Opinion: A Tragedy, Upon a Tragedy, Upon Another Tragedy; or, the Death and Despair of Jail Inmates
Law professor Ron Beal argues that Gov. Abbott, under the cover of the pandemic, has usurped the power of the judicial branch
In 2017, Damon Allen, a state trooper, was gunned down during a traffic stop. The suspect was on pre-trial release after being arrested for assaulting a deputy. Gov. Greg Abbott stated that "as to these criminals, we're going to get them off the street and keep them off the street." The governor then attempted, in the 2017 and 2019 legislative sessions, to amend the pre-trial release statutes, but failed.
Along came the infamous pandemic and the governor proclaimed the state of Texas to be in a disaster under the 1975 Texas Disaster Act. He quickly issued 12 executive orders regulating the citizenry and businesses. As to the 13th executive order (GA-13), he totally changed gears and suspended the pre-trial release statutes he had tried to amend, ordered constitutional judges to obey the order, and threatened the judges with criminal prosecution for releasing any persons from jail before trial.
Gov. Abbott was granted no power under the Disaster Act to suspend criminal procedural laws or to order and/or prosecute judges. The Supreme Court was granted, "notwithstanding any other statute," the exclusive and sole power to suspend criminal procedural statutes and to direct judges, not prosecute them, as to what to do. Thus, the Supreme Court clearly knew from the day GA-13 was issued that it was void and has continued to be void for over one year and counting, but it has issued no emergency order to supplant, void, or vacate it and replace it with a Court order. (The Court has issued 36 emergency orders on other court issues.)
Sixteen Houston county judges sued the governor to have a court declare GA-13 invalid. On emergency appeal, it came before the Supreme Court. The Court heard the case, determined the judges were not proper parties to file the lawsuit, and dismissed it, allowing GA-13 to remain in effect. The Supreme Court violated the Code of Judicial Conduct and their constitutional duty to protect the integrity of the Judiciary by hearing and deciding the case. In reality, they were nine unnamed defendants in the suit for the controversy only existed due to their failure to act on their own authority and they were completely biased and not impartial for they would have to defend their inaction in asserting their control over the courts.
Therefore, the governor and the Texas Supreme Court continue to engage in a gross violation of separation of powers by the governor usurping the power of the Court, and the Court allowing him to do so.
Upon a tragedy.
Caught in the cross-fire, all of the county and district court judges had to decide what to do with an unlawful, unconstitutional order that the Supreme Court allowed to stand. They all have the power to declare it void and comply with the pre-trial release statutes that continue to be valid. Not one written order has been issued by a county or district court judge declaring GA-13 void up until the present time. Therefore, all arrested, but not convicted citizens of Texas have been and continue to be illegally detained in jail. This is so even though the judges have judicial immunity from criminal prosecution for performing their constitutional and statutory duties. Thus, all of the judges join the governor and the Supreme Court in violating separation of powers by allowing the governor to illegally suspend part of the judicial process.
To put the icing on the cake of illegality, recently the UT-Austin Lyndon B. Johnson School of Public Affairs published a study that found during the pandemic, 80% of the COVID-19 deaths in jail were inmates who had not been convicted of a crime.
Upon another tragedy.
Recently, Governor Abbott proclaimed that for the 2021 Legislative Session, amendment of the pre-trial release statutes was an emergency, priority measure.
Ron Beal has been a professor of law at Baylor Law for 38 years. He is an expert in Texas administrative law and statutory construction, and been cited too many times to count as an authoritative source at the Supreme Court and 3rd Court of Appeals.
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