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Federal judge signals she will approve new Harris County bail rules

February 2, 2019

Chief U.S. District Court Judge Lee H. Rosenthal on Friday offered initial support for new bail rules proposed by Harris County, signaling the three-year lawsuit challenging the county’s cash bond system soon may reach its conclusion.

The settlement of the case, which Harris County has spent more than $9 million defending, would seal victory for the poor misdemeanor defendants who brought the suit and allow Rosenthal and both legal teams to turn their attention to a similar lawsuit challenging the county’s felony bail system.

“We’ve actively been talking to each other,” said Neal Manne, an attorney representing the poor defendants. “I think we’d be ready in a month to come back to the court with a final, permanent order.”

For the first time in a federal court hearing, all the parties in the misdemeanor suit stood in agreement on Friday afternoon about how the case should be settled. In an unusual scene in Rosenthal’s 11th-floor courtroom, the attorneys in the once-contentious case urged Rosenthal to sign off on new bail rules proposed by the newly elected slate of Democratic misdemeanor judges.

The new rules, set to take effect in several weeks, would allow 85 percent of misdemeanor defendants to automatically qualify for no-cash bonds. The only exceptions would be for people arrested for family violence, bond violations and repeated drunken driving offenses. Those defendants would be entitled to a bail hearing within 48 hours, where they would be eligible for a personal recognizance bond.

A Democratic wave in November swept 14 Republican misdemeanor judges from the bench. Each had been in a defendant since 2016 in the case in which a group of poor defendants argued Harris County’s cash bail system is unconstitutional because it keeps some people in jail solely because of their inability to pay. The Republican judges were replaced by the slate of Democrats who campaigned on reforming the bail system, clearing the way for the county and poor defendants to reach a settlement.

The judges, all but one of whom was seated last month, voted on the new rules in January.

In addition to the judges, Harris County District Attorney Kim Ogg and Sheriff Ed Gonzalez last month announced their support of the new rules that proponents say will save the county money. It costs $80 per day to keep a person in jail, compared to 83 cents a day for pre-trial release, according to Kelvin Banks, director of the county’s Pretrial Services office.

Rosenthal, who in 2017 agreed Harris County’s bail system was unfair to poor defendants, suggested waiting a period of time to see how well the new bail rules work in practice before issuing her approval. With the opening of the new joint processing center for inmates, the judge said minor, unforeseen problems may need to be addressed.

“The devil, in the broader issues, is in the day-to-day,” Rosenthal said. She ordered the parties to return on March 8.

Allan Van Fleet, the attorney representing the misdemeanor judges, agreed that the revised bail system will require each part of Harris County’s criminal justice apparatus to cooperate.

“The judges are committed, with the sheriff, the DA, the plantiffs, that we’re going to work together to get the best system that anybody can come with,” Van Fleet said.

The conclusion of the case likely is a prelude to how a similar suit, filed by the same group of lawyers and challenging Harris County’s bail system for felony defendants, may proceed.

Manne said in an interview he expects that case to resolve quickly and with less acrimony than the misdemeanor case, which Harris County has spent more than $9 million to date defending.

“I’m confident we’ll be able to resolve the claims made in the felony bail case through cooperative discussion with the county and sheriff, now that we have an environment where all stakeholders are supportive of reform designed to make Harris County’s criminal justice system safer and more fair,” Manne said.

Precinct 1 Commissioner Rodney Ellis, Chief Public Defender Alex Bunin, Assistant Harris County Attorney Melissa Spinks and several Harris County misdemeanor judges attended the brief hearing.

Judge Darrell Jordan, a bail reform advocate and the only Democrat on the misdemeanor bench when the case began, reflected on the collegial mood in the courtroom.

“This is the first time I’ve ever been in that building, and laughing, and excited,” he said after the hearing. “It’s refreshing to finally go to court and get some good news.”

Zach Despart covers Harris County for the Chronicle. You can follow him on Twitter or email him at zach.despart@chron.com .

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