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May 7, 2020

Always pleased to see more opposition to jail time and support for retroactive decarceral reforms ... and hoping to see it in all settings for all people

This new Austin American-Statesman article, headlined "Texas Supreme Court orders release of jailed salon owner who illegally reopened," highlights interesting developments and notable statements in the litigation surrounding a high-profile COVID-related case in the Lone Star State.  Here are the details:

The Texas Supreme Court on Thursday ordered Dallas County officials to free salon owner Shelley Luther from jail while its nine judges, all Republicans, weigh an appeal challenging her incarceration as improper.

The emergency order directed county officials to release Luther, who reopened her salon despite state restrictions, on a personal bond with no money required, “pending final disposition of her case.”  County officials also were ordered to file a response to the challenge by 4 p.m. Monday, the same day Luther’s weeklong sentence for contempt of court would have ended.

The order came shortly after Texas Gov. Greg Abbott, seeking to end a political firestorm over Luther’s jailing, announced Thursday that local officials will be prohibited from jailing Texans for violating any of his numerous coronavirus-related executive orders.  “Throwing Texans in jail who have had their businesses shut down through no fault of their own is nonsensical, and I will not allow it to happen,” Abbott said in a statement.  “That is why I am modifying my executive orders to ensure confinement is not a punishment for violating an order.” Abbott said this latest executive order, “if correctly applied,” should free Luther....

Luther, who opened Salon à la Mode nearly two weeks ago, was found in contempt for ignoring a court order to close from state District Judge Eric Moyé, who sentenced her to seven days in Dallas County jail Tuesday and hit her with a $7,000 fine.

The petition challenging Luther’s incarceration, filed Wednesday by lawyers who included state Rep. Briscoe Cain, R-Deer Park, argued that she was exercising her right to run a business in ways that protected customer health by, among other steps, requiring stylists to wear face coverings, seating patrons 6 feet apart and sanitizing regularly touched surfaces. “There is no evidence that her business posed any greater risk to the public than businesses being allowed to operate, such as movie theaters, day cares, and home improvement stores,” the Supreme Court petition said.

The fine and jail sentence came as barber shops and hair salons were allowed to reopen Friday under an executive order issued Tuesday by Abbott. Under Abbott’s previous stay-at-home order, issued in March, salons and other nonessential businesses were required to close....

On Wednesday, Abbott said jail time should be the last resort for those who disobey his executive order. But after receiving pushback from some conservative activists and lawmakers, who argued that his comments didn’t go far enough in criticizing government overreach, Abbott modified his orders Thursday.

State law sets the punishment for violating disaster-related executive orders at a fine of up to $1,000 and up to 180 days of jail time.

Abbott’s latest executive order suspended “all relevant laws” that allow jail time “for violating any order issued in response to the COVD-19 disaster.” The new order also allowed salons and barber shops to open immediately, instead of Friday, and made the change retroactive to April 2 to nullify any local regulations that could form the basis of jail time for business owners who violated a shutdown order.

Republicans took to Twitter to praise Abbott’s action Thursday. “I am pleased to see @GregAbbott_TX has removed jail as a punishment for violating exective orders.  Some local officials have been reckless, imprisoning women for wanting to work to put food on the table for their children,” said state Rep. Matt Shaheen, R-Plano....

“Gov. Abbott, throwing Texans in jail whose businesses shut down through no fault of their own is wrong. Thank you for admitting that,” said state Rep. Mike Lang, R-Granbury.

As many have noted in a variety of settings, there is a particularly ridiculous irony to enforcing social distancing rules by sending a person into a carceral environment in which social distancing is all but impossible.  But this story is a useful reminder that any number of judges, even in the midst of a pandemic, are still inclined to use jail time in what one Texas official calls a  "reckless" manner.  It is great to see criticism of the use of jail in this particular instance, but there are lots and lots and lots of examples of jail being used excessively.  I sure hope state Rep. Matt Shaheen and the many others speaking out in this case (including the Texas Attorney General and Senator Ted Cruz and many others) will keep speaking out against reckless jail sanctions.

Similarly, this story also shows that some Texas officials strongly believe that, upon recognizing that a problematic law has led to problematic incarceration, the law should be changed and that change should be given retroactive effect to free those subject to problematic incarceration.  I sure hope state Rep. Mike Lang and others will keep speaking up in support or decarceral legal reforms and ensure that any and all such reforms always get full retroactive effect to free those subject to laws that have been reformed for the better.

Of course, I am not at all confident that concern for poor use of incarceration and support for reparative efforts will be expressed in all setting from all these Texas officials or others.  Indeed, this Houston Chronicle report notes that "In April, two Latina women in Laredo were arrested and jailed for defying the lockdown by running nail salons out of their homes. No state officials intervened in their cases."

May 7, 2020 at 03:54 PM | Permalink


Professor Berman, this is widely being talked about in the Black community here in Dallas. It is widely believed that had it been a minority business owner that had violated the stay at home order, like this salon owner did, things would have played out quite differently...

Posted by: Shanta Paris | May 7, 2020 4:15:41 PM

Thanks for the comment, Shanta. I am depressingly confident that this case is yet another example of so-called "white privilege" and another reminder of how race and gender and class and all sorts of other identify factors influence relationships between government actors and the citizenry.

Posted by: Doug B. | May 7, 2020 6:39:35 PM


It should be noted that the jailing of this defendant was not as a result of violation of Dallas County's business opening rule, vel non. That act was assessed a $1000 fine.

This is a civil contempt penalty. She was sued civilly by the City because she continued to refuse to close down. The trial court enjoined her from reopening, and she did it anyway and told the trial court that she would not close despite the injunction and the contempt citation.

I can't say for absolute certain, but if she had told the judge she would comply with his injunction, she's probably out of jail.

Posted by: Fat Bastard | May 7, 2020 9:38:19 PM

Also, there is a jail on the top floor of the Dallas civil courts building, dating from the time that it housed criminal courts.

The jail was used to house detained defendants before and after hearings, pending transport to or from county jails or other facilities where they were more permanently detained.

It is unused as a jail except for the odd civil contempt penalty that involves imprisoning someone. It has comparatively spacious cells by today's standards, single occupancy, and food is usually brought from the courthouse cafeteria, which they usually let you order. And it's decent food, particularly by jail standards.

This is the standard civil contempt procedure in the civil courts of Dallas County, and it's fairly rare. Something could be different about this, though, given the circumstances.

Posted by: Fat Bastard | May 7, 2020 9:45:07 PM

My elaborate discourse on the George Allen building jail was only intended to demonstrate that this is not a typical carceral environment.

Obnoxious lawyers and child support payors who can but don't pay child support are the usual tenants, for an overnight stay or a day or two.

And, this is nothing more than a battle between Trump-type "reopeners" and people who feel that reopening of intimate venues like salons is premature.

The Governor is a Trump loyalist, while the County Judge is a Republican in Democrat clothing, but not a Trump loyalist willing to do what he thinks is best for the county.

Ironically, it is the Trump-types that are pursuing "decarceration" here, but not anything that could be considered a justice reform agenda. More a "muh rights" agenda.

A lot like the First Step Act in that regard, but not even as principled.

Posted by: Fat Bastard | May 7, 2020 10:17:30 PM

Also, ironically, the civil court judge who jailed her is Eric Moye, a liberal Democratic black judge with a fairly lengthy civil rights record.

Strange days indeed.

Most peculiar, Mama.

Posted by: Fat Bastard | May 7, 2020 10:20:00 PM

Appreciate all the particulars of your comments, Fat Bastard, which largely reinforce what I considered the main point of this post -- namely that people do not think jail is justified (and will support retroactive reforms) if and when they care about, and understand the motivations of, the persons being subject to boot heel of the criminal justice system. Sadly, in my view, partisan politics and identity affinities too often seem to shape which people are cared about and understood.

This story right after DOJ's dropping of the Flynn prosecution (and the varied reactions thereto) should be yet another reminder that nobody is really always and consistently "tough on crime" or "smart on crime" or "soft on crime" because we all have our own unique vision of what "crime" is and whether and how particular "crimes" should be taken seriously. But I know I am often just preaching to the converted here.

Posted by: Doug B | May 8, 2020 9:41:51 AM

I will offer a correction. Apparently Ms. Luther was in the Dallas County Jail, a typical carceral environment, i.e. bad. At least she was released from there yesterday.

And I am one of the last people to favor a jail sentence for anything, I think it should be a last resort and relatively short in all but the worst cases.

Nonetheless, because of the peculiarities of this situation, I was not opposed to this "sentence."

She disobeyed a civil court's injunction and told the court she would continue to do so. Her entire reasoning for doing so was that being closed was unlawfully costing her money. The judge's choices for a contempt remedy were a daily fine until compliance or jail until compliance, but no more than seven days. In my view, she left him no choice.

Posted by: Fat Bastard | May 8, 2020 11:41:25 AM


The "black cummunity" is wrong. It is preposterous to think that skin color had anything at all to do with any aspect of this case. Since there is no such thing as white privilege then we can discount that, too.

Now think hard about literally everything coming out of the "black community" is about race. What does the "black community" have to say about the extremely high level of black-on-black violent crime?

Posted by: restless94110 | May 8, 2020 2:25:16 PM

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