AUSTIN, Texas (CN) — Sixteen Houston judges and three criminal defense attorneys’ associations sued top Texas officials Wednesday, claiming the governor’s executive order restricting judges’ ability to issue no-fee bonds is unconstitutional and will put inmates and jail staffers at greater risk of contracting the coronavirus.
The complaint was filed in Travis County District Court against Governor Greg Abbott and Attorney General Ken Paxton, both Republicans.
“The governor does not have the authority to suspend state law, particularly those that govern our criminal justice system, even during an emergency,” Andre Segura, legal director for the American Civil Liberties Union of Texas, said in a statement. “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.”
Judges typically have discretion to decide whether to jail someone who has been charged with a crime, require them to pay up to hundreds of dollars to post bail, or to let arrestees go on a personal recognizance bond, an agreement that the accused will return for a court date without having to post bail.
Judges and law enforcement officials in Texas counties have taken steps to reduce jail populations pursuant to public health experts’ warnings that correctional facilities are uniquely well suited to expose both detainees and detention staff to the novel coronavirus.
But Abbott’s executive order suspends elements of Texas’ Code of Criminal Procedure, forbidding judges from granting personal bonds to people charged with threatening or inflicting physical violence as well as people arrested for nonviolent crimes but who previously received a conviction for offenses involving or threatening violence.
The order also suspends limitations on how long pretrial detainees arrested for any reason can be held before their trial, so those who cannot afford bond could be held in jail indefinitely. Additionally, counties cannot release people for “good conduct, industry, and obedience” if they are serving a violence-related sentence or ever have.
Wednesday’s lawsuit — filed on behalf of the judges and attorneys’ associations by lawyers with the Harris County Attorney’s Office, Texas ACLU and other civil rights groups — asks a judge in Travis County, home to the state capital of Austin, to keep the governor from enforcing the order until its validity is determined in a hearing within the next two weeks.
The groups argue that the order discriminates on a class basis, permitting wealthier people to buy their way out of jail while those who can afford to post bail must stay locked up and risk contracting or transmitting the novel coronavirus there.
The governor and attorney general’s offices did not immediately respond Wednesday to request for comment on the lawsuit.
“The harms of this order are not abstract: poor people are being detained pretrial with no way to escape a possible jail outbreak,” Amanda Woog, executive director of the Texas Fair Defense Project, said in a statement. “The governor has overstepped his legal authority, and this is causing significant harm on the ground.”
Arthur Ago, criminal justice project director for the Lawyers’ Committee for Civil Rights Under Law, warned of racially discriminatory consequences to the governor’s order.
“Governor Abbott’s illegal executive order disproportionately keeps poor people, people of color, and in particular African Americans jailed and therefore at a heightened risk of contracting Covid-19,” Ago said.
The order also puts jail staff and correctional officers at unnecessary risk, said Texas NAACP President Gary Bledsoe.
“The virus isn’t stopped by jail cells or other such barriers. To the contrary, jails increase the rates of coronavirus infection,” he said. “For all those reasons it’s best to leave the decisions of how to stem the spread of the coronavirus in the jails and prisons to judges. Under our laws, they are the ones who are best suited to make those decisions.”
The groups further argue that the governor lacks authority under Texas state law to suspend elements of the criminal code, claiming only the legislature can suspend state laws and no law exempts the governor from this restraint even during emergencies.
The same day Abbott issued his executive order, Paxton filed suit in Harris County to prevent the release of people arrested for felony charges on personal bonds.
“A Harris County judge released a murder suspect on bond because the suspect claimed he feared contracting Covid-19 in jail,” according to a statement from the attorney general’s office. “Harris County refuses to defend its citizens against the proposed mass, unmonitored release of felons, making state intervention necessary to protect Texans from this potential threat.”
According to the Texas Department of State Health Services, 9,353 cases of Covid-19 have been reported in the state as of noon Wednesday, while 177 Texans have died and an estimated 770 patients have recovered.
Harris County, home of Houston, leads the state with 2,146 reported cases at press time.