As we have pointed out, the wealth-based cash bail system has an iron-fisted grip in Texas that favors those who can afford to post bail over those who cannot.
However, Texas has a safety valve for people jailed for over ninety days if the State is not ready for trial.
Article 17.151 of the Texas Court of Criminal Procedure requires that a criminal defendant detained in jail for a felony accusation “must be released” on a personal bond or by reducing the required bail amount if the State is not ready for trial within 90 days. Since a felony case must be indicted before it can proceed to trial, by definition, a unindicted case is not ready for trial. A detained person can seek PR release or bond reduction through a writ of habeas corpus.
Right to Release vs. Gov’s COVID Order
On August 22, 2020, Allen Christopher Lanclos was involved in a standoff with the Lumberton police in Hardin County. Allegedly, he exchanged gunfire with the officers before being shot in the arm and forced to surrender to authorities. He was charged the following day with assault on a public servant, and the court set bail at $2,250,000.
The State did not obtain a grand jury indictment and, and therefore was not ready for trial within 90 days. Lanclos’ defense attorney filed an Article 17.151 habeas petition. The habeas court reduced his bail to $1,250,000. Lanclos appealed to the Ninth Court of Appeals in Beaumont, arguing the habeas court had not set bail in an amount he could afford to make.
On March 10, 2021, the appeals court upheld the habeas court’s order.
Gov. Abbott Prevents PR Bond During COVID
Lanclos sought, and secured, discretionary review before the Texas Court of Criminal Appeals (TexCrimApp). The State’s primary argument against Lanclos’ appeal was that Article 17.151 had been superseded by an Executive Order issued by Gov. Greg Abbott on March 20, 2020, in response to the COVID pandemic, which read in part:
“Article 17.151 of the Texas Code of Criminal Procedure is hereby suspended to the extent necessary to prevent any person’s automatic release on personal bond because the State is not ready for trial.”
The TexCrimApp on June 30, 2021, in Ex parte Allen Christopher Lanclos, rejected the State’s argument, saying: “The executive order suspends Article 17.151 only to the extent that it calls for releasing defendants on personal bond. It does not suspend Article 17.151 release of defendants on bonds they can afford.”
The TexCrimApp reversed the lower courts’ decisions, ordered Lanclos released on bail, and informed the State it would not entertain any motions for rehearing.
The TexCrimApp upheld the provisions of Article 17.151 that require a judge to set bail in the amount a defendant can afford if the State is not ready for trial within 90 days of the beginning of detention. However, the Court’s decision in Lanclos effectively upheld a wealth-based bail system that favors those with financial means over those who do not have such resources. The result is a racist-based bail system.
In April of 2020, the Texas Supreme Court upheld Abbott’s executive order that restricted personal recognizance bail during the pandemic. Texas Attorney General Ken Paxton, who himself is on bail for felony securities fraud charges, praised the Texas Supreme Court for its decision in upholding Abbott’s order.
In effect, the Texas Supreme Court, the Texas governor, and the Texas Attorney General decided it was the “right” thing to allow low-risk defendants who could not afford cash bond die in the State county jails from the COVID virus. Meanwhile, defendants with financial means like Paxton could be free on bail pending trial regardless of the charge. Of course, this is inconsistent with the Governor’s nod to public safety.
Put it this way, a person charged with a violent felony, who has a history of domestic violence, could be freed on a cash bail he could afford during the pandemic. In contrast, a poor person charged with disorderly conduct has to remain in jail, facing death from the COVID virus. Many low-risk, non-violent defendants died in the State’s county jails due to Gov. Abbott and Attorney General Paxton’s politics. And it came with the blessing of the Texas Supreme Court.