Court blocks Texas Gov. Greg Abbott’s order limiting suspect access to no-cost bonds
A judge pushed pause late Friday on an executive order issued by Texas Gov. Greg Abbott in March that restricted access to awarding personal recognizance bonds to certain suspects.
In response to discussions and concerns about emptying the jails of violent suspects to curb the spread of the coronavirus, Abbott signed the executive order to prevent a widespread release of certain inmates on personal recognizance bonds.
Criminal justice reform advocate organizations and Harris County magistrates argued and then filed a lawsuit saying the order was unconstitutional and created a two-tier bond system in favor of wealthy suspects.
Also called personal bonds, these are issued by judges and allow suspects the opportunity to be released from jail at minimal or no cost while awaiting trial.
The ACLU of Texas and other criminal justice reform organizations sued Abbott and Texas Attorney General Ken Paxton, arguing that Abbott did not have the authority to issue the order in addition to the order being unconstitutional.
“We are pleased that the Court recognized the urgency of this matter and the need to press pause while it is heard in full,” said Andre Segura, the ACLU of Texas attorney who argued before the court that issued a temporary restraining order on Friday. “The Governor has an important role to play in responding to this pandemic, but the Governor cannot impede the ability of judges to use their discretion to release particular individuals, especially when lives are at risk.”
Further court proceedings are expected to be held to decide whether Abbott had the authority to issue the order in the first place or whether it meets constitutional muster.
During oral arguments earlier on Friday, State District Judge Lora Livingston had several questions about what led Abbott to believe an order such as the one he issued was necessary.
Abbott’s executive order denied release without cash bail to anyone booked into a Texas jail who in the past was “convicted of a crime that involves physical violence or the threat of physical violence,” or any person arrested on suspicion of such a crime.
Adam Biggs, an attorney arguing for Abbott before the court on Friday, apparently could not articulate a case that satisfied Livingston of where a mass release of suspects, violent or not, on personal bonds had actually occurred.
Throughout Friday’s hearing, Livingston came back to something she said early on, “Talk is talk, and action is action.”
Officials who are not judges or magistrates with the power to set bonds may certainly discuss ideas about who should get out of jail and what criteria suspects should have to meet before they are released, but unless those ideas are backed by the force of law, a judge is still responsible for making those decisions, Livingston said.
Judges make decisions about granting bonds to suspects every day, and included in those decisions are considerations about the suspect’s ability to pay or whether a personal bond is appropriate, according to Livingston. Factored into those bond decisions are considerations about whether someone arrested for a crime, who maybe has never been convicted of a crime and is presumed innocent, is a danger to the public and if there are indications of violent behavior, whether that can be successfully mitigated.
Livingston said she had just left a jail that was filled with people.
“I haven’t heard that judges are unlocking jail doors,” Livingston said.
Biggs said the conversations and actions are leading to confusion among jail officials in terms of what agency they should listen to and that Abbott issued the executive order out of a concern for public safety.
Abbott’s order does not prevent a judge from examining individual cases and granting personal bonds when deemed appropriate, even if a suspect has been arrested for a violent crime or has committed violent acts in the past, Biggs said. The order also removes confusion about what non-judicial officials are allowed to do, according to Biggs
“It was in response to this confusing landscape that this executive order came into place,” Biggs said.
In Tarrant County, where the jail population has been reduced by more than 17% since March 1 in response to the threat of coronavirus spread, cases are examined individually by judges to determine if a suspect can be released, according to State District Judge Robb Catalano. Age and illnesses are not factors in whether a suspect will be released or not, Catalano has said.
The ACLU of Texas has said Abbott’s order exceeds his constitutional authority and creates a system that favors the wealthy.
“At a time when public health experts agree that limiting the population in jails is critical to prevent outbreaks of COVID-19, this order ties local officials’ hands in trying to mitigate the impact of the pandemic for all Texans and prevent loss of life,” Segura, who is also the legal director for the ACLU of Texas, said in a press release. “Under this order, those unable to afford bail are required to ride out a pandemic in the dangerous setting of a jail, while wealthier people are able to buy their way out.”
The order disproportionately impacts people of color and poor people, the suit says.
“These individuals, many of whom are legally innocent, have the right to petition for their freedom — a right that the governor has unconstitutionally taken from them. The governor must be prohibited from enforcing this executive order,” Arthur Ago, criminal justice project director for the Lawyers’ Committee for Civil Rights Under Law, said in the press release.
Staff writer Kaley Johnson contributed to this report.
This story was originally published April 10, 2020 at 5:50 PM.
