Wednesday, April 08, 2020

Litigation challenges Abbott's executive order on COVID-19 jail releases

The Texas Fair Defense Project, ACLU of Texas, and the Lawyers Committee for Civil Rights Under Law sued Governor Greg Abbott over his executive order (GA-13) related to pretrial jail releases in response  to the coronavirus, as well as Attorney General Ken Paxton, who has vowed to aggressively enforce it. The Harris County Attorney's office has also signed onto the litigation, and 16 Harris County Criminal Court at Law judges number among the plaintiffs. It was filed in a Travis County district court.

In an email announcing the lawsuit, TFDP's Amanda Woog wrote that:
Public health experts have been warning for weeks of the dangers of COVID-19 in jails: tight quarters, a particularly vulnerable population, and a revolving door of staff and detained people, make a jail a "hotspot" for a COVID-19 outbreak which would devastate the people within and outside the jail walls. The order sought to disrupt the incredible movement we've been seeing across Texas of local stakeholders working together to reduce their jail populations. 
The executive order threatens public and community health, undermining efforts to reduce jail populations and avoid outbreak in jails and surrounding communities. Further, under the order, only the poor would stay in jail; people who can afford to pay cash bail are released, to the privilege of social distancing and other precautions we on the outside can take to avoid infection. 
It disrupts the work of local communities in determining how to respond to this unprecedented crisis, and unconstitutionally usurps the authority of the legislature and the judiciary.
The petition filed this morning can be found here, and the ACLU-TX press release here.

The lawsuit alleges Gov. Abbott's order spawned "turmoil and confusion in the courts by purporting to strip judges and magistrates of their authority to decide individual cases." As a result, "The judges are now caught between fulfilling their obligations to decide bail in individual cases as prescribed by the Constitution and Legislature, or obeying an Executive Order."

The petition argues that "The Disaster Act does not empower the Governor to modify or suspend the targeted sections of the Code of Criminal Procedure. This renders GA-13 unlawful in its entirety, and the Court should invalidate its provisions as ultra vires [ed. note: acting beyond one's legal authority] on this basis alone.

Also, "GA-13 violates Article I, Section 28 of the state Constitution, which prohibits non-legislative suspension of the laws of the State, and Article II, Section 1, which mandates separation of powers between co-equal branches of government. GA-13 is therefore unconstitutional on its face."

Both stances to me appear inarguable. The governor has the power to suspend administrative regulations, but not the friggin' Code of Criminal Procedure! Grits wrote the other day that Abbott had exceeded his authority, and this is precisely why.

Conservatives should be just as unhappy at this attempted gubernatorial coup vs. local judicial power as are the judges, criminal defense lawyers and civil-rights groups who are plaintiffs in the suit. After all, if in a few years Democrats find themselves in control of statewide offices, will conservatives really want some liberal governor to have the authority to suspend criminal-law statutes and override local judges every time a disaster is declared?

Observed the plaintiffs, "The Disaster Act has never been interpreted to empower the Governor to interfere with the power of the Judiciary. Until now, no Texas Governor has invoked the Disaster Act to purport to suspend provisions of the Code of Criminal Procedure and effect sweeping changes to criminal law." Indeed, "The Texas Constitution provides that 'No power of suspending the laws of this state shall be exercised, except by the Legislature.' Tex. Const. Art. I, § 28."

Grits is very glad to see this and hopes the courts act quickly to thwart the governor's attempted power grab. I don't think he and Paxton have a leg to stand on.

See initial coverage of the lawsuit from the Austin Statesman and the Texas Tribune.

UPDATE (4/10): Just before a hearing began on Friday considering the request for a temporary restraining order, attorneys for the Governor and Attorney General filed their response brief. For those interested, here's a copy. Here's the first media coverage on the topic from the Fort Worth Star-Telegram, and another article from the Austin Statesman. I'm listening to an audio file of the hearing now. Judge Lora Livingston sounds unconvinced by the Governor's lawyers' arguments.


Oil Lease said...

I was warned about living in a communist country. Son, you can't just go where you want in one of those commie places. You can't buy anything you like or speak with whoever you want. The have armed men everywhere with guns that will challenge you for papers and ask you what you're doing. SOME people that are in charge can do whatever they want and if they want you in prison, you'll be there and people will lie to get you there. Damn, glad I don't live there. It would be tough to not be able to buy what you need or go where you liked or speak to anyone you chose.

What's the name of that place? They call it the United States and you better watch your step and only go outside when you're told you can and don't dare complain.

P. Ghosh said...

Texas builds criminals at an alarming rate.
Governor Abbott is going to do everything possible to make himself look good against the alleged war on criminals whether or not they've been convicted of a crime or they're just sitting in the incubator for disease called the Harris County jail. furthermore the state of Texas has been exposed numerous times for violating the Constitution and that goes for the legislature of the State of Texas as well in 2015 they were exposed for having a truancy law that was saddling over a hundred thousand children with criminal records. Recently, the governor was sued as well as the DPS for an unconstitutional driver responsibility program which was abolished not too long ago, one of the reasons that the governor Abbott abolished that, unconstitutional law was simply because if it went to court and the Austin Community Law Center, in the class action would have won, they would have had to pay back the hundreds of millions of dollars for all of the people that had been referred homeless, and jobless at the behest of the DRP driver responsibility program. But this is nothing new so that would be part of Communism there. Fortunately we the people have the right to speak against corrupt laws that are set in place to assist the Texas state Cash cow. Prisons! CD Austin Community Law Center class action lawsuit filed in Austin Texas.see the repealing of the truancy law that was enacted by the state of Texas and its legislature knowing good and well what they were doing and why they were doing it.

Steven Michael Seys said...

This sort of executive overreach is becoming all too common during this crisis. From governors banning life-saving treatments to people being arrested for following the letter of the governors' orders on social distancing and stay-at-home, all across the US governors left and right are usurping power that belongs in the local level or with the people themselves. There's going to be a lot to sort out when this ends. I hope it doesn't come down to a choice between authoritarian totalitarianism or revolt.

Gunny Thompson said...

Response to Oil Lease: 04.09.20 @ 08.34 a.m.

From Unfiltered Minds of Independent Thinkers of the 3rd Grade Dropout Section:

While I have not experienced living in a communist country, nor have I experienced life in a Fascist State. But from available research, our conditions are more in favor of living under a Fascist State.

My congratulation to those that has decided that enough is enough and refuse to be Arm-Chair Quarterbacks. If you are not in the trenches, you're not in the war. We need all hands on deck in overcoming this government takeover by a Fascist Regime.

Anonymous said...

I hear people all the time complain about a situation that they have the power to take care of:

Follow the "Ten Commandments" that have been given to us.
Know and read the united States of America Constitution; and for you Texans,
Read and understand our "Texas Constitution".

This is a wonderful opertunity that has fallen in our laps - make good use of it.
Teach your children!

Gritsforbreakfast said...

Huh? What does that have to do with the price of tea in China, 2:22?

Steve Brand said...

To be clear, the plaintiffs also included the Austin Criminal Defense lawyers Association, the Capital Area Private Defender Services and the Texas Criminal Defense Lawyers Association