With courts largely shut down because of the coronavirus pandemic, attorney Steve Brand wasn’t working at his usual breakneck clip.
Then on Sunday, that peace was disturbed.
It was the governor who disturbed it. Specifically, a statewide order on Gov. Greg Abbott’s letterhead.
“Everything is going relatively normal in a relatively crazy world, and then all the sudden you see an order that goes against everything you’ve ever known – the way the law works – in terms of separation of powers,” the Austin-based criminal defense attorney said.
Abbott’s order, released Sunday, instructs judges in Texas to deny personal bonds to defendants accused of violent crimes or if they had a history of violent crime. A person could, however, pay for their release if they had enough money for a cash-backed surety bond; those who couldn’t afford a cash bond would have to stay in jail.
It was met with immediate backlash from attorneys and criminal justice advocates.
“The three shall not meet”
Opponents argue the governor’s order specifically targeted Harris County’s effort to release some inmates to prevent the spread of COVID-19, using executive powers granted by his disaster declaration.
Brand, a board member of Austin’s defense bar, says the order violates the separation of powers between the legislative, executive and judicial branches outlined in the Constitution – Article I, II and III, respectively.
“Occasionally, there’s crossover, but for the most part, the three shall not meet,” Brand said. “And all of the sudden, the governor issues an order and it’s like, ‘Hey, Article III, I’m just going to take that from you without going through Article I. I’m just going to do it by decree.'”
The decree, Abbott would argue, is underpinned by a real concern for public safety – that potentially violent people who are in jail should stay in jail. Abbott told The Texas Tribune’s Jolie McCullough this week his office worked to ensure the order passed “constitutional muster,” and that it was meant to prioritize public safety, not exempt poor defendants from release. His office did not respond to a request for comment for this story.
Elsa Alcala, a former Republican judge on Texas’ highest criminal court, the Court of Criminal Appeals, says if the governor’s order is meant to prioritize public safety, it does so at the expense of a judge’s constitutional right to rule on a case. She says it ties the hands of judges by dictating when a person can or can’t be released.
On top of that, she says, it makes a hard situation harder, as cities and counties across the state try to reduce the spread of COVID-19 in jails, where social distancing is nearly impossible and infectious diseases can become amplified in close, often unsanitary, quarters.
“It’s like a punch in the gut. It’s just so uncalled for,” she said. “Now he’s just taken that bad situation and made it worse. And I think that’s why so many people are outraged.”
COVID-19 has spread through the inmate population at New York’s Rikers Island at an estimated rate of 85-times that outside its walls. And it has already infected inmates and corrections employees working in Dallas and Harris county jails.
So, last week, the Harris County Sheriff ‘s Office and Harris County Judge Lina Hidalgo moved to transfer some low-level inmates out of the county jail, which houses roughly 8,000 people.
Abbott’s order came in on the eve of that move. Three days later, Hidalgo ordered the release of hundreds of inmates, arguing the county is still complying with the order.
Then, there’s the money.
Texas’ recent history with cash bail is fraught. Harris County’s system was found unconstitutional by a federal court in 2017, and it’s currently under federal oversight to make sure poor defendants aren’t stuck in jails because they can’t spring for bail.
The same attorneys who won that case have tried to stop Abbott’s order, arguing, as they did against Harris County, that it creates a two-tiered system – one for people who can pay and one for those who cannot.
Dallas County is also facing a suit against its practice of using fixed rates for certain offenses in its cash-bail system.
“A problem that doesn’t exist”
Last month, district judges in Travis County issued an order allowing certain defendants to be automatically released on bond to reduce the number of inmates during the coronavirus pandemic. The order came amid recent strides in the county over bail reform.
District Attorney Margaret Moore said she didn’t see anything taking place in Travis County that “runs afoul of what the governor’s saying.”
While it’s not necessarily complicating Travis County’s system, she said she’s waiting to see what happens with litigation against the order out of Houston.
“I don’t know. We’ll just have to see what happens there,” she said. “No one has ever seen a governor’s proclamation like this.”
The order could present issues for judges in Travis County.
“No one has ever seen a governor’s proclamation like this.”
Earlier this week, Justice of the Peace Nicholas Chu sent an email to defense attorneys saying he would continue to grant bail as he has – on a case-by-case basis – and that he took issue with the constitutionality of the governor’s order.
A “blanket order to prevent a certain classification of people being eligible for personal bond – while still making them eligible for release if they put up the money through a cash bond,” he said, “is not a constitutional practice.”
As a justice of the peace, Chu’s caseload mostly consists of small claims, evictions and traffic violations, but he still presides over cases involving assaults or driving while intoxicated.
Judge Brenda Kennedy, Travis County’s presiding district judge, said large-scale releases aren’t happening here.
“We’re not releasing people just willy nilly,” she said.
Still, Kennedy said the order threw a wrench in the county’s juggling of both moving court proceedings online in light of COVID-19 and keeping courts running smoothly.
Officials say they’ve continued to reduce intake in Travis County in light of COVID-19. Travis County had roughly 2,200 inmates in February, a number that has gone down to roughly 1,650 as of this week. The Travis County Sheriff’s Department says 117 people on average were booked into the county jail between the beginning of February and March 14. Since then, that average is down to 60 people a day.
Moore said the order, which applies statewide, “is addressing a problem that doesn’t exist in Travis County.”
Alcala notes Abbott’s order doesn’t specify what could be construed as “offenses involving physical violence or threats of physical violence,” meaning a person booked on a nonviolent offense could get denied a personal bond if they’d had something like a threat of violence on their record decades ago.
“That is really silly, but that’s what the governor’s order does. He didn’t define terms. He didn’t limit terms,” she said. “All he did was tie judges’ hands and take away a tool from the toolbox that could have been used to really ensure that we are controlling those people that are released from jail.”
Brand said that vagueness, combined with a statewide order that targets such a specific problem with such a broad scope, is a magnet for litigation.
“You don’t act as a governor and do this blanket, statewide reaction to that because you’re focused on a particular county,” he said. “You’ve taken away discretion of … judges, and you have no authority to do that.”
He says, at least locally, he and other defense attorneys will file writs of habeas corpus – a legal move that helps release prisoners being kept unlawfully – to release defendants he believes would otherwise be granted release, if not for the governor’s order.
Attorneys in Houston have asked a court to stop parts of the governor’s order from being enforced; a decision on that could come as soon as Friday. Attorneys in other counties, including Travis, are discussing legal action that would challenge the order as a whole.
Got a tip? Email Andrew Weber at aweber@kut.org. Follow him on Twitter @England_Weber.
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