Inmates' attorneys challenge Gov. Greg Abbott's order banning some jail release, say it's unconstitutional

Inmates chat inside a cell block at the Harris County Jail. Caleb Bryant Miller for The Texas Tribune

Gov. Greg Abbott’s order prohibiting the release of some Texas jail inmates during the coronavirus pandemic is being challenged in federal court. Civil rights attorneys filed a court motion Wednesday arguing the order unconstitutionally discriminates against poor defendants.

Abbott issued an order Sunday that suspended much of the state’s bail laws and banned the release of people in jail accused or previously convicted of violent crimes unless they pay cash bail. Those inmates could still walk free if they have access to cash.

The order was intended to keep violent criminals off the street at a time when officers and the public had enough to worry about, Abbott said, but it immediately drew rebukes from attorneys and Democrats who said it only kept poor people in jail. Several legal scholars and advocates questioned the constitutionality of such an order, and a legal challenge was expected.

On Wednesday, in an ongoing federal lawsuit over Harris County’s felony court bail practices, attorneys representing inmates filed a motion for a temporary restraining order against Abbott’s order. The motion asks U.S. District Judge Lee Rosenthal to order Harris County judges to ignore Abbott’s order until a full hearing can be held.

“The text of the Order purports to block release of presumptively innocent individuals even if state judges conclude that there is no individualized basis for their pretrial detention—but only for those who cannot pay,” the motion said.

Harris County’s misdemeanor courts have already been found in federal court to discriminate against poor defendants in past bail practices, and the judges are now under a federal order to release most low-level defendants on no-cash bonds. The misdemeanor judges said Tuesday they would not be following Abbott’s order, stating a federal court decree outweighs a governor’s order.

This story is developing and will be updated.