By Gabrielle Banks
Houston Chronicle
AUSTIN, Texas — A state judge in Austin is pondering whether to halt Gov. Greg Abbott’s executive order prohibiting judges from releasing inmates — during the pandemic — on personal bonds if they’ve been accused or convicted of a violent crime.
The line of questioning by Judge Lora Livingston at a webcast hearing Friday indicated she was skeptical about the logic behind the governor’s March 29 executive order, and in particular wondered why the governor thought her fellow jurists would handle their bond rulings with any less discretion during a crisis like the global coronavirus outbreak than they would any other day of the year.
“I still for the life of me don’t understand how letting out someone two months ago who allegedly committed an assault … and (banning it) now in the middle of the crisis, I just don’t see how it’s going to make the community any safer,” Livingston said, addressing a packed Zoom hearing broadcast to a streaming audience of more than 300 people watching live on YouTube. The judge explored with a lawyer from the Attorney General’s office a hypothetical scenario wherein a governor had the power to suspend whatever powers he or she wanted during a crisis without any checks or balances.
“I’m not suggesting this is happening, I’m playing devil’s advocate, but you’re telling me that in a disaster the governor can do whatever he wants? I’m saying, how do we reign that in?” the judge asked. “We have three branches of government designated by our founders to avoid one branch taking over for all the others.”
Livingston, who presides in Travis County’s 261st District Court and was handling the docket for the day, indicated she would likely rule Friday afternoon on a request for an emergency injunction that would halt Abbott’s order.
If granted, such an injunction would last 14 days, after which the assigned judge would take up the civil rights complaint brought by Harris County’s 16 misdemeanor judges, the ACLU of Texas and other civil rights groups. The lawsuit contends that Abbott exceeded his authority and improperly removed judges’ discretionary powers protected under state law.
The county’s misdemeanor judges who are under a federal consent decree have indicated that they will continue to release about 75 percent of people arrested on low-level offenses on general order bonds. Felony judges in the state’s largest urban county have issued two orders of their own, delineating a small subset of offenses that could qualify for releases in the jail.
The dispute over who has the power to release people from the packed Harris County jail as infection rate increases has been hampered by three dueling orders — the one by the governor, one issued by County Judge Lina Hidalgo and one by state District Judge Herb Ritchie, along with a competing a federal civil rights request seeking an emergency injunction on behalf of thousands of felony defendants being held pretrial because they can’t afford cash bond.
The governor’s Executive Order No. GA-13 suspended several parts of the Texas Code of Criminal Procedure related to personal bonds, halting these bonds for anyone with a prior violent conviction or a conviction involving the threat of violence. He barred the release of prison inmates with prior violent convictions on electronic monitoring.
Abbott also stopped portions of the Texas Government Code permitting a county judge, mayor or emergency management director from releasing people outlawed under his new order. Judges may consider these releases on an individual basis if there is a health or medical reason to do so.
Regarding prison inmates, Abbott suspended portions of the state criminal code related to commuting sentences for anyone convicted of violence or threats.
Andre Segura, lawyer from the Texas ACLU, argued that the governor’s role is carefully limited under the state constitution. He said Abbott’s order suspends provisions of the code of criminal procedure. He said the governor does not have the authority to put these provisions on hold under the Texas Disaster Act.
Adam Biggs, from state Attorney General Ken Paxton’s office, told the judge he was on firm ground. The legislature gives the governor a wide berth when the state has declared a disaster.
The two lawyers offered opposing accounts of whether the Abbott’s order could result in judges being criminally prosecuted by the state for violating its terms and issuing general order bonds for cases on their docket.
The Travis County judge also shrugged off the suggestion by the governor’s lawyer that people released from jails would create a unanticipated domestic violence problem. Livingston said protective orders are issued all the time, and that would continue to happen.
Hidalgo said all along she sought to release nonviolent inmates, although the governor apparently assumed she intended to release people facing charges of or previously convicted violent crime.
Sen. Paul Bettencourt, R-Houston, who filed a joint federal amicus brief with eight of his legislative colleagues backing the governor, said he opposes the release of people with violent records or charges — which he said the governor and others feared might happen under Hidalgo’s subsequent order.
“There has been broad bipartisan outrage regarding County Judge Hidalgo’s overreaching order throughout Harris County,” Bettencourt said in a statement. “We do not need to release burglars, thieves, forgers, fraudsters, or worse, on to the streets of Harris County while citizens are watching their homes, businesses, purses, and wallets in the middle of a COVID-19 pandemic. It’s a ‘crime-bomb’!”
The state civil rights lawsuit awaiting a ruling could alter the way courts are proceeding on cases across the state. Other agencies involved in the lawsuit include Texas Fair Defense Project, the Lawyers’ Committee for Civil Rights Under Law, three criminal defense nonprofits and the NAACP of Texas.
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