People arrested for misdemeanors in Travis County will no longer have to pay cash to be released from jail, under an order released Thursday by county judges.
The move could effectively eliminate cash-based bail for misdemeanors in the county, though criminal justice advocates worry it's a half-measure – and that defendants could still be held in jail before a trial.
"In the interest of justice and fairness for all persons accused of misdemeanor crimes, the Travis County Court at Law Judges ... have determined that all persons arrested for misdemeanor crimes should be released on personal bonds," the order reads.
The order from the judges, who preside over class A and B misdemeanor cases, doesn't apply to some offenses, including cases of assault, violations of protective orders, repeat DWI offenses and instances in which a defendant is currently on probation or parole.
The move was sparked by Harris County's yearslong row over bail reform – one that culminated in a federal consent decree requiring the release of all people accused of misdemeanors in the county on the condition that they show up to court within a week. U.S. District Judge Lee H. Rosenthal formally OK'd the settlement in November, saying it would prevent Harris County from "systematically depriving indigent misdemeanor defendants of their constitutionally-protected rights."
Judges and advocates in Travis County have been in negotiations to rethink the county's bail system since October, but the order seemed to stun those working toward reforming the bail system to reduce jail stays for low-income defendants who, more often than not, are people of color.
The order also came on the eve of a planned meeting Friday between Travis County stakeholders and former Harris County judges and criminal justice advocates who helped shepherd Houston's reforms.
Alec Karakatsanis of Civil Rights Corps and former Harris County Judge Mike Fields, who attended the meeting, applauded the effort. But they and criminal justice advocates aregued the framework puts too much power in the hands of court staff who can use their own discretion to decide whether a defendant is "an eminent danger" and determine whether they are indigent.
"There is an element of the new rule ... that's very dangerous in our opinion – and also very inefficient and costly – and that is that these people are not getting prompt, efficient, automatic release prior to seeing a magistrate," said Karakatsanis, who spearheaded the class-action lawsuit against Houston's cash-bail system. "If pretrial services determines that you're in this vague category of someone who's dangerous, you're not released automatically."
In a back-and-forth with Karakatsanis, Travis County Attorney David Escamilla, whose office handles misdemeanor cases, defended the county's current system, saying those who aren't automatically released will still be able to get a personal bond.
"We already have a personal bond process, and 71% of misdemeanors are getting through with personal bonds," Escamilla said. "What this order does is puts an expressway on top of it."
Fields, a former GOP judge, was ousted in 2018 during a wave of Democratic judge elections in Houston. He said it took a "monumental mental shift" for him to support the bail reform efforts, but he ultimately came around, adding that he was surprised Travis County moved to reform so quickly and quietly.
"It is amazing to me, and I'm not just blowing smoke at you – because I don't work up here. What you guys did is incredible. You got it without someone forcing it down your throats," he said. "It took an election that kicked us all off the bench and a federal judge for us to get it. So now, it's really just working out the details."
Amanda Woog, executive director of the Texas Fair Defense Project, said after that meeting that, while initially surprised by the order, she believes the county's working group will clarify some of the language that could ultimately come in the form of another judicial order.
"There is confusion around what the standing order means and we heard a commitment from the judges to work with us for clarity and to improve processes," she said.
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