This article is over 3 years old

Criminal Justice

UPDATE: Texas Supreme Court To Review Abbott Order Banning Some Jail Releases

In an order issued late Friday night, Judge Lora Livingston granted a temporary restraining order against the state, saying if GA-13 were kept in place, it would cause irreparable harm to the plaintiffs.


Harris County Jail. Taken March 18, 2020.

UPDATED 8:58 p.m. CT Saturday

The Texas Supreme Court has temporarily allowed Gov. Greg Abbott's executive order banning the release of some people accused of crimes to continue, after an Austin judge blocked the order Friday. The high court also agreed to review the constitutionality of the policy. Our previous story is below.

A judge in Austin on Friday temporarily blocked Gov. Greg Abbott's executive order banning the release of certain inmates from local Texas jails during the coronavirus pandemic, after Harris County judges and defense attorneys argued he overstepped his authority under Texas law.

Judge Lora Livingston heard arguments Friday morning from the state and lawyers for a group of plaintiffs that included all 16 Harris County misdemeanor judges, over whether Abbott had the right to ban the release of people who are accused of violent offenses or the threat of violence, or who have otherwise ever been convicted of a violent crime.

Friday night, the judge granted a temporary restraining order against the state, saying if GA-13 were kept in place, it would cause irreparable harm to the plaintiffs.

In a letter accompanying the restraining order, Judge Livingston said Abbott’s order took away the judges’ rights to use discretion in cases without offering a compelling public safety reason.

“Instead, the order appears to address an unsubstantiated fear that the judges of the state will abandon their legal obligation to balance the interests of the public, individuals accused, but not convicted of criminal offenses, and the victims of those alleged offenses,” read the letter. “The judges of this state were required to balance these very interests every day prior to the disaster declaration, and they are required to do so every day while the disaster persists, and they will be required to do so every day once the disaster declaration ends.”

Read a copy of Judge Livingston’s letter below

Andre Segura, a lawyer for the plaintiffs in the case, argued Friday that the executive order unconstitutionally hindered the judges’ ability to use discretion in releasing people from Harris County jail on personal bonds, and that the Texas legislature did not give Abbott the right to do so. By broadly blocking people with a violent history, Abbott’s order could stop even misdemeanor judges from releasing people for nonviolent offenses, based on convictions that may have occurred years ago, Segura said.

Segura, who is the legal director of the Texas ACLU, also argued that defense attorneys were left in limbo, as the executive order made it more difficult to advise clients in detention who would otherwise be released.

"The governor certainly has a role in responding to disasters...but that role must be and is carefully limited by the disaster act, state law, and the Texas constitution," Segura said during the hearing, which was conducted via video conference and broadcast on the web.

In a statement after the ruling, Segura, who is the ACLU Texas legal director, said the group was “pleased that the Court recognized the urgency of this matter and the need to press pause while it is heard in full.”

The restraining order will remain in place until at least April 24.

Paxton’s office did not respond to a request for comment Friday.

GA-13 was issued on March 29, in response to a series of proposed and enacted policy changes in Texas, meant to free up space in local jails as the coronavirus pandemic spread across the state. In late March, district judges in Austin issued an order that released people accused of nonviolent felonies like possession of marijuana, theft and prostitution, on the condition that the accused person returned to court. Around the same time, Harris County Sheriff Ed Gonzalez and Harris County Judge Lina Hidalgo began to publicly discuss a similar order.

Hidalgo issued her own directive on April 1, which was blocked two days later by a Harris County administrative judge, citing GA-13.

Lawyers for the state Friday argued that Abbott’s executive order was properly issued under the expanded powers granted to the governor during a state disaster declaration, and was a response to “confusion” in the public debate over reducing the number of people in crowded local jails amid the coronavirus pandemic.

The lawyers also argued that the order was an effort to make communities safer. But Judge Livingston pushed back on that argument, saying that judges already had the right to release people from jail before the pandemic, and before GA-13.

“I’m just puzzled about how this order will protect the public any more during this crisis than the public might have been protected three weeks ago,” the judge said.