Off the Kuff Rotating Header Image

The state of inmate releases

Harris County judges are going to follow the federal bail lawsuit settlement agreement and not Greg Abbott.

Texas Gov. Greg Abbott has moved to restrict the release of people in jail during the coronavirus pandemic — but Harris County’s misdemeanor judges aren’t abiding by his executive order. Instead, they’re following a federal court’s orders for their bail decisions.

And those tied to the court have again raised skepticism that Abbott’s order is even constitutional.

Instead of following Abbott’s recent executive order, a lawyer for the 16 criminal court judges that preside over low-level offenses in Texas’ largest county said in a Tuesday letter obtained by The Texas Tribune that the judges will continue to comply with practices solidified in a federal court agreement. That will allow for the automatic release of most misdemeanor defendants without collecting bail payment.


Abbott’s order, issued Sunday, suspended much of the state’s bail laws and prohibited the release of people in jail accused or previously convicted of violent crimes from being released on these personal bonds. But Abbott’s order only prohibits personal bonds, so those inmates could still walk free if they have access to cash.

In an interview with The Texas Tribune on Tuesday, Abbott said his order had nothing to do with bail reform efforts, which prompted Harris County’s lawsuit.

“Bail reform efforts, among other things, are focused on making sure that you’re not going to imprison someone just because they don’t have any money, and you’re not going to have a bifurcated system where the rich are gonna get to bail out and the poor are not,” he said. “So this doesn’t focus on how deep somebody’s pocketbook is. It has to do with how serious the crime they committed.”

A law professor overseeing the Harris County decree advised county officials this week that the federal court order supersedes the governor’s. And he also doubted the constitutionality of Abbott’s order.

“The Order is likely unconstitutional under state and federal law. But regardless of whether it is ultimately challenged and/or implemented, [it] does not affect any terms of the pre-existing … consent decree,” said Brandon Garrett of Duke University School of Law.

See here for the background. It’s still not clear to me what Abbott intended with this order and what if anything he’ll do in response to the courts’ actions. We do know what the plaintiffs in that bail lawsuit are doing, however.

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.


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.

My guess is that Judge Rosenthal will not be impressed by Abbott’s order, but I expect we’ll know soon enough.

And then there’s this.

Judge Lina Hidalgo

Judge Lina Hidalgo issued an order Wednesday directing the Harris County Jail to release some low-risk inmates to mitigate the spread of coronavirus.

It could take up to 32 hours for the relevant agencies to weigh in and allow eligible people to leave the downtown campus of the third largest jail in the country.

The order by Hidalgo — more than two weeks in the making — calls on Sheriff Ed Gonzalez to assemble a list of people accused of nonviolent offenses with no violent prior convictions. Murray Fogler, a lawyer for Gonzalez, estimated this initial list could include 1,000 to 1,200 people who fit the criteria.

The order cites the grave risk the disease poses to both the jail population and the whole Houston area.

“Without significant reductions in the current population, the lack of physical space, supplies, and staff to control an infectious outbreak in the Harris County Jail system is likely to spread to the greater Harris County region,” the order says. “These detainees spend significant time in communal spaces, including dormitories, eating areas, recreation rooms, bathrooms, and cells or holding areas, and are unable to choose to do otherwise. Further, detainees live in spaces with open toilets within a few feet from their beds, and unable to access a closed toilet that would not aerosolize bodily fluids into their living spaces.”

The order excludes anyone with three or more drunk-driving convictions, a conviction for burglary of a habitation or any pending temporary restraining orders.

See here and here for the background. The order, which is embedded in the Chron story, also takes into account inmates who have tested positive for COVID-19. The jail is going to be a huge vector for the virus, and the only thing we can do about it is to minimize the number of people who could be affected by it. Again, I wonder what if any resistance we’re going to get from the state.

Related Posts:


  1. The Party of Death olcal GOP activists are hopping mad both about restrictions on their right to infect others and the prisoner releases. Their anger is mainly focused on our new County Judge Lina Hidalgo and pusdy Democrats right now.
    Haven’t seen them so mad since they couldn’t prove President Obama was a Kenyan Muslim.

  2. Manny says:

    If there was thumbs button, I would give Lemming a thumbs up.

  3. Jason Hochman says:

    Lemming, I found some irony in the way these folks are concerned about constitutional when it comes to releasing inmates but not concerned when it comes to restricting churches.

    To be sure, the jail is a big problem. There was some prison reform at the federal level, and bail reform in the county. But jails and prisons are still over crowded.

    Releasing a lot of indigent people who may be homeless, maybe will stay with high risk elderly parents and grandparents, who may begin substance abuse–this is a big public health risk–but the problem has no easy solution. I sure don’t have one. If we are still around, this is something that needs to be considered in the future. Jail, bail, and prison reform is a serious concern.

  4. Robbie Westmoreland says:

    Preventing churches from holding in-person services during a time when large, in-person gatherings are a public safety problem is extraordinarily likely not to be found to be unconstitutional. Sane church leaders of religions other than the Church of Christ Mammon would stop holding in person services voluntarily. My brother-in-law did that weeks ago, because he cares about his congregation.

    Jail is not a suitable solution to homelessness. It is, however, an ideal environment for the spread of a disease. We really shouldn’t be eager to sentence people who’ve committed misdemeanors to illness and death.

    The US currently has more people in prison now with life sentences than we had imprisoned at all in 1970, by the way. A lot of those people will be dying over the next few months, so I guess that’s a problem that solves itself. The problem will be replacing the prison guards and other staff who also die or suffer long-term medical problems because our criminal justice system is so enthusiastically cruel.

  5. […] here and here for the background. Boy, you really have to watch out for those document-tamperers. They […]