Updated Jan. 26, 2022 at 7:58 a.m.
Democratic Harris County leaders shut down an effort by Republican Commissioner Jack Cagle to undo the county's existing bail reform agreement and scuttle any new reforms from being enacted. Commissioners voted 3-2 along party lines to instead refer the matter to the county attorney.
But Cagle's measure speaks to a larger effort against cash bail reform.
Public speakers criticized the county's bail reforms, which they blamed for a rise in violent crime in Houston despite research from an independent court monitor that found no risk of reoffense by those who have been let out on cashless misdemeanor bonds.
Alexandra Mealer, a candidate seeking the Republican nomination for county judge, spoke in support of Cagle's proposal, and argued the county is being "overwhelmed by violent crime" due to low or no-cash bonds being issued.
While it is true there has been an increase in people out on bond for violent crimes who have been accused of reoffending, there is currently no felony bail reform in Harris County to blame.
The push to dissolve Harris County's reforms comes a little over two years after a federal judge ruled that Harris County's use of cash bail in misdemeanor cases was unconstitutional, because it discriminated against people based solely on ability to afford bail. The judge in O’Donnell v. Harris County found that indigent defendants sat behind bars while others accused of the same offense could simply pay to get out of jail. The vast majority of people jailed in Texas have been found guilty of no crime.
As a result of that finding, the county reached a settlement with the plaintiffs — a group of people in pretrial detention who couldn't afford to pay bail — and the judge issued a consent decree laying out steps Harris County must take to comply with constitutional standards.
While that case did not apply to felony bail practices, the county is currently involved in a similar case, Russell v. Harris County, in which plaintiffs are hoping to obtain a similar decision and consent decree against the county over the use of cash bail for indigent defendants in felony cases.
Now, after a recent Fifth Circuit decision, opponents of reform are trying to target both.
In a case out of Dallas earlier this month called Daves v. Dallas County, the U.S. Fifth Circuit Court of Appeals ruled that district court judges have immunity from lawsuits as agents of the state when setting a bail schedule.
In light of the Daves ruling, Cagle requested commissioners meet in executive session to consider four measures:
- to seek injunctive relief to dissolve the O'Donnell consent decree;
- to move for immediate dismissal of the Russell case;
- to eliminate all budgetary items and departments created by the O'Donnell consent decree;
- to invite the commissioners' former counsel in the O'Donnell case to brief the court on how they might claw back expenditures made because of the consent decree.
Cagle declined a request for comment in advance of the meeting.
Allan Van Fleet, a Houston-based attorney who represented the judges in the Daves case, said the Daves decision should have no impact on the O'Donnell consent decree.
"The consent decree is not only a final judgment of a federal court. It is a settlement agreement," Van Fleet said. “It is a consent entered into by the county that can't be backed out (of) because of what Commissioner Cagle perceives is the change in the law, and the parties continue to be bound by it until the court says otherwise."
The Civil Rights Corps represented the plaintiffs in the O'Donnell case and currently represents the plaintiffs in the Russell case. Attorney Elizabeth Rossi, director of strategic initiatives for the Civil Rights Corps, said that the Daves case does nothing to undermine the plaintiffs' basic contention in either of its lawsuits.
"The bail system in Harris County, both the misdemeanor system that we challenged and the felony system that we are currently litigating have been the site of egregious constitutional violations for many, many decades," Rossi said. "And the Daves decision simply didn't reach the most important questions about the merits of our claims, putting them off until later."