Friday, March 31, 2023 | Back issues
Courthouse News Service Courthouse News Service

Texas Judges Lose Challenge to Ban on Inmate Releases

A group of Houston judges who sued over Texas Governor Greg Abbott’s order barring the release of inmates charged with violent crimes lack standing because the order only applies to inmates, the state’s high court ruled Thursday.

AUSTIN, Texas (CN) — A group of Houston judges who sued over Texas Governor Greg Abbott’s order barring the release of inmates charged with violent crimes lack standing because the order only applies to inmates, the state’s high court ruled Thursday.

In the past month, counties across the country and the federal Bureau of Prisons have released thousands of inmates from custody, heeding health officials’ warnings that jails and prisons are fertile ground for Covid-19 outbreaks.

The pandemic spurred Los Angeles County to release more than 4,000 nonviolent inmates, while Cuyahoga County, Ohio freed half of the 2,000 inmates from its jail in the county seat Cleveland.

The Harris County criminal court building in Houston. (Photo by i_am_jim/Wikipedia)

Within days of the Texas Commission on Jail Standards’ call last month for county officials to consider releasing nonviolent misdemeanor arrestees, Bexar County, home to San Antonio, released 770 inmates.

Travis County judges in the state capital Austin started granting personal bonds, for which no upfront payment is required, to people arrested on low-level theft and drug charges.

In Houston, Harris County Judge Lina Hidalgo – the county’s chief executive, not a court of law judge – directed the sheriff to start identifying inmates who could be set free.

Fearing Hidalgo’s order would cause a crime spree in Houston, Governor Abbott, a former Texas Supreme Court justice and Texas attorney general, sprang into action.

The Republican governor issued an executive order on March 29 temporarily barring judges from releasing anyone charged with a violent crime, or who had ever been convicted of a violent crime, on a personal bond, and blocking judges from commuting the sentences of such inmates.

Critics say the order unfairly falls on the indigent because inmates who can afford cash bail can pay for their release.

Sixteen Harris County misdemeanor court judges, the NAACP of Texas and three criminal defense attorney associations, represented by the American Civil Liberties Union of Texas, sued Abbott and Texas Attorney General Ken Paxton over the order two weeks ago.

The order does not preclude judges from granting people personal bonds for health or medical reasons after individual bail hearings, including if they have health problems that could put them at risk for a life-threatening Covid-19 infection.

But the Harris County judges claimed Abbott had usurped their authority to make bond decisions and sowed confusion in their courtrooms. They argued they had standing because Paxton had threatened to prosecute them, as judges who violate the order can be fined and jailed for 180 days.

The judges pointed to Paxton’s March 30 post on Twitter saying the “release of thousands of arrestees justly held for felony crimes would directly endanger the public, and my office will not stand for any action that threatens the health and safety of law-abiding citizens.”

Travis County District Judge Lora Livingston sided with the Harris County judges on April 10 and blocked Abbott’s order with a temporary injunction.

Abbott and Paxton turned to the Texas Supreme Court, which granted their motion to stay the injunction while it considered their mandamus petition to vacate it.

The state high court on Thursday agreed the 16 Harris County judges lack standing.

In a unanimous ruling, the high court’s nine justices, all Republicans like Paxton and Abbott, found that although the governor’s order does impact the 16 judges’ official duties, it does not apply to them.

“Instead, it applies to jailed inmates by affecting their rights to pre-trial release,” the 15-page order states.

The Texas Supreme Court noted that none of the plaintiffs are inmates who have been denied release due to Abbott’s order. It also found that despite Paxton’s threat on Twitter, he cannot press charges against noncompliant judges, only county district attorneys can.

 “Yet no threat of prosecution by a district attorney is alleged. The state also readily concedes that the governor cannot initiate such prosecutions,” the unsigned ruling states. “Moreover, even if criminal prosecution of judges were genuinely threatened, the plaintiffs offer no reason to doubt that long-established principles of judicial immunity provide adequate protection.”

ACLU attorney Andre Segura was upbeat Thursday despite the setback and said he still believes Abbott overstepped his authority in handcuffing judges’ bond determinations.

 “The Texas Supreme Court clarified several important issues, including that despite the attorney general’s statement on Twitter that he will enforce the executive order, neither he nor the governor has any authority to do so. And also that judges must continue to comply with their constitutional obligations in evaluating individuals for pre-trial release,” he said in an email.

Paxton said the ruling helps protect public safety during the Covid-19 health crisis.

 “The Texas Supreme Court’s decision rightfully protects the health and safety of Texans from the unlawful release of potentially thousands of dangerous individuals into our communities,” he said in a statement Thursday.

The ACLU released a report Thursday about an epidemiological model it created projecting that Covid-19 deaths will rise by 100,000 in the U.S. if jail populations are not quickly and substantially reduced. The report was completed with help from researchers at Washington State University, the University of Pennsylvania and the University of Tennessee.

Meanwhile, in a plea echoing Governor Abbott’s concerns in Texas, 28 Republican U.S. senators, including Senate Majority Leader Mitch McConnell of Kentucky, sent a letter to U.S. Attorney General William Barr on Thursday, urging the Justice Department to think twice before releasing federal inmates convicted of violent crimes.

“We have serious concerns about the release of potentially dangerous individuals into communities during a declared national emergency and at a time when law enforcement must remain focused on preventing increased criminal activity arising from this crisis, such as cybercrime, scams, fraud and domestic violence,” it states.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.