Gov. Greg Abbott’s order restricting the release of some Texas jail inmates during the coronavirus pandemic is being challenged in federal court. Civil rights attorneys filed a court motion Wednesday arguing the order unconstitutionally discriminates against poor defendants and also takes away judges' power to make individual release decisions.
Abbott issued an order Sunday that suspended much of the state’s bail laws and banned the release of people in jail accused or previously convicted of violent crimes without paying cash bail. Those inmates could still walk free if they have access to cash. Texas counties, including Harris and Dallas, have been sued in federal court for bail practices that have been deemed unconstitutional for using cash bail systems that often keep poor defendants in jail before they are convicted.
Abbott's order was intended to keep violent criminals off the street at a time when officers and the public had enough to worry about, he said, but it immediately drew rebukes from attorneys and Democrats who said it only kept poor people in jail. Several legal scholars and advocates questioned the constitutionality of such an order, and a legal challenge was expected.
On Wednesday, in an ongoing federal lawsuit over Harris County’s felony court bail practices, attorneys representing inmates filed a motion for a temporary restraining order against Abbott’s order. The motion asks U.S. District Judge Lee Rosenthal to order Harris County judges to ignore Abbott’s order until a full hearing can be held.
“The text of the Order purports to block release of presumptively innocent individuals even if state judges conclude that there is no individualized basis for their pretrial detention — but only for those who cannot pay,” the motion said.
Abbott said Tuesday that his legal team and the attorney general's office worked for days on the order to ensure it met "constitutional muster." His order "doesn't focus on how deep somebody's pocketbook is. It has to do with how serious the crime they committed," he said. A spokesperson for the governor did not immediately respond to questions about the court challenge Wednesday.
Harris County’s misdemeanor courts have already been found in federal court to discriminate against poor defendants with their past bail practices, and the judges are now under a federal order to release most low-level defendants on no-cash bonds. The misdemeanor judges said Tuesday they would be following the court order — not Abbott's, stating a federal court decree outweighs a governor’s order.