A new lawsuit is seeking to overturn a recent executive order by Gov. Greg Abbott that barred people accused of violent offenses from receiving low-cost personal recognizance bonds, a measured favored by some Texas judges to reduce jail populations and prevent a coronavirus outbreak in those facilities.
The lawsuit, filed Wednesday in Travis County by separate groups of lawyers and judges and the Texas NAACP, alleges that the order is unconstitutional. It accuses Abbott of overstepping his authority under the state’s 1975 disaster act and infringing on the coequal power of the Legislature and judiciary.
Abbott’s executive order — issued March 29 as Harris County was preparing to release a multitude of inmates to try to prevent the coronavirus from spreading in the county’s jail — aimed to halt the release of offenders who the governor believed could pose a public threat.
It also made it more difficult for defendants who are poor to get out. Anyone accused of a violent act, or with a past conviction for violence, must now come up with bail money or stay in jail while their case goes through the court system.
Abbott’s office did not return a call Wednesday seeking comment about the lawsuit.
Three groups of defense attorneys are behind the suit: the Texas Criminal Defense Lawyers Association, Austin Criminal Defense Lawyers Association and Capital Area Private Defender Service.
Sixteen Harris County misdemeanor court judges are also part of the suit. They say they now face a dilemma on whether to follow Abbott’s order or continue to adhere to a federal consent decree issued last year that originated from a lawsuit alleging Harris County had unconstitutional bail practices.
“The judges are now caught between fulfilling their obligations to decide bail in individual cases as prescribed by the constitution and legislature, or obeying an executive order,” the lawsuit says.
The order leaves judges room to release defendants on an individual basis for health reasons, provided that proper notice is given to the prosecuting attorney and an opportunity for a contested hearing is given.
Travis County Attorney David Escamilla, the county’s top misdemeanor prosecutor, said last week he believes that exception restores some of the power stripped by the order because a judge could reasonably determine a health risk for anyone in jail.
Most Travis County judges said last week they planned to comply with the governor’s order — and disregard Escamilla’s counsel — to avoid potential legal trouble.
But Justice of the Peace Nicholas Chu told lawyers he would disregard the order, calling it “inconsistent with the U.S. and Texas constitution.”
Despite the crackdown on bonds, Travis County’s jail population on Wednesday was the lowest it has been during the pandemic, with 1,626 inmates.
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