Analysis- What the Heck is Going On Regarding the Governor's Bail Executive Order GA-13?

In March, Governor Abbott Bail entered Executive Order GA-13.  The order is referred to as the "Bail Executive Order" and it suspended parts of Chapter 17 of the Texas Code of Criminal Procedure during the pandemic.  The order contains essentially two provisions.  The first provision states that someone who is arrested on a charge of violence or attempted violence is not eligible for a PR bond.  The second provision states that someone arrested who has been convicted of a charge of violence or attempted violence is not eligible for a PR bond.  Critics of the order argue that it discriminates against the poor.  The Governor argues that the order strikes the right balance between addressing the releases of arrestees during a pandemic and public safety especially during this period where law enforcement has been requested to not arrest for certain offenses.

Some also argue that the executive order was a response to Harris County District Court judge DaSean Jones when he granted a PR bond for a defendant who stated he had a fear of contracting the COVID-19 virus while in the jail.  You can see our link to this story by CLICKING HERE. 

The Governor's executive order created a problem for the Harris County misdemeanor judges and Rodney Ellis' settlement of a federal suit because the settlement required the release of most misdemeanor defendants on a PR bond without ever seeing a magistrate.  The Governor's executive order would require this practice to stop temporarily because an initial check of the criminal history of each arrestee would have to be done to carve out the defendants not eligible for a PR bond under the Governor's executive order.   Rodney Ellis' settlement required Harris County to hire a monitor over the settlement.  The monitor issued a letter, within days of the entry of Executive Order GA-13 stating that no changes to the procedures were needed because of the executive order.  Further, the letter stated that even if changes were needed, the settlement would take precedence since it was approved by a Consent Decree in federal court and therefore was protected by the Supremacy Clause.

This letter came under attack because it was clearly wrong on the first conclusion.  The Executive Order would require temporary changes to the procedures currently in place in Harris County misdemeanor cases.  Further, questions were raised about whether the settlement received Supremacy Clause protection.  The Consent Decree was not the result of a trial on the merits.  It was the result of a settlement negotiated by Rodney Ellis representing his policy goals for the county.  The trial court recognized that the settlement granted relief that the trial court could not have granted on the merits.  There is case law which states that a consent decree does not receive Supremacy Clause protection when it grants relief that the trial court could not have granted.  In that situation it is a settlement agreement and nothing more.

So what did the Harris County misdemeanor judges do?  They hedged.  On March 31st it was reported that the judges would not follow the Governor's Executive Order GA-13.  To see original article CLICK HERE. 

Then on April 8th, one week later, the misdemeanor judges sued the Governor in Travis District Court along with several other groups.  The suit alleged that Executive Order GA-13 violated the Separation of Powers Doctrine set out in the state constitution.  The judges were still not following the Executive Order.  You can see our post about the suit by CLICKING HERE.  

Two days ago on Friday evening, a district court judge in Travis County issued a stay of the executive order.  You can see our post about the trial court's stay by CLICKING HERE.  However, the trial court's stay did not last 24 hours before the Supreme Court of Texas issued its own stay of the district court's stay.  The Supreme Court essentially sided with the Governor (at least temporarily).  

Briefing from the parties is due Monday April 13th at the Supreme Court of Texas.

Part of this debate is who sets bail policy in the state of Texas.  Is it Harris County Commissioner Rodney Ellis?  Is it activists and their attorneys who demand their way or the highway?  Or is it the Governor, the Supreme Court of Texas and the Texas Legilsature?  

More to come . . .