Texas County Appeals Injunction in Bail Dispute

HOUSTON (CN) – Harris County, Texas, officials refused Tuesday to buckle to public pressure to settle a lawsuit in which a federal judge ordered the county to release poor misdemeanor defendants from jail within 24 hours, and instead filed an appeal to the Fifth Circuit.

U.S. District Judge Lee Rosenthal issued a preliminary injunction on April 28 ordering Harris County to release misdemeanor defendants on personal bonds within 24 hours after they sign an affidavit stating they cannot afford cash bail.

Harris County Attorney Vince Ryan took issue with an aspect of Rosenthal’s order at a Harris County Commissioners Court meeting on Tuesday, saying he believes it unconstitutionally takes away the authority of the county’s 16 criminal court judges to set bail.

Starting on May 15, Rosenthal ordered, Harris County Sheriff Ed Gonzalez must release all misdemeanor defendants–who are not subject to immigration, mental health or family violence holds—from jail on a no-fee bond if the defendant has not had a probable cause hearing within 24 hours.

“The judge’s order, as I’ve stated very publicly, shifts judicial authority to a non-judicial officer to release people from jail,” Ryan told the commissioners court, the county’s five-member executive board, before a standing-room only crowd.

“It shifts some of these judicial decisions of release in a way I personally think is a very awkward manner, to the sheriff’s office. At the same time from a practical standpoint, a lot needs to be done even if we were able to implement that. So we think on the law it needs to be appealed and on practical matters it needs to be appealed,” he added.

Though as administrator of the jail Gonzalez is a defendant in the lawsuit, he has stated in an affidavit he agrees with the plaintiffs that Harris County’s bail system unconstitutionally jails people only because they can’t afford bail.

Harris County, with 4.4 million people, is the most populous county in Texas and also runs the state’s biggest jail in downtown Houston, its seat. There’s an average of 9,000 inmates in the jail each day, 75 percent of whom are waiting for their case to be adjudicated, according to court records.

Gonzalez told the county commissioners that he could use more time to prepare his office for the changes mandated by Rosenthal’s order.

“We would have to come up with a temporary process on the 15th. It would not be the most efficient, but we could definitely roll something out. … Ideally in a perfect world if we had some additional weeks to implement it would be a lot smoother,” Gonzalez said, flanked by six sheriff’s deputies who lined the walls of the meeting room, their black service uniforms standing out against its wood-paneled walls.

The commissioners voted 4-1 to approve Ryan’s request for funds to appeal Rosenthal’s order to the Fifth Circuit in New Orleans.

Gonzalez told reporters after the meeting that he opposes an appeal. He said he would rather work out a settlement and ask Rosenthal to extend the deadline to implement her order.

Seemingly before Tuesday’s meeting adjourned, Harris County had filed an appeal with the Fifth Circuit and an emergency motion asking Rosenthal to stay her order pending the appeal.

The county argues in its stay motion that Rosenthal’s order effectively strips county criminal judges and magistrate judges, who initially set bail at probable cause hearings, of their authority to consider four other factors besides ability to pay in setting bail, including the safety of the victim and community.

The five factors are set out under a section called “Rules for Fixing Amount of Bail” in Texas criminal law. The first rule states: “The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.”

But throughout an eight-day hearing in March, Rosenthal pressed county attorneys to give her stats showing people are more likely to show up for court if they pay cash bond, rather than personal bonds.

The county has no such stats, its officials testified.

Harris County attorneys also argued in Tuesday’s stay motion that Rosenthal’s order will be cumbersome and expensive for its pretrial services department to implement because it will have to keep tabs on the increased number of defendants who will make bail on personal bonds.

“This supervision will come at a high and unrecoverable cost. These costs, which will cover everything from GPS monitoring devices to hiring additional pretrial services officers and caseworkers, could run to the tens of millions of dollars,” the motion states.

Rosenthal found that by setting cash bond according to a fee schedule based on the charges, even for homeless people, Harris County was using bail as a system of preventive detention, rather than a mechanism of release, which is illegal in Texas.

Harris County Criminal Court No. 16 Judge Darrell Jordan is a defendant in the lawsuit. But like Sheriff Gonzalez, he agrees with the plaintiffs and wants the county to settle the case.

“For people saying it’s a safety issue to give people a PR bond, consider when it’s income tax time. Do those people become safe because they now get a $2,000 refund check and they can post their bond and get out?” Jordan asked county commissioners on Tuesday.

The county has already spent $2.8 million on outside counsel defending against the lawsuit.

Its decision to retain Charles J. Cooper, a Washington D.C. lawyer who specializes in appeals and is a friend of U.S. Attorney General Jeff Sessions, at $550 per hour in April, tipped the county’s hand that it was likely to appeal Rosenthal’s order.

But Ryan, the county attorney, said the attorney’s fees the county has spent on the case must be viewed in light of his office’s total budget.

“There are 105 attorneys in our office. We have outside counsel on a wide range of cases. This one is a very important and very unique case, but even taking it in context with the fees that have so far been spent on outside counsel, $2.8 million, we’re talking about a criminal justice system that is over $700 million a year,” Ryan told the county commissioners.

Lead plaintiff Maranda ODonnell sued Harris County in May 2016 after she was arrested on a misdemeanor charge of driving with an invalid license, and a magistrate judge set her bail at $2,500.

ODonnell, 23, says her detention jeopardized a new restaurant job she needed to care for her young daughter. She got out of jail after a few days by paying her $2,500 bail.

Her case was consolidated in August 2016 with another lawsuit making similar claims against Harris County.

She is represented by attorneys from Washington, D.C.-based Civil Rights Corp., Susman Godfrey in Houston and the Texas Fair Defense Project in Austin.

ODonnell’s lawyers have told local media they are willing to settle the case on terms that align with Rosenthal’s preliminary injunction order.

Asked on Tuesday for the status of settlement talks and for their response to Ryan’s claim that Rosenthal’s order illegally shifts authority to the county sheriff to release people from jail, an argument noticeably absent from the stay motion, attorney Rebecca Bernhardt with the Texas Fair Defense Project said, “Plaintiffs [sic] counsel does not have answers to your questions at this time.”

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