Governor hopes pro-police push will distract from COVID failures

The Governor today held a press conference calling for a half-dozen new laws aimed at increasing penalties for protester violence and people who harm cops. Thing is, Texas already did this in 2015 after the Ferguson protests, boosting penalties for assaulting police officers and requiring high school students to watch a video teaching them how not to make police angry (I kid you not: they did that because it would offend cops to tell them not to shoot the kids - Democrat Royce West carried the legislation).

At this point, shouldn't MSM coverage of Governor Greg Abbott's slew of press conferences on Austin's police budget openly acknowledge that it's just a campaign ploy?

How else to explain that Greg Abbott has suggested more legislative proposals in just a few weeks aimed at attacking Austin for its budget vote than he has all year responding to the COVID-19 virus, which has killed some 15,000 Texans and counting?

We know nothing about the governor's legislative agenda on COVID, much less why he hasn't released $6 billion in federal aid related to the virus. But we've seen him hold press conferences calling for freezing Austin property taxes, de-annexing Austin suburbs, having the Department of Public Safety take over APD, asking lawmakers to sign a pusillanimous pledge, and now increasing a bunch of criminal penalties that were mostly increased already in 2015. Who really thinks any of this is state government's biggest priority right now?

One of his proposals would make Texas' "rioting" offense a felony. Grits has previously written about the dark origins of that overbroad law in the anti-civil-rights backlash from the '60s. That statute should be repealed, not made harsher. 

The MSM are reporting the presser straight, but how often can they run the same content without acknowledging the larger reality? The real news isn't "Greg Abbott makes legislative proposal." It's "Greg Abbott continues PR tactics to distract from COVID." Headlines focused on the actual contents of his proposal are missing the real story.

MORE: To their credit, the Texas Tribune portrayed this story in electoral terms. So it's not impossible for MSM reporters to cover these issues more credibly; it's a choice when they fail do so.

COVID deadlier in Texas prisons than jails

Grits must give credit where it's due: County jails in Texas have done an impressive job, relatively speaking, of containing the coronavirus in their facilities. As of yesterday, there had been eight confirmed deaths and five more suspected deaths linked to COVID-19.

When I say "relatively," I mainly mean relative to TDCJ, which has struggled mightily with the virus by comparison. Their last update was September 9th, nearly two weeks ago, at which time:

In total there have been 199,571 offenders and 65,835 employees tested for COVID-19. Of those tested, 21,440 offenders and 4,554 staff have tested positive for COVID-19 in both symptomatic and asymptomatic testing. There have been 18,724 offenders and 3,477 employees who have recovered. There have been 151 offender deaths connected to COVID 19 with an additional 39 under investigation. There have been 20 employee line of duty deaths from COVID-19.

More staff have died in Texas prisons than inmates have died in county jails. Texas' prison system is just more than twice the size, population-wise, of the county-jail population, so having more than ten-fold the number of inmate deaths is a big deal.

Grits doesn't know if Texas county jails (and by extension TCJS) are doing an exceptional job or if TDCJ is doing a bad one. To what extent does this relate to judges identifying vulnerable members of the pretrial population and diverting them from incarceration (the parole board refused to do so)? No way to tell from the available data. I also don't know whether this pattern of prisons having a bigger problem than jails holds true in other states. Certainly, most of TDCJ's deaths arise from just a handful of units, so maybe the problem is more isolated, even, than just prisons vs. jails. Regardless, that's quite a difference.

UPDATE: Death rates in Venezuala prisons doubled this year due to COVID, according to this report. By comparison, Texas prisons average just more than 400 inmate deaths per year, so if we had 151-190 extra inmate deaths in about seven months, making a back-of-the-envelope calculation, we may be looking at a 70-80% increase in prison death rates in Texas because of the virus. I'll try to hunt down the data to make this comparison more directly.

Reasonably Suspicious podcast back from hiatus: Austin police chief under fire, COVID in TX prisons and jails, Harris DA calls to overturn shady drug convictions, and other stories

After a three-month hiatus while your correspondent underwent throat-cancer treatment, here's the May 2020 episode of Just Liberty's Reasonably Suspicious podcast, co-hosted as always by me and Mandy Marzullo. Grits must admit, until I was editing all this together, I hadn't realized how much the radiation treatment had affected my vocal chords: I sound like a different person, decidedly heading in the raspy, Tom-Waits-ish direction. (Really that's wishful thinking; my singing voice is completely shot.) Regardless, it was good to see Mandy again and climb back into the podcasting saddle.

We went a little longer this time because the segment on Austin PD includes a half-dozen excerpts from a community forum held last week by the Austin Justice Coalition. Lots of good stuff there. Thanks to Chas Moore for getting me the audio. As always, the podcast is available on Soundcloud, iTunes, and Google podcasts, or you can listen to it here:

Here's what we discussed this month, with time stamps in case you want to jump to an individual segment:

Top Stories

• Community groups call for Austin police chief's ouster (1:46)
• Coronavirus in Texas jails and prisons (32:40)

Fill in the Blank

• Ransomware attack on Texas courts (44:40)
• The Texas AG and Rosa Jimenez (48:15)
• Editor of Palestine paper wins Pulitzer for series on jail oversight (51:30)

The Last Hurrah (53:25)

• Harris County DA calls to overturn shady drug convictions
• San Marcos mandates citations instead of arrests for petty crimes
• Joe Bryan gets parole

Find a transcript of the podcast below the jump. Enjoy!

Blakinger scores big victory for hungry TDCJ inmates, visitation denied, why people convicted of unconstitutional statutes are innocent, and other stories

Here are a few odds and ends that merit Grits readers' attention:

TDCJ to improve lockdown food

The Marshall Project's Keri Blakinger hit another home run recently with her story on what Texas prisoners are being fed during lockdown. It was sprinkled with stomach-churning contraband cell-phone pics from prisoners that corroborated years of allegations about how awful food could be when prison units are locked down. On Friday, she reported on Twitter that TDCJ has told inmate families they will begin providing raw vegetables, cartoned milk instead of powdered, and are considering how to source fruit, pizza and hot pockets. Good for TDCJ, even if it took being shamed to improve things. And thank God for Keri Blakinger!

Many prisoners denied visits, phone calls before the lockdowns

Prisoners' families have been upset during the COVID crisis that so many inmates were forbidden access to phones to call them. Recently, some on lockdown have been allowed 5 minute calls, but that's still not much. Michael Barajas at the Texas Observer reminds us that a significant portion of Texas inmates couldn't call their families and had been banned from visitation even before the coronavirus, but TDCJ doesn't track how many are banned or why. Great job, Michael! Grits readers may recall that, earlier this year, TDCJ made visitation and mail policies even more restrictive, punitive and arbitrary. It's great to see some journalistic light shed on the subject.

Texas women inmates cope with COVID

At the Waco Tribune Herald, reporter Brooke Crum provided a window into how women inmates in Gatesville and their families are coping with coronavirus restrictions.

COVID testing rates vary widely at county jails

There are wide disparities in how frequently county jails are testing inmates and staff for the COVID virus, reported the Dallas News. Harris County is testing more broadly; Dallas County, not so much. Travis County, by contrast, is testing far less frequently than either of them. The thinking appears to be that, if you do not test, you won't have to report that anyone is sick. As of yesterday, 1,314 Texas jail inmates and 234 jail staff had been reported as testing positive to the Texas Commission on Jail Standards. But because some jails are testing so few people, those numbers are surely an undercount.

Ex-prosecutor could be disciplined for withholding exculpatory evidence

Daniel Rizzo, a former Harris County prosecutor, faces an attorney discipline lawsuit for withholding exculpatory evidence in Alfred Dewayne Brown's murder case, Texas Lawyer reported. Rizzo claims he never saw the phone records which later led Mr. Brown to be declared actually innocent, though they were available in his files.

People convicted of unconstitutional online solicitation statute were actually innocent 

The Texas Supreme Court has ruled that people convicted of online solicitation of a minor after the statute was deemed unconstitutional by the Texas Court of Criminal Appeals  qualify for innocence compensation under Texas statutes. (The Legislature enacted a new online-solicitation statute in 2015, but not nearly as stringent as the original.) Grits has wondered for years about how innocence claims from these cases would be handled. Now we know.

Fifth Circuit still sucks on prison-conditions litigation: Coronavirus edition

The US Supreme Court has declined to vacate a stay by the 5th Circuit Court of Appeals of an injunction granted to Texas prison inmates from the Pack Unit, a geriatric prison unit, reported the New York Times. The inmates had asked for improved protections from the coronavirus. Four justices were needed to take the case, but only two apparently wanted to do so. Justice Sotomayor issued a statement, joined by Justice Ginsberg. Here are some notable excerpts:

The District Court heard unrefuted testimony that, despite the prison’s claim of enhanced cleaning measures, its cleaning protocol in practice remained virtually the same. The facility neither increased the number of inmate janitors nor ensured that the existing janitors did their jobs safely and effectively. One janitor testified that, just as before the pandemic, the cleaning solution provided to the cleaning crews was frequently depleted by midafternoon, only halfway through a shift. Each day he received only one pair of gloves to share with his co-janitor, an arrangement medical experts described as tantamount to no gloves at all.

The facility’s failures to comply with its own safety protocol became even clearer after [inmate Leonard] Clerkly’s death. Prison policies required that any inmate showing signs of Covid–19 be “‘triaged’” and “‘placed in medical isolation’” and that all areas used by the symptomatic inmate be thoroughly disinfected. Id., at *11. Yet even though Clerkly had difficulty breathing and died only a few hours after being transported to the hospital, the prison “made no representations” to the District Court that “they identified Mr. Clerkly as symptomatic, evaluated him for potential COVID-19 infection, or isolated or treated him for COVID-19 at any point before his transport to the hospital on the day of his death.” Ibid.

In fact, the prison “did not implement further precautionary measures until three days after Mr. Clerkly’s death.” Ibid. In the meantime, while the prison waited for a positive Covid–19 test that seemed certain to come, “countless inmates were knowingly exposed to a serious substantial risk of harm.” 

Having heard testimony from several witnesses from the Pack Unit and from prison experts who declared the Pack Unit practices “woefully inadequate,” the District Court held that applicants were likely to succeed on their Eighth Amendment claim. Id., at *12. The court noted the “obvious” risk of Covid–19 to the older men in the Pack Unit and reasoned that the prison’s failure to take basic steps, many of which were required by its own policies, evinced deliberate indifference. Id., *10, *13. The District Court then ordered the prison to mitigate the harm to inmates, including through some measures recommended by an expert witness who had managed prisons himself. Id., at *6–*7, *9–*12; 2020 WL 1899274.

Of particular interest was Sotomayor's analysis of the Fifth Circuit's decision and how they (perhaps improperly) ignored detailed fact finding from the lower court. Long-time watchers of this court will not be surprised, but I'm still glad someone said it: 

Despite the District Court’s detailed, careful findings, based on live testimony and the court’s own visit to the Pack Unit, the Fifth Circuit stayed the injunction. The Fifth Circuit noted that the prison had submitted evidence of “the protective measures it ha[d] taken as a result” of the Covid– 19 pandemic, and so the question was simply whether the Eighth Amendment required the prison “to do more.” 956 F. 3d, at ___ – ___.1 But in crediting the prison’s assurances, the Fifth Circuit did not address all of the District Court’s factual findings that the prison had inexplicably discarded its own rules and, in doing so, evinced deliberate indifference to the medical needs of its inmates.2 See Farmer v. Brennan, 511 U. S. 825, 842 (1994) (noting that deliberate indifference is a question of fact often made out

by “inference from circumstantial evidence”). The Fifth Circuit may have acted outside its authority in refusing to defer to those factual findings. See Anderson v. Bessemer City, 470 U. S. 564, 573 (1985). Similarly, while the Fifth Circuit faulted the District Court for issuing an admittedly exacting injunction, that injunction too was rooted in equally detailed factfinding regarding the prison’s failure to live up to its promises.

Similarly worth noting was the discussion of the 5th Circuit's reading of "exhaustion" provisions in the Prison Litigation Reform Act, which, even when interpreted correctly, have shut down prison-conditions litigation all over the country in problematic ways. If TDCJ grievance procedures are effectively a "dead end," wondered Sotomayor, do they really count as an "available" remedy?

Also concerning was some of the Fifth Circuit’s language regarding exhaustion. This Court has made clear that the PLRA requires exhaustion only of “available” judicial remedies. Ross v. Blake, 578 U. S. ___, ___ (2016) (slip op., at 8). “[T]he ordinary meaning of the word ‘available’ is ‘capable of use for the accomplishment of a purpose.’” Ibid. (some internal quotation marks omitted). Thus, when a grievance procedure is a “dead end”—when “the facts on the ground” indicate that the grievance procedure provides no possibility of relief—the procedures may well be “unavailable.” Id., at ___ (slip op., at 9).

The Fifth Circuit seemed to reject the possibility that grievance procedures could ever be a “dead end” even if they could not provide relief before an inmate faced a serious risk of death. But if a plaintiff has established that the prison grievance procedures at issue are utterly incapable of responding to a rapidly spreading pandemic like Covid–19, the procedures may be “unavailable” to meet the plaintiff’s purposes, much in the way they would be if prison officials ignored the grievances entirely. Ibid. Here, of course, it is difficult to tell whether the prison’s system fits in that narrow category, as applicants did not attempt to avail themselves of the grievance process before filing suit. But I caution that in these unprecedented circumstances, where an inmate faces an imminent risk of harm that the grievance process cannot or does not answer, the PLRA’s textual exception could open the courthouse doors where they would otherwise stay closed.  

Sotomayor added:

As the circumstances of this case make clear, the stakes could not be higher. Just a few nights ago, respondents revealed that “numerous inmates and staff members” at the Pack Unit “are now COVID-19 positive and the vast majority of those tested positive within the past two weeks.” 

Finally, her commentary concluded:

It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales.

That's all well and good, but hope is not a medical policy and won't address the unrefuted problems identified by the District court at the Pack Unit. This is incredibly disappointing. 

CCA passes on judging forensic hypnosis, paroled but still imprisoned, Ken Paxton's 'lonely and misguided' crusade, and other stories

Here are a few odds and ends that merit Grits readers' attention:

On the absurdity of keeping 15k already-paroled prisoners in TDCJ so they can do treatment by correspondence

The Marshall Project's Beth Schwartzapfel has a story on an ongoing problem that's taken on new life in the coronavirus era: More than 15,000 Texas prisoners have already been paroled but can't leave prison because they haven't completed required treatment programming and the state underfunds it so badly there's a massive waiting list. This is pointless and stupid in the best of times, but at a moment when 1,299 TX prisoners have been diagnosed with COVID-19 and another 48,674 inmates are on precautionary lockdown because of the virus, it makes even less sense. According to the article, TDCJ has already stopped doing these treatment programs in person and has switched to correspondence courses where prisoners work on written packets in their cells. If that's the case, why not parole them and let them complete the packets at home?

Ken Paxton's 'lonely and misguided crusade' against Rosa Jimenez

Attorney General Ken Paxton won't drop his federal appeal in Rosa Jimenez's habeas corpus writ, even though DA Margaret Moore has finally, belatedly, acknowledged that the evidence used to convict her was flawed and she deserves a new trial. What a strange situation! Moore's position is hardly progressive. She insists she will retry Jimenez despite the fact that the forensics used to convict her was flawed and there was no other accusatory evidence in the case. But Paxton's position is nonsensical; a Statesman editorial dubbed it a "lonely and misguided crusade." All sides have briefed Judge Lee Yeakel, with Paxton arguing for maximum harshness. Her attorneys, by contrast, "urged Yeakel to allow Jimenez to leave prison on a personal recognizance bond while the appeal continues, arguing that COVID-19 puts her life at risk because she has stage 4 kidney disease." Grits has no idea what Paxton thinks he's trying to accomplish here. It's one of the weirdest legal postures I've seen a Texas AG take in the three decades I've been following state politics.

Man exonerated of drug charges after DNA evidence disproved faulty eyewitness testimony 

In Houston, James Harris has been exonerated of drug charges eleven years after his false conviction based on erroneous eyewitness identification. DNA testing finally exonerated him. Long-time Grits readers know that the Legislature enacted solid guidelines for how police conduct eyewitness identification procedures, but Texas courts have ruled that such testimony still can be used to convict even if police do not follow them. Harris was both more persistent than most people, pursuing the case for years after he got out of prison, and also incredibly lucky that DNA evidence, which is unavailable in most cases, was able to exonerate him. Most people who're falsely convicted under these circumstances have no way to clear their name.

CCA judges decline to judge forensic hypnosis

The Texas Court of Criminal Appeals declined to rule on the merits of forensic hypnosis in the case of Charles Don Flores. Instead, they said he could not use the state's junk-science writ to challenge his conviction, but did not articulate a reason why - classic outcome-oriented judging to uphold an execution from the Government-Always-Wins faction on the court. See their ruling, coverage from the Dallas Morning News, and prior Grits coverage of forensic hypnosis rounded up here.

COVID cases in Texas jails continue to skyrocket

As the number of state prisoners diagnosed with COVID continues to rise, so too does the number in county jails. As of Monday, 5/4, Texas jails were up to 980 inmates diagnosed with the virus, according to the Texas Commission on Jail Standards, up from 142 on April 17. That's a 590% increase in about 2-1/2 weeks. Harris County, which leads the state in inmates diagnosed with COVID at 449, just reported its first inmate death from the virus.

Overdoses spike nationally

Grits had mentioned earlier Travis and Williamson Counties had seen a spike in opiod overdoses. It turns out, the same is true nationwide, in part attributable to lack of access to treatment services thanks to the COVID shutdown. This article from The Daily Beast provides more detail.

Number of Texas jail inmates with COVID rose 187% in 8 days

Governor Abbott may want to open the economy back up, but in county jails, the problem is only getting worse. The number of Texas county jail inmates diagnosed with COVID-19 increased by 187% in just over one week!

As of April 19th, 180 Texas county jail inmates had tested positive for the coronavirus, as well as 153 jailers, Grits had reported based on documentation from the Texas Commission on Jail Standards.

As of yesterday, April 27th, TCJS reported that a whopping 518 jail inmates have now been diagnosed with the coronavirus, along with 219 staff. An additional 33 inmates and 384 jail staff are in isolation awaiting test results. And more than 5,000 other inmates - about 9% of the statewide jail population - have been quarantined or put into isolation but are not being tested.

Nearly half the reported inmates with positive diagnoses, 243 of  them, were in Harris County. But other counties saw significant increases. The number of cases in Tarrant County, for example, jumped from seven to 47. Dallas went from 64 inmates testing positive to 155.

CORRECTION: The original headline mistakenly said the increase was 238% - I'd accidentally divided by the earlier number of diagnosed jailers instead of inmates. Spotted within 5 minutes after posting and corrected it ASAP, but I regret the error.

UPDATE: It won't take long, it seems, for my original, erroneous headline to become correct. In the April 28 report, TCJS says 569 inmates have now been diagnosed with the coronavirus (along with 228 staff). That comes to a 216% increase over 9 days. How is this not bigger news? See related coverage from the Dallas Observer.

NUTHER UPDATE: As of 10 days out, the increase is now 248%, with 626 inmates reported testing positive for coronavirus as of April 29. The number of jailers testing positive increased 57.5% over this 10-day period, from 153 to 241.

Judges may do what they please after Tx Supreme Court says Abbott executive order unenforceable

The Supreme Court's ruling on Greg Abbott's executive order was fascinating to me. They upheld the executive order, but their reasoning amounted to "It's okay to keep it in place because it's completely unenforceable and nothing can or will happen to judges who ignore it."

See initial coverage from the Texas Tribune. Here's the order itself.

The court acknowledged the Governor is not above the law or the constitution, but decided the judges in this case were essentially under no credible threat that anything would happen to them if they violated the order:

We acknowledge the plaintiff judges’ allegation that they face a threat of criminal prosecution if they do not follow the executive order. Any threat to prosecute a judge for his or her judicial decisions raises grave separation-of-powers concerns. The judges, however, do not explain why well-established principles of judicial immunity are insufficient to counter such threats. Troubling as these threatened prosecutions would be, the defendants have disclaimed any such intention, and the judges have not shown a credible threat they actually will be prosecuted. As a result, even if a threat of prosecution could give a judge standing to challenge a substantive legal standard, the alleged threat of criminal prosecution in this case does not give the judges standing to seek the invalidation of GA-13. 

The court considered the threat of enforcement of GA-13 a non-issue because "the executive branch cannot criminally prosecute judges for deciding cases based on what they understand the law to be." In the end, they declared, "Applying the correct law in each individual case is the judge’s job as an institutional matter."

The court found that, even if judges were to openly violate the executive order, "there is no 'credible threat of prosecution.'” Indeed, they noted, "the State in its briefing disclaims any intention by the Governor or the Attorney General to affirmatively enforce GA-13."

Moreover, if local district attorneys tried to enforce the order, the judges would be protected by judicial immunity: "even if criminal prosecution of judges were genuinely threatened, the plaintiffs offer no reason to doubt that long-established principles of judicial immunity provide adequate protection." Said the opinion, "Judicial immunity prevents such 'domination by other branches' by giving a judge absolute immunity from liability for official judicial acts performed within the scope of his or her jurisdiction."

I'm not an attorney, but as Grits reads this, the plaintiffs technically lost the case but won the issue. Judges may simply ignore the executive order with full confidence that it cannot be enforced.

And they should.

RELATED: On Twitter, Judge Elsa Alcala opined, "Have they met the GAW faction of the CCA? LOL. It is an interesting issue that the civil high court is assessing what the criminal high court would hold re criminal prosecution." That's a fair point. But even so, I have a hard time imagining even the Government-Always-Wins faction on the Court of Criminal Appeals finding a theory to justify getting past absolute judicial immunity. I suppose I wouldn't put it past them to try.

Roundup of Texas headlines on COVID in prisons and jails

Several, notable headlines drew Grits' attention related to the coronavirus and Texas prisons and jails. Let's round them up.

• Texas Tribune: Texas Supreme Court sides with Abbott after judge halted his order restricting jail release: The high court did not weigh in on the arguments that Abbott's order went beyond his executive powers in a disaster. Instead, it ruled the Harris County judges were the wrong plaintiffs. Here's the SCOT order.
• Texas Observer: Greg Abbott's power grab on bail reform
• Texas Tribune: Federal appeals court stops earlier order, says Texas doesn't have to give inmates hand sanitizer or face masks for now. See the 5th Circuit's court order.
• Houston Chronicle: ‘A perfect storm’: Health experts warn of rapid COVID-19 spread in Texas prisons, recommend early releases
• KHOU: TDCJ correctional officer, 2 inmates die from apparent COVID-related complications
• Huntsville Item: TDCJ COVID-19 UPDATE: Offender at Wynne Unit has died from coronavirus
• KLTV: TDCJ updates Beto Unit 106 COVID-19 cases, 54 tests pending
• Texas Tribune: Coronavirus in Texas: County jail population shrank by more than 10,000
• Dallas Morning News: Dallas detention officers told not to ‘spook’ inmates with masks as COVID-19 fears began, testimony shows
• KHOU: 151 Harris County Sheriff's Office employees, 99 jail inmates test positive for coronavirus
• KRGV: At least 9 jailed for violating Cameron County emergency order
• McAllen Monitor: LUPE talks jail reform; details of first inmate case emerge
• Montgomery Advertiser: Sheriff requests hazardous duty pay raise for county employees during pandemic
• KRIS-TV: Are remote hearings the future for legal system?

Snapshot of coronavirus in Texas county jails

Today, as Grits catches up on all that's happened while I've been under the weather, I decided to check in on the extent of coronavirus contagion reported so far in Texas county jails. Here's an update.

Statewide, according to data from the Texas Commission on Jail Standards, as of April 19, 180 Texas county jail inmates have tested positive for the coronavirus, as well as 153 jailers. Another 3,668 inmates were in isolation/quarantine, 160 inmates were awaiting test results, and 3 inmates with active COVID cases were being treated offsite. By contrast, test results were pending for all 144 jailers who were quarantined or isolated because of the virus, so testing clearly has been concentrated among staff, not inmates.

The most troubling situation arises in Harris County. In Houston, reported KTRH radio on April 20:

The number of Harris County Sheriff’s Office employees diagnosed with coronavirus has reached 126, with 108 of the positive test results being among those who work in the jail. 

There are currently 327 Harris County Sheriff’s Office deputies, detention officers and support staff on quarantine for possible COVID-19 exposure. Six of these employees are currently in the hospital. As of Monday, 153 previously quarantined employees – including 20 who previously tested positive for the virus -- have returned to duty. Seventy-nine Sheriff’s Office employees are still awaiting test results. Forty-three employees have received negative test results.

After Harris, Dallas County faces the biggest numbers. According to TCJS, 64 inmates have tested positive, along with 19 staff. An additional 39 inmates and 11 staff have been tested and are awaiting results, while 428 inmates were being kept in isolation but haven't been tested. A federal lawsuit filed in Dallas seeks to have medically vulnerable inmates released. The Sheriff says the county is already seeking to fast track release of medically vulnerable and has asked local law enforcement agencies to issue more citations instead of arresting people for low level offenses. But at some point, it's possible the federal courts could intervene.

In the San Antonio Express News we find a remarkable news story about COVID in the Bexar County Jail. There, "the number of inmates infected with the virus had grown to 20, including three being treated at a hospital. In addition, 21 deputies and five staffers who work at the jail have tested positive. Fourteen of the deputies were in the same cadet class, fresh from the training academy."

The Bexar Sheriff's Office announced new policies to address the virus:

In response to the outbreak, Sheriff Javier Salazar said he enacted a handful of changes at the jail, including the distribution of masks to all 3,000 inmates, twice-daily temperature checks and frequent cleanings of common areas, including the recreation room.

He said several units are locked down — confining nearly 1,000 inmates to their cells for 23 hours a day — and that the jail’s inmate worker program has been suspended after an inmate working in the kitchen was possibly exposed to the virus.

But reporter Emilie Eaton offered first-hand accounts painting a different picture:

In interviews with nearly a dozen inmates, their families and lawyers, they described a facility where 60 inmates are housed in a space with bunk beds barely 3 feet apart, not nearly the 6-foot separation needed for safe social distancing, cleanings are infrequent and not thorough, disinfectant is watered down, and temperature checks occur less than twice a day. 

The inmates said the staff provide minimal information about the outbreak in the jail, feeding false rumors about the virus. They talked about feeling scared and dealing with their fear by making morbid jokes about death. 

Lately, meals have been irregular and meager.

Cleaning in the Bexar Jail was also a fraught issue:

Five inmates said cleaning of the common areas was not happening twice daily, as the sheriff says. Inmates, who do the cleanings, said the yellow solution used could be described as “warm water” or “warm water with a tiny bit of disinfectant.” They said they’re not able to get more of it. 

Leilani Minjarez said her husband, who is in jail on a family violence charge, was tasked with cleaning the common areas a few weeks ago. 

“It’s not even a cleaning solution,” she said. “It’s 20 times diluted. He says he feels like he’s cleaning with dirty water.”

Further:

All the inmates said they weren’t given masks until a week ago — after the first inmate tested positive. By some estimates, it took even longer. They said the masks are flimsy and look like they’re meant to be disposed of daily. Some are falling apart. The guards have refused to give them new ones, they said. 

The inmates are each provided with one small, motel-size bar of soap a week, and when that is gone, they said, they either do without, find scraps that other inmates have left behind or have to buy more from the jail commissary. 

Inmates who don’t have money to spend on food in the commissary go hungry. One man told his lawyer that “everyone is starving.”

Sheriff Salazar disputed some of those contentions, saying cleaning is happening, masks are available, and they've asked their food vendor, Aramark, to begin preparing food offsite to avoid some of the problems described.

Otherwise, most counties have reported no confirmed COVID cases, but that may just be because the aren't testing. You can't report results you never receive, after all. Travis County has no inmates who've tested positive, but the press reported one jailer who did, though the case wasn't listed in the TCJS report.

Here are the other counties that have reported positive COVID cases to TCJS as of April 19:

Tarrant County has seen seven inmates and one jailer test positive, with one other inmate and 11 jailers awaiting test results.

Webb County has seen seven inmates and nine jailers test positive, with one inmate and one jailer awaiting test results. Another 111 untested inmates have been placed in isolation.

In Denton County, one inmate, three jailers tested positive, but testing for inmates appears very limited - none were awaiting results, as of 4/19, though three jailers have tested positive.

In Hidalgo County, one inmate and one jailer have tested positive, with no additional tests pending.

In Montgomery County, one inmate has tested positive and no others have been tested, although 8 jailers are currently in isolation awaiting test results.

In Gregg County, one inmate and three jailers have tested positive. Two jailers are in isolation awaiting test results, but no other inmates have been tested.

Historically, during contagions, jails have been incubators of disease. (See this excellent, extended Twitter thread documenting the problem dating to the 18th century.) In the largest Texas county jails, we're at risk of history repeating itself.

Once the virus is within the jail walls, there's really no way to prevent its spread. Even if inmates are kept in cells, most are double bunked and there's no way to avoid interaction with staff, who are just as vulnerable as are the inmates. In New York City, things got so bad that some 1,500 inmates were released to limit the impact. About 3% have recidivated and landed back in jail, which of course is the subset the local press focuses on, but at the end of the day, most did not, and incarcerating fewer people is the only sure way to limit the risk.

Texas' three largest counties may soon reach a tipping point when it comes to the coronavirus in their jails, especially Harris County, with employees coming down with the disease in such large numbers it calls into question their ability to house inmates at the volumes presently incarcerated there. More testing would be helpful, but it also risks exposing a problem bigger than the jails are prepared to handle. We haven't reached that point yet, but if and when they do, Sheriffs will need a Plan B besides playing the PR game and hoping for the best.

RELATED: District Attorneys in Dallas, Bexar, Nueces, and Fort Bend Counties, represented by my neighbor, Jessica Brand, filed an amicus brief in the lawsuit before the Texas Supreme Court related to the legality of the governor's executive order related to COVID-related jail releases. See here for more detail on their position.

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.

Judge ruled Abbott exceeded his authority on executive order limiting personal bonds, but the fight's not over

UPDATE: The Supreme Court of Texas on Saturday issued a temporary stay on Judge Livingston's Temporary Restraining Order, meaning Abbott's order for now is back in effect. The court has requested briefings on the subject, with responses from the litigants due on Monday. See coverage from the Texas Tribune.

ORIGINAL POST: Texas Governor Greg Abbott and Attorney General Ken Paxton took one on the chin yesterday when Travis County District Judge Lora Livingston issued a Temporary Restraining Order barring enforcement of the governor's executive order barring jail releases of people with current charges or past convictions involving violent offenses. See initial coverage from the Austin Statesman, and briefs from the plaintiffs and Abbott/Paxton's attorneys.

At another hearing scheduled for April 24, Judge Livingston will decide whether to turn the TRO into a full-blown injunction, if the Supreme Court of Texas doesn't beat her to the punch (see below). Here's Judge Livingston's letter explaining her decision.

Grits considered the executive order a barely disguised attack on bail reform efforts in Harris County and a warning shot aimed at other jurisdictions that might follow their lead. There was no obvious link between the order and protecting people from the coronavirus, and in fact, it increased risk of infections in Texas county jails. So I was glad to see Livingston's decision, though I also understand this is only the first step down a longer path.

Though I'm not a lawyer, when I read the government's response to the petition from the ACLU of Texas, the Fair Defense Project, and the Lawyers Committee for Human Rights, I suspected they would lose on the merits. Frankly, they didn't address most of the plaintiffs' arguments directly, sidestepping them with sweeping overstatements and absurd attacks that, if taken to their logical conclusion, would make Governor Abbott essentially an un-accountable dictator whenever he decided to declare a disaster. 

In their brief, Abbott's lawyers accused judges of "misusing" their authority to grant personal bonds, but in the hearing yesterday, they could not identify a single example of such misuse, despite Livingston repeatedly pressing lead counsel Adam Biggs on the point. Not. A. Single. One.

Indeed, Biggs was unable to identify how the governor's executive order related to the coronavirus at all. The "disaster" to which he was responding, Livingston pointed out, had nothing to do with judges' authority to issue personal bonds, which predated the rise of the virus. In essence, the virus was an excuse for the action, not the reason.

They also blew past the central arguments by the plaintiffs without addressing them, arguing against positions never taken. Plaintiffs contended the Disaster Act only authorized the governor to override "regulatory" statutes governing state agencies, not the Code of Criminal Procedure or the Texas Constitution. But Biggs and Co. argued that, "According to Plaintiffs’ interpretation, the Governor would have to run to the Texas Legislature any time one of his COVID-19-related executive orders—like the recent restrictions on social distancing—touches upon just one of Texas’ numerous statutes." This ignored the "regulatory" distinction in the Disaster Act on which the plaintiffs' central argument hinged and made it easy for for Livingston to ignore their position and rule against them. It was simply non-responsive.

Maybe the oddest of the governor's lawyers' arguments was that the plaintiffs were encouraging "the deaths of tens of thousands of ... Texans" by contending that only the Legislature could suspend non-"regulatory" statutes.

Plaintiffs’ theory is that only the Legislature should have meaningful power to suspend laws that prevent the State’s response to this growing threat. Apart from the lack of a textual basis for Plaintiffs’ arguments, the following shows why this theory cannot be correct and would lead to disastrous results. To take legislative action, the Legislature would need to convene in person at some centralized place (the presumptive location is the State Capitol in Austin). 

It would presumably take days, if not weeks, to assemble individual legislators in the State Capitol or anywhere else. There are 150 Texas House members and 31 Texas Senate members.193 Two-thirds of the members from each chamber (100 for the House and 21 for the Senate) would need to appear to have a “quorum to do business.”194 Plaintiffs’ theory thus raises the specter of 121 Texas legislators gathering on one central location in the midst of a highly infections deadly disease that can quickly ravage large groups of people in a closely-confined area. The problems continue. 

Once the vote is done and the legislators go their separate ways, what happens when the COVID-19 threat quadruples in the following week (as we have seen is all too possible), which necessitates more severe action and thus the suspension of additional statutes? Well, the process would start all over again.

According to Plaintiffs, this Court is required to interpret § 418.016(a) in a way that could realistically result in the deaths of numerous Texas Legislators and, due to built-in delays in the process, the deaths of tens of thousands of other Texans.

Frankly, that doesn't seem "realistic" at all, considering Texas has seen fewer that 12,000 cases overall and as of yesterday, 226 deaths. By contrast, the plaintiffs made solid arguments both in their brief and at the hearing that pretrial defendants in jail were at significantly greater risk of contracting the virus, an argument Abbott's lawyers simply ignored or downplayed. Judge Livingston, however, raised the point multiple times and considered it a reasonable thing for judges to take into account, especially since Biggs and Co. could identify no examples of judges "misusing" the authority, as their brief had claimed.

Indeed, the argument that the Legislature convening would kill "tens of thousands" of people ignores the fact that the Texas Constitution includes a pandemic exception that allows the Legislature to convene outside of Austin if the capitol faces a "disease threat."

Sec. 8. CONVENING LEGISLATURE ON EXTRAORDINARY OCCASIONS. (a) The Governor may, on extraordinary occasions, convene the Legislature at the seat of Government, or at a different place, in case that should be in possession of the public enemy or in case of the prevalence of disease threat. His proclamation therefor shall state specifically the purpose for which the Legislature is convened.

However far afield some of these debates seemed, they didn't play a major role in the judge's decision. From her commentary at the hearing (thanks to the Texas Observer's Michael Barajas for sharing a recording), Judge Livingston's central motivation appeared to be protecting the powers of the judiciary from infringement by the executive branch. This passage from her explanatory letter (linked above) made that clear:

many of the orders in Executive Order GA-13 strip away the discretion of the judiciary and potentially subject its judges to mandamus or criminal action with little or no rationale in coping with the current health crisis. Instead, the order appears to address an unsubstantiated fear that the judges of the state will abandon their legal obligation to balance the interests of the public, individuals accused, but not convicted of criminal offenses, and the victims of those alleged offenses. The judges of this state were required to balance these very interests every day prior to the disaster declaration, and they are required to do so every day once the disaster declaration ends. The exercise of judicial discretion falls squarely within the purview of the judicial branch of our government. To be clear, the judges of this State may not abandon their responsibility in this regard, but neither may it be taken away from them by executive order. 

From this non-lawyer's perspective, the governor's attorneys made it awfully easy for Livingston to rule against them by ignoring central arguments from the plaintiffs and instead railing against straw men. They overstated their own case to a significant degree and downplayed plaintiffs' most important points to an even greater one. I was surprised their response wasn't stronger.

That said, it's possible the governor could prevail, anyway. As Grits was wrapping up this post, word came that Abbott's lawyers will file a mandamus action with the Supreme Court of Texas today, essentially performing an end run around the normal channels of judicial review.

Will the Supreme Court's loyalties lie more with the constitutional authority of the judicial branch or their partisan affiliations? Is Greg Abbott merely a governor whose powers are constrained by the constitution and state law, or a king who may do what he pleases so long as he declares a "disaster" first? Or will the Republican-led Supreme Court have the foresight to understand that their party won't always control Texas' statewide offices and enforce constitutional limits so that future governors won't also run amok?

Those are the big-picture questions before them, and though I think Judge Livingston was right on the facts and the law, Grits couldn't begin to guess what the final answers will be.

MORE: See Judge Elsa Alcala's analysis.

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.

Coronavirus and Texas jails

Despite his protestations to the contrary, to this observer, Governor Abbott's emergency executive order regarding jail releases seems fairly transparently aimed at thwarting bail-reform efforts in Harris County. Abbott says his order focuses only on the severity of the crime alleged. But since it does nothing to prevent people accused of violent crimes from paying bail and walking free, as a practical matter his order reinforces the tenets of the cash-bail system. Those who can pay may liberate themselves from the threat of catching COVID-19 in the county jail; poor folks will remain at risk.

If litigated, most smart folks I've heard from think the governor's order exceeded his authority, in addition to making little practical sense. Regardless, federal court orders trump it. The bail litigation over felony defendants being spearheaded by Civil Rights Corps will be the deciding factor. Judge Lee Rosenthal has already told Harris County many felony defendants must be released and is considering the fate of thousands more. Grits' prediction: In the near term, she will call the shots and the governor must be satisfied with attempting to blame the George-W-Bush-appointed judge's decisions on Democrats.

Otherwise, no other counties' jail-pop reduction efforts that I've read about addressed violent crimes, and most focused solely on misdemeanors. So other than thumbing his nose at a federal judge, to me the order served little purpose besides grabbing some tuff-on-crime media coverage during a period when the press has decided the coronavirus is the only story worth covering.

If history is any guide, jails are ticking time bombs for spread of the virus. Advice from the Jail Standards Commission seems well meaning but won't prevent the disease from spreading once it gets inside any individual unit. Jailers are at as great a risk as the jailed. It's not practical to enact social separation, so once the virus gets in, jails could quickly become petri dishes filled with disease.

In the near term, several counties have been successful at using personal bonds to slightly reduce jail populations. And a dramatic crime reduction thanks to social distancing should help lower jail intake. On the other hand, courtroom activity has all but ground to a halt, with trials postponed possibly for months. So there's a risk that those inside who cannot afford to buy their way out will be trapped there if (and when) the virus breaches the bastille walls.

Perhaps the most useful advice from the Jail Standards Commission was for law-enforcement agencies to arrest fewer people in the first place. There are seven categories of Class B and A misdemeanors for which police officers already have the authority to issue citations instead of arresting people. But most agencies, from DPS to the smallest 2-man police department - have never availed themselves of that authority. One excellent outcome from all this would be for all agencies to adopt such policies. Abbott's order, however, remained mum on the subject.

Indeed, most Texas law-enforcement agencies continue to give officers discretion to arrest for Class C misdemeanors. For the most part, these folks are incarcerated in city jails which are unregulated by the Jail Standards Commission. While no media coverage I've seen has focused on city-run lockups, Grits considers them just as or more likely than county jails to become infested with the virus. Nobody pays much attention to these backwater entities - even advocates - and as they are completely lacking in transparency, there's no real way to monitor what goes on there until the day tragedy strikes.

Travis County suspended all active warrants for low-level offenses, which seems like another effective step other jurisdictions should copy. That goes double for all Class C warrants. Indeed, arguably municipal courts and justices of the peace should simply suspend all activities related to Class C misdemeanors for the foreseeable future. In the current environment, the juice simply isn't worth the squeeze.

For additional recommendations, Michele Deitch of UT's LBJ School has created a list of best practices every jail should be following.

In some ways, these debates could end up changing the entire paradigm surrounding decarceration debates. Before this episode, while advocates may have fantasized about jailers releasing entire classes of prisoners, in practice, that only happened one case at a time. Now, more systemic approaches are suddenly on the table. If and when prisoners and jailers begin dying, public officials, including the governor, will find themselves under pressure to do more than issue politicized, unconstitutional directives.