By Michelle Casady

Law360 (April 23, 2020, 10:57 AM EDT ) Houston trial judges can't attack the constitutionality of the governor's executive order on bail during the COVID-19 pandemic, the Texas Supreme Court ruled Thursday in a decision focused on the separation of powers.

The court said a group of 16 Harris County court-at-law judges stepped too far into policy waters with a suit challenging Gov. Greg Abbott's executive order, GA-13, which suspended statutes authorizing judges to release jail inmates with violent histories during the pandemic. The order had not been challenged by any inmates denied release, but only by the judges, who were backed by the NAACP and three criminal defense attorney associations.

The question of the order's constitutionality is one "for judges to decide when properly asked by parties to do so," the high court said in a per curiam opinion.

"It is not a question for judges to ask other judges to decide," the court said.

The judges argued the order was unconstitutional and exceeded the governor's emergency powers, and had gotten a temporary restraining order blocking enforcement of the order against judges.

But siding with Abbott and the attorney general, the court said though the executive order affected how the judges can decide certain cases, that's not a personal injury that establishes standing.

"We are aware of no precedent authorizing a judge to file suit against the executive or legislative branches to ask another judge to clarify or invalidate rules governing decisions the plaintiff judge must make," the court said. "Our adversary system of justice envisions that disputes over which rules govern court procedures like bail will be settled through proceedings involving parties with a direct stake in the outcome, proceedings such as actual bail hearings involving inmates denied release because of GA-13."

That the opinion was issued per curiam is noteworthy, solo practitioner Chad Ruback said, because it shows there's no division among the justices on this issue.

"By issuing a per curiam opinion, the Supreme Court is not-so-subtly indicating that the correct answer to the legal question should have been obvious to anyone who bothered to review prior legal authority," he said, adding that the ruling indicates the Harris County judges were "way off base and that they had no reason to believe otherwise."

Ruback said the opinion left open the possibility that should an inmate join the lawsuit, the Texas Supreme Court "might potentially hold that the actions by the governor and the attorney general exceeded their legal authority."

Lyndon Bittle of Carrington Coleman Sloman & Blumenthal LLP said it's unclear whether the court's "suggestion for how to resolve this conflict is actually likely to get it resolved," explaining that an appeal from an order granting or denying bail to a violent inmate would take months or years to work through the courts.

"Any time you have disputes between the executive and judicial branch, they're seldom easy to fix," he said.

The challenged order was issued on March 29. On April 8, the judges and interest groups sued the attorney general and the governor in Travis County District Court, alleging the order was unconstitutional and that the governor had threatened criminal prosecution against the judges if they didn't follow it.

But any "alleged threat of prosecution" still doesn't give the judges standing to challenge the order, the Texas Supreme Court held. The court explained that the judges hadn't shown it was a "credible threat" despite a tweet from Attorney General Ken Paxton saying he "will not stand" noncompliance.

While the case was dismissed on jurisdictional grounds, Chad Baruch of Johnston Tobey Baruch said he felt the court "went out of its way" to "enunciate some defense of the judicial branch" in its opinion. He said one line in particular that the court wrote exemplifies that: "We appeal judicial decisions we don't like; we don't jail the judges."

"I thought the language was fairly strong both in addressing what they clearly felt was an overstep by the trial judges, but also in making clear they were not terribly receptive to the idea of even the threat of judges being at criminal risk for making rulings," he said.

Travis County District Judge Lora Livingston issued a temporary restraining order barring enforcement of the order against judges on April 10 and a petition for writ of mandamus was lodged with the Texas Supreme Court the next day.

Undeterred by the ruling, Arthur Ago of the Lawyers' Committee for Civil Rights Under Law, who represents the judges, said he was confident that once the case is back before the district court, the judge will reaffirm the "previous ruling that the order was illegal."

Another attorney representing the plaintiffs, Wallace B. Jefferson of Alexander Dubose & Jefferson LLP, said the court "left no doubt" that the governor doesn't have authority to suspend the Constitution during disasters.

"The court has suggested that additional proceedings will be necessary to test the governor's order in court, and we are studying the nature and scope of potential future litigation," he said.

Texas Attorney General Ken Paxton issued a statement praising the ruling for recognizing the state's authority to protect residents "from the unlawful release of potentially thousands of dangerous individuals."

"The court's ruling upholds the rule of law and maintains the integrity of our criminal justice system," he said.

David Coale of Lynn Pinker Hurst & Schwegmann LLP said the ruling should serve as a clear message that the Texas Supreme Court believes the COVID-19 pandemic and the appropriate government response "is something for the executive and the legislature to address, first and foremost if not exclusively."

Coale said there are some parallels between the court's bail ruling and recent Fifth Circuit decisions siding with Texas on issues like COVID-19 precautions in Texas prisons and whether abortions can take place during the pandemic.

"This case, and the Fifth Circuit's recent cases, are a strong signal that the highest appellate courts in this state are being very cautious about judicial power in the COVID-19 crisis," he said.

The state is represented by Trevor W. Ezell, and Philip A. Lionberger of the attorney general's office.

The plaintiffs are represented by Andre Segura, Adriana Pinon, Brian Klosterboer and David Donatti of the ACLU Foundation of Texas Inc., Wallace B. Jefferson and Nicholas Bacarisse of Alexander Dubose & Jefferson LLP, Emily Gerrick, Nathan Fennell and Karly Jo Dixon of the Texas Fair Defense Project, Arthur Ago and Edward G. Caspar of the Lawyers' Committee For Civil Rights Under Law, Andrea Woods and Brandon Buskey of the ACLU Foundation, Criminal Law Reform Project, and Vince Ryan and Rachel Fraser of the Harris County Attorney's Office.

The case is In re: Greg Abbott et al., case number 20-0291, in the Texas Supreme Court.

--Editing by Marygrace Murphy.

Update: This story has been updated throughout with more information about the ruling and its impact.

For a reprint of this article, please contact reprints@law360.com.