State Judge Blocks Gov. Abbott From Restricting Jail Release Amid COVID-19 Concerns

Apr 10, 2020

A Travis County judge has temporarily blocked Gov. Greg Abbott's order limiting judges' ability to grant personal bonds under the state's disaster declaration.

Abbott's order, released late last month, required judges to deny personal bonds, which allow conditional jail release at little or low cost, to people accused of violent crimes or people previously convicted of violent crimes. Those people could be released, however, if they paid a cash bond. 

Attorneys representing the state argued the governor's disaster declaration gave him the power to issue the order in the interest of public safety. Opponents argued the governor's mandate to judges – without approval from the Legislature – was an executive overreach under state law.

In a ruling Friday night, Judge Lora Livingston sided with the plaintiffs and issued a temporary restraining order.

Livingston said in a letter to attorneys that Abbott's mandate unlawfully took away judges' ability to use their discretion in granting bonds and their obligation under state law to consider all factors in granting a personal bond.

"The judges of this state were required to balance these very interests every day prior to the disaster declaration, and they are required to balance these very interests every day while the disaster persists, and they will be required to do so every day once the disaster declaration ends," she wrote. "This exercise of judicial discretion falls squarely within the purview of the judicial branch of government."

Plaintiffs – including ACLU Texas, judges in Harris County, Texas Fair Defense and the NAACP – argued Abbott's order could keep poor defendants in jail, while allowing defendants who could afford bond to walk free. They also said preventing the release of low-level offenders could exacerbate the spread of COVID-19 in jails.

In a statement after the ruling, Andre Segura, legal director for ACLU of Texas, said he was glad the court recognized the urgency of the situation, given the coronavirus pandemic.

"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.

Abbott has argued his order would keep possibly violent offenders off the streets. At a hearing Friday afternoon, attorney Adam Biggs argued that the Texas Disaster Act empowers the governor to limit the "ingress and egress" of people across the state in the event of a disaster declaration and that limiting jail releases fits within that scope.

He added that the order gives "wide discretion" to judges to grant bonds, adding that they could grant them for health or medical reasons. 

Livingston suggested that argument was based on "circular reasoning."

"Could the health and medical reason be we don't want to lock them up in a jail where they could contract this virus?" she said.

The case heads back to court April 24.

Got a tip? Email Andrew Weber at aweber@kut.org. Follow him on Twitter @England_Weber.

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