On March 29, 2020, but a few weeks into the COVID-19 shutdown in Texas, Governor Abbott took the extraordinary step of suspending Texas law by issuing Executive Order GA-13. In what can only be explained as pandering to the Governor’s political base and as total and complete surrender to a culture of anxiety and paranoia of what “might happen,” the order suspends, among other provisions relating to personal bonds (release on a promise to appear in court, versus by posting bail money), article 17.151 of the Code of Criminal Procedure.

Specifically, article 17.151 provides that the State cannot hold persons who have not been charged with a crime indefinitely. Meaning, article 17.151 prevents the State from arresting a person, taking the person to jail, and then waiting months or even years to file charges against the person, while the person sits in jail. Article 17.151 provides time-table that the State has to file charges, otherwise a person is entitled under Texas law to be released from jail on a personal recognizance bond (on a promise to appear in court if charges are filed, versus by posting money for bond): 15 days from the date the person was arrested and taken to jail on a Class B misdemeanor; 30 days from the date the person was arrested and taken to jail on a Class A misdemeanor; and 90 days from the date the person was arrested and taken to jail on a felony level offense. This does not mean the charge is dropped or dismissed; instead, the person simply does not have to wait for the charge to be filed in jail. Importantly, to stop the person from being released, all the State has to do is to file the charge within those time periods.

It should be pretty clear that Article 17.151 is not some ultra-liberal concoction to throw the doors to the jail open. Instead, it simply prevents the Orwellian prospect of the State arresting and detaining a person indefinitely, without ever filing charges. You know, the exact same Orwellian prospect that Abbott has caused by enacting GA-13.  

Executive Order GA-13 provides that “no authority [e.g., no judge or jailer] should release on a personal bond [meaning, the above described bonds] any person previously convicted of a crime that involves physical violence or the threat of physical violence, or any person currently arrested for such a crime…” (emphasis added)

This might sound reasonable. The problem, however, is that it is drafted poorly, and is based on little or no evidence about what could possibly happen. It would be safe to assume that Governor Abbott signed GA-13 because someone probably convinced him that if he didn’t, thousands of violent criminals would be released onto the streets where the pandemic was sure to have already ushered in lawlessness and vigilantism. (Again, I do not know what has caused this culture of anxiety and fear where people like Abbott are afraid of everything all of the sudden. In fact, as Steven Pinker convincingly demonstrated in his book that we live in the safest, least violent period in all of human history.)

Drafted Poorly (or Drafted Without Much Thought)

GA-13 is drafted either (1) poorly, or (2) without much thought. For example, what does it mean for a crime to involve “physical violence”? Is a “crime” the same thing as the specific charge? For example, I could negligently point a gun at a child and be charged with Endangering a Child – Criminal Negligence. Nothing about the charge “Endangering a Child – Criminal Negligence” is “physically violent,” per se. But, the actual act that gave rise to the charge—pointing a gun at a kid—seems “violent.” But is it “physically violent”? Or consider assault. Assault can be offensive contact (spitting at someone) or physical violence (bodily injury or serious bodily injury.) Both versions of assault, however, are charged as “assault”—which is definitely viewed as “physically violent.” So which controls—the charge of the facts leading to the charge? And, as to these questions, who gets to make the call as to what the answer is—the judge? The prosecutor? 

These are basic questions that should have occurred to someone in the room before this was signed off on.

Order Targets An Event That Is Has Not, and Almost Certainly Will Not, Occur

Violent crime overall—irrespective of this order—will go down, and has gone down, during the pandemic; property crime (theft, namely) will likely go up a bit. That’s just the way it is. Of course, some might suggest violent crime went down because of GA-13; apart from being a logical fallacy—“after this, therefore because of this”—this would be easy to check by looking at violent crime in other states where such an executive order did not take effect. To be clear, the decrease in violent crime has nothing to do with Abbott or this order. It would have happened under anyone’s leadership.

But, let’s assume Governor Abbott is correct, and the sky is moments from falling. The question then becomes whether this order—GA-13—is the best instrument to blunt an increase in violent crime during the pandemic. Or put another way: does a single, juvenile conviction for misdemeanor assault from 1995 mean someone arrested in 2020 on a drug possession charge is a “violent” criminal who would return to violent crime if released from jail? That seems highly unlikely. Common sense would suggest the recency and frequency of “violent crimes” might be better indicators of whether a person is a violent criminal than whether they have ever have been arrested for a crime involving (any level of) “violence.” Of course, this order cares nothing for recency and frequency of violent crime.