Lee H. Rosenthal, Chief United States District Judge.
On May 19, 2016, Ms. ODonnell filed this civil-rights class-action lawsuit initially suing Harris County, Sheriff Ron Hickman, and the five Harris County Hearing Officers.
Based on the pleadings; the motions, responses, and replies; the record; the applicable law; and the oral arguments of counsel on the motions presented in lengthy hearings held on August 18 and November 28, 2016,
The reasons for these rulings are explained below.
Harris County is one of the most populous counties in the United States. Multiple overlapping authorities coordinate and control pretrial procedures in the County. The parties sharply dispute basic facts and figures about the timing of pretrial procedures that can result in release pending a dismissal or guilty plea; the number of misdemeanor arrestees detained because they cannot pay bail at or near the time of booking; the sources of authority governing bail procedures; and the entities or persons operating under that authority. Taking the plaintiffs' plausible factual allegations as true for purposes of these motions
The Texas Constitution requires that "[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident," and it forbids "[e]xcessive bail." TEX. CONST. art. I, §§ 11, 13. The Texas Code of Criminal Procedure states that "[t]he amount of bail to be required in any case is to be regulated by the court, judges, magistrate or officer taking the bail." TEX. CODE CRIM. PRO. art. 17.15. In exercising this authority, five rules apply:
Id. (emphasis added). The Texas Code permits release of defendants accused of certain misdemeanors after only a citation. Id., art. 14.06.
In 1987, after litigation over the unequal application of bail amounts in Harris County, the United States District Court for the Southern District of Texas entered an agreed final judgment known as the Roberson order. See Roberson v. Richardson, Agreed Final Judgment, Civil No. 84-2974 (S.D. Tex. Nov. 25, 1987).
The Roberson order also substantially repeated the Texas Code of Criminal Procedure by requiring that "bail determinations shall be according to the following criteria":
Id. at 3 (emphasis added).
The Texas Government Code permits County Judges to "adopt rules consistent with the Code of Criminal Procedure ... for practice and procedure in the courts. A rule may be adopted by a two-thirds vote of the judges." TEX. GOV'T CODE § 75.403(f). On March 7, 2016, the Harris County Criminal Courts at Law Judges, sitting en banc and voting by two-thirds majority, adopted the current Harris County Criminal Courts at Law Rules of Court. These Rules of Court contain a misdemeanor bail schedule, set out as Rule 9. Current Rule 4.2.3.1. provides that "[t]he initial bail amount may be changed on motion of the court, the hearing officer, or any party subject to the following criteria":
Id., Rule 4.2.3 (emphasis added). The current Harris County Rules of Court require that "all law enforcement officials in Harris County shall cause the pretrial detainees in their respective custody, who have been charged with a class A or class B misdemeanor, to be delivered to the criminal law hearing officer not later than 24 hours after arrest." Id., Rule 4.2.1.1. In addition to finding probable cause for the arrest, Hearing Officers are to "set the amount of bail required of the accused for release and shall determine the eligibility of the accused for release on personal bond, cash bond, surety bond, or other alternative to scheduled bail amounts, and shall issue a signed order remanding the defendant to the custody of the sheriff." Id., Rule 4.2.2.1.11. (emphasis added).
On August 12, 2016, the County Judges amended the County Rules of Court to provide that "personal bonds" — unsecured recognizance bonds — "are favored" in twelve specific misdemeanor categories.
In the present case, the plaintiffs allege that the defendants fail or refuse to comply with the Roberson order or the provisions of the Texas Code requiring them to consider an arrestee's inability to pay bail or eligibility for release on terms other than the scheduled bail amounts at the first hearing, which all parties agree is the probable-cause hearing before a Hearing Officer. The issue in this litigation is how what happens to those arrested for misdemeanor offenses and who are unable to pay their bail at the time of arrest compares to what happens to those who can and do pay the scheduled bail amounts. The complaint allegations describe what happens after arrest.
The plaintiffs allege that despite the federal, state, and local regulations requiring judicial officers at the first hearing to consider a misdemeanor defendant's inability to pay bail or eligibility for release on nonfinancial conditions, Harris County maintains a "systemic custom of setting secured financial conditions of release on the bail schedule without any inquiry into or findings concerning an arrestee's present ability to pay the amount set." (Docket Entry No. 54 ¶ 17). The complaint alleges that this systemic custom arises from written policies in the County Rules of Court, rules informally communicated to the Hearing Officers, and unwritten customs or practices of the Hearing Officers, County Judges, and County Sheriff. (See, e.g., id. ¶¶ 17, 54-55, 63-64, 84-85, 92-94, 97).
The complaint alleges that the rules, customs, or practices work as follows:
Another alleged consequence is that misdemeanor defendants often plead guilty as the only way to "get out of custody more quickly." (Id. ¶ 98). The complaint alleges that the County Judges routinely accept guilty pleas from defendants at their initial appearances and sentence them to time served, immediately releasing those who plead guilty while continuing to detain those who cannot pay but want to contest the charges. (Id. ¶ 100). The added detention, the complaint alleges, is imposed as a cost for exercising their constitutional right to a trial. (Id. ¶¶ 98-99). A study of Harris County misdemeanor pleas forthcoming in the Stanford Law Review shows that 76.8 percent of detained misdemeanor defendants plead guilty, compared to only 52.8 of defendants released on bond. (Id. ¶ 100 (citing Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. (forthcoming))).
The complaint alleges that the Harris County District Attorney, County Judges, Hearing Officers, and County Sheriff "know that many of the detained individuals... charged with misdemeanors are being held in jail solely because they are too poor to pay the money bail amount set by the predetermined schedule." (Id. ¶ 101). Information collected before and during booking is available to the Hearing Officers, County Judges, and County Sheriff, including the misdemeanor arrestees' financial condition and whether they are ineligible for release for reasons unrelated to their inability to pay bail. (Id.). The district attorney or her assistants, and Sheriff Hickman or his deputies, are present at the videolink probable-cause hearings before the Hearing Officers. (Id. ¶¶ 56, 60). According to the plaintiffs' summary of the videolink-hearing recordings, the Hearing Officers or the Sheriff's deputies instruct the misdemeanor defendants to remain silent during the hearings. (Id. ¶¶ 23, 70). The Hearing Officers routinely disclaim any ability to grant personal bonds or consider inability to pay. Instead, the Hearing Officers act as if they were required to impose the scheduled bond amounts as the only available release condition. (Id. ¶¶ 69-76, 85-89). The complaint alleges that this squarely violates the Texas Code requirement that "the ability to make bail is to be regarded, and proof may be taken upon this point," TEX. CODE CRIM. PRO. art. 17.15; the Roberson court order that the eligibility for release on conditions other than the preset bail amount be considered at the first hearing before a judicial officer, Agreed Final Judgment, Roberson, Civil No. 84-2974; and the written Harris County Rules of Court requirement that Hearing Officers consider inability to pay and eligibility for release on nonfinancial conditions, RULES OF COURT, Rules 4.2.2.1.11, 4.2.3.1.3. County Judges, the complaint alleges, acquiesce in the Hearing Officers' unwritten customs and practices of violating the federal, state, and local laws as written. The County Judges formally and informally ratify the customs and practices by requiring the denial of pretrial release for misdemeanor arrestees across the system in the written and unwritten rules they promulgate, as well as
Maranda Lynn ODonnell was arrested on May 18, 2016 for driving with a suspended license. (Docket Entry No. 54 ¶ 22). The district attorney set her bail at $2,500, the prescheduled amount. (Id.). She could not afford to pay any bail amount. (Id. ¶ 24). The Sheriff's deputies told her not to speak at her brief, videolink probable-cause hearing. (Id. ¶ 23). The defendants allege that Ms. ODonnell had a criminal record consisting of two previous failures to appear in court. (Docket Entry No. 80 at 22). The defendants allege that Ms. ODonnell could pay the bail amount and was "released on bail" on May 20, 2016.
Robert Ryan Ford was arrested on May 18, 2016 for misdemeanor theft of property. (Docket Entry No. 80 at 23). Mr. Ford did not have a probable-cause hearing until the morning of May 20, when, at a brief videolink appearance, the Hearing Officer set his bail at $5,000, the prescheduled amount. (Docket Entry No. 54 ¶ 31 & n.14). Mr. Ford could not afford to pay any bail amount. (Id. ¶ 32). The defendants allege that Mr. Ford has a criminal history, including two felonies in the last ten years. (Docket Entry No. 80 at 23). At his first court appearance on May 23 — five days after his arrest — Mr. Ford pleaded guilty and was released with a sentence of time served. (Id.).
Loetha McGruder was arrested on May 19, 2016 for the misdemeanor offense of giving a false name to a police officer. (Id. at 24). A $5,000 bail, the prescheduled amount, was set and confirmed at the videolink probable-cause hearing. (Docket Entry No. 54 ¶¶ 26-27). She could not afford any bail amount. (Id. ¶ 28). At a hearing before a County Judge on May 23 — four days after her arrest — the bail was reduced to a personal bond, and Ms. McGruder was released. (Docket Entry No. 80 at 24, and Ex. 11).
The complaint alleges that these plaintiffs' experiences are typical of other indigent misdemeanor defendants.
Ms. ODonnell filed her complaint on May 19, 2016, while still in pretrial detention in the Harris County Jail. (Docket Entry No. 3). Ms. McGruder and Mr. Ford filed their complaint the next day, while
Ms. ODonnell's original complaint named Harris County, Harris County's five Hearing Officers, and County Sheriff Ron Hickman as defendants. The defendants filed a joint motion to dismiss on June 24, 2016. (Docket Entry No. 25). At the motion hearing on August 28, 2016, the court granted the plaintiffs time to consider amending to add any proper parties for the prospective relief alleged in the complaint. (Docket Entry No. 43). The plaintiffs amended on August 31, 2016, adding the sixteen Harris County Criminal Courts at Law Judges as defendants. (Docket Entry No. 54). The complaint alleges a systemic and knowing violation of the Due Process and Equal Protection Clauses of the United States Constitution by the defendants' detention of misdemeanor arrestees without regard for their ability to pay secured financial conditions of release, while permitting release at booking for defendants able to pay bail. The complaint seeks injunctive and declaratory relief from the County Judges and Sheriff in their official and personal capacities, injunctive and declaratory relief against Harris County, and declaratory relief against the Hearing Officers in their official and personal capacities.
The County Judges moved to dismiss the complaint on November 9, 2016. (Docket Entry Nos. 80-82). They argue that the named plaintiffs lacked standing under Federal Rule of Civil Procedure 12(b)(1), and that the complaint failed to state a plausible claim for relief under Rule 12(b)(6). They argue that their role in setting bail procedures for the County entitled them to immunity from suit. Finally, they argue that this court should dismiss by abstaining under Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).
Harris County, the Sheriff, and the Hearing Officers agree with and incorporate by reference the County Judges' constitutional and abstention arguments. They also filed separate motions to dismiss, asserting their own immunity defenses and arguing that the plaintiffs have failed to identify a final municipal policymaker and therefore cannot show that Harris County is liable under 42 U.S.C. § 1983. (Docket Entry Nos. 83-85).
The court considers each argument and the plaintiffs' responses, based on the pleadings, the record, the legal standards, and the oral arguments of counsel presented at lengthy hearings held in August and November 2016.
Federal Rule of Civil Procedure 12(b)(1) applies to challenges to a plaintiff's standing. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (citation and internal quotation marks omitted). A court lacks power to decide a claim that a plaintiff lacks standing to bring. The plaintiff has the burden of demonstrating that subject-matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
Standing requires: "(1) an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the injury and the conduct complained of; and (3) the likelihood that a favorable decision will
Courts may dismiss for lack of subject-matter jurisdiction based on: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). When examining a factual challenge to subject-matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of a plaintiff's cause of action, the district court has substantial authority "to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Garcia v. Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997); see also Clark, 798 F.2d at 741. The court may consider matters outside the pleadings, such as testimony and affidavits, to resolve a factual challenge to subject-matter jurisdiction, without converting the motion to dismiss to one for summary judgment. See Garcia, 104 F.3d at 1261.
A pleading is deficient and may be dismissed under Rule 12(b)(6) if a plaintiff fails "to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). A complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Rule 8 "does not require `detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).
"[I]n deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry to the facts stated in the complaint and the documents either attached to or incorporated in the complaint." Lovelace v. Software Spectrum, Inc., 78 F.3d 1015, 1018 (5th Cir. 1996). A court may "consider documents integral to and explicitly relied on in the complaint, that the defendant appends to his motion
"Section 1983 provides a remedy against `any person' who, under color of state law, deprives another of rights protected by the Constitution." Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). A local government may not be sued under § 1983 for the deprivation of rights guaranteed by the Constitution or federal law inflicted solely by its employees or agents. Instead, it is "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government entity is responsible under § 1983." Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). To plausibly allege a claim under § 1983 against a municipality, "a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right." Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009).
An official policy can be either "a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality's] officers," or a "governmental `custom' even though such a custom has not received formal approval through the body's official decisionmaking channels." Monell, 436 U.S. at 690-91, 98 S.Ct. 2018. "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011); see also Peterson, 588 F.3d at 847. ("It usually exists in the form of written policy statements, ordinances, or regulations, but it may also arise in the form of a widespread practice that is so common and well-settled as to constitute a custom that fairly represents municipal policy.") (quotation marks omitted). "Monell's `policy or custom' requirement applies in § 1983 cases irrespective of whether the relief sought is monetary or prospective." Los Angeles Cty. v. Humphries, 562 U.S. 29, 39, 131 S.Ct. 447, 178 L.Ed.2d 460 (2010).
"[A] municipal judge acting in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker" for purposes of § 1983 liability. Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); see also Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980) (distinguishing a county judge's "judicial duties" from his "executive, legislative and administrative chores in the day-to-day governance of the county."). A municipality may be held liable for "deprivations resulting from the decisions of its duly constituted legislative body." Bd. of Cty. Comm'rs of Bryan Cty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). A claim against a municipal defendant in her official capacity is the equivalent of a claim
"[S]uits against States and their agencies ... are barred regardless of the relief sought" by the Eleventh Amendment to the United States Constitution. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 S.Ct. 714 (1908); Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982)). There is a narrow exception to Eleventh Amendment immunity for suits brought against individuals in their official capacity, as agents of the state or a state entity, if the relief sought is injunctive in nature and prospective in effect. See Aguilar v. Texas Dept. of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.1998) (citing Young, 209 U.S. at 123, 28 S.Ct. 441).
As long as a federal court has jurisdiction over an action, the "`obligation' to hear and decide a case is `virtually unflagging.'" Sprint Communications, Inc. v. Jacobs, ___ U.S. ___, 134 S.Ct. 584, 591, 187 L.Ed.2d 505 (2013) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). In Younger v. Harris, 401 U.S. at 37, 91 S.Ct. 746, the federal-court plaintiff was simultaneously defending a state criminal prosecution. It was proper for the federal court to abstain from exercising its jurisdiction to hear the case "under `the basic doctrine of equity jurisprudence that courts of equity should not act ... to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief.'" Sprint, 134 S.Ct. at 591 (quoting Younger, 401 U.S. at 43-44, 91 S.Ct. 746).
Abstention under Younger is warranted when three conditions are met: "(1) the dispute must involve an ongoing state judicial proceeding, (2) an important state interest in the subject matter of the proceeding must be implicated, and (3) the state proceeding must afford an adequate opportunity to raise the constitutional challenge." M. D. v. Perry, 799 F.Supp.2d 712, 715 n.3 (S.D. Tex. 2011) (citing Middlesex Cty. Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 432, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982)) (internal quotation marks omitted). Unless all three conditions are present, Younger abstention is improper, and the plaintiff has the burden to show that the opportunity to raise the constitutional challenge in a state proceeding is inadequate. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 14, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (citing Moore v. Sims, 442 U.S. 415, 429-30, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Younger, 401 U.S. at 45, 91 S.Ct. 746). If the alleged ongoing proceeding is not a criminal proceeding or a quasi-criminal civil enforcement action, the three factors are "not dispositive." Sprint, 134 S.Ct. at 593.
Because there are warrants pending in both Harris County and Galveston County for Ms. ODonnell's failure to appear for misdemeanor court proceedings, the defendants argue that Ms. ODonnell's claims should be dismissed under the fugitive-disentitlement doctrine. They also allege that Ms. ODonnell was able to pay her bail when she was arrested, undermining her standing to sue here. Finally, they argue that because of her criminal background and history of failing to appear, Ms. ODonnell was not imprisoned "solely" because
The fugitive-disentitlement doctrine is discretionary, sparingly invoked, and rarely applied. Degen v. United States, 517 U.S. 820, 116 S.Ct. 1777, 135 L.Ed.2d 102 (1996). When it does apply, it is usually in criminal appeals, immigration, and civil forfeiture cases. Giri v. Keisler, 507 F.3d 833 (5th Cir. 2007) (per curiam) (extending doctrine to appellate review of Board of Immigration Appeals decisions); United States v. Hinojosa, 273 F.3d 1107 (5th Cir. 2001) (per curiam) (dismissing appeal in criminal case under the doctrine); 28 U.S.C. § 2466(a) (civil forfeiture fugitive-disentitlement provision). It has not been applied in this circuit to challenges under § 1983.
Accepting the assertions that Ms. ODonnell did in fact have the ability to pay bail or that she was jailed because of her criminal background and not her inability to pay would require the court to resolve disputed facts that go to the merits. These assertions are not standing objections. See Bond v. United States, 564 U.S. 211, 218-19, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011) (sufficiency of factual allegations should not be confused with justiciability of the controversy). Even taking the defendants' factual allegations on these points as true, Ms. ODonnell would have standing to bring her claim. Ms. ODonnell alleges that no judicial officer timely considered her inability to pay or her eligibility for release despite her criminal history, and that this outcome is typical for misdemeanor defendants in Harris County. The defendants' allegations do not resolve Ms. ODonnell's claims.
As to Ms. McGruder, the defendants argue that she "is the prime example of the system functioning as it should." (Docket Entry No. 80 at 48). They argue that Ms. McGruder "was not held in jail,"
The defendants' motion to dismiss the plaintiffs' claims for lack of standing under Rule 12(b)(1) is denied.
Bail may be set at "an amount reasonably calculated to ensure the defendant's presence at trial." Broussard v. Parish of Orleans, 318 F.3d 644, 650 (5th Cir. 2003) (citing Stack v. Boyle, 342 U.S. 1, 5, 72 S.Ct. 1, 96 S.Ct. 3 (1951)); see also Schilb v. Kuebel, 404 U.S. 357, 365, 92 S.Ct. 479, 30 L.Ed.2d 502 (1971) ("Bail, of course, is basic to our system of law, and the Eighth Amendment's proscription of excessive bail has been assumed to have application to the States through the Fourteenth Amendment."). The defendants argue that the plaintiffs' complaint "is simply a disguised excessive bail challenge under the Eighth Amendment." (Docket Entry No. 80 at 32). They cite precedents holding that an inability to pay does not make bail excessive under the Eighth Amendment or unreasonable under state law. See United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988) ("[A] bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement."); Simon v. Woodson, 454 F.2d 161, 166 (5th Cir. 1972) ("[T]he ability to make bond is an important element in fixing an appropriate amount therefor, but it cannot be said that the Constitution requires that it alone be controlling."); Jobe v. State, 482 S.W.3d 300, 302 (Tex. App.-Eastland 2016, pet. ref'd) (if ability to pay is the sole criterion, "the role of the trial court in setting bond would be eliminated, and the accused would be in the position to determine what his bail should be").
The cases the defendants cite involved one-off complaints about excessive bail. These cases did not raise the inability to pay, or that issue was irrelevant in light of felony charges or a high risk of flight or danger.
The defendants argue that the Fourteenth Amendment is an improper basis for relief, first because disparate impact is insufficient to state a § 1983 claim, and second because the government's legitimate interest in ensuring that criminal defendants appear for trial satisfies rational-basis review. (Docket Entry No. 80 at 36-38). The defendants cite cases on racial discrimination for the proposition that disparate impact is not actionable under § 1983, and that the plaintiffs must instead plausibly allege discriminatory intent. See Manley v. Texas Southern Univ., 107 F.Supp.3d 712, 721 (S.D. Tex. 2015) (citing Priester v. Lowndes County, 354 F.3d 414, 424 (5th Cir. 2004)). The defendants argue that even if the Harris County Rules of Court did discriminate based on wealth, the case should be dismissed under rational-basis review because the government "has a substantial interest in ensuring that persons accused of crimes are available for trials and, ultimately, for service of their sentences" and "confinement of such persons pending trial is a legitimate means of furthering that interest." Bell v. Wolfish, 441 U.S. 520, 534, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).
These arguments raise strong points. But they overlook circuit law that requires courts to consider challenges to pretrial detention based on indigence with particular care. "[I]mprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible." Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (en banc) (citing Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971)). The state has a "compelling interest in assuring the presence at trial of persons charged with crime. Yet such individuals remain clothed with a presumption of innocence and with their constitutional guarantees intact." Id. (footnote omitted).
The Fifth Circuit panel decision in Pugh v. Rainwater, 557 F.2d 1189 (5th Cir. 1977), applied strict scrutiny to a § 1983 Equal Protection Clause claim challenging Florida's alleged refusal to consider inability to pay in setting bail. The panel noted that although the Supreme Court did not consider wealth a suspect classification, "the Court has been extremely sensitive to classifications based on wealth in the context of criminal prosecutions." Id. at 1196. The panel applied strict scrutiny because the claim implicated "fundamental" Fourteenth Amendment rights to be presumed innocent and presumptively eligible for release before trial and criminal conviction. Id. at 1197. The panel decision was vacated en banc after Florida changed its bail rules while the appeal was pending. See Pugh v. Rainwater, 572 F.2d at 1055. The en banc court affirmed the panel's basis for its ruling, stating that "[a]t the outset we accept the principle that imprisonment solely because of indigent status is invidious discrimination and not constitutionally permissible." Id. (citing Williams, 399 U.S. at 235, 90 S.Ct. 2018; Tate, 401 U.S. at 395, 91 S.Ct. 668).
These statements remain the applicable law in this circuit, based on subsequent case law developments. In Williams, 399 U.S. at 235, 90 S.Ct. 2018, the Supreme Court held that a facially neutral system of
The defendants argue here that the court should apply rational-basis review and dismiss the complaint. That approach represents the "pigeonhole analysis" the Supreme Court rejected and ignores the analysis the Court applied in Williams and Bearden. Williams, 399 U.S. at 238-42, 90 S.Ct. 2018; Bearden, 461 U.S. at 666, 103 S.Ct. 2064. The "careful inquiry" the Court requires in this type of case calls for a more demanding review. Bearden, 461 U.S. at 666, 103 S.Ct. 2064.
Even if the defendants were correct that rational-basis review applies, the court would still deny the motion to dismiss under Rule 12(b)(6). Rational basis is a factual inquiry. Courts are properly reluctant to dismiss without permitting plaintiffs to make a factual showing that a government policy is irrational. Mahone v. Addicks Util. Dist., 836 F.2d 921, 937-38 (5th Cir. 1988) (asserting the discretion of district courts to deny dismissal at the Rule 12(b)(6) stage on rational-basis review).
The equal protection claim survives the motion to dismiss.
The defendants argue that the complaint fails to state a due-process claim because the plaintiffs admit that "it usually takes between 8 and 24 hours for a person arrested in Harris County to be given a probable cause hearing," (Docket Entry No. 54 ¶ 51), and "[t]he Supreme Court has set a presumptively reasonable 48-hour probable cause deadline following arrest." (Docket Entry No. 80 at 35) (citing Cty. of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991); Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). This argument is unpersuasive.
In Gerstein, the Supreme Court held that "the Fourth Amendment requires a timely judicial determination of probable case as a prerequisite to detention." 420 U.S. at 126, 95 S.Ct. 854. While a rule requiring courts to determine probable cause before every arrest "would constitute an intolerable handicap for legitimate law enforcement," id. at 113, 95 S.Ct. 854, the Fourth Amendment's "balance between individual and public interests always has been thought to define the `process that is due' for seizures of person or property in criminal cases," id. at 125, 95 S.Ct. 854 n.27. Riverside defined that process by holding that if the probable-cause hearing is held within 48 hours of arrest, the burden is on the plaintiff to show that the time between the arrest and the hearing was unreasonable in the circumstances. After 48 hours, the burden shifts to the government to show the delay was reasonable. 500 U.S. at 57, 111 S.Ct. 1661. The Riverside Court recognized that under this standard, states could choose to combine probable-cause hearings with other pretrial proceedings if "those proceedings ... arise very early in the pretrial process — such as bail hearings and arraignments." Id. at 58, 111 S.Ct. 1661. "Even then," the Court noted, "every effort must be made to expedite the combined proceedings." Id. (citing Gerstein, 420 U.S. at 124, 95 S.Ct. 854).
The 48-hour probable-cause-hearing standard announced in Riverside is not a safe harbor for the defendants under Rule 12(b)(6).
In short, the plaintiffs do not challenge the federal, state, and local rules that, as written, require judicial officers to consider inability to pay bail within 24 hours of arrest. Rather, the plaintiffs allege customs or practices of applying these rules in ways that amount to County policies that violate due process because of timing; and that violate equal protection by discriminating on the basis of wealth, or more precisely, poverty, with an insistence on financial release conditions.
The due-process claim survives the motion to dismiss.
The plaintiffs have alleged sufficient facts to support plausible claims that their constitutional rights have been, are, and likely will be violated. Even if the court reviewed Harris County's policies under the rational-basis standard — and the controlling law indicates that a more demanding review is required — this case turns on factual disputes about the County's pretrial bail system and the legitimacy of the government's interest in detaining indigent misdemeanor defendants who are eligible for release but for their inability to pay the scheduled bail amount. Those disputes preclude granting the motion to dismiss the constitutional claims.
"[L]iberty is the norm, and detention prior to trial or without trial is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Detaining "arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community" falls "within that carefully limited exception." Id. The disputes in this
The defendants' motion to dismiss for failure to state a constitutional claim is denied.
The defendants argue that all three conditions for Younger abstention are met because the plaintiffs "were in ongoing criminal proceedings at the time they filed their Original Complaint," the bail procedure to ensure appearance at trial is an important state interest, and the plaintiffs have an adequate opportunity to challenge their bail in the very proceedings at issue or through filing habeas corpus petitions. (Docket Entry No. 80 at 26-30).
Younger abstention typically applies, as Younger itself did, when an ongoing state criminal prosecution is challenged. Can Younger apply to a case involving pretrial detention proceedings that are not themselves criminal prosecutions, when the underlying prosecutions are concluded? The Supreme Court has cautioned "that federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant, and should not `refus[e] to decide a case in deference to the States." Sprint, 134 S.Ct. at 588 (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (NOPSI)). "Circumstances fitting within the Younger doctrine ... are `exceptional'; they include, as catalogued in NOPSI, `state criminal prosecutions,' `civil enforcement proceedings,' and `civil proceedings involving certain orders that are uniquely in furtherance of the state courts' ability to perform their judicial functions.'" Id. (quoting NOPSI, 491 U.S. at 367-68, 109 S.Ct. 2506).
In Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973), arrestees filed a class action challenging detention without a probable-cause hearing. Id. at 780-81. In deciding that Younger abstention did not apply, the Fifth Circuit reasoned that the suit "sought no relief which would impede pending or future prosecutions on various charges in the state courts" because the class action was not "against any pending or future court proceedings as such." Id. at 781-82 (quoting Fuentes v. Shevin, 407 U.S. 67, 71 n.3, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1971)). The challenge to pretrial detention did not affect the merits of any subsequent criminal prosecution, and the allegedly unconstitutional pretrial detention could not be raised as a defense in the criminal proceeding. As the Fifth Circuit noted, "If these plaintiffs were barred by Younger from this forum, what relief might they obtain in their state court trials? Since their pre-trial incarceration would have ended as of the time of trial, no remedy would exist. Their claims to pre-trial preliminary hearings would be mooted by conviction or exoneration." Id. at 782. On appeal, the Supreme Court agreed that Younger was inapplicable because "[t]he [federal] injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing." Gerstein, 420 U.S. at 108 n.9, 95 S.Ct. 854.
The plaintiffs challenge the legality of detaining misdemeanor arrestees who are otherwise eligible for release pending trial or guilty plea without timely judicial consideration of the inability to pay a bail bond. Resolving this issue does not affect the merits of subsequent criminal prosecutions. The inability to pay bail cannot be
Even if Younger applied to a case challenging pretrial detention, this case would fail Younger's conditions for abstention. On the first prong, the defendants insist that although the underlying misdemeanor prosecutions against the named plaintiffs are over, the court should still abstain because those prosecutions were ongoing when this litigation began. (Id. at 26). In Ankenbrandt v. Richards, 504 U.S. 689, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992), the Supreme Court held that Younger abstention did not apply when state proceedings are over before a federal action is filed. Id. at 705, 112 S.Ct. 2206. Most courts do not abstain under Younger if there are no ongoing state proceedings when the motion to abstain is filed, even if state proceedings were pending when the case was first filed in federal court. See, e.g., Rocky Mountain Gun Owners v. Williams, 671 Fed.Appx. 1021, 2016 WL 6574000, at *3 (10th Cir. Nov. 7, 2016) ("The district court made a clearly erroneous factual finding that the parallel state court proceedings were still ongoing at the time it granted the Secretary's motion to dismiss on Younger abstention grounds." (emphasis added)); Winter v. Wolnitzek, 834 F.3d 681, 688 (6th Cir. 2016) ("In the absence of an ongoing enforcement action, Younger has no role to play, leaving us with authority, indeed an obligation, to resolve the case."); Banks v. Slay, 789 F.3d 919, 923 (8th Cir. 2015) (abstention was inappropriate because the state appellate case ended and plaintiffs did not petition the state supreme court); Mounkes v. Conklin, 922 F.Supp. 1501, 1511 n.5 (D. Kan. 1996) (if the state pretrial detention proceedings had already terminated when the court ruled, "Younger abstention would not apply"). In this case, there is no dispute that the named plaintiffs' underlying state-court cases are over. At this stage, there are no ongoing state proceedings to which this court can or should defer.
Courts are divided on whether the availability of a habeas corpus petition can make and keep a terminated proceeding "ongoing" for Younger purposes. In a challenge to Indiana's bail system, the court in Mudd v. Busse, 437 F.Supp. 505 (N.D. Ind. 1977), found that a state statute providing for motions to reduce bail (with the right of appeal of the decision) as well as habeas corpus proceedings provided adequate state remedies in ongoing proceedings. Id. at 513-16. But most courts do not consider the availability of a separately filed state action when analyzing Younger's first factor. See, e.g., Fernandez v. Trias Monge, 586 F.2d 848, 852-53 (1st Cir. 1978); A.T. v. Cook Cty., 613 F.Supp. 775, 778-80 & n.7 (N.D. Ill. 1985); Coleman v. Stanziani, 570 F.Supp. 679, 687 (E.D. Pa. 1983). Indeed, if Younger applied to any state claim that could be filed, the rule that § 1983 has no exhaustion requirement would be effectively overturned. See Monroe v. Pape, 365 U.S. 167, 183, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).
The defendants argue that if a class is certified, some absent class members may have ongoing criminal cases when the court is asked to issue an injunction. (Docket Entry No. 80 at 26). The court has not ruled on the class certification motion. It is premature to rule on the assumption that a class action will be certified and meet Younger's first factor. See Hicks v. Miranda, 422 U.S. 332, 349, 95 S.Ct. 2281,
On the second factor, a state has a clear interest in ensuring that persons subject to criminal prosecution appear at hearings. See Bell, 441 U.S. at 534, 99 S.Ct. 1861 ("[T]he Government has a substantial interest in ensuring that persons accused of crimes are available for trials."); Pugh, 572 F.2d at 1056 (a state "has a compelling interest in assuring the presence at trial of persons charged with crime"). The plaintiffs argue that the State's interest in ensuring that misdemeanor arrestees appear at court is not implicated because the relief sought will not significantly diminish the ability to enforce an appearance. (Docket Entry No. 92 at 13). The issue, however, is not how much the State's interests will be affected, but whether those interests are important. See Middlesex, 457 U.S. at 432, 102 S.Ct. 2515 ("Proceedings necessary for the vindication of important state policies or for the functioning of the state judicial system also evidence the state's substantial interest in the litigation." (citing Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977)). In this case, they are.
The third factor, the adequacy of a timely hearing, is precisely what the plaintiffs are challenging in this case. But Younger abstention "naturally presupposes the opportunity to raise and have timely decided by a competent state tribunal the federal issues involved." Gibson v. Berryhill, 411 U.S. 564, 577, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973). To find that the plaintiffs have an adequate hearing on their constitutional claim in state court would decide the merits. This factor is not properly included in the abstention analysis here. See Rodriguez v. Providence Cmty. Corr., Inc., 155 F.Supp.3d 758, 765-66 (M.D. Tenn. 2015) (Younger abstention is inappropriate if the state proceeding would come so late that the probationers would first have to suffer the deprivation they allege). The third factor is not met.
The defendants suggest that Younger's "core policy" is implicated because "the local criminal procedure in Harris County is evolving," and administrative reform may give the plaintiffs an adequate remedy. (Docket Entry No. 80 at 30). The defendants note that the Local Rules of Court were amended on August 12, 2016 to state that personal unsecured bonds should be "favored" over secured money bail for twelve common nonviolent misdemeanors. (Id. at 30-31). Harris County has hired two more Hearing Officers and updated the pretrial-services informational form to collect more detailed financial information about misdemeanor arrestees earlier in the postarrest process. (Id. at 31). Because Younger was centrally concerned with "respect for state functions," they argue, the court should defer to these ongoing reform efforts that "would likely moot Plaintiffs' ... constitutional claims." (Id. at 30-31 (quoting Younger, 401 U.S. at 44, 91 S.Ct. 746)).
The defendants' reliance on Younger to defer to local administrative-reform efforts is misplaced. If the potential for political reform of a challenged practice is enough for abstention, federal courts
The defendants' motion to dismiss under Younger abstention is denied.
"State law determines whether a particular individual is a county or municipality final decision maker with respect to a certain sphere of activity." Bennett v. Pippin, 74 F.3d 578, 586 (5th Cir. 1996). "Authority to make municipal policy may be granted directly by a legislative enactment or may be delegated by an official who possesses such authority, and of course, whether an official had final policymaking authority is a question of state law." City of St. Louis v. Praprotnik, 485 U.S. 112, 124, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986)) (internal quotation marks omitted). "[S]tate and local positive law, as well as `custom or usage' having the force of law" determine whether a person is final policymaker. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989) (quoting Praprotnik, 485 U.S. at 124 n.1, 108 S.Ct. 915). "[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing the final policy with respect to the subject matter in question." Pembaur, 475 U.S. at 483, 106 S.Ct. 1292.
In McMillian v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997), the Supreme Court found that an Alabama sheriff alleged to have suppressed exculpatory evidence was not a final county policymaker under § 1983, but rather "represents the State of Alabama." Id. at 783, 117 S.Ct. 1734. The Court cautioned that "the question is not whether Sheriff Tate acts for Alabama or Monroe County in some categorical, `all or nothing' manner. Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue." Id. at 785, 117 S.Ct. 1734; see also Pembaur, 475 U.S. at 483, 106 S.Ct. 1292 ("[M]unicipalities often spread policymaking authority among various officers and official bodies. As a result, particular officers may have authority to establish binding county policy respecting particular matters and to adjust that policy for the county in changing circumstances.").
Written federal, state, and local law requires Harris County judicial officers to consider a misdemeanor arrestee's inability to pay bail early in the postarrest process, when the defendant first encounters a judicial officer. In Harris County, that is at the probable-cause hearing before a Hearing Officer. The written law permits judicial officers to take proof, make findings of inability to pay, and impose nonfinancial release conditions. TEX. CODE CRIM. PRO. art. 17.15; Agreed Final Judgment, Roberson, Civil No. 84-2974; RULES OF COURT 4.2.3.1.3. The plaintiffs allege that, notwithstanding the facial requirement of the written law, Harris County follows customs or practices of invariably imposing secured money bail according to the prescheduled bail amounts, without considering inability to pay bail or eligibility for release on other conditions for unconstitutionally long periods after arrest. (Docket Entry No. 54 ¶¶ 63-73). The complaint alleges that at the brief probable-cause hearings, Harris County Hearing Officers "[a]s a matter of policy and practice ... make no attempt to determine an arrestee's financial situation, and they make no inquiry into or findings concerning an arrestee's ability to pay the money bail amount that they impose." (Id. ¶ 68). The plaintiffs allege that the Hearing Officers follow this custom and practice according to "the systemic general policy instructions from Harris County Criminal Courts at Law Judges about how to administer the predetermined [bail] schedule." (Id. ¶ 56). They further allege that the Harris County Sheriff's Department, "by policy and practice, detains arrestees too poor to afford the money bail amount imposed without inquiry into and findings concerning ability to pay," but that the Sheriff "releases arrestees who pay their money bail," generally before or at the booking stage. (Id. ¶ 11, 42).
The § 1983 policymaking liability of each party is considered in turn.
The complaint alleges what can be organized into three County Judge activities regulating Harris County bail procedures. First, the County Judges, sitting as a board and voting by a two-thirds majority, promulgate written Rules of Court. Some of these written Rules repeat the Texas Code of Criminal Procedure. Some of these Rules the County Judges enact using their discretion to make policy choices about how to implement the bail schedule. These Rules allow pretrial detention without requiring timely opportunities for arrestees to raise, and judicial officers to consider, a misdemeanor defendant's inability to pay and eligibility for nonfinancial conditions of release. Second, the County Judges oversee customs and practices, either through unwritten instructions to the Hearing Officers or knowing acquiescence in, and ratification of, their customs and practices that amend or contravene the rules as written in the Texas Code of Criminal Procedure or the Harris County Rules of Court. Finally, the County Judges affirm the Hearing Officers' bail decisions in individual adjudications.
To preview the court's findings: to the extent the County Judges promulgate written and unwritten rules that are not mandated by State Code or statutes, the County Judges act as final County policymakers in a legislative or administrative capacity; to the extent the County Judges affirm the Hearing Officers in individual adjudications, they act in their judicial capacity and in that role cannot provide a basis to hold the County liable; and to the extent the County Judges act to enforce or contravene article 17.15 of the Texas Code of Criminal Procedure, they act on behalf of the State of Texas in an administrative enforcement role.
These findings are set out below.
The Texas Constitution provides for county courts in its judiciary article. The Constitution vests the State's judicial power "in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justice of the Peace, and in such other courts as may be provided by law." TEX. CONST. ART. V, § 1; see also id. § 15 ("There shall be established in each county in this State a County Court."). County judges, like "other county officers," may be removed by the county's district court judges. Id. § 24. The Texas Legislature may also establish "statutory county courts" in addition to "constitutional county courts" to handle the heavy or specialized work loads in more populous counties. Harris County has more people than any other county in the State. The Harris County Criminal Courts at Law are statutory county courts created to take on the work the County's size generates. TEX. GOV'T CODE § 25.1033.
"The county judge of a Texas county may possess [§ 1983 municipal] policymaking authority in some matters ... such as presiding over the county's legislative body, preparing the county budget, and conducting elections, with `virtually absolute sway over the particular tasks or areas of responsibility entrusted to him by state statute' and accountability to `no one other than the voters for his conduct therein.'" Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir. 1988) (quoting Familias Unidas, 619 F.2d at 404. In Familis Unidas v. Briscoe, the Fifth Circuit examined a county judge's implementation of a state statute that required an organization to disclose its members. The court held that this decision represented the state's, not the county's, policy. 619 F.2d at 404. But the court noted that the "unique structure of county government in Texas" gives county judges "numerous executive, legislative and administrative chores in the day-to-day governance of the county." Id. The Texas configuration of the county courts means that, "at least in those areas in which [a judge], alone, is the final authority or ultimate repository of county power," a county judge may be "a policymaker whose official conduct and decisions could be attributed to the county under section 1983." Bigford, 834 F.2d at 1222. In other words, the entity for which the County Judges act as policymakers — Harris County or Texas — turns on what policy is at issue and on how state or county law describes which entity or office has power or control over that issue.
The County Judges argue that they are not policymakers at all, because "the bail procedure promulgated by the County Criminal Courts at Law Judges merely restates a federal court order [in Roberson] and Texas state law." (Docket Entry No. 80 at 40). The County Judges correctly note that the County Rules of Court substantially repeat the factors that judicial officers must consider in setting bail under the federal court's Roberson order and under article 17.15 of the Texas Code of Criminal Procedure. RULES OF COURT 4.2.3.1. But the County Judges are not limited to these factors. The Texas Government Code gives the County Judges broad authority to "adopt rules consistent with the Code of Criminal Procedure ... for practice and procedure in the courts." TEX. GOV'T CODE § 75.403(f).
The plaintiffs also challenge unwritten customs or practices alleged to have the force of policy, such as the Hearing Officers' unwavering use of secured money bail rather than any consideration of unsecured or personal bonds for those unable to pay until after the probable-cause hearing when counsel can move to raise inability to pay. (Docket Entry No. 54 ¶¶ 19, 78-86). For these procedures at least, the County Judges allegedly make "a deliberate choice to follow a course of action" from among possible alternatives. See Pembaur, 475 U.S. at 483, 106 S.Ct. 1292. In promulgating these County Rules of Court, and in implementing these unwritten customs and practices, the County Judges are not solely or simply implementing Texas state law. Rather, the allegation is that they are unconstitutionally deviating from the State Code in Harris County, both in written rules and in unwritten customs or practices.
Harris County argues that the Harris County Judges are state actors enforcing state policy because: (1) the State Constitution vests "[t]he judicial power of this State" in county courts; (2) the State vests policymaking authority only in the County Commissioners Court, not the County Courts; (3) adjudicating state crimes is not County business; and (4) cases decided in other circuits have found county-level judges to be members of the state judiciary. (Docket Entry No. 83 at 12-18). The County cites Woods v. City of Michigan City, Ind., 940 F.2d 275 (7th Cir. 1991), in which the Seventh Circuit held that Indiana county judges set bond policy on behalf of the state, not on behalf of local counties or cities.
The plaintiffs rely on the Fifth Circuit's sovereign-immunity analysis under the Eleventh Amendment. To determine if an official is a state or local actor for sovereign immunity purposes, the Fifth Circuit uses a six-factor test: (1) "whether the state statutes and case law view the agency as an arm of the state"; (2) whether the entity is funded by the county or the state; (3) "the entity's degree of local autonomy"; (4) "whether the entity is concerned primarily with local, as opposed to statewide, problems"; (5) "whether the entity has the authority to sue and be sued in its own name"; (6) "whether it has the right to hold and use property." Clark, 798 F.2d at 744-45. "[I]t is well established that the second [factor] is the most important." Hudson v. City of New Orleans, 174 F.3d 677, 682 (5th Cir. 1999); see also Crane v. Texas, 766 F.2d 193 (5th Cir. 1985) (district attorneys are county actors without Eleventh Amendment immunity, based in part on county-level funding.).
Eleventh Amendment jurisprudence on the issue of state versus county policymaking is instructive but not controlling in the § 1983 context. The source of funds for an entity is the most important Eleventh Amendment factor, "since an important goal of the Eleventh Amendment is the protection of state treasuries." Clark, 798 F.2d at 744. But the Supreme Court in McMillian held that county-level funding did not tip the balance to make a county sheriff a county actor under § 1983. 520 U.S. at 791, 117 S.Ct. 1734. The Fifth Circuit has nonetheless relied on Clark's Eleventh Amendment analysis in examining policymaking authority under § 1983 to find that Texas district judges implement Texas State policy, not county policy, in appointing counsel for criminal defendants. Hamill v. Wright, 870 F.2d 1032, 1037 (5th Cir. 1989). And although McMillian dealt with policies on handling evidence, the Court emphasized generally applicable factors such as the sources of authority to act and funds to operate to analyze a sheriff's liability. 520 U.S. at 791, 117 S.Ct. 1734.
The balance of McMillian factors — informed by the Fifth Circuit's consideration of Eleventh Amendment factors in the McMillian analysis — favors treating the County Judges as Harris County policymakers when they promulgate written and unwritten bail procedures for all of the Harris County criminal courts for misdemeanor arrestees. The Texas Constitution lists county judges with "other county officers" as subject to removal for cause by district judges. TEX. CONS. ART. V § 24. Three of the statutory County Judges in this case sit on a board responsible for appointing, supervising, and terminating Harris County Hearing Officers. TEX. GOV'T CODE § 54.852. One of the Harris County Criminal Courts at Law Judges acts as the presiding judge, tasked with serving "as chief administrator of the offices of county court manager and county court coordinators, and of pretrial release services and all other court-related ministerial services in misdemeanor cases as required by the judges having jurisdiction over those
Harris County argues that even if the County Judges represent Harris County rather than the State of Texas, the County cannot be held liable for policies the County Judges make in their judicial capacity. The County points to three cases in which the Fifth Circuit declined to hold municipalities liable for judicial actors' alleged policies because "under Texas law, `[a] local judge acting in his or her judicial capacity is not considered a local government official whose actions are attributable to the county." Davis v. Tarrant County, 565 F.3d 214, 227 (5th Cir. 2009) (quoting Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995)). The issue in Davis was the Texas district judges' denial of an attorney's application to be included on a list of those eligible for certain court appointments. The Fifth Circuit found that "the act of selecting applicants for inclusion on a rotation list of attorneys eligible for court appointments is inextricably linked to and cannot be separated from the act of appointing counsel in a particular case, which is clearly a judicial act...." Id. at 226. The County argues that this reasoning can be extrapolated to hold that the policy regulating the imposition of bail in every misdemeanor case is inextricable from the judicial act of setting bail in a particular case. (Docket Entry No. 83 at 19-21).
To support this argument, the County also cites Johnson v. Moore, 958 F.2d at 92. In that case, the plaintiff sued a municipal court judge and the municipality under § 1983, alleging that his constitutional rights were violated when the judge sentenced
Finally, Harris County cites Harris v. City of Austin, Civil No. 15-956, 2016 WL 1070863 (W.D. Tex., Mar. 16, 2016), a putative class action against the Austin Municipal Court's alleged practice of failing to hold indigency hearings and provide counsel before jailing indigent defendants who could not pay traffic fines or were unwilling or unable to perform community service. The court noted that "the proposition that a municipality may be held liable based on the actions of a municipal judge where those actions are not an exercise of the judge's `authority under state law,' but rather, are an exercise of some other type of non-judicial power conferred by the municipality, is unobjectionable." Id. at *6. The court found that the challenged Austin Municipal Court Rules were not municipal policy, but rather "the promulgation of rules for the orderly trial of cases," and that these rules were "more judicial than non-judicial in nature." Id. at *7.
Davis, Johnson, and Harris describe different circumstances from those alleged in the complaint here. The Harris court noted that the challenged rules in that case were "issued by judicial order signed by the Presiding Judge" and "contemplate the exercise of judicial discretion, as they do not mandate that municipal judges take any particular action with respect to any defendant." 2016 WL 1070863 at *7. The Harris County Criminal Courts at Law Rules of Court are not promulgated by a single judge's signed order. The Rules of Court are promulgated by the County Judges sitting en banc as a board, voting by two-thirds majority. See TEX. GOV'T CODE § 75.403(f). The Rules of Court apply not to a single court but to all the courts across one of the largest and most populous counties in the United States. The Rules of Court do not merely regulate "the orderly trial of cases," as the Harris court found was true of Austin's municipal court rules. 2016 WL 1070863 at *7. The Rules of Court mandate the use of secured financial bail; prescribe presumptions in certain misdemeanor cases; provide for the appointment of counsel; promulgate a code of judicial conduct; and instruct sheriffs, district attorneys, and other county officers in how to administer their tasks of imposing and collecting secured financial bail.
The Rules of Court, both as written and as amended by customs or practices, do not merely "contemplate the exercise of judicial discretion," as in Davis, Johnson, and Harris. Harris, 2016 WL 1070863, at *7; cf. Davis, 565 F.3d at 227; Johnson,
To the extent the plaintiffs rely on the County Judges' decisions to affirm the Hearing Officers' adjudications of individual cases, these actions are taken in the County Judges' judicial capacities and cannot support § 1983 liability against Harris County under the law of the Fifth Circuit. See Davis, 565 F.3d at 227; see also DeLeon v. City of Haltom City, 106 Fed. Appx. 909 (5th Cir. 2004) (per curiam) (municipal judge's decision not to provide an indigency hearing in an individual case did not establish municipal policy under § 1983); Whisenant v. City of Haltom City, 106 Fed.Appx. 915 (5th Cir. 2004) (per curiam) (same). But in: (1) promulgating the written Rules of Court; (2) overseeing and enforcing the alleged unwritten policies; and (3) acquiescing in the Hearing Officers' unwritten customs or practices by refusing to correct them in the written policies, the County Judges act in a legislative or administrative capacity to set policy for Harris County. The Harris County Rules of Court, and the alleged unwritten amendments to those Rules, are more similar to rules passed by legislative or administrative enactment than they are to court- or judge-specific rules or order involving the exercise of discretion to choose among permissible alternatives, including in the orderly process of trial. See Supreme Court of Virginia v. Consumers Union of U.S., Inc., 446 U.S. 719, 731, 100 S.Ct. 1967, 64 L.Ed.2d 641 (1980) ("Although it is clear that under Virginia law the issuance of the Bar Code was a proper function of the Virginia [Supreme] Court, propounding the Code was not an act of adjudication but one of rulemaking ... in a legislative capacity.") (discussed further in Part IV.B.1. below); Degen v. Gen. Coatings, Inc., 705 S.W.2d 734, 735 (Tex. App.-Houston [14th Dist.] 1986) ("The promulgation of rules and amendments thereto is a legislative act of the court, and the rules have the force of statutes."); see also Esteves v. Brock, 106 F.3d 674, 678 (5th Cir. 1997) ("For those duties that are administrative or managerial in nature, the county may be held liable for the actions of a district attorney who functions as a final policymaker for the county.").
The current pleadings and record provide a plausible basis to find that the County Judges act for Harris County in their allegedly unconstitutional policies, customs, or practices regulating bail for misdemeanor arrestees in Harris County.
The Supreme Court has cautioned that the county-or-state-actor inquiry cannot be conducted in "some categorical, `all or nothing' manner. Our cases on the liability of local governments under § 1983 instruct us to ask whether governmental officials are final policymakers for the local government in a particular area, or on a particular issue." McMillian, 520 U.S. at 785, 117 S.Ct. 1734. And as the Court recognized in Pembaur, states and "municipalities often spread policymaking authority among various officers and official bodies. As a result, particular officers may have authority to establish binding county policy respecting particular matters and to adjust that policy for the county in changing circumstances." 475 U.S. at 483, 106 S.Ct. 1292.
In the "particular matters" of setting county-wide bail procedures in misdemeanor cases, the County Judges act on behalf of Harris County. But the defendants are correct that the County Rules of Court incorporate a portion of the Texas Code of Criminal Procedure verbatim. In their arguments for Younger abstention, the County Judges emphasize their role in implementing and enforcing the Texas Code of Criminal Procedure. (See Docket Entry No. 80 at 40-42). The County Judges rely on a letter dated August 8, 2016 they sent to all Harris County Hearing Officers. All sixteen County Judges signed the letter. It instructed the Hearing Officers to follow article 17.15 of the Texas Code of Criminal Procedure and the federal court's Roberson order, which it attached.
The County Judges are not responsible for promulgating the State Code of Criminal Procedure. In carrying out their duties under the Code, the County Judges are effectively supervised by the State's district court judges, who can remove county judges from office. TEX. CONS. ART. V § 24. To the extent the County Judges have discretion to, and do, promulgate the County Rules of Court and oversee unwritten customs and practices for implementing bail procedures in Harris County, they are acting on the County's behalf. To the extent the County Judges are directly enforcing — or allegedly contravening — article 17.15 of the Texas Code of Criminal Procedure or the Roberson order in instructing the Hearing Officers regarding the factors to consider in setting bail, the County Judges act on behalf of the State of Texas, enforcing Texas law.
The complaint seeks injunctive and declaratory relief against the County
The plaintiffs here do not seek damages. At oral argument, the plaintiffs conceded that the claims against the County Judges in their personal capacities should be dismissed. (Docket Entry No. 122 at 77, 114-16). The court agrees. "[T]he phrase `acting in their official capacities' is best understood as a reference to the capacity in which the state officer is sued, not the capacity in which the officer inflicts the alleged injury." Hafer v. Melo, 502 U.S. 21, 26, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). The plaintiffs seek prospective relief against the office of the Harris County Criminal Courts at Law Judges. They do not seek damages from the individuals holding that office.
In summary, County Judges in Texas play a variety of roles, in a variety of circumstances. At times they make executive appointments, at times they administer county business, at times they legislate county policy, and at times they adjudicate individual cases. In this case, under the facts that the plaintiffs plausibly alleged, the Harris County Criminal Courts at Law Judges represent the State of Texas in enforcing article 17.15 of the Texas Code of Criminal Procedure, and they represent Harris County in making rules for, and in enforcing customs or practices on, bail procedures in the Harris County Courts.
County sheriffs are established under the judiciary article of the Texas Constitution. Art. V, § 23. Like "other county officers," county sheriffs may be removed by a state district judge presiding over the sheriff's county. Id. § 24. A vacancy in the Harris County Sheriff's office is filled by the Harris County Commissioners Court. Id., § 23. The Sheriff is paid by the County Commissioners Courts, id., art. XVI, § 61, and elected by county voters, id. art. V, § 23.
Under state law, a sheriff is the county policymaker for law enforcement, including for county jails. County of El Paso v. Dorado, 180 S.W.3d 854, 870 (Tex. App.-El Paso 2005, pet. denied). "[I]t has
The defendants cite case law affirming that sheriffs have qualified immunity for damages suits when they have a good-faith belief that they are executing valid process by holding people in custody. See Soto v. Ortiz, 526 Fed.Appx. 370 (5th Cir. 2013) (citing Whirl v. Kern, 407 F.2d 781, 795-96 (5th Cir. 1969); Douthit v. Jones, 641 F.2d 345, 346-47 (5th Cir. 1981), reh'g opinion of 619 F.2d 527 (5th Cir. 1980)); Jefferson v. Broadnax, Civil No. 12-4638, 2014 WL 3747151 (N.D. Tex. July 30, 2014). But in this case, the plaintiffs seek only prospective relief. And the plaintiffs allege that the Sheriff knows that the detention orders he enforces are invalid but that he nonetheless detains misdemeanor defendants under those orders. (Docket Entry No. 54 ¶¶ 9-10). Those orders, among other things, allegedly keep the defendants in jail for the sole reason that they cannot afford to pay bail, and prevent them from timely raising their inability to pay bail or their eligibility for nonfinancial conditions of release. (Id. ¶¶ 90-95). The threshold issue is not the Sheriff's qualified immunity to a suit for damages, but his liability for prospective relief against him as a final policymaker for Harris County.
Two cases in this circuit are more instructive than the qualified immunity case law. In Doe v. Angelina County, 733 F.Supp. 245 (E.D. Tex 1990), a county and its sheriff were sued under § 1983 for incarcerating the plaintiff over an unpaid fine for fishing without a license. Id. at 254-56. The court found that the sheriff had a practice of detaining individuals arrested under a capias pro fine if they could not pay the fines on arrest. Id. at 256-57. The court decided that the sheriff's authority included implementing procedures to process individuals arrested and brought to the county jail on the basis of a capias, and that "[t]he sheriff's acquiescence in unsound and legally insufficient procedures effectively created a county policy for which the county is liable." Id. at 257.
In De Luna v. Hidalgo County, 853 F.Supp.2d 623 (S.D. Tex. 2012), the court treated arraigning magistrates and the county sheriff together as municipal policymakers for promulgating an unconstitutional policy of converting fine-only offenses into detentions without inquiring into a defendant's ability and good-faith effort to pay. The De Luna court reviewed the rule that deliberate indifference giving rise to liability for a municipal policy, including an unconstitutional custom or practice, "is an objective [standard]; it considers not only what the policymaker actually knew, but what he should have known, given the facts and circumstances surrounding the official policy and its impact on the plaintiff's rights." Id. at 641 (quoting Lawson v. Dallas County, 286 F.3d 257, 264 (5th Cir. 2002)). On a motion for summary judgment, the court found undisputed facts showing that the sheriff knew from paperwork his office collected that Class C misdemeanor defendants too poor to afford an attorney were not asked whether they could pay their fines and avoid detention. Instead, they were simply detained. Id. at 640-42.
Sheriff Hickman argues that De Luna's reasoning does not apply because that case dealt with procedures for fines, not bail, and because the court found that the sheriff actually knew that the court orders he enforced were invalid. (Docket Entry No. 100 at 2-5). But these arguments show why De Luna's reasoning does apply.
The complaint alleges that the Harris County Sheriff, like the sheriff in De Luna, knows that the detention orders he enforces are invalid. The plaintiffs allege that the Sheriff has the same access as the Hearing Officers and County Judges to information showing whether misdemeanor arrestees can afford to pay bail and whether other reasons support their detention. (Docket Entry No. 54 ¶ 40). They allege that the Sheriff or his deputies attend and supervise all probable-cause hearings — which take place by videolink with the defendant at the County Jail — and observe the Hearing Officers' consistent refusal to hear or consider any defendant's inability to pay or nonfinancial conditions of release at those hearings. The complaint alleges that the Sheriff or his deputies instruct the arrestees not to speak at these hearings. (Id. ¶¶ 54-56, 102). The complaint also asserts that, in at least some cases, unless there is an offer to pay bail, the Sheriff delays the probable-cause hearing beyond 24 hours and keeps the misdemeanor defendant from communicating with family or counsel. (Id. ¶¶ 58, 92-95). Whether the Sheriff's alleged deliberate indifference gives rise to a municipal policy or custom turns on what the Sheriff "should have known, given the facts and circumstances surrounding the official policy and its impact on the plaintiff's rights." Lawson, 286 F.3d at 264; see also Dodds v. Logan County Sheriff's Dept., Civil No. 8-333, 2009 WL 8747487 (W.D. Okla. Aug. 3, 2009) (sheriff liable for "deliberate indifference to the due process rights of arrestees whose bail had been pre-set" by acquiescing in a policy set by local judges); Blumel v. Mylander, 954 F.Supp. 1547, 1557 (M.D. Fla. 1997) (sheriff and jailer liable for violating right of pretrial release when they were "actually and constructively aware" the 48-hour requirement had been exceeded). The parties dispute what the Sheriff knew, knows, or could reasonably be expected to know about misdemeanor defendants' first opportunity to raise their inability to pay or eligibility for release on nonfinancial conditions before a Harris County judicial officer. Under Rule 12(b)(6), the plaintiffs have plausibly alleged sufficient facts to support a claim for relief against the Sheriff as a County policymaker at this stage of the proceedings.
"The third prong" of municipal § 1983 liability under Monell "requires a plaintiff to prove `moving force' causation. To succeed, `a plaintiff must show that the municipal action was taken with the requisite degree of culpability and must demonstrate a direct causal link between the municipal action and the deprivation of federal rights.'" Valle v. City of Houston, 613 F.3d 536, 542 (5th Cir. 2010) (quoting
The facial validity of the bail schedule or the amounts of bail is not what the plaintiffs challenge. To that extent, the Sheriff's argument is unpersuasive. The Sheriff does not promulgate the bail schedule. The Sheriff allegedly does enforce orders to detain defendants who are eligible for release but cannot pay money bail until they appear before a County Judge, have counsel appointed, and — in most cases — plead guilty primarily to get out of jail faster. (Docket Entry No. 54 ¶¶ 92-98, 101, 128-31). Like the De Luna sheriff's participation in a policy and practice of converting fine-only punishments into unconstitutional orders of detention, the Harris County Sheriff allegedly exercises his discretion: (1) to prevent misdemeanor defendants from timely raising their inability to pay bail before a judicial officer, (id. ¶ 23); (2) to prevent access to counsel who could timely raise the inability to pay, (id. ¶¶ 92-94); and (3) to detain misdemeanor arrestees who cannot pay bail even when there are no reasons for detention (id. ¶ 10). The facts as alleged support a causal link between the Sheriff's exercise of his policymaking discretion in the area of County law enforcement and the plaintiffs' alleged injuries of unequal detention without timely or due consideration of their inability to pay bail or eligibility for release on nonfinancial conditions.
In Familias Unidas v. Briscoe, the Fifth Circuit noted that a county judge directly implementing a state regulation, "much like that of a county sheriff in enforcing a state law, may more fairly be characterized as the effectuation of the policy of the State of Texas embodied in that statute, for which the citizens of a particular county should not bear singular responsibility." 619 F.2d at 404. The Circuit has since determined that whether claims against a county-level actor support municipal liability turns on: (1) whether the county defendants comply with a state statute later found to be unconstitutional or whether they fail to comply with a state statute by interpreting it in an unconstitutional way; and (2) whether the state statute is "narrowly drawn, leaving little, if any, room for the exercise of discretion in its implementation." Crane, 759 F.2d 412, 430 n.19 (5th Cir. 1985), amended on denial of reh'g, 766 F.2d 193 (5th Cir. 1985). In the complaint, the plaintiffs have alleged that the Sheriff knowingly and unconstitutionally applies a constitutional statute — Texas Code of Criminal Procedure article 17.15. The plaintiffs have alleged that the Sheriff has some discretion to choose not to engage in conduct that the Sheriff knows is unconstitutional. The complaint states a claim against the Sheriff in his official capacity and alleges facts that are vigorously disputed. That dispute must be resolved in order to decide that the Sheriff cannot be held liable as a county policymaker for the policies challenged here.
Even if the complaint did not sufficiently allege that the Harris County Sheriff knows that the detention orders he enforces are invalid, the complaint states a sufficient claim against Sheriff Hickman for prospective relief in his official capacity as a Texas State law-enforcement officer. County sheriffs are established in the Texas
A substantially similar case arose in a federal court in Louisiana. In Cain v. City of New Orleans, Civil No. 15-4479, 2016 WL 2849498 (E.D. La. May 13, 2016), the trial court dismissed a municipal liability claim for detaining defendants who failed to pay court costs without any inquiry into whether the defendants were able to pay or had made good-faith efforts to do so. Id. at *8 (granting the sheriff's motion to dismiss); Cain v. City of New Orleans, Civil No. 15-4479, 2016 WL 2849478 (E.D. La. May 13, 2016) (granting the city's motion to dismiss). The plaintiffs did not allege that the sheriff's department "detain[ed] indigent debtors on its own initiative." Cain, 2016 WL 2849498 at *8. Under the statutes at issue and the facts alleged, the court found that the Louisiana sheriff did not have discretion to set payment conditions or detention arrangements. The sheriff could not be sued as a municipal actor, and his conduct could not support the city's liability under the "moving force" factor of Monell. Id.
The Cain court did not consider the sheriff's liability for prospective relief as a state actor. In another substantially similar case, a district court in the Ninth Circuit ruled that California sheriffs are state actors when detaining misdemeanor defendants on secured financial bail under facially valid detention orders. See Buffin v. City and Cty. of San Francisco, Civil No. 15-4959, 2016 WL 6025486 (N.D. Cal. Oct. 14, 2016). In these circumstances, the sheriff was not a municipal policymaker, but he was still subject to prospective relief as a state actor sued in an official capacity under Ex parte Young. Id. at *9 (citing Young, 209 U.S. at 155-56, 28 S.Ct. 441). The relevant Texas and California statutes are similar,
For the same reasons the County Judges are not properly sued in their personal capacities, the plaintiffs' personal-capacity claim against Sheriff Hickman is dismissed.
Five Harris County Hearing Officers are sued in their official and personal capacities. Harris County argues that the Hearing Officers are not final policymakers because they do not have policymaking authority under state law and because their decisions are subject to review by the County Judges. (Docket Entry No. 83 at 24-25). The Hearing Officers agree and argue that because they are not final policymakers, they cannot be sued in their official capacity. (Docket Entry No. 85 at 8-9).
Hearing officers are county magistrate judges. They are appointed, supervised, and can be removed with or without cause by a board made up of three Harris County Criminal Courts at Law County Judges, three Harris County District Court Judges, and three Harris County Justices of the Peace. TEX. GOV'T CODE § 54.852. Under Texas law, a Hearing Officer adjudicating individual cases may "commit[] the defendant to jail, discharg[e] the defendant from custody, or admit[] the defendant to bail, as the law and facts of the case require." TEX. GOV'T CODE § 54.856(a).
Applying the McMillian factors leads to the conclusion that, unlike the County Judges, the Hearing Officers are not final policymakers whose acts or omissions could be the basis for Harris County liability under Monell. First, the Hearing Officers are not "final" policymakers. They are directly supervised by a board of judges that can remove them without cause. Their decisions to impose the scheduled bail amount in specific cases are reviewed by the County Judges, usually within one business day. Unless the County Judges acquiesce, the Hearing Officers do not have discretion to deliberate and
Second, to the extent the Hearing Officers do view themselves as having discretion to deviate from the alleged systemwide insistence on financial conditions of release without considering the inability to pay, the Hearing Officers exercise this discretion in adjudicating the cases that come before them. Their alleged policymaking is inextricable from the exercise of judicial functions in individual cases. See Davis, 565 F.3d at 227. Even taking as true the plaintiffs' allegations that in every case, the Hearing Officers refuse to follow the State Code provisions requiring them to consider a misdemeanor defendant's ability to post bail or eligibility for release on nonfinancial conditions, a judge's decision in particular cases that "deliberate[ly] or mistaken[ly] depart[s] from the controlling law cannot be said to represent county policy." Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir. 1988) (internal quotation marks omitted); see also Eggar v. City of Livingston, 40 F.3d 312, 315 (9th Cir. 1994) ("It is lamentable, but irrelevant, that [the judge] failed miserably to meet [his] obligation under both state and federal standards: [but] he is simply not a municipal decision maker in this context."); Harris, 2016 WL 1070863, at *6 ("[A] municipal judge's illegal pronouncement does
The official capacity claims against the Harris County Hearing Officers cannot support municipal liability against Harris County and are dismissed. The Hearing Officers are subject to the supervision of the County and the County Judges, who are already parties. The defendants concede that the plaintiffs have stated a sufficient claim for declaratory relief against the Hearing Officers in their personal capacities. (Docket Entry No. 98 at 3). The Hearing Officers remain parties to this suit only in their personal capacities and only for declaratory relief.
A municipality may be held liable for "deprivations resulting from the decisions of its duly constituted legislative body." Bryan Cty., 520 U.S. at 403, 117 S.Ct. 1382. "Official municipal policy includes the decisions of a government's lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law." Connick, 563 U.S. at 61, 131 S.Ct. 1350. In this case, the plaintiffs have alleged facts that would show that the Harris County Criminal Courts at Law Judges promulgate written bail procedures and oversee, ratify, and enforce systemwide practices that amount to the County Judges' use of their policymaking discretion to deny misdemeanor defendants a timely hearing on their inability to pay bail and to deny them any alternative to financial conditions of pretrial release. The plaintiffs have also alleged facts that would show that the County Sheriff knowingly participates in this system of unconstitutional detention by overseeing and ratifying systemwide practices preventing misdemeanor defendants from timely raising their inability to pay before the first judicial officer they encounter after arrest.
Because the "unique structure of county government in Texas" gives County Judges "numerous executive, legislative and administrative chores in the day-to-day governance of the county," Briscoe, 619 F.2d at 404, and because "in Texas, the county sheriff is the county's final policymaker in the area of law enforcement," Colle, 981 F.2d at 244 n.35, the County Judges and County Sheriff act on behalf of Harris County in promulgating the policies over which they have final authority. To be sure, the County Judges repeat the Texas Code of Criminal Procedure article 17.15 language in their written Rules of Court. RULES OF COURT 4.2.3.1. To the extent that Harris County officers directly enforce that language, they do not act within their discretion as county policymakers. But the complaint alleges significant, systemwide policies, both written and unwritten, that contravene the language of the State Code, the written County Rules of Court, as well as the Roberson order and case law. For those policies and practices, Harris County is liable for prospective relief.
The motion to dismiss the claim against Harris County is denied. To the extent the County Judges and County Sheriff act as final policymakers for Harris County in their official capacities, the claims against them are redundant to the claims against the County. See Graham, 473 U.S. at 159, 105 S.Ct. 3099. But the complaint also alleges facts that would show that the County Judges and County Sheriff may at times act on behalf of the State of Texas. To the extent that they act on the State's behalf, the County Judges and Sheriff are liable for prospective relief in their official capacities. Young, 209 U.S. at 123, 28 S.Ct. 441.
The claims against the County Judges and County Sheriff in their personal capacities are dismissed. The claims against the Hearing Officers are dismissed except for
"[M]unicipalities, unlike States, do not enjoy a constitutionally protected immunity from suit." Jinks v. Richland Cty., 538 U.S. 456, 466, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003). Municipalities are immune from punitive damage awards, but as to other forms of relief "a municipality, like a private corporation, [is] to be treated as a natural person subject to suit for a wide range of tortious activity...." City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 259-60, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981). The plaintiffs do not seek damages, and Harris County is not immune from prospective relief based on the County Judges and the County Sheriff's acts as County policymakers.
The County Judges, County Sheriff, and County Hearing Officers each moved to dismiss under various theories of immunity. (Docket Entry Nos. 80, 82, 84). To the extent the court has found that these officers act in their official capacities as Harris County policymakers, the claim for prospective relief against them is redundant to the claim against the County itself. Prospective relief against a county generally runs against county actors and employees, including county judges and county sheriffs.
The County Judges argue that even if they are final policymakers, they exercise "the State's entire legislative power with respect to promulgating the Local Rules of Court," and are legislatively immune from claims for declaratory or injunctive relief. (Docket Entry No. 80 at 42). They rely on Supreme Court of Virginia, 446 U.S. at 719, 100 S.Ct. 1967. In that case, a consumer organization sued the Virginia Supreme Court and its chief justice seeking a declaration that the court had violated the Constitution by promulgating a code of ethics regulating attorney advertising. The United States Supreme Court held that in promulgating Virginia's Code of Professional Responsibility, the state supreme court and its members acted in a legislative capacity on behalf of the state and were
The Court first considered whether the state justices acted in their judicial capacities to promulgate the code. The Court agreed with a dissenting opinion from the panel below that "[d]isciplinary rules are rules of general application and are statutory in character. They act not on parties litigant but on all those who practice law in Virginia. They do not arise out of a controversy which must be adjudicated but instead out of a need to regulate conduct for the protection of all citizens." Id. at 731, 100 S.Ct. 1967 (quoting Consumers Union of U.S., Inc. v. American Bar Ass'n, 470 F.Supp. 1055, 1064 (E.D. Va. 1979) (Warriner, J., dissenting)). The Court concluded that the disciplinary rules were legislative, not judicial. Id.
That reasoning applies here. The Harris County Rules of Court, like the Virginia disciplinary rules, are rules of general application that regulate not just the defendants but all those who participate in the trial of misdemeanor offenses, including clerks, districts attorneys, hearing magistrates, and sheriffs. They too arise out of the need to regulate conduct to protect all citizens, not just to adjudicate individual controversies. The Harris County Rules of Court are, like the Virginia Code of Professional Responsibility, a legislative enactment.
The Supreme Court then reasoned that because the Virginia court was "exercising the State's entire legislative power with respect to regulating the Bar, its members are the State's legislators for the purpose of issuing the Bar Code." Id. at 734, 100 S.Ct. 1967. The Court has also extended legislative immunity to local legislators sued for damages in their personal capacities. See Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 405, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) ("Whatever potential damages liability regional legislators may face as a matter of state law, we hold that petitioners' federal claims do not encompass the recovery of damages from the members of [a regional board] acting in a legislative capacity."); Bogan v. Scott-Harris, 523 U.S. 44, 52-54, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998) (legislative decisions should not "distorted by the fear of personal liability"). The Court has not ruled on whether legislative immunity shields local legislators from prospective relief as well, but its reasoning leads to that conclusion. See, e.g., Bogan, 523 U.S. at 52, 118 S.Ct. 966 ("Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference....").
In this case, the County Judges are not regulating bail procedures for the State of Texas, but only for Harris County. As local legislators, they have absolute immunity for suits from damages in their personal capacities. But municipal liability for prospective relief would be meaningless if the ruling did not run against a municipal policymaker. To the extent that the court finds the County Judges act as Harris County policymakers, the claim for prospective relief against them can be dismissed because they are redundant parties to the County itself, but not because they are legislatively immune to prospective relief.
The Court did not stop at the question of legislative immunity in Supreme Court of Virginia. It recognized that the Virginia Supreme Court "performs more than a legislative role with respect to the State Bar Code." 446 U.S. at 734, 100 S.Ct. 1967. Because the state court had independent authority to initiate disciplinary proceedings against attorneys, the Court held that the state-court judges were liable for prospective relief under § 1983 "in their enforcement capacities ... just as other enforcement officers and agencies" could be
Since the Court issued Supreme Court of Virginia, Congress has amended § 1983 to prohibit injunctive relief against judges acting in their judicial capacities "unless a declaratory decree was violated or declaratory relief was unavailable." 42 U.S.C. § 1983. As with legislative immunity, the Supreme Court takes a "functional approach" to judicial immunity. Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435, 113 S.Ct. 2167, 124 L.Ed.2d 391 (1993). The "touchstone" for a judicial act is the "performance of the function of resolving disputes between parties, or of authoritatively adjudicating private rights." Id. at 435-36, 113 S.Ct. 2167 (quoting Burns v. Reed, 500 U.S. 478, 500, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991) (Scalia, J., concurring)). In the Fifth Circuit, the test is whether: "(1) the precise act complained of ... is a normal judicial function; (2) the events involved occurred in the judge's chambers; (3) the controversy centered around a case then pending before the judge; and (4) the confrontation arose directly and immediately out of a visit to the judge in his official capacity." Harper v. Merckle, 638 F.2d 848, 858 (5th Cir. 1981) (quoting McAlester v. Brown, 469 F.2d 1280, 1282 (5th Cir. 1972)).
For the reasons explained above, the County Judges do not meet the Fifth Circuit's test for judicial capacity when they promulgate written Rules of Court or oversee the unwritten customs and practices that could be corrected through the written Rules but are not. These acts and omissions do not arise out of each judge acting to resolve disputes between parties in each court. Nor are the County Judges immune from either injunctive or declaratory relief when they administer the enforcement of article 17.15 of the Texas Code of Criminal Procedure, and when they deviate from or contravene its requirements. The County Judges' letters to the Harris County Hearing Officers and the criminal defense bar of Harris County are neither judicial nor legislative acts, but rather administrative enforcement actions. The County Judges' alleged unwritten instructions to Hearing Officers to deny personal bonds to certain classes of misdemeanor defendants, such as the homeless, also qualify as the sort of prosecutorial enforcement decision the Supreme Court in Supreme Court of Virginia found could be subject to an injunction. 446 U.S. at 736-37, 100 S.Ct. 1967; see also Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) (no absolute judicial immunity for administrative acts because "[t]hose acts — like many others involved in supervising court employees and overseeing the efficient operation of a court — may have been quite important in providing the necessary conditions of a sound adjudicative system ... [but] were not themselves judicial or adjudicative"); Morrison v. Lipscomb, 877 F.2d 463, 466 (6th Cir. 1989) (chief judge's declaration of a moratorium on issuing writs of restitution was an administrative, not a judicial, act because the moratorium was a general order not connected to any particular litigation and did not alter the rights or liabilities of any party); Craig v. State Bar of Cal., 141 F.3d 1353, 1354 (9th Cir. 1998) (judge's
The County Judges are immune from claims for injunctive relief for their case-by-case review of Hearing Officer decisions in individual adjudications, unless a declaratory decree is violated or unavailable. These adjudications fit the test for judicial capacity. See Cunningham ex rel. Cunningham v. City of W. Point, Miss., 380 Fed.Appx. 419, 422 (5th Cir. 2010) (denial of bail in an individual case "was a judicial action"); see also Green v. Mayfield, Civil No.8-2287, 2009 WL 230161, at *2 (N.D. Tex. Jan 29, 2009) ("[s]etting bail or bond" in an individual case "`is a judicial function'") (quoting Walczyk v. Rio, 496 F.3d 139, 165 (2d Cir. 2007)). But under § 1983, judges are not immune from a suit seeking a declaratory decree in these circumstances. See 42 U.S.C. § 1983.
The County Judges' motion to dismiss based on immunity is denied. As policymakers for Harris County, the County Judges are not necessary parties in their official capacities, but are subject to prospective relief imposed against the County. As enforcers of the State Code, the County Judges are not immune from either injunctive or declaratory relief. In their judicial capacity of reviewing the Hearing Officers' decisions in individual adjudications, the County Judges are immune from injunctive relief but not declaratory relief.
Sheriff Hickman seeks dismissal under Mays v. Sudderth, 97 F.3d 107 (5th Cir. 1996). In Mays, the plaintiff brought a § 1983 damages action against a sheriff for an illegal arrest. 97 F.3d at 109. The Fifth Circuit ruled that the sheriff shared the same absolute immunity from suit as the judge who issued the arrest order. Id. at 113. Government officials, the court reasoned, "should not be required to make the Hobson's choice between disobeying the court order or being haled into court to answer for damages." Id. (quoting Patterson v. Von Riesen, 999 F.2d 1235, 1240 (8th Cir. 1993). "[T]o the extent that the cause of action arises from his compliance with a facially valid judicial order issued by a court acting within its jurisdiction," the court held that "an official acting within the scope of his authority is absolutely immune from a suit for damages." Id. "However, [an officer] enjoys only qualified immunity for those routine duties not explicitly commanded by a court decree or by the judge's instructions." Clay v. Allen, 242 F.3d 679, 682 (5th Cir. 2001) (internal citation omitted).
Immunity under May's judicial-function rule does not apply here. The plaintiffs do not sue Sheriff Hickman for damages in his personal capacity. A suit for prospective relief against officers acting in their official capacities is the core exception to official immunity under Ex parte Young, 209 U.S. at 123, 28 S.Ct. 441. Even if Sheriff Hickman could claim quasi-judicial immunity in this case, that immunity would extend only as far as it does for the County Judges and Hearing Officers who issue orders of detention that Sheriff Hickman receives and implements. As discussed above, judges acting in their judicial capacities are not immune from suits seeking declaratory relief. Finally, the complaint alleges that the Sheriff performs "routine duties not explicitly commanded by a court decree or by the judge's instructions." Clay, 242 F.3d at 682. Those routine actions include advising misdemeanor defendants not to speak at their probable-cause hearings, including to raise their inability to pay bail, and keeping misdemeanor defendants from speaking with their families or legal counsel unless there is first an offer to pay bail. (Docket
For the reasons discussed above, the Hearing Officers acting in their judicial capacities in adjudicating misdemeanor cases are immune from injunctive relief under § 1983 but not from declarative relief. The plaintiffs sue the Hearing Officers only for declaratory relief. There is no basis to dismiss them for reasons of immunity.
In 1871, "Congress enacted § 1983 to enforce provisions of the Fourteenth Amendment against those who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it." Hafer, 502 U.S. at 28, 112 S.Ct. 358 (internal citations and quotation marks omitted). Because "municipalities often spread policymaking authority among various officers and official bodies," Pembaur, 475 U.S. at 483, 106 S.Ct. 1292, identifying the proper actors and authorities for § 1983 liability requires a legally and factually detailed inquiry. Multiple and overlapping authorities may contribute to a policy of denying freedom from pretrial detention to those accused in misdemeanor cases solely because they are too poor to pay a bail bond, or a policy of releasing wealthier misdemeanor defendants while detaining the indigent for days without a hearing on their inability to pay or eligibility for release on nonfinancial conditions. But the existence of multiple and overlapping authorities cannot, on its own, shield officers or official bodies from liability. The complaint alleges sufficient facts to plausibly claim that Harris County acts through its County Judges and County Sheriff to detain misdemeanor defendants without a timely inquiry into their inability to pay or their eligibility for release on nonfinancial conditions. The plaintiffs also state sufficient facts to plausibly allege that the County Judges and Sheriff act on their own to enforce particular provisions of Texas law and are proper parties for prospective relief in their official capacities.
The defendants' motions to dismiss, (Docket Entry Nos. 80, 83-85), are granted in part and denied in part. The court dismisses the personal-capacity claims against Sheriff Hickman and the Harris County Courts at Criminal Law Judges, and the official-capacity claim against the Harris County Hearing Officers. The court denies the motions to dismiss Sheriff Hickman and the County Judges in their official capacities and the motion to dismiss Harris County. The Hearing Officers did not move to dismiss the claims against them in their personal capacities.
On the basis of the plausible factual allegations in the complaint, (Docket Entry No. 54), Harris County may be sued for the written and customary policies that the County Judges and the County Sheriff promulgate in their official capacities. To the extent they act administratively to directly enforce article 17.15 of the State Code of Criminal Procedure, the County Judges do not have judicial immunity and can be sued for prospective relief running against them as state enforcement officers. Similarly, to the extent the record shows that the Sheriff is enforcing the State Code and executing facially valid judicial orders without knowledge or deliberate indifference to their invalidity, he is a proper party as a State officer.
The County Judges and Hearing Officers are judicially immune from injunctive relief to the extent they perform judicial functions in adjudicating individual cases. They are not immune from declaratory relief. Nor are the County Judges legislatively
The court will hear arguments on February 21, 2016, on the plaintiffs' motions for class certification and a preliminary injunction, (Docket Entry Nos. 1-2), and on the defendants' motion for partial summary judgment, (Docket Entry No. 101). The defendants' arguments to dismiss under Rule 12(b)(1) standing, Younger abstention, and failure to identify a final municipal policymaker are denied with prejudice. But the parties are not foreclosed from providing additional briefing on the constitutional standard of review or the issue of immunity from prospective relief as they argue the likelihood of the plaintiffs' success on the merits.
Moreover, even if the plaintiffs were making a facial challenge to the Texas Code of Criminal Procedure, the County Judges have misstated the rule. Rule 5.1 requires notice to, not joinder of, a state attorney general when a state statute is facially challenged. The case the County Judges rely on, NiGen Biotech, LLC v. Paxton, 804 F.3d 389, 394 (5th Cir. 2015), recognized that the joinder of the Texas attorney general in his official capacity was proper under the Eleventh Amendment, not necessary to all challenges of a state statute.
