days to ensure it met "constitutional muster."

As the new coronavirus continues to spread in Texas, local governments have moved to shrink the number of people in jails — an environment prime for the spread of disease — for fear that an outbreak behind bars could overwhelm local hospitals. In the Harris County jail, one inmate had tested positive for the virus as of Tuesday, and dozens more were symptomatic, County Judge Lina Hidalgo said.

But as Harris County officials mulled a large-scale release of inmates, Abbott issued his order.

“Releasing dangerous criminals makes the state even less safe ... and slows our ability to respond to the disaster caused by COVID-19,” he said at a news conference Sunday, referring to the sometimes fatal respiratory disease caused by the new coronavirus.

Some law enforcement officers praised the order, with Houston's police union president saying a mass release of "violent felons" to the streets would make it harder for officers already overburdened by the pandemic. But it drew instant rebuke from criminal justice reform advocates, defense attorneys and Democrats — who questioned the governor’s authority to interfere with judicial actions and the constitutionality of the order.

“This order puts low-risk detainees in high-risk environments that could easily mean death,” said a statement by the Texas Criminal Defense Lawyers Association.

On Tuesday, Hidalgo announced an upcoming order to release up to 1,000 inmates accused of felony-level crimes who were being held in jail because they could not afford their bail amount. She said her order would be in line with Abbott’s order and would apply only to those accused of nonviolent offenses and who had no violent criminal histories.

But in the misdemeanor courts, most criminal history is not considered in the rules that determine if a defendant is released on a personal bond. As part of the federal court agreement, a large majority of low-level defendants must be released without having to pay bail quickly after arrest. Those accused of certain crimes, like domestic violence, or those who were arrested while already out on bond or on probation, would not be released on an automatic personal bond and instead would have to wait for a court hearing. The rules were put into place after the county’s cash bail practices were regularly slammed for being unconstitutional.

After Abbott issued his order to restrict personal bonds, Harris County prosecutors quickly began filing motions to the judges to deny personal bonds for people suspected of misdemeanors because of their criminal history, according to a letter written by attorney Allan Van Fleet, who represented the judges in the lawsuit.

The letter, sent to Harris County District Attorney Kim Ogg, affirmed that the judges — who are being watched by a federal court monitor for seven years — would continue to follow the court-instilled practices. Those do not comply with Abbott’s order to prohibit release on personal bonds people currently accused of low-level crimes because of a violent conviction in their past. Ogg’s office did not immediately respond to questions Tuesday.

“Please end the knee-jerk motions to deny personal bonds, in violation of [the federal court case] and the Constitution, which at best are a waste of everyone’s time, and at worst knowing, repeated assertions of baseless arguments,” Van Fleet wrote to Ogg.

Patrick Svitek contributed to this report.