In another 3-2 party-line vote last week, the Harris County Commissioner’s Court approved a controversial legal settlement that reforms bail procedures and limits the County’s legislative authority over bail policy.
As with several previous votes, such as those on road fund allocations and an immigration resolution, the complete text of the proposal was not made available to the entire Commissioner’s Court nor the public until a few days prior to the July 30 meeting.
An online copy of the 51-page consent decree is stamped as received on July 26, but Commissioner Jack Cagle (R-Precinct 4) says he did not receive access to the final documents until the morning of Sunday, July 28. First Assistant County Attorney Robert Soard confirmed that some documents had not been posted until Saturday afternoon.
Commissioner Steve Radack (R-Precinct 3) objected to the negotiations having taken place “behind closed doors,” and asked those present to support the measure “Have any of you read this? Do you know who’s really getting the money?”
The settlement, estimated to cost as much as $97 million, pertains to ODonnell v. Harris County, a bail bond lawsuit that has bounced back and forth between a U.S. District Court Judge, the Fifth Circuit Court of Appeals, and Harris County since 2016.
Filed on behalf of plaintiff Maranda ODonnell, who spent two days in jail after she was unable to post $2,500 in bail after her arrest for driving with a suspended license, the suit alleges that the County discriminates against misdemeanor suspects who are unable to afford bail.
In April of 2017, U.S. Judge Lee H. Rosenthal issued a 193-page ruling holding that Harris County’s bail system was unconstitutional. The following year, the Fifth Circuit Court of Appeals upheld Rosenthal’s finding but rejected the judge’s “overbroad” remedy, including her injunction to release suspects within 24 hours. The Fifth Circuit sent the case back for further revision, but after the 2018 elections, Democrats took over negotiations and moved to conciliate with Judge Rosenthal’s ruling.
Commissioner Cagle noted that even prior to the lawsuit, Harris County had been working with the Arnold Foundation to adopt a new process for setting bail based on risk.
Cagle said he absolutely agreed that “no one should be in jail merely because they’re poor,” but objected to details of the consent decree on several points, including a lack of balance in the treatment of the accused versus victims of crimes, and the surrender of county legislative authority to the judiciary.
One contentious aspect of the settlement is the requirement to spend $6.2 million to mitigate causes of court non-appearances by misdemeanor arrestees. Among the issues the county is ordered to address are lack of transportation, childcare, lack of a telephone, and lack of permanent housing.
Judge Rosenthal had pushed back on some of these items listed in a previous proposal, calling them excessive “bells and whistles.”
Cagle said that if the county were going to provide financial assistance for those issues to the accused, they should also allocate $6.2 million to assist poor individuals who were the victims of the crimes committed.
“We are not talking about the civil rights of the victims of crime,” said Cagle. “The women who are victims of human trafficking, the individuals who are victims of domestic abuse, the poor woman who has been beaten and robbed.”
Judge Lina Hidalgo did not permit a vote on Cagle’s proposal to also provide services for indigent crime victims.
Cagle also objected to the federal judge crafting a specific legislative remedy, saying it violated separation of powers principles.
“We are having Judge Rosenthal legislate.”
The consent decree specifies that any future Commissioner’s Court seeking changes to bail policy must have those changes approved by federal courts.
Additionally, Cagle said elected Harris County judges could be removed from the bail-setting process. The agreement states that with some exceptions, “all misdemeanor arrestees will have unsecured bail amounts set initially at no more than $100 and be promptly released on a personal bond…a judicial officer is not required to sign a personal bond prior to the person’s release.”
Minimal bail bond amounts are already often reported by the County. Precinct 4 Constable Mark Herman’s department posts daily arrest reports on social media. On Monday, August 5, the department’s Facebook page reported that two brothers arrested for allegedly ‘interfering with the duties of a public servant’ and ‘assault and criminal mischief’ received bonds of $100 and $300.
During the interaction with law enforcement, one of the suspects “stated he would just bond out if he were to be arrested” and refused to comply.
Although Constable Herman said he could not comment on the policy, he did tell The Texan, “In my 34 years of policing, I’ve never seen as many suspected criminals out on the streets.”
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Holly Hansen is a freelance writer living in Cypress, Texas. 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.