This past September the Texas Fair Defense Project, the law firm of Susan Godfrey (Houston), and the Washington, D.C.-based advocacy group, Equal Justice Under Law, filed a class action civil rights lawsuit in the U.S. District Court in Houston challenging the bail policies of Harris County. The lawsuit essentially charged that the county’s “wealth-based pretrial detention violates the Equal Protection and Due Process Clause of the United States Constitution.”


The lawsuit named all 16 judges misdemeanor court judges and former Harris County Sheriff Ron Hickman as defendants.


Pre-Trial Detention of Poor Challenged as Unconstitutional


The Sheriff’s Department was named in the lawsuit because Harris County policy permits the department to accept money bail determined by a fixed bail schedule. This is significant because, as the lawsuit alleged, the department is responsible for 27 percent of all arrests in Harris County and has the authority to transport arrestees from field stations operated by other arresting authorities to the Harris County Jail where all arrested persons are held pending disposition of their cases in Harris County courts. If the arrestee can make the required money bail, the department is authorized to release the individual and set a time for him or her to appear in court.


The Harris County bail system not only permits, but far too often encourages the pretrial detention of poor people charged with minor crimes who cannot meet monetary bail requirements or pay minor fines for matters such as traffic violations.


The case was assigned to U.S District Judge Rosenthal who immediately issued an order suggesting that county officials and attorneys for the plaintiffs mediate and settle the dispute.


There’s a New Sheriff in Town


Former Harris County Sheriff Ron Hickman, who was personally named in the lawsuit, was defeated in the November 8 elections.


Hickman’s successor, Ed Gonzales, is a former member of the Houston Police Department and the City Council. A centerpiece of Gonzales’s election campaign was a pledge to reduce overcrowding in the Harris County Jail through bail reform.


Gonzales stuck by that pledge recently by filing an affidavit in connection with the pending  bail lawsuit urging Judge Rosenthal to maintain the Sheriff’s Department as a defendant—something Hickman’s attorneys had asked the judge not to do. Gonzales informed the court, via his affidavit, that he believes the country’s bail system is unconstitutional. The affidavit, in part, stated:


“The County’s widespread detention of arrestees because they are too poor to pay arbitrary amounts of money is a waste of public resources and actually undermines public safety … Though I respect Sheriff Hickman, I respectfully disagree with his and his lawyers’ position that the Sheriff should not even be a party to this case.  I believe that the current operation of the money bail system, including the Sheriff’s active participation in that system, violates the United States Constitution …  A person’s access to money should not be a determining factor in whether he or she is jailed or released after arrest and pending trial.”


Sheriff-Elect Gonzales Keeps Campaign Pledge


Sheriff-elect Gonzales informed the Court that once he is officially sworn into office, he will instruct his attorneys to withdraw the motion filed by Hickman’s attorneys seeking to have the Sheriff’s Department dismissed from the lawsuit.


“A reformed [bail] system should fully addresses [sic] public safety concerns but also protects the dignity and civil rights of every individual – rich or poor – who comes in contact with the jail and my deputies.,” he added. “Our current money bail system does not achieve these goals.”


Current Money Bail Offends Constitutional Principals


The Gonzales affidavit is nothing short of stunning in its intellectual honesty. It places the Harris County Attorney’s Office, which has maintained the position that the county’s current bail system works just fine and does not offend any constitutional principles, at odds with a fellow defendant. The Harris County Attorney’s Office tried to create an “ethical” issue for Gonzales for filing the affidavit but the effort was casually brushed aside by Judge Rosenthal.


A decision is expected soon from Judge Rosenthal about which defendants will remain as named defendants in the case.


The entire Texas bail system was indicted in a recent report (October 2016) by the Texas Judicial Council. The Harris County system, governed by its inflexible bail schedule, is one of the worst in the State. We hope Judge Rosenthal will keep the Sheriff’s Department in the lawsuit and allow Gonzales the opportunity to strip away the façade of equality and justice from the Harris County bail system.