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Abbott’s stay-in-jail order blocked and then unblocked

This was Friday.

A state district judge in Travis County has temporarily blocked enforcement of Gov. Greg Abbott’s order to limit jail releases during the new coronavirus pandemic. She cited unconstitutional provisions and overreach of executive power in the gubernatorial order.

State District Judge Lora Livingston issued her ruling Friday night after a lawsuit this week challenged the governor’s order that prohibited judges from releasing some inmates without paying bail. Abbott’s order was prompted by some local officials moving to reduce the number of people locked up in disease-prone county jails. He said “releasing dangerous criminals in the streets is not the solution.”

Abbott’s order banned the release of jail inmates accused or previously convicted of a violent crime on no-cost, personal bonds which can include conditions like regular check-ins. Under Abbott’s order, those accused of the same crimes with the same criminal history could still be released from jail if they have access to cash. A no-cost release can still be considered for health or safety reasons after a chance for a hearing is given, though some attorneys said that can take weeks.

Harris County’s misdemeanor judges, criminal defense organizations and the NAACP of Texas argued in their lawsuit filed Wednesday that Abbott’s order violates the constitutional separation of powers and keeps only poor defendants in jails. The plaintiffs, represented in part by the ACLU of Texas and the Texas Fair Defense Project, asked the court to declare Abbott’s order unconstitutional and an overreach of his power.

[…]

In a virtual hearing Friday, Livingston repeatedly questioned how the governor’s order affected public safety and whether he could make a widespread decision to take away judges’ authority to individually assess defendants.

“I’m just trying to understand how this order without regard to any particular specific information about a case can blanketly decide that a personal bond is not necessary or appropriate or required in a particular situation,” she said. “I’m troubled by the sort of blanket nature of that order in the same way that apparently the governor was concerned about a blanket order from judges that hasn’t yet happened but could theoretically be entered.”

[…]

“What confusion is solved by the governor taking action in this way when in my mind, and apparently in the mind of the Harris County district judges, there’s no confusion at all?” she asked Biggs. “I think the judges do what they do and that Harris County order seemed to bear that out: This is what judges do everyday and we will handle it, thank you very much.”

She later added that the county judge can’t tell local judges how to make decisions. “That’s not how separation of powers works; that’s not how reality works.”

See here for the previous update. Judge Livingston more or less addressed the question I had raised, which is that given how the judges in Harris County had already said they were going to operate, what was Abbott’s order even doing? This ruling was to in effect until April 24, at which time there will be another hearing. But then the Supreme Court stepped in:

The Texas Supreme Court has revived Gov. Greg Abbott’s order restricting the release of some jail inmates during the coronavirus pandemic.

On Saturday, the high court stayed a state district judge’s ruling from Friday night that blocked Abbott’s order. The district judge cited unconstitutional provisions and an overreach of executive power in her temporary order against Abbott. The Supreme Court’s order is also temporary, with responses due to the court Monday evening.

The legal battle stems from an Abbott order issued last month during the state disaster. The governor’s order prohibits judges from releasing jail inmates accused or previously convicted of a violent crime without paying bail — banning no-cost, personal bonds which can include conditions like regular check-ins. Under Abbott’s order, those accused of the same crimes and with the same criminal history could still be released from jail if they have access to cash. A no-cost release can still be considered for health or safety reasons after a chance for a hearing is given, though some attorneys said that can take weeks.

A copy of Judge Livingston’s ruling is here. I would refer you to the Grits for Breakfast analysis of why the plaintiffs should win on the merits, which now we have to hope that the Supreme Court is able to recognize as well. The Chron has more.

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One Comment

  1. Wolfgang says:

    I have my doubts about how this is going to end. Several current members of the Texas Supreme Court owe their jobs to Greg Abbott, who is himself a former member of the SCOTX. He and his buddies all populate the same ideological bubble.

    There is currently no effective (de facto) separation of powers between the executive and judicial branch at the highest level. On the SCOTX, nine Republicans have total control, not just majority control (as the Dems on the metropolitan COAs since January 2019). There is not a single non-Republican to squeal in dissent and make a valiant effort to keep them intellectually honest.

    They have shown time and again that they are ready to do as they see fit, making up new rules for the occasion, i.e. ad hoc, to “justify” a particular disposition when the existing precedents are not to their liking.

    Here, they issued a stay immediately for Abbott’s benefit. On a Saturday, no less. And since AG Paxton filed the petition, all of a sudden it’s no problem that the requisite APPENDIX does not have bookmarks even though it consists of multiple items. Disfavored litigants and amici have their filings STRUCK for such trivial “violations” of the TRAPs, and are thereby reminded to their lowly status as schmucks. Not to mention that the Supremes—through the TRAP briefing rules promulgated by them–require all supplicants to pray to them for relief. Some litigants’ prayers are readily answered. Most others are doomed.

    Grits for Breakfast is worth quoting:

    “Will the Supreme Court’s loyalties lie more with the constitutional authority of the judicial branch or their partisan affiliations? Is Greg Abbott merely a governor whose powers are constrained by the constitution and state law, or a king who may do what he pleases so long as he declares a “disaster” first? Or will the Republican-led Supreme Court have the foresight to understand that their party won’t always control Texas’ statewide offices and enforce constitutional limits so that future governors won’t also run amok?”