Texas Attorney General Ken Paxton on Tuesday asked a federal court to vacate the ODonnell Consent Decree, a first-of-its-kind bail reform practice in Harris County that allows most misdemeanor defendants to be released from jail before trial without having to pay money.
The consent decree, which has been in place since 2019, settled a class action lawsuit filed against the county in 2016. Attorneys for the lead plaintiff, Maranda Lynn ODonnell, argued that Houston defendants charged with low-level crimes were being penalized for being poor in violation of their constitutional rights.
Paxton filed motions Tuesday to intervene in the case and vacate the order, arguing the practice goes against a Texas law passed in 2021 and another state bail law set to take effect Sept. 1. His motions were filed one day after President Donald Trump, a fellow Republican, issued a federal executive order seeking to end cashless bail for people who are accused of violent offenses or pose threats to public safety.
“The State Attorney General is trying to invalidate a federal order and force Harris County back into an oppressive system in which people are jailed or released based on how much money they have, tearing apart families and communities in the process,” said Travis Fife, an attorney for the nonprofit Texas Civil Rights Project, which is part of ODonnell’s legal team in the case. “We are all safer when presumptively innocent people remain with their families instead of being confined to the deadly Harris County Jail.”
Acting Harris County Attorney Christian Menefee, a Democrat who is running for the vacant seat in the 18th Congressional District, said in a statement that he will oppose Paxton’s motions. He also said it’s “no coincidence” the motions were filed shortly after Trump’s executive order.
“As with redistricting, this state is once again bending to the will of Donald Trump,” Menefee said. “Ken Paxton is clearly trying to score political points on bail, but the data and the lived experience in Harris County prove that this reform works.”
In arguing that the consent decree should be nullified, Paxton in court filings cited the opinions of four judges in Harris County along with two state laws passed since the practice took effect. Senate Bill 6 was a 2021 law that requires people charged with violent crimes in Texas to post cash bail in order to be released from jail.
Senate Bill 9, which was passed by state lawmakers this year and will take effect Sept. 1, adds to the list of offenses for which defendants are required to post a cash bond. Those offenses include terroristic threats, unlawful possession of a firearm and stalking. The forthcoming law also allows prosecutors to appeal bail amounts for defendants charged with felonies while they are out of jail on bond for another felony.
“State law has changed since the Consent Decree was entered; accordingly, it should be vacated,” Paxton wrote in one of his motions.
The practice in Harris County applies only to misdemeanors and not to felonies or violent offenses. And the court-appointed monitors for the consent decree have consistently reported that it’s been successful in terms of reducing the population of misdemeanor defendants at the Harris County Jail, which has been plagued by overcrowding and inmate deaths, along with saving the county money and leading to a decrease in the number of misdemeanor arrests.
The number of people arrested for misdemeanors, who had new criminal charges filed against them within one year, also has declined, according to the latest report issued in March.
“The O’Donnell Consent Decree has been in place for years, and the results speak for themselves: it has saved Harris County taxpayers millions of dollars, reduced recidivism, eased overcrowding in our jail, and improved the lives of tens of thousands of people by ensuring they aren’t jailed simply for being poor,” Menefee wrote in a statement. “Undoing it would cause the court backlog to skyrocket and the jail population to rise to unmanageable levels.”
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