AUSTIN, Texas (CN) — In a case fraught with separation-of-power issues unleashed by the Covid-19 pandemic, the American Civil Liberties Union urged a Texas judge Friday to block an executive order from Governor Greg Abbott meant to keep people charged with or convicted of violent crimes behind bars.
“This isn’t an automatic detention order saying throw everyone in jail,” Texas Assistant Attorney General Adam Biggs told Travis County District Judge Lora Livingston in a hearing held remotely through phone-and-video conference software.
He said the order allows judges to grant personal recognizance bonds, for which little or no payment is required, to violent offenders after a bail hearing for health or medical reasons.
“Could the health and medical reason be we don’t want to lock them up in a jail where they’re likely to contract this virus?” Livingston asked.
“There’s wide discretion in the [executive order] the way it’s written your honor,” Biggs said.
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, who had never been convicted of violent 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.
Biggs said in Friday’s hearing he’s heard from media reports there have been en masse inmate releases in Bexar and Travis counties, whose seats are San Antonio and Austin, respectively.
For weeks, Sheriff Gonzalez has warned that an outbreak in the Houston 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.
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.
Sixteen Harris County misdemeanor court judges, the NAACP of Texas and three criminal defense attorney associations sued Governor Abbott and Texas Attorney General Ken Paxton on Wednesday, agreeing with Gonzalez that a jail outbreak would cripple the region’s health care system.
Represented by the ACLU of Texas, they claim that after the governor issues disaster proclamations, state law only gives him the right to suspend statutes regulating state agencies, not courts.
ACLU attorney Andre Segura said in Friday’s hearing if the Texas Legislature wanted to give governors carte blanche in emergencies, it would have given them the right to suspend all statutes, not just those pertaining to state agencies.
Segura said Abbott’s order is extremely broad because, for example, it would apply to someone who had been convicted of a misdemeanor 20 years ago for threatening somebody.
Repeatedly during the 90-minute hearing, Judge Livingston said she’s baffled how Abbott’s order restricting judges from granting personal recognizance bonds accomplishes its stated goal of protecting public safety.
“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,” Livingston 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.”
Biggs countered: “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.”
But Livingston said courts have the tools to protect domestic violence victims.
“I heard an application yesterday related to a domestic violence situation in which they are not sheltering in place together. They have completely separated and that can be dealt with in the context of a protective order. We can issue stay-away orders that protect victims of domestic violence. That happens all day every day. That’s what we do here,” the judge said.
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 in the case 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.”
Livingston said she would rule on the motion to block Abbott’s order Friday afternoon.
The ACLU 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.