Off the Kuff Rotating Header Image

Another lawsuit filed over Abbott’s stay-in-jail order

There’s no slowdown in the litigation business, that’s for sure.

Gov. Greg Abbott’s order restricting the release of some jail inmates during the new coronavirus pandemic is facing a second court challenge arguing his order violates the constitutional separation of powers and discriminates against poor criminal defendants.

Harris County’s misdemeanor judges, criminal defense organizations and the NAACP of Texas sued Abbott and Texas Attorney General Ken Paxton Wednesday in Travis County district court. The plaintiffs are represented in part by the ACLU of Texas and the Texas Fair Defense Project.

Last month, Abbott issued an executive order that suspended much of the state’s bail laws and prohibited the release of people in jail accused or previously convicted of violent crimes without paying bail. The order largely banned judges across the state from releasing such defendants on no-cost, personal bonds, which can include conditions like drug testing and regular check-ins. The attorney general’s office has said no-cost release could be considered for individuals based on health or safety reasons after a chance for a hearing is given, which some attorneys said takes weeks.

But, under Abbott’s order, people accused of the same crimes with the same criminal history could still quickly be released from jail if they had access to cash. The lawsuit argues Abbott’s order ignores constitutionally-mandated separation of powers by taking away judges’ discretion. It also states the system put in place under the order creates an unconstitutional wealth-based system, similar to those that federal courts have slammed in Texas counties.

“The harms of this order are not abstract: poor people are being detained pretrial with no way to escape a possible jail outbreak,” said Amanda Woog, executive director of the Texas Fair Defense Project, in a statement announcing the lawsuit. “The governor has overstepped his legal authority, and this is causing significant harm on the ground.”

See here, here, and here for the background. A copy of the lawsuit is here and the full statement from the ACLU is here. I get that this lawsuit is over the authority Abbott has to suspend various criminal laws, but it’s a little unclear to me what the actual stakes are. The misdemeanor court judges, who are plaintiffs in this suit, have already said they will continue to abide by the bail lawsuit agreement, while the felony court judges are doing their own thing. I guess we’ll find out when we start having hearings. If you’re a lawyer and want to help clarify this for me, please do. Grits has more.

Related Posts:

One Comment

  1. […] here for the previous update. Judge Livingston more or less addressed the question I had raised, which […]