AUSTIN, Texas (CN) — A Texas judge issued an injunction Friday blocking an executive order from Governor Greg Abbott meant to keep people charged with violent crimes behind bars, in a case rife with separation-of-power issues unleashed by the Covid-19 pandemic.
Travis County District Judge Lora Livingston granted the temporary restraining order late Friday after hearing arguments from the American Civil Liberties Union on behalf of 16 Harris County misdemeanor court judges, the NAACP of Texas and three criminal defense attorney associations.
They sued Governor Abbott and Texas Attorney General Ken Paxton on Wednesday over Abbot’s executive order directing judges not to grant personal bonds to anyone arrested for a violent crime or who has such a conviction on their records.
Abbott’s order came in response to Harris County Judge Lina Hidalgo’s directive for Harris County Sheriff Ed Gonzalez to release some inmates charged with nonviolent crimes from the county jail in Houston. In Texas, counties’ chief executives are called county judges but they do not preside over courts of law.
For weeks, Sheriff Gonzalez has warned that an outbreak in the jail would be a nightmare for the region, with inmates being taken to hospitals and further straining doctors and nurses dealing with a spike in critically ill Covid-19 patients.
Texas Assistant Attorney General Adam Biggs said in a video conference hearing Friday that widespread use of personal bonds, which require little or no payment, puts domestic assault victims at risk after Judge Livingston repeatedly asked him how Abbott’s order protects public safety.
“One concrete example would be if someone gets arrested for domestic violence today and they go into the jail and they get cut free immediately and they are back on the streets in 12 hours and then they shelter in place with their victim,” he said.
He also said the order does not preclude judges from granting personal bonds to violent offenders for health or medical reasons after individual bail hearings, adding, “This isn’t an automatic detention order saying throw everyone in jail.”
But ACLU attorney Andre Segura argued Abbott does not have carte blanche in emergencies to suspend all statutes, just those pertaining to state agencies.
“We are pleased that the court recognized the urgency of this matter and the need to press pause while it is heard in full. The governor has an important role to play in responding to this pandemic, but he cannot impede the ability of judges to use their discretion to release particular individuals, especially when lives are at risk,” he said in a statement Friday.
Livingston set a hearing about whether to extend the injunction for April 24.
As of Thursday, 29 Harris County jail staff and five inmates have tested positive for the virus, the sheriff’s department said in a statement.
Livingston was more receptive to the ACLU’s claims in the 90-minute hearing.
“The plaintiffs have said locking them up in close proximity endangers them, endangers the jail, endangers the sheriff’s deputies, endangers the judges, endangers the court staff,” she said. “It endangers more people than it protects by putting them in a situation in which they are more likely to contract this deadly virus than if they were at home away from other people practicing social distancing and stopping the spread.”
Under Abbott’s order, judges who violate it could be fined and jailed for 180 days.
Biggs said Abbott and Paxton are the wrong defendants as they cannot enforce the order. He said enforcement falls on counties’ district attorneys and only the Texas Supreme Court has jurisdiction to enjoin actions by the governor.
But Segura said Paxton has in fact threatened to enforce the order, as the attorney general wrote in a March 30 tweet about it, “My office will not stand for any action that threatens the health and safety of law-abiding citizens.”
The ACLU is battling to thin out jails across Texas.
It sued Dallas County on Thursday in federal court, seeking the immediate release of inmates over age 50 from the county jail due to the threat they could become seriously ill from the virus. More than 20 Dallas County inmates have tested positive.