Harris County felony bail bond lawsuit ruling coming

Definitely something to look forward to.

Lawyers on both sides of a lawsuit accusing Harris County of unfair bail practices that unjustly imprison lower-income inmates are pressing for a swift resolution, and a judge says a ruling in the four-year legal battle will come soon.

U.S. District Judge Lee H. Rosenthal heard arguments from attorneys representing Johnnie Ray Pierson, Dwight Russell, Joseph Ortuno, Maurice Wilson and Christopher Clack on whether Harris County officials and Sheriff Ed Gonzalez violated the five men’s and other current and former inmates’ rights by putting them behind bars because they couldn’t afford cash bail.

“In this hearing, it became clear that the judge was mostly trying to clear away some of the procedural obstacles that would prevent her from actually addressing what this case is really about,” Cody Cutting, an attorney with the Civil Rights Corps, said on behalf of the men whom he and the nonprofit have represented since 2019. “People are being jailed because they lack money and no other reason.”

Harris County’s, the State of Texas and Gonzalez’s attorneys argued that the enactment of Senate Bill 6 in September 2021 would make the men’s lawsuit “moot” because of legislation allowing any person, including all prisoners, to be eligible for bail unless denial of bail is “expressly permitted” by the Texas Constitution or by other law. The provision doesn’t apply to capital offenses when the burden of proof is evident.

“What SB6 did is require the use of secured money bail, prohibiting unsecured bonds, for people charged with certain categories of offenses,” Cutting said.

A motion in the felony bail challenge asks Rosenthal to rule in favor of all inmates held at the Harris County Jail because they cannot afford the bail amounts set by the court. Lawyers from the Civil Rights Corps, based in Washington, D.C., also argue that local judges’ practices in felony court are unconstitutional.


The main issue Gonzalez has with the lawsuit is the implementation of the bail practices and whether Rosenthal’s ruling, if in favor of the plaintiffs, will put him in a difficult position in terms of deciding which courts’ orders to comply with, Fogler said.

“The sheriff certainly does not want an overcrowded jail, but that’s what’s happening,” Cutting said. “And what the sheriff has been resisting, is being held responsible for jailing people solely because they lack money.”

See here for the previous update, from over two years ago, and here for a Chron explainer on the lawsuit. This is about felony bail, not misdemeanor, as that issue was settled in 2019 via a different lawsuit. Note that because district court judges are defendants, and district courts are state offices, the Attorney General is defending them, not the County Attorney as was the case with the misdemeanor bail lawsuit. Not sure how much longer we’ll be waiting – that story was from last week, I just hadn’t gotten to it yet. I expect an appeal regardless of the ruling.

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3 Responses to Harris County felony bail bond lawsuit ruling coming

  1. Affordability is only one bail bond consideration. Other considerations include, but are not limited to, the severity of the alleged offense, the defendant’s likelihood to appear in court, the defendant’s likelihood to commit other crimes while out on bond (extensive criminal history), the risk to the alleged victim(s), and public safety. Judges should consider ALL those factors when setting felony bail bond amounts, not just affordability. In my opinion, the higher the risk, the higher the bond (a high bail bond for a high-risk felony defendant is a feature in the current system, not a bug). Let’s keep career criminals off our streets. If that means we need to build out more county jail space, so be it.

    To all those liberal activists who choose to ignore defendant risk-level assessments and insist that every felony defendant be given a bond they can afford, I have but one request: please move into a high crime neighborhood so you can live with the consequences of your advocacy.

    As Democrats, we have a duty to take a strong leadership role in public safety since it’s OUR urban constituency that suffers the most from crime, especially violent crime (not rural Republicans, Republicans living in wealthy neighborhoods, etc.). Let’s stop bending over backwards trying to help felony criminal defendants avoid jail and instead focus on protecting our law-abiding citizens.

  2. Ken W. Good says:

    This case was turned on its head two days after the hearing because the Fifth Circuit issued an opinion in Daves v. Dallas County (en banc). The court of appeals overturned the ODonnell case which is the misdemeanor case that is referenced above. The Fifth Circuit held that the Daves case and the ODonnell case should never have been filed in federal court. They remanded Daves to the trial court with instructions to dismiss. Russell has essentially the same defendants left. You should expect a quick dismissal. The trial court had a hearing on the new opinion at 3:00 pm on the day it was released. She entered a briefing schedule that puts this case on track for dismissal in May or soon thereafter.

  3. Mr. Good,

    Thank you for the update. Prior to the Democratic sweep in 2018, the Republican county court judges underutilized the issuance of “free” personal recognizance bonds, resulting in a lot of low-risk, pre-trial misdemeanor defendants staying in the county jail simply because they were too poor to post bail. In 2019, the new Democratic judges used Texas Govt. Code 75.403 to implement Administrative Order Number 2019-01 (Local Rule 9), which mandated, among other things, that most misdemeanor, pre-trial defendants be released on P.R. bond, with a few exceptions (e.g. violating a Protective Order, DWI-2nd). I strongly supported the intent of Local Rule 9 because (1) it allowed poor, relatively low-risk misdemeanor defendants to be released from jail pending the outcome of their case, and (2) it freed up our limited (and very expensive) county jail beds for use by higher-risk, felony defendants. On that issue, mission accomplished. A review of recent Harris County Jail data revealed that only about 4% of inmates are there on misdemeanor-only cases (most probably just going through processing in/out).

    Even if the O’Donnell case/settlement goes away, I anticipate most Harris County misdemeanor defendants will still be released on P.R. bond. Our Democratic judges voted to implement Rule 9 before the O’Donnell settlement was approved and nothing in state law prohibits it. Based on your update, I am glad to hear that P.R. bonds probably won’t be extended to most pre-trial felony defendants based solely on affordability. Issuing P.R. bonds to relatively low-risk, misdemeanor defendants is one thing, issuing them to higher-risk, felony defendants is quite another. The bail bond criteria I listed in my first post above needs to be applied.

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