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Bexar County Public Defender Calls Gov. Abbott's Order Eliminating Early Release 'Unconstitutional'

Eileen Pace
Bexar County Detention Center

While Gov. Greg Abbott declared Texas open months ago, he keeps people in jail who would otherwise be out. A case in front of a Bexar County district judge challenged the governor’s power on the matter this week. It could mean freedom for many awaiting release from the Bexar County Jail.

For 15 months, sheriffs across Texas have been barred from releasing anyone arrested for or convicted of a crime of physical violence. Abbott’s executive order in late March prevented counties from reducing jail populations during the pandemic.

According to the order, officially designated GA-13, people accused can't even bond out or be put on electronic monitoring to await trial in those cases. Those convicted cannot be released for good behavior.

Janie Villeda was arrested in 2019 for “simple assault” domestic violence. When she didn’t complete the program she was arrested again in January 2020 and sentenced to a year in Bexar County Jail. At that time she should have served 116 days due to accrued “good behavior” and been released May 24, argued the Bexar County Defender’s Office.

But she stayed in jail until Wednesday, and Bexar County Public Defender Michael Young argued that that “constitutes an unlawful restraint on the applicant’s liberty.”

“Governor Abbott’s executive order GA-13 violates the separation of powers doctrine,” Young said in a court filing for Villeda. Only the legislature can suspend laws, he wrote.

GA-13 refers to five different criminal procedures and statutes are suspended.

Sheriff Javier Salazar said he is bound by the governor’s pandemic order and cannot release Villeda or the hundreds like her behind bars. The result of the order has been higher overtime bills and larger jail populations.

On Wednesday, the 379th Criminal District Court said it could not rule on the constitutionality of the order without notifying the office of the Texas attorney general, a process that could take as long as 45 days.

Young had argued that the executive order did not qualify as a statute and no notice needed to be given.

Judge Ron Rangel of the 379th District disagreed, and he asked that the attorney general be notified in this or similar cases.

That said, Rangel did release Villeda on a $1 cash bail and said he would do the same for any that came before him, opening a path to release for many incarcerated who would otherwise be free.

Harris County judges sued Abbott over the order in April 2020, but the Texas Supreme Court found they lacked standing.

Some county courts and jails have either found the order unconstitutional or ignored it outright. The system, however, is not uniform across the state.

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Paul Flahive can be reached at Paul@tpr.org