Harris County DA: Judges cannot consider health issues as part of pretrial release decisions.

We're still waiting for the Supreme Court of Texas to rule whether Governor Greg Abbott's executive order on COVID-related jail releases is valid (see Grits' writeup here).

In the meantime, though, Harris County District Attorney Kim Ogg has filed an "emergency motion" with the Texas Court of Criminal Appeals arguing that judges do not have authority under the Code of Criminal Procedure to consider "public health matters," including the risks associated with people catching the coronavirus in jail, when they make bail determinations. Her motion opined that:

A concern over COVID-19, and an extra-judicial desire to not “fill the jail up”, entered into Singleton’s bail determination. This was improper.  

Article 17.15 lacks a “catch-all” to permit consideration of public health matters, nor does any existing case law. In addition, nothing in this Court’s First Emergency Order Regarding the COVID-19 State of Disaster, Misc. Docket No. 20-007, permits a court to circumvent art. 17.15. 

The case involves a 31-year old black man named Timothy Singleton who allegedly pointed a gun at someone who allegedly owed him money and threatened to kill him if the man didn't pay. According to the DA's court filing, "Singleton has prior felony convictions for Assault—Family Member, Retaliation, Robbery, Credit Card Abuse, and Delivery of a Controlled Substance." The DA's office wanted a $50,000 bond set, which would mean he'd need to come up with $5,000 for a bail bondsman to be released pretrial.

Singleton's case has been touted widely in the local media and clearly the DA's office hopes to use it to set a precedent stopping judges from considering coronavirus-related issues altogether.

It's worth mentioning that bail is intended only to ensure the defendant shows up in court, it is not supposed to be a punishment. To that end, it's notable that, in fact, Mr. Singleton DID show back up to court so the DA could argue to raise his bail, making it a somewhat dubious claim that the bail amount was too low to get him to come back. (See the second update below)

Regardless of the merits of bail arguments in this particular case, Ogg's is a more regressive stance, even, than the governor's executive order, which did in fact include a catch-all for "health or medical" issues.

By filing this motion, the DA's office is seeking an arrest warrant for the bailed defendant. She quoted this passage from the CCP on that score:

Where it is made to appear by affidavit to a judge of the Court of Criminal Appeals, a justice of a court of appeals, or to a judge of the district or county court, that the bail taken in any case is insufficient in amount, or that the sureties are not good for the amount, or that the bond is for any reason defective or insufficient, such judge shall issue a warrant of arrest, and require of the defendant sufficient bond and security, according to the nature of the case.

I understand the DA's Office is used to getting its way on these matters, but the Code of Criminal Procedure gives judges the authority to call these shots, not her. The Court of Criminal Appeals, however, can overrule local magistrates (if Ogg's reading of the statute is correct - I am not an attorney). And considering the Government-Always-Wins faction of the court currently holds a solid five-member majority on that body, your correspondent fears they may use this opportunity to enact a sweeping precedent.

Attorney Emily Gerrick from the Texas Fair Defense Project pointed out via text that "it's so exceedingly clear that they are not at all worried about wealthy people who might be violent." That's exactly right. Kim Ogg obviously isn't worried about Singleton getting out if he has $5K to pay a bail bondsman. Only poor people should stay locked up pretrial, according to her logic (which incidentally, is similar to, if more regressive than, the governor's logic in his executive order).

This petition comes on the heels of the Texas Department of Criminal Justice announcing it will no longer accept new prison inmates from county jails. So if Ogg prevails and judges cannot consider health issues when determining pretrial release, Texas county jails may quickly find themselves in a full-blown crisis, unable to limit new incarceration due to the coronavirus on the front end and unable to ship people to prison once their cases have been adjudicated.

UPDATE: The Court of Criminal Appeals denied Ogg's motion, declaring she must first pursue it through the Court of Appeals before they would hear it. Thanks to Keri Blakinger for the heads up.

NUTHER UPDATE (4/16): I have been informed today that Mr. Singleton has allegedly engaged in an act of domestic violence (4/17: here's news coverage) while out on bail and is now on the lam. To be clear, I wasn't arguing whether this particular person should or shouldn't have been released. (I know nothing of the case beyond Kim Ogg's motion.) My main concern is what I consider an irresponsible argument from the DA that judges cannot consider health issues when assigning bail.