Battle over Harris County Bail System Continues

Battle Over Harris County Bail System Continues.

skeeze / Pixabay

On April 28, 2017, federal district court judge Lee H. Rosenthal issued a temporary injunction against Harris County’s bail system as applied to indigent misdemeanor criminal defendants, finding that it unconstitutionally discriminated based on wealth and violated due-process rights.[1] The order resulted from a civil-rights suit brought on behalf of Maranda O’Donnell and later joined by two others.[2] O’Donnell was arrested for driving with a suspended license and could not afford the $2,500 bail.[3] The order was to go into effect on May 15, requiring Harris County to begin releasing indigent misdemeanor defendants awaiting trial.[4] The order was delayed, however, until June 6 due to the county’s requests for stay made to the federal district court, the U.S. Fifth Circuit Court of Appeals, and eventually the U.S. Supreme Court, all of which were denied.[5] The case has been appealed and will be set for oral argument in front of the Fifth Circuit in the coming months.[6]

The effect on crime of releasing indigent misdemeanor offenders is unclear and will likely continue to be hotly debated. According to Harris County officials, from June 6 through June 23, almost 980 people were released on personal bond, 40 of which (about 4 percent) were arrested and charged with new crimes (often misdemeanors) by June 23.[7] Compared with the roughly 1 percent of people released on cash bonds who have been arrested and charged with new crimes, this statistic seems to indicate that those released on personal bond are significantly more likely to re-offend.[8] However, a recent Stanford Law Review article[9] contradicts this notion.  Using data from Harris County misdemeanor cases, the article found that “those detained pretrial are more likely to commit future crimes, which suggests that detention may have criminogenic effect.”[10]

There is even tension on this issue within the Texas government. Harris County District Attorney Kim Ogg, Harris County Sheriff Ed Gonzalez, and Harris County Commissioner Rodney Ellis support the ruling, while Texas Attorney General Ken Paxton opposes it.[11] Out of 16 criminal court-at-law judges sued in the original case, 15 oppose the ruling.[12] In addition, the lead attorneys of Arizona, Hawaii, Kansas, Louisiana, and Nebraska have voiced their opposition to the ruling and are likely to be involved as the case progresses.[13]

For additional information on bail in Texas, see O’Connor’s Texas Criminal Codes Plus.


[1] Eli Rosenberg, Judge in Houston Strikes Down County’s Bail System, New York Times, Apr. 30, 2017.

[2] Gabrielle Banks & Mihir Zaveri, Texas Among Six States Backing Harris County’s Bail Battle at Fifth Circuit, Houston Chronicle, June 28, 2017.

[3] Id.

[4] Gabrielle Banks, Harris County Bail System Unconstitutional, Federal Judge Rules, Houston Chronicle, Apr. 28, 2017.

[5] See Banks & Zaveri, Texas Among Six States Backing Harris County’s Bail Battle at Fifth Circuit.

[6] See id.

[7] Id.

[8] See id.

[9] Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017).

[10] Id. at 711.

[11] See Banks, Harris County Bail System Unconstitutional, Federal Judge Rules; Mihir Zaveri & Gabrielle Banks, U.S. Supreme Court Hit County in Contentious Bail Bond Case, Houston Chronicle, June 7, 2017.

[12] See Zaveri & Banks, U.S. Supreme Court Hit County in Contentious Bail Bond Case.

[13] See Banks & Zaveri, Texas Among Six States Backing Harris County’s Bail Battle at Fifth Circuit.

, ,