Felony judge group seeks to be removed from bail challenge

The bulk of Harris County’s felony judges sought Monday to get the federal case against them dismissed, saying they should not be party to the challenge on how bail is determined for thousands of poor people accused of crime.

Lawyers for Gov. Greg Abbott, Attorney General Ken Paxton and 19 Democratic district judges argued at a packed online hearing that the judges are protected by immunity, the federal courts don’t have jurisdiction and the indigent arrestees behind the case no longer have standing to sue.

The 2019 civil rights case challenges the county’s policy of setting bond that results in the jailing of people who can’t afford cash bail. Nearly 80 percent of the current jail population are people awaiting trial , mostly on felonies.

Although the group of judges asked for the entire case to be dismissed, or alternatively, their removal as parties to the case, the bail challenge is likely proceed regardless of the court’s ruling, since the remaining defendants — the county, Sheriff Ed Gonzalez and four felony judges who hired their own lawyers — are not seeking dismissal.

Attorneys for defendants jailed because they could not afford bail said it’s essential that people charged with a crime are afforded their constitutional right to “pretrial bodily liberty.” A court must let each person have access to counsel and a full bail hearing before a judge or magistrate, they said. And a crucial part of this exercise is for the hearing officer to make factual findings, specific to a defendant, as to whether

they’ve used the least restrictive means to ensure the the public is safe and the person will show up for court.

The state Attorney General’s Office, arguing on behalf of the majority of the felony judges, said the bail process is constitutional because it adheres to ODonnell v. Harris County, the county’s landmark misdemeanor bond case that was resolved through a seven-year consent decree.

But the plaintiffs say the felony bail case, Russell v. Harris County, raises new constitutional issues that the court never had a chance to address in ODonnell.

Assistant Attorney General Courtney Corbello told Chief U.S. District Judge Lee H. Rosenthal the lawsuit is an attempt to undermine judicial discretion and sully her clients’ reputations on the bench.

“The plaintiffs seek to enlist this court to use the power of the federal government to impose their will on the state of Texas’ criminal justice system by order

ing state court judges to act in a way that far exceeds the requirement under law,” she said.

The law lets the state operate its own criminal justice system and give its hearing officers latitude to make bail decisions without a federal judge stepping in to tell them how to run their courts, Corbello said.

Alec Karakatsanis, of Civil Rights Corps, clarified in response that the indigent plaintiffs are not making the case that setting an unaffordable bail is unconstitutional.

“All we are saying is that if there is an unaffordable bail set, that is the equivalent of an order of detention and that may very well be constitutional,” he said. “All we are saying is that because of the importance of the right to pretrial liberty that order of unaffordable bail, that order of pretrial detention, has to be justified; and it has to be justified by a finding that there aren’t less restrictive alternative conditions of release.”

The federal court’s ruling on the dismissal could come within weeks.