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Texas Supreme Court Rules Judges Can't Sue Over Abbott's Order Limiting Bail For Violent Offenders

Gabriel C. Pérez

The Texas Supreme Court has rejected a challenge to Gov. Greg Abbott's executive order that limits judges' ability to grant personal bonds to people with a history – or people who are accused of – violent crimes.

Judges in Harris County challenged the order, which was released last month, arguing it is unconstitutional because it prevents judges from using their own discretion in deciding bail. The state's high court said judges didn't have standing to sue because they're not directly affected by the order.

Earlier this month, Travis County Judge Lora Livingston ruled in favor of the judges, and the state appealed that decision to the Texas Supreme Court.

In its ruling Thursday, the state's high court said the judges weren't "genuinely personally affected" and that a proper challenge to the order would have to come from a defendant. 

"That does not mean the issues raised in this lawsuit are unimportant or cannot be litigated," the decision read. "If a defendant in a bail hearing contends the executive order is unconstitutional and the suspended statutes should continue to provide the rule of decision, the judge has a duty to rule on that issue, and the losing side can challenge that ruling."

The groups that brought the lawsuit – ACLU of Texas, Texas Fair Defense Project and Civil Rights Under Law – argued the ruling laid out a path for the order to be struck down by a lower court.

“We will be returning to the District Court to address the technical issues that the Supreme Court ruled on," Arthur Ago of Civil Rights Under Law said in a statement. "Once there, we are confident that the District Court will reaffirm its previous ruling that the order was illegal. Our position remains the same: the order does nothing to protect the public."

Harris County officials alleged the governor's order targeted their attempt to reduce the spread of COVID-19 in the Harris County Jail. The order came on the eve of Judge Lina Hidalgo's planned release of nonviolent inmates, and two days after Harris County judges met to expedite releases and cut down inmate bookings. Hidalgo went ahead with the release of hundreds of inmates, arguing she was in compliance with Abbott's order and a previous federal order that stemmed from a lawsuit against the county's bail system.

In the days after Abbott's order, felony and misdemeanor judges across the state suggested they either wouldn't comply or would grant bonds of just $1 to ensure quick release.

Judges in the lawsuit argued if they defied the order, they could face reprisal from Abbott or Attorney General Ken Paxton. In its 15-page opinion, however, the high court suggested the order might be near impossible to enforce.

"The executive branch cannot criminally prosecute judges for deciding cases based on what they understand the law to be," the opinion read. "We appeal judicial decisions we don’t like; we don’t jail the judges."

On top of that, the Texas Supreme Court pointed out that the state's attorneys admitted in court that they likely wouldn't enforce the order, but that that responsibility would fall to district attorneys.

The opinion didn't directly address complaints from defense attorneys, who argued it hobbled their ability to get clients released and that navigating the red tape associated with the order could mean more visits to jails and more physical contact, which could increase their chance of contracting COVID-19.

Steve Brand with the Austin Criminal Defense Lawyers Association characterized the order as a win for defense attorneys who are still challenging the order in a lower court. He said it gave the go-ahead for a ruling in that case.

"I think we got language that was extremely important language that we were looking for, which is, 'Hey, judges, rule on this issue," he said. "When you're screaming from the rooftops ... 'Somebody make a decision on this because the order by the governor is unconstitutional,' somebody needs to fix that – and I don't care who. And I think the [Texas] Supreme Court, through its decision has now empowered the lower courts."

This story has been updated. 

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

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Andrew Weber is a general assignment reporter for KUT, focusing on criminal justice, policing, courts and homelessness in Austin and Travis County. Got a tip? You can email him at Follow him on Twitter @England_Weber.
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