Conservatives are looking to void Harris County’s bail reform efforts — a move that County commissioners are preparing to consider Tuesday in executive session.
In a case out of Dallas earlier this month called Daves v. Dallas County, the U.S. Fifth Circuit Court of Appeals ruled that district court judges have immunity from lawsuits as agents of the state when setting a bail schedule.
The decision comes a little over two years after a federal judge ruled that Harris County’s use of cash bail in misdemeanor cases unconstitutionally discriminated against people based on ability to afford bail, in a case called O’Donnell v. Harris County. As a result, the county reached a settlement with the plaintiffs — a group of people in pretrial detention who couldn’t afford to pay bail — and a federal judge issued a consent decree laying out steps Harris County must take to comply with constitutional standards.
The county is currently involved in a similar case, Russell v. Harris County, in which plaintiffs are hoping to obtain a similar decision and consent decree against the county over the use of cash bail for indigent defendants in felony cases.
In light of the Daves ruling, Republican Commissioner Jack Cagle has requested commissioners meet in executive session to consider four measures:
- to seek injunctive relief to dissolve the O’Donnell consent decree;
- to move for immediate dismissal of the Russell case;
- to eliminate all budgetary items and departments created by the O’Donnellconsent decree;
- to invite the commissioners’ former counsel in the O’Donnell case to brief the court on how they might claw back expenditures made because of the consent decree.
Commissioner Cagle declined a request for comment in advance of the commissioners court meeting.
Allan Van Fleet, a Houston-based attorney who represented the judges in the Davescase, said the Daves decision has no impact on the O’Donnell consent decree.
“The consent decree is not only a final judgment of a federal court. It is a settlement agreement,” Van Fleet said. “It is a consent entered into by the county that can’t be backed out (of) because of what Commissioner Cagle perceives is the change in the law, and the parties continue to be bound by it until the court says otherwise.”
The Civil Rights Corps represented the plaintiffs in the O’Donnell case and currently represents the plaintiffs in the Russell case. Attorney Elizabeth Rossi, director of strategic initiatives for the Civil Rights Corps, said that the Daves case does nothing to undermine the plaintiffs’ basic contention in either of its lawsuits.
“The bail system in Harris County, both the misdemeanor system that we challenged and the felony system that we are currently litigating have been the site of egregious constitutional violations for many, many decades,” Rossi said. “And the Daves decision simply didn’t reach the most important questions about the merits of our claims, putting them off until later.”