Judge Lora Livingston, a Democrat elected to the 261st Civil District Court of Travis County, issued the TRO late Friday night in response to a lawsuit filed by the NAACP Texas, several defense lawyers associations, and 16 Harris County Criminal Court at Law Judges.
Issued on March 29, Governor Abbott’s Executive Order GA-13 suspends portions of state criminal code and prohibits release on personal bond “any person previously convicted of a crime that involves physical violence or the threat of physical violence, or of any person currently arrested for such a crime that is supported by probable cause.”
GA-13 specifically prohibits broad-scale release orders from any county judge, mayor, or emergency management director, but allows for judges to consider release on an individualized basis for health or medical reasons, as long as the district attorney is notified and there is an opportunity for a hearing.
The 16 Harris County judges, who oversee misdemeanor courts, claimed that the governor’s order interfered with their ability to set bonds and also conflicted with terms of a settlement the county approved last year in a federal lawsuit over misdemeanor bonds.
Some media outlets incorrectly reported that Judge Livingston’s TRO sets bonds at $0 for the next two weeks, but her orders only restrain the governor’s executive order. This bond, notably, has nothing to do with the criminal defendants receiving personal recognizance (PR) bonds.
Plaintiffs have also requested a hearing within 14 days, and have called for the governor’s order to be declared unconstitutional.
The Texas attorney general’s office filed a 47 page response Friday morning reminding the court that Texas law does not permit district courts to order state executive officials to halt their action. That power, the defendant’s brief stresses, rests only with the Texas Supreme Court.
Additionally, the state contends that there is no injury being faced by the plaintiffs who are organizations and thus no room for associational or organizational standing on which to file suit exists. This, the state maintains, is illustrated by the plaintiff’s inability to identify a specific “single member” who has been injured by the “voluntary decision” to “seek the release of felony arrestees during a global pandemic.”
“That kind of ‘self-inflicted’ injury does not suffice,” the state’s response reads.
The sixteen individual Harris County judges who are also plaintiffs in the suit contend that the executive branch (i.e. governor’s office) is violating the separation of powers with its executive order prohibiting PR bond usage in certain cases. The state’s response, pointing to the fact that the litigation has been pursued “as a band of individual judges” and not a single institution, states that no “institutional injury” standing is valid here.
The defendant response requests the entire case be dismissed, as any defendant would, but also insists that the TRO is invalid because the plaintiffs are not trying to maintain the “status quo” (i.e. the “last, actual, peaceable, non-contested status which preceded the pending controversy”).
The state’s position is that what constitutes the “status quo” is not the practice of releasing prisoners out of concern for coronavirus spread, but rather what preceded that (i.e. the practices in place before prisoners were released out of concern over coronavirus). Preservation of the status quo, the state contends, is a requirement for TRO validity.
In response to Judge Livingston’s TRO, the attorney general could request a mandamus, or request for immediate consideration before the state Supreme Court; an action expected by many observers sometime Saturday.
The debate over how to manage the jail population in light of coronavirus concerns has roiled Harris County and other urban areas of the state for the past few weeks, with some calling for the urgent release of pretrial detainees and even some convicted inmates.
Plaintiffs in a federal court case, Russell v Harris County, have requested that Chief U.S. District Court Judge Lee H. Rosenthal order the immediate release of as many as 4,000 suspects detained in the Harris County jail, and claim that checking backgrounds for violent convictions would take too long.
In addition, Russell v Harris County plaintiffs’ attorneys had also asked the federal judge to rule the governor’s executive orders unconstitutional. As part of his response, Adam Biggs for the attorney general’s office had cited a recent 5th Circuit Court ruling upholding the governor’s authority in temporarily banning abortions.
Abbott’s action had been issued in response to some local executive branch officials, such as Harris County Judge Lina Hidalgo, moving to order the release of inmates as a means to stop the spread of coronavirus in the jails.
After Hidalgo ordered the release of “non-violent” suspects, Harris County Administrative Judge Herb Ritchie, halted her orders saying that Hidalgo did not have authority over the operation of the courts.
Despite the nomenclature, county judges in Texas are not members of the judiciary but serve as the chief executive of the county.
An initial ruling on whether to allow or overrule the TRO from the district court could come from the Texas Supreme Court in a day or two after a request for mandamus from the attorney general.
Update: The Texas Supreme Court issued a stay of the TRO late Saturday night.
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Holly Hansen is a reporter for The Texan living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.