Gradually, inevitably, the COVID 19 virus is working its way through the Texas jail and prison systems. There are roughly 7,500 to 10,000 inmates in the Harris County Jail.


Throughout Texas’ county jails, nearly 70 percent of people detained in what is called “pretrial detention”—those people who have been accused of criminal wrongdoing but who have not been convicted of any crime. According to Harris County Judge Lina Hidalgo, the number currently stands at 5700 inmates who are in Harris County Jail simply because they cannot afford bail. 5700 nonviolent “accused” who cannot afford the cash bail necessary to be released back into the free world, where they can work and help provide for themselves and their families.


Under Chapter 2 of the Texas Penal Code, all inmates in pretrial detention are presumed innocent until a judgment of guilt is rendered either by a jury or a judge. 


County Judge Orders Release of Low-Risk Inmates


On April 1, 2020, Judge Lina Hidalgo, the County Judge of the Commissioners Court, issued an order that about 1,000 of these pretrial detention inmates charged with nonviolent offenses should be released from the jail on personal recognizance bonds so they could participate in social distancing in the free community. The County judge called the jail a “ticking time bomb” for these offenders who have not been convicted of any crime—all of whom are bail-eligible but lack the financial resources to post a bond. Judge Hidalgo said that the inmates would go through a vetting process that includes the District Attorney’s Office and the county’s pretrial services before being released. She pointed out that the COVID virus will spread among these inmates like “wild fire” unless “quick action” is taken to remove them from jail confinement.


Judge Hidalgo’s order, and other similar orders issued by county judges around the state, is both a legal and humane response to a dangerous crisis—one that has every potential to impact many of these presumed innocent offenders with lethal consequences.


Governor Preempts Compassionate Release


On March 29, 2020—two days before Judge Hidalgo’s order was issued—Texas Gov. Greg Abbott issued an “executive order” (known as “GA-13“) that effectively overruled county efforts to reduce jail populations and the risk of spread of COVID 19.


That executive order did not deter the judge.


District Judges Object


On April 3, 2020—two days after Judge Hidalgo’s order issued—Harris County felony judges through an order signed by Criminal District Court Judge Herb Ritchie blocked the release of the pretrial detention inmates specified in the Hidalgo order. In effect, the 22 Harris County felony judges felt that their constitutional supervisory powers over bail release decisions had been infringed upon by the Hidalgo order.


The Governor’s executive order only inspired the sixteen Criminal Courts at Law Judges to join the Texas Criminal Defense Lawyers Association, the Capital Area Private Defender Service, the Austin Criminal Defense Lawyers Association, and the NAACP of Texas to file a lawsuit challenging the Governor’s executive power. On April 8, 2020, the plaintiffs filed an application for a temporary restraining order, a temporary injunction, and a permanent injunction in Travis County’s 459th Criminal District Court against Gov. Abbott and Attorney General Ken Paxton seeking to block order GA-13.


On April 10, 2020, Travis County District Court Judge Lora Livingston issued a temporary restraining order blocking Abbott’s GA 13 order.


Texas Supreme Court Blocks Compassionate Release


The Livingston order stayed in effect one day before Abbott and Paxton convinced the Texas Supreme Court to intercede and reinstate the GA-13 order.


Unnecessary deaths will be the result of these unfortunate, tragic judicial and political intercessions.


Jails Infested with COVID 19


Currently, 65 members of Harris County’s jail staff have tested positive for the COVID virus, and roughly 1600 of its inmates are in “observational quarantine,” with 49 testing positive for the virus. Eight inmates, fourteen deputies, a nurse, and a maintenance employee at the Bexar County Jail have tested positive for the COVID virus. In Dallas County, thirty-one inmates in the jail have tested positive for the virus.


The infection rate will continue to increase exponentially among pretrial detention inmates, not only in Harris County but in every county jail in the state. Many of these presumed inmates will either die or suffer long term consequences from the COVID infection. Their deaths and suffering will rest at the doorsteps of Greg Abbott, Attorney General Paxton, and a host of other public officials who have blocked their release even though they posed no threat to the general public.


Need for Reform of Cash Bail System


The real crime in this tragic situation is that people in jail are being unnecessarily exposed to a highly contagious and hazardous virus. Their lives were not considered essential but instead disregarded as expendable. 


This emergency highlights the importance of immediate reform of the cash bail system. It is a crime that people remain in county jails, convicted of no criminal offense, simply because they cannot afford to pay cash bail to be released.


It is now more evident than before that the pretrial release system urgently needs reforms to require a presumption of release on personal recognizance for all nonviolent, low-risk defendants. Tragically, COVID simply put a spotlight on a historical remnant of racism that has dominated our criminal justice system since its inception.