After nearly a year of litigation, a U.S. District Judge in Houston issued a partial injunction against the Harris County Criminal Court at Law Judges on Friday, April 28, 2017.
While reading the 193 page order could take the average lawyer weeks to understand, the injunction order clearly was limited to misdemeanor cases only. Basically, the Judge required that each misdemeanor defendant fill out a financial affidavit, and then a misdemeanor defendant will be released in 24 hours in all cases on a bail they can post or on an unsecured bond or promise to appear. So, this decision does not spell a certain end to the use of bail in Texas or anywhere else, but certainly the analysis in the opinion and the use of the intermediate scrutiny test under the equal protection clause are a problem.
While not confirmed as of this moment, it is strongly believed that the Harris County Criminal Court at Law Judges will file an interlocutory appeal to the U.S. Court of Appeals for the Fifth Circuit. This means the decision of Judge Rosenthal will be put on hold while it is reviewed by the U.S. Court of Appeals for the Fifth Circuit. The Judges in the weeks leading up the order hired impressive appellate counsel to complement counsel for ABC and PBT, Paul D. Clement, Esq.
ABC’s Jeff Clayton reacted Monday to the decision: “This Judge got so far down in the weeds that she missed the entire point. Frankly, it if this is not legislating from the bench, I don’t know what is. This is clearly reversible error.”
Speaking of reversible error, we have seen this movie before. In the Calhoun, Georgia case, Judge Murphy issued a similarly long-winded opinion that was eventually overturned by the U.S. Court of Appeals for the Eleventh Circuit in March, 2017. We don’t see this as being any different, except in this case more ink this time was spilled on a page in order to re-interpret settled constitutional law and legislate from the bench.
A decision from the Harris County Criminal Court at Law Judges on an interlocutory appeal could come at any time.