Texas Lawmaker Seeks Ouster of Attorney in Bail Case

HOUSTON (CN) – A Texas state senator who agrees with a class action claiming the state’s most populous county unconstitutionally jails poor people wants an attorney representing the county removed for his “disgraceful statements” during a recent hearing.

Known as the “Dean of the Texas Senate,” Sen. John Whitmire, D-Houston, has held the office since 1983 and is chair of the Senate Criminal Justice Committee.

With more than 4.3 million residents, Harris County operates the state’s biggest jail in downtown Houston that books an average of 1,400 people a week. Houston is the county seat.

Represented by the Civil Rights Corps, a Washington, D.C. firm, the plaintiffs in the class action seek a preliminary injunction, ordering the county to release low-level arrestees on no-fee bonds, also called personal bonds.

Well aware the bail system is partly to blame for chronic overcrowding in the jail, the county is implementing a “public-safety assessment,” in which all arrestees will be evaluated for eligibility for no-fee bonds by a computer program without pretrial service staff having to interview them.

The county’s attorneys asked U.S. District Judge Lee Rosenthal at a Feb. 8 hearing to stay the case until after the new system, set to launch July 1, is installed, claiming in court filings “these changes will likely moot this lawsuit.”

The county hired James Munisteri with Gardere Wynne Sewell in Houston to defend five Harris County magistrate judges who preside over probable cause hearings and set bail for arrestees.

Munisteri told Rosenthal during the stay motion hearing that the county has taken steps to reform its bail system.

He said that since the class action was filed in May 2016, Harris County criminal judges have enacted rule changes that dictate personal bonds for more low-level arrestees, and a new pretrial services form collects more financial data about defendants earlier in the post-arrest process, so the percentage of defendants granted no-fee bonds has jumped from 8 percent to more than 20 percent.

Asked by Rosenthal what percentage of Harris County inmates are in jail only because they can’t afford bail, Munisteri made some curious arguments that caught the attention of Whitmire and Harris County Precinct 1 Commissioner Rodney Ellis, who was among 30 people in the gallery.

“There are individuals, for instance, that for whatever reason, decide they do want to go to jail and stay there. If it’s a cold week,” Munisteri said.

Rosenthal tried to walk him back from the statement.

“That’s a dicey argument to make. That’s a difficult assumption to make. It’s uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery because they were afraid of the alternative,” she said.

But Munisteri pressed on: “In addition, your honor, there are individuals who believe they have guilt and agree to plea.”

Rosenthal shot back: “Or they plea just because they want to get out of jail and can’t afford to get out any other way.”

Rosenthal, a George H.W. Bush nominee, denied the county’s stay motion and set a preliminary injunction hearing for March 6.

Ellis told reporters after the hearing he agrees with the plaintiffs and is concerned about the thousands of dollars the county has spent “to defend a system that’s indefensible.”

But he made his feelings about Munisteri’s arguments known a few days later in a letter co-signed by Whitmire that he sent to Harris County Attorney Vince Ryan on Feb. 10.

“We are writing this letter to call your attention to disturbing statements made Wednesday in federal court by James Munisteri, an attorney your office has hired to defend Harris County’s bail system,” the letter opens. “Mr. Munisteri claimed ‘there are individuals, for instance, that for whatever reason, decide they want to go to jail and stay there’ and the number of people in jail because of their inability to pay might possibly be zero.”

In the letter, Ellis reiterated his support for the class action’s goal of reforming the county’s bail practices.

“It is our position that the Harris County bail system blatantly violates the rights and freedoms protected under the U.S. Constitution by creating one system of justice for the wealthy and an unjust one for the poor,” the letter states. “We ask that you immediately dismiss Mr. Munisteri from representing the people of Harris County, and join us in condemning the disgraceful statements he made in court Wednesday.”

Munisteri didn’t respond Tuesday morning to a request for comment on the letter.

Robert Soard, assistant county attorney, told the Houston Press his office is waiting to get a transcript of the hearing to see the context of Munisteri’s statements.

In September, the county had spent $170,000 defending against the class action, paying several other private attorneys between $240 and $650 per hour, the Press reported.

At their regular Harris County Commissioners Court meeting on Tuesday, the county’s CEO and its top four executives, including Ellis, are considering the county attorney’s request for payment of the latest fees Munisteri and other private attorneys have charged for their work on the case.

Munisteri said during the Feb. 8 hearing he had been involved in the case for less than two weeks.