In a strategic move that could speed up their case against Harris County, the plaintiffs challenging felony bail practices are hoping to kick two dozen players out of the game — 23 judges and Republican Attorney General Ken Paxton, who represents most of them in the landmark suit.
These judges who dole out bail rulings on a daily basis to people accused of crime would become third parties. They would no longer go toe-to-toe with indigent defendants who sued in a civil rights case saying courts offer a vastly different outcomes to people arrested depending on how much money they have in their pocket.
The motion filed Wednesday asks Lee H. Rosenthal, the chief judge of the Southern District of Texas, to dismiss the felony judges as parties from the 2019 lawsuit. Should the judge grant it, the remaining defendants in the case would be the county and its sheriff. The majority in county government are in sync with bail reform and the sheriff’s office is headed by Ed Gonzalez, who has said that setting arbitrarily high bail rates doesn’t protect the public.
Paxton has been an impediment to progress, said Neal Manne, a pro bono lawyer from Susman Godfrey LLP, who is among the lead counsel behind twin bail challenges, to misdemeanor and felony bail.
“The county and the sheriff are actually operating in good faith and would like to figure out a solution to a terrible problem. The attorney general is not acting in good faith, he just wants to find ways to disrupt and disrupt and prevent any reform from happening.”
A spokesperson for the AG’s office did not immediately respond to a request for comment on the motion in Russell v. Harris County.
The idea of removing the judges from the case stems from a ruling by the 5th U.S. Circuit Court of Appeals in a case that took on Dallas County’s bail system. The appellate court determined that sovereign immunity protected the Dallas judges from being sued over their bail practices. The 5th Circuit ruling said the sheriff is the key party to sue to obtain relief for people who are being detained unconstitutionally due to unaffordable bail.
Judge Kelli Johnson, the administrative judge for the felony court, declined to comment on pending litigation.
Her colleague Judge Chuck Silverman of the 183rd Criminal Court, one of a small group of judges not represented by Paxton’s office, said if granted, the motion could streamline the case by thinning out the crowd in the courtroom. However, he thinks it would then be a bigger challenge to get key stakeholders to participate in resolving the dispute beyond the walls of the courthouse.
“I think it takes the pressure off of some of the judges to engage and to reflect on bail reform,” said Silverman.
The motion is contingent on the judges withdrawing their appeal of Rosenthal’s ruling denying their request for her to dismiss the case.