Houston Bondsmen Fight to Restore Bail for Misdemeanors

HOUSTON(CN) – A group of bail bond companies claim Harris County criminal court judges and the Harris County sheriff unconstitutionally changed bond requirements for individuals arrested on misdemeanor charges, threatening their business.

In January, Harris County Criminal Court at Law judges voted to adopt a new bond rule granting most misdemeanor arrestees a personal recognizance bond, or “PR bond, releasing them on the spot without posting bail.

The rule stems from a 2016 lawsuit by the Civil Rights Corps and Texas Fair Defense Project claiming misdemeanor arrestees’ due process rights are violated when they sit for days in jail without a hearing because they can’t afford to post bail. In May 2017, U.S. District Judge Lee Rosenthal found the bail system unconstitutional and ordered Harris County to begin releasing low-risk arrestees on unsecured bonds if they affirm in an affidavit that they cannot afford to post bail.

In February 2018, the Fifth Circuit affirmed Rosenthal’s finding.

Harris County spent $9 million fighting the litigation, but dropped its fight in January after a fleet of new Democratic judges were elected in 2018, replacing Republican incumbents.

Plaintiffs Sharon McCleveland, Kelvin Hampton Sr. and Mario Garza say in their Harris County District Court lawsuit filed Thursday that their “right to make a living by writing surety bail bonds is a protected liberty and property interest under the Texas constitution,” and the rule change doing away with bail for misdemeanors violates that right.

The plaintiffs claim they are caught in the middle of a debate between keeping the public safe and ensuring criminal defendants show up for their court dates, and protecting arrestees due process rights.

Before the county dropped its appeal, the bail bond industry said in friend-of-the-court briefs there is no constitutional right to affordable bail. According to the industry, courts run smoothly because the bail businesses track down arrestees who do not show up for hearings.

The plaintiffs, who have a direct stake in the rule change, are “just trying to get a seat at the table” in navigating the dichotomy between adherence to state and federal law, as well as protecting the rights of both themselves and the arrestees affected by bail bond rules, their attorney Kevin Pennell said in an interview Friday.

Pennell said when the judges changed the rule, they swung the pendulum too far from the county’s prior bond policy of using a predetermined schedule that arrestees may or may not have been able to afford.

According to Pennell, the defendant judges were “taking liberties with state law” by simply releasing misdemeanor arrestees, only making a handful of exceptions for crimes like domestic violence and repeat drunk driving offenses.

Because Rosenthal is a federal judge, Pennell said her ruling “can give the policy a clean bill of health” at the federal level but cannot address the state laws associated with bail bonds. He believes the bail industry’s lawsuit will help find a middle ground to comply with both state and federal laws.

Neither the defendant judges – who are sued only as policymakers and not in their judicial capacity – nor Sheriff Ed Gonzalez could be reached for comment by press time.

The plaintiffs seek a temporary restraining order and temporary injunction blocking enforcement of the new rule.

Pennell is with the Pennell Law Firm in Houston.

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