ODonnell v. Harris County, Texas et al

Filing 125

MEMORANDUM AND OPINION entered MOOTING 20 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , DENYING 85 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , MOOTING 25 MOTION to Dismiss All Claims< /i>,DENYING 80 MOTION to Dismiss UNDER YOUNGER ABSTENTION AND OTHER 12(B)(1) GROUNDS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UNDER 12(B)(6),DENYING 120 MOTION to Strike 118 Supplement,, Defendants' Suppl emental Briefing on Motion to Dismiss, MOOTING 61 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ,DENYING 84 Amended MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , DENYING 83 MOTION to Dismiss 54 Amended Complaint/Counterclaim/Crossclaim etc. , DENYING 81 Sealed Event. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MARANDA LYNN ODONNELL, et al.,
On behalf of themselves and all others
similarly situated,
Plaintiffs,
VS.
HARRIS COUNTY, TEXAS, et al.,
Defendants.

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December 16, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-1414

MEMORANDUM AND OPINION
The plaintiffs, Maranda Lynn ODonnell, Robert Ryan Ford, and Loetha McGruder, sued
under 42 U.S.C. § 1983, challenging Harris County’s postarrest detention policies. They alleged
that the Harris County Sheriff and sixteen Harris County Criminal Courts at Law Judges promulgate
policies that violate the Equal Protection and Due Process Clauses of the United States Constitution
by detaining people arrested for misdemeanor offenses who are unable to pay a financial bail bond
much longer than those financially able to pay. The result is allegedly a “wealth-based detention
system” of jailing misdemeanor defendants only because they cannot pay secured financial bail.
(Docket Entry No. 54 ¶ 125). The plaintiffs seek injunctive and declaratory relief against the County
and—to the extent that they are State, not County, actors—against the Sheriff and the sixteen Harris
County Judges, sued in their official and personal capacities. The plaintiffs also seek declaratory
relief against five Harris County Hearing Officers, also sued both in their official and personal
capacities.
On May 19, 2016, Ms. ODonnell filed this civil-rights class-action lawsuit initially suing

1

Harris County, Sheriff Ron Hickman, and the five Harris County Hearing Officers.1 She sued on
behalf of herself and all other similarly situated individuals. (Docket Entry No. 3).2 Mr. Ford and
Ms. McGruder filed their suits on May 21, 2016. (Civil No. 16-1436, Docket Entry No. 1). The
court consolidated the cases in August 2016. (Docket Entry No. 41). The plaintiffs filed an
amended complaint on August 31, 2016, adding the sixteen Harris County Criminal Courts at Law
Judges as defendants.3 (Docket Entry No. 54). Harris County, the County Judges, the Hearing
Officers, and the Sheriff have moved to dismiss. (Docket Entry Nos. 80, 83–85). The plaintiffs
responded, (Docket Entry Nos. 92–95), and the defendants replied, (Docket Entry Nos. 98, 100, 102,
106).
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, 2016,4 the court grants in part and denies in part the defendants’ motions to
dismiss. The court dismisses the personal-capacity claims against Sheriff Hickman and the County
1

The complaint names Hearing Officers Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas,
Blanca Estela Villagomez, and Jill Wallace.
2

The operative pleading is now the first amended complaint, (Docket Entry No. 54), and further
references to “the complaint” are to that pleading.
3

The complaint names County Judges Paula Goodhart, Bill Harmon, Natalie C. Fleming, John
Clinton, Margaret Harris, Larry Standley, Pam Derbyshire, Jay Karahan, Analia Wilkerson, Dan Spjut, Diane
Bull, Robin Brown, Don Smyth, Mike Fields, Jean Hughes, and Linda Garcia.
4

The court has also carefully considered pending litigation in substantially similar cases around the
country, including Rodriguiez v. Providence Community Corrections, Civil No. 15-1048 (M.D. Tenn. filed
Oct. 1, 2015), appeal docketed, Nos. 16-6127–29 (6th Cir. July 13, 2006); Walker v. City of Calhoun, Civil
No. 15-170 (N.D. Ga. filed Sep. 8, 2015), appeal docketed, No. 16-10521 (11th Cir. Feb. 9, 2016); Harris
v. City of Austin, Civil No. 15-956 (W.D. Tex. filed Oct. 27, 2015); Cain v. City of New Orleans, Civil No.
15-4479 (E.D. La filed Sep. 17, 2015); Welchen v. County of Sacramento, Civil No. 16-185 (E.D. Cal. filed
Jan. 29, 2016); Buffin v. City and County of San Francisco, Civil No. 15-4959 (N.D. Cal. filed Oct. 28, 2015);
as well as recently settled cases such as Thompson v. Moss Point, Civil No. 15-182 (S.D. Miss. Nov. 6, 2015);
Jones v. City of Clanton, Civil No. 15-34, 2015 WL 5387219 (M.D. Ala. Sep. 15, 2015); Cooper v. City of
Dothan, Civil No. 15-425 (M.D. Ala. June 18, 2015); Pierce v. City of Velda, Civil No. 15-570 (E.D. Mo.
June 3, 2015).
2

Judges. The court also dismisses the official-capacity claim against the Hearing Officers. The
Hearing Officers did not move to dismiss the claims against them in their personal capacities. Those
claims proceed. The court denies the motions to dismiss the claims against Sheriff Hickman and the
County Judges in their official capacities, and the court denies the motion to dismiss the claim
against Harris County.
The reasons for these rulings are explained below.
I.

Background
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 motions5 shows that bail procedures are administered in
Harris County as described below.
A.

The Sources of Bail Regulation

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.”

5

See Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (“[C]ourts must, as with any
motion to dismiss for failure to plead a claim on which relief can be granted, accept all factual allegations in
the complaint as true.” (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007); Leatherman
v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993)).

3

TEX. CODE CRIM. PRO. art. 17.15. In exercising this authority, five rules apply:
1.

The bail shall be sufficiently high to give reasonable assurance that the undertaking
will be complied with.

2.

The power to require bail is not to be so used as to make it an instrument of
oppression.

3.

The nature of the offense and the circumstances under which it was committed are
to be considered.

4.

The ability to make bail is to be regarded, and proof may be taken upon this point.

5.

The future safety of a victim of the alleged offense and the community shall be
considered.

Id. (emphasis added).

The Texas Code permits release of defendants accused of certain

misdemeanors after only a citation. Id., art. 14.06.6
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. 842974 (S.D. Tex. Nov. 25, 1987).7 The Roberson order required the County Criminal Courts at Law
to “implement and maintain a bond schedule for all misdemeanor offenses within their jurisdiction.”
Id. at 4. The bond schedule had to “establish the initial amounts of bail required in each type or
category of offense.” Id. Judicial officers had the authority “to order the accused released on
personal bond or released on other alternatives to prescheduled bail amounts.” Id. County Judges
had to “direct the Pretrial Services Agency to make every effort to insure that sufficient information

6

The Texas Code of Criminal Procedure gives the arresting officer discretion to cite-and-release for
Class A or B misdemeanors relating to possession of marijuana or certain other controlled substances,
criminal mischief causing damage up to $2,500, graffiti, theft of property or service up to the value of $2,500,
supplying contraband to prisoners, or driving without a license, including repeat offenses and causing damage
or injury while driving without a license. TEX. CODE CRIM. PRO. art. 14.06.
7

The order is available at Docket Entry No. 80, Ex. 1.

4

is available at the time of the hearings required herein for the Judicial Officer to determine an
accused’s eligibility for a personal bond or alternatives to prescheduled bail amounts.” Id. Hearings
to “set bail and review the accused’s suitability for release on an alternative to prescheduled bail
amounts” were to occur “as soon as a Judicial Officer is available after the accused is placed in a
jail operated by or under the authority of the Sheriff of Harris County.” Id. at 2. The Roberson court
agreed to enter additional orders if “a particular arresting agency shows a pattern of failing to
produce accused persons for the hearings required within 24 hours of arrest.” Id. at 3.
The Roberson order also substantially repeated the Texas Code of Criminal Procedure by
requiring that “bail determinations shall be according to the following criteria”:
1.

The bail shall be sufficiently high to give reasonable assurance that the undertaking
will be complied with;

2.

The nature of the offense for which Probable Cause has been found and the
circumstances under which the offense was allegedly committed are to be
considered, including both aggravating and mitigating factors for which there is
reasonable ground to believe shown, if any;

3.

The ability to make bail is to be regarded, and proof may be taken upon this point;

4.

The future safety of the victim may be considered, and if this be a factor, release to
a third person should also be considered; and

5.

The Judicial Officer shall also consider the accused’s employment history, residency,
family affiliations, prior criminal record, previous court appearance performance and
any outstanding bonds.

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 twothirds 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
5

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”:
4.2.3.1.1.

the bail shall be sufficiently high to give reasonable assurance that the
defendant will comply with the undertaking;

4.2.3.1.2.

the nature of the offense for which probable cause has been found and the
circumstances under which the offense was allegedly committed are to be
considered, including both aggravating and mitigating factors for which there
is reasonable ground to believe shown, if any;

4.2.3.1.3.

the ability to make bail is to be regarded, and proof may be taken upon this
point;

4.2.3.1.4.

the future safety of the victim and the community may be considered, and if
this is a factor, release to a third person should also be considered; and

4.2.3.1.5.

the criminal law hearing officer shall also consider the employment history,
residency, family affiliations, prior criminal record, previous court
appearance performance, and any outstanding bonds of the accused.

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

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categories.8 Id., Rule 12. Rule 12 lists five circumstances in which personal bonds “are disfavored,”
including that “the defendant has demonstrated a risk to reoffend or harm society” or “has previously
failed to appear in court as instructed.” Id.
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.
B.

The Alleged Postarrest Procedures

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).

8

The twelve misdemeanors for which personal bonds are favored include: (1) theft by check; (2)
driving with an invalid license; (3) gambling offenses; (4) illegal dumping; (5) fictitious vehicle license plate
or registration; (6) prostitution; (7) violation of laws regulating sexually oriented businesses; (8) public
intoxication; (9) driving without a license; (10) class B criminal trespass; (11) class B retail theft; (12)
possessing marijuana or certain other controlled substances. RULES OF COURT, Rule 12.

7

The complaint alleges that the rules, customs, or practices work as follows:
•

Misdemeanor arrestees in Harris County are taken either to field offices or directly to the
County Jail for processing after arrest. (Id. ¶ 35).

•

When a person is arrested without a warrant, “the arresting officer will determine whether
the Harris County District Attorney’s Office wishes to pursue the charge by calling a hotline
that is staffed 24 hours a day, 7 days a week by Harris County’s assistant district attorneys.”
(Id. ¶ 36). If the district attorney decides to pursue the charge, she instructs the arresting
officer to impose money bail. (Id. ¶ 38). The Harris County Rules of Court require the
district attorney to “follow the bail schedule” or provide “a signed order from a judge or
judicial officer setting bail at a different amount.” RULES OF COURT, Rules 2.3.1.1–2.

•

If a person is arrested under a warrant, the amount that the bond schedule sets is written on
the warrant. (Docket Entry No. 54 ¶ 43).

•

According to the complaint, “[a]t no point does any person perform any inquiry into the
arrestee’s ability to pay the money bail amount written on the schedule” during the arrest or
consultation with the district attorney’s office. (Id. ¶ 38).

•

At the field office or at booking at the Harris County Jail, arrestees able to pay the set bail
amount and who are subject to no other reason for detention may post bond and be released
at this point, within a few hours after arrest. (Id. ¶¶ 41–42, 44).

•

For arrestees taken to the Harris County Jail for booking, the Sheriff’s deputies and Pretrial
Services personnel know whether the arrestee is subject to any non-monetary holds, and
whether those without holds can pay the secured money bail amount and be released or not.
(Id. ¶ 40, 44, 101).

•

Those who can afford to pay may avoid detention in different ways. If an arrestee’s
8

application to a for-profit bail bond agent is accepted, the arrestee can pay a nonrefundable
fee to the bail bond agent and the agent will stand surety for the arrestee’s release. The
complaint alleges that the fee in Harris County usually exceeds 10 percent of the scheduled
bond amount for low money bail amounts. (Id. ¶ 44 n.8). Those aware of outstanding arrest
warrants may proactively pay the bonding agency fee for a “non-arrest bond” and avoid
arrest and detention altogether. (Id. ¶ 123). Those who can obtain counsel may arrange
payment of bail at a courthouse, set a court date, and avoid the process of arrest and
detention. (Id. ¶ 124).
•

Those without sufficient money to pay bail are limited to a track that subjects them to longer
detention than wealthier arrestees. That discrepancy is the basis for this suit.

•

Those who cannot (or do not) pay the scheduled bail amount are booked into the County Jail.
(Id. ¶ 44). At booking, Harris County Pretrial Services prepares an informational form on
each arrestee, recording personal information, criminal history, employment information,
and information about sources of income and family support. (See Docket Entry No. 80 at
15–16). This information gives the Hearing Officer, and other officers, the basis to know
if the defendant is eligible for release on nonfinancial conditions and cannot afford the
prescheduled, or any, amount of bail. (Docket Entry No. 54 ¶ 101).

•

After booking, arrestees are taken to a room in the jail. They appear by videolink before a
Hearing Officer—a County magistrate judge. (Id. ¶ 51). This is the first judicial officer the
defendant encounters. The hearing is conducted entirely by videolink, and indigent arrestees
do not yet have a lawyer provided to them. (Id. ¶¶ 69–70).

•

The Hearing Officer determines if there is probable cause for the arrest and sets bail. (Id.).
In setting bail, the Hearing Officer, like the district attorney, must “refer[]” to the bail
9

schedule, but the Hearing Officer may modify the bail amount or grant an unsecured
personal recognizance bond under the Roberson factors codified in the County Rules of
Court. RULES OF COURT, Rules 4.2.2.1.11 and 4.2.3.1. The Hearing Officer has available
at the videolink hearing the information on each arrestee’s prior record, including arrests or
convictions for felonies or violent acts, and information about any other nonfinancial reasons
for continued pretrial detention with no bail or a higher bail amount. (Docket Entry No. 54
¶ 101). The Hearing Officer also has the arrestee’s financial information collected by
Pretrial Services. (Id.).
•

While “[t]he County strives to hold these hearings within 24 hours of arrest for people
charged with misdemeanors,” and “[i]t usually takes between 8 and 24 hours for a person
arrested in Harris County to be given a probable cause hearing,” the complaint alleges that
“hundreds of people every month must wait several days as a matter of practice.” (Id. ¶ 51,
58). In addition to the facts of the plaintiffs’ arrests, described below, the complaint
provides a sampling of arrest data from the Harris County district clerk’s website on August
30, 2016. That data shows four arrestees who had been held for at least two or three days
without a videolink hearing before a Hearing Officer.9 (Id. ¶ 47 n.10).

•

The videolink hearing before a Hearing Officer is a brief, “rote exercise.” (Id. ¶ 67). By
rule, each video hearing is recorded and the recording is maintained for at least 120 days.
RULES

OF

COURT, Rule 4.2.1.1.

Hundreds of these recordings—according to the

complaint—demonstrate their perfunctory nature. The hearings typically last a minute or
less. (Docket Entry No. 54 ¶ 67). The misdemeanor defendants are warned not to

9

The plaintiffs allege that the four arrestees, Julio Ruiz, Blanchard B. Stewart, Michael Ray Mata,
and Oscar Balbarbo, had no nonfinancial holds on their records and were detained solely “because they had
not paid their money bail.” (Docket Entry No. 54 ¶ 47 n.10).

10

speak—about anything—lest they incriminate themselves. (Id. ¶ 69). The Hearing Officers
routinely, as a matter of consistent practice, apply the bail schedule without raising or
considering any arrestee’s financial circumstances; without considering a lower bail or
alternatives to secured financial bail; and without permitting the arrestee to speak, much less
meaningfully raise an inability to pay bail or seek release on a personal bond. (Id. ¶¶ 60,
64–73). Misdemeanor defendants who are granted personal bonds—8 percent of all
misdemeanor arrestees—are granted the bonds on the basis of the charge against them or
their criminal history, and not because their ability or inability to pay was considered. (Id.
¶ 79–80).
•

After the videolink probable-cause hearing, a misdemeanor defendant is taken to a County
Court at Law, usually within one business day after the probable-cause hearing. (Id. ¶ 96).
When the probable-cause hearing occurs on a Friday, the defendant remains in jail through
the weekend. If the following Monday is a holiday, the detention is extended to at least three
days. (Id.)

•

The appearance at a County Court at Law before a County Judge is the first formal adversary
proceeding for a misdemeanor defendant. Those who cannot afford counsel may have an
attorney appointed for them at this hearing.10 The complaint alleges that at this point, “there
is, as a matter of practice, no review of the money bail amount previously imposed.”
Instead, County Judges “reduce money bail amounts previously imposed in less than 1
percent of cases.” (Id. ¶ 97 (citing James Pinkerton and Laura Caruba, Tough bail policies
punish the poor and the sick, critics say, HOUSTON CHRONICLE, Dec. 26, 2015)).

10

Under Gideon v. Wainwright, 371 U.S. 344 (1963), the Sixth Amendment right to counsel attaches
at the initiation of adversarial proceedings against the accused. See also Massiah v. United States, 377 U.S.
201 (1964).

11

•

If an attorney is appointed at this hearing, that attorney may file a motion to reduce or
remove the money bail condition, but the complaint alleges that it typically takes at least one
week for these motions to be heard. (Id. ¶ 104). For these defendants, detention lasts until
at least a week after arrest. (Id.).
The complaint alleges significant consequences following a “systemic custom of setting

secured financial conditions of release based on the bail schedule without any inquiry into or
findings concerning an arrestee’s present ability to pay the amount set.” (Id. ¶ 17). During
processing at the County jail, an arrestee’s family members or legal counsel are unable to reach him
or her unless the scheduled bail amount can be paid. (Id. ¶¶ 49–50). If the bail is not paid, a
misdemeanor arrestee remains unreachable until assigned to a housing unit, sometimes days after
arrest and even after the probable-cause hearing before a Hearing Officer. (Id. ¶¶ 92–95).
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
12

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 in the individual cases in which they confirm the
scheduled bail amounts as the only available condition of release. (Docket Entry No. 54 ¶ 103). The
13

complaint alleges that the County Judges have additional unwritten practices and customs that they
require the Hearing Officers to follow, such as an unwritten policy that no homeless defendant may
be considered for release on a personal bond. (Id. ¶¶ 84–85).
C.

The Complaint Allegations as to the Individual Plaintiffs

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, 2016.11 (Id.).
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

11

None of the parties’ filings indicate when or under what circumstances Ms. ODonnell was released
from confinement. The County Judges produce a bond securing release for Ms. ODonnell signed May 20,
2016. (Docket Entry No. 80, Ex. 14).

14

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.12 According to a 2012 report, 81 percent of misdemeanor arrestees in
Harris County could not post bail at booking and were jailed. Most of the other 19 percent could
pay and were released on bond before or at booking. (Docket Entry No. 54 ¶ 52). Harris County
Pretrial Services annual reports indicate that in 2014, an average of 144 people were admitted to the
jail each day on misdemeanor charges; in 2015, 40 percent were still in detention when their cases
resolved, most often by a guilty plea. (Id. ¶ 53 nn.12–13, 108).
D.

Procedural History

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 they were both in pretrial detention. Civil No. 16-1436 (S.D. Tex. May 20, 2016).
The court consolidated the cases on August 18, 2016. (Docket Entry No. 41).
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.

12

The plaintiffs’ motion to certify a class under Federal Rule of Civil Procedure 23 will be heard
in February 2017.

15

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 (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.

16

II.

The Legal Standards
A.

Standing Challenges under Rule 12(b)(1)

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 redress the injury.” Croft v. Governor of Tex., 562 F.3d
735, 745 (5th Cir. 2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). As “the
party invoking federal jurisdiction,” the plaintiffs “bear[ ] the burden of establishing these elements.”
Lujan, 504 U.S. at 561. They must meet this burden “‘with the manner and degree of evidence
required at the successive stages of the litigation,’” which means that “on a motion to dismiss,
plaintiffs must allege facts that give rise to a plausible claim of . . . standing.” Cornerstone
Christian Sch. v. Univ. Interscholastic League, 563 F.3d 127, 133–34 (5th Cir. 2009) (quoting
Lujan, 504 U.S. at 561). When a complaint seeks multiple kinds of relief, the plaintiff must show
standing “for each type of relief sought.” Summers v. Earth Island Inst., 555 U.S. 488 (2009) (citing
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)).
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
17

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.
B.

Pleading Sufficiency under Rule 12(b)(6)

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 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (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 (citing Twombly, 550 U.S. at 555). “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). “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).
“[I]n deciding a motion to dismiss for failure to state a claim, courts must limit their inquiry
18

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 to dismiss, as well as the full text of documents that are partially quoted or referred
to in the complaint.” In re Sec. Litig. BMC Software, Inc., 183 F.Supp.2d 860, 882 (S.D. Tex. 2001)
(internal quotation marks omitted). Consideration of documents attached to a defendant’s motion
to dismiss is limited to “documents that are referred to in the plaintiff’s complaint and are central
to the plaintiff’s claim.” Scanlan v. Tex. A & M. Univ., 343 F.3d 533, 536 (5th Cir. 2003) (citing
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)). The court may
consider these extrinsic materials without converting to a summary-judgment motion. See Isquith
v. Middle S. Utils., Inc., 847 F.2d 186, 193 n.3 (5th Cir. 1988) (quoting 5 WRIGHT & MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1366).
C.

Section 1983

“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 (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 (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
19

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. “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 (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 (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 (1997). A claim against a municipal defendant
in her official capacity is the equivalent of a claim against the municipality itself. See Kentucky v.
Graham, 473 U.S. 159, 165 (1985).
“[S]uits against States and their agencies . . . are barred regardless of the relief sought” by
20

the Eleventh Amendment to the United States Constitution. Puerto Rico Aqueduct & Sewer Auth.
v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (citing Ex parte Young, 209 U.S. 123 (1908);
Cory v. White, 457 U.S. 85 (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).
D.

Abstention

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, 134 S.Ct. 584, 591 (2013)
(quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). In
Younger v. Harris, 401 U.S. at 37, 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).
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 (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
21

a state proceeding is inadequate. Pennzoil Co. v. Texaco Inc., 481 U.S. 1, 14 (1987) (citing Moore
v. Sims, 442 U.S. 415, 429–30 (1979); Younger, 401 U.S. at 45). 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.
III.

The Issues All the Defendants Raise
A.

The Plaintiffs’ Standing

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 she could not afford to pay any bail amount.
(Docket Entry No. 80 at 45–47).
The fugitive-disentitlement doctrine is discretionary, sparingly invoked, and rarely applied.
Degen v. United States, 517 U.S. 820 (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 § 1983.13 The doctrine is intended to prevent defendants

13

The defendants cite out-of-circuit cases to support applying the doctrine here. Those cases are
readily distinguishable. Sarlund v. Anderson, 205 F.3d 973, 975 (7th Cir. 2000) (dismissing appeal because
“[t]he risk of abuse of process is particularly great . . . given the number of defendants and the more than
likelihood that the suit is completely frivolous”); Hughes v. Colorado Dept. of Corr., Civil No. 07-354, 2009
WL 3074619, at *4 (D. Col. Sept. 21, 2009) (noting that the fugitive plaintiff’s legal representation was

22

appealing in criminal cases from obtaining a favorable ruling while escaping unfavorable results or
impending proceedings. See Degen, 517 U.S. at 820; Bright v. Holder, 649 F.3d 397, 400 (5th Cir.
2011); Giri, 507 F.3d at 835–36 (quoting Sapoundijev v. Ashcroft, 376 F.3d 727, 728–29 (7th Cir.
2004)). This case is not a criminal appeal, and Ms. ODonnell’s failure to appear in County Court
will not permit her to escape negative rulings this court might make. She seeks an injunction against
using only secured-money bail for misdemeanor defendants without considering their inability to
pay at the same time those able to pay bail can secure release. If the court rules against Ms.
ODonnell, she will continue to be subject to Harris County’s bail policies and practices. Neither the
law nor the record provides a basis to dismiss Ms. ODonnell’s claims under the fugitivedisentitlement doctrine.
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 (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.14
“severely compromised” by his absence); Colorado v. Platteville Police Dept., Civil No. 07- 486, 2008 WL
3669079, at *1, *3 (W.D. Wisc. Apr. 21, 2008) (dismissing plaintiff’s constitutional claim because plaintiff
had not communicated with lawyer, shown up for depositions, or responded to motions, thus severely
prejudicing defendants). The defendants do not argue that they have suffered prejudice from Ms. ODonnell’s
absence.
14

The defendants make the same argument with regard to Mr. Ford. Their motion to dismiss under
Rule 12(b)(1) is denied for the same reasons.

23

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,” because a County Judge granted her request for a personal bond “on the first business
day after her” probable-cause hearing. (Id. at 47). The defendants do not adequately account for
the calendar. A weekend intervened before the “next business day.” Ms. McGruder stayed in
detention on her misdemeanor charge for four days, despite the fact that, as the defendants admit,
she was eligible for prompt release on a personal bond based on her inability to pay and on the
absence of any other basis for detention. Whether Ms. McGruder received due process and equal
protection goes to the merits. This is not a proper standing objection under Rule 12(b)(1).
The defendants’ motion to dismiss the plaintiffs’ claims for lack of standing under Rule
12(b)(1) is denied.
B.

The Legal Standard for the Constitutional Challenges to Pretrial Detention
1.

Excessive Bail

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 (1951)); see also Schlib v. Kuebel, 404 U.S. 357, 365 (“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,
24

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.15 In this case, by contrast, the plaintiffs directly challenge an alleged systematic
policy of illegal detention in the timing of misdemeanor defendants’ release based on the inability
to pay bail and an alleged refusal to consider alternatives to secured money bail for misdemeanor
offenses, as state and federal law require. The plaintiffs do not challenge the existence of the bail
schedule or the specific amounts set out in the schedule, but rather the defendants’ alleged refusal
to consider any alternatives to financial-release conditions for misdemeanor defendants unable to
pay bail and the delay in considering the inability to pay as a basis for release. This case is not
properly characterized as an Eighth Amendment challenge to excessive bail.
2.

Equal Protection

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

15

See, e.g., McConnell, 842 F.2d at 106, 108 (defendant charged with two counts of bank fraud
carrying 5-year sentence; the court noted that “it is clear that the court was motivated by concern that
McConnell might flee”); Simon, 454 F.2d at 162–63 (defendant charged with felony assault on an officer
carrying life sentence); United States v. Cordero, 166 F.3d 334 (4th Cir. 1998) (unpublished table decision)
(defendant charged with a drug felony carrying 10-year sentence; the court noted that “the fact that a
defendant is financially incapable of satisfying the bail requirement does not violate the Eighth Amendment
if the district court finds that the defendant is a flight risk or a danger to the community” (citing McConnell,
842 F.2d at 109–10)); United States v. Jessup, 757 F.2d 378, 380 (1st Cir. 1985) (defendant charged with a
drug felony carrying a statutory presumption that a defendant will likely flee before trial).

25

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 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 (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 (1970); Tate v. Short, 401 U.S. 395 (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
26

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; Tate, 401 U.S. at 395).
These statements remain the applicable law in this circuit, based on subsequent case law
developments. In Williams, 399 U.S. at 235, the Supreme Court held that a facially neutral system
of imprisoning convicted defendants who did not pay their fines “works an invidious discrimination”
as applied to indigent defendants. Id. at 242. The majority did not explicitly call for heightened
scrutiny but used a functionally similar analysis, finding the government’s “substantial and
legitimate interest” in collecting revenue from fines did not justify an “invidious discrimination”
against those unable to afford the fines. Id. at 238, 242. A concurring opinion noted that the
majority had not applied ordinary rational-basis review to the Equal Protection Clause challenge.
See id. at 259 (Harlan, J., concurring in the judgment). In Bearden v. Georgia, 461 U.S. 660 (1983),
the Court acknowledged without taking a clear position that the Court’s equal protection
jurisprudence in collateral detention cases was “substantially similar to asking directly the due
process question of whether and when it is fundamentally unfair or arbitrary for the State to revoke
probation when an indigent is unable to pay the fine.” Id. at 665–66. The Court reasoned that the
answer to that question “cannot be resolved by resort to easy slogans or pigeonhole analysis, but
rather requires a careful inquiry into such factors as ‘the nature of the individual interest affected,
the extent to which it is affected, the rationality of the connection between legislative means and
27

purpose, [and] the existence of alternative means for effectuating the purpose . . . .” Id. at 666–67
(quoting Williams, 399 U.S. at 260 (Harlan, J., concurring)); see also Agreed Final Judgment,
Roberson, Civil No. 84-2974, at 1 (creating “a meaningful review of alternatives to pre-scheduled
bail amounts” to comport with the en banc Fifth Circuit’s Pugh decision, 572 F.2d at 1057–58).
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;
Bearden, 461 U.S. at 666. The “careful inquiry” the Court requires in this type of case calls for a
more demanding review. Bearden, 461 U.S. at 666.
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).16 That analysis requires this court to resolve critical factual disputes about

16

The defendants’ reliance on Welchen v. County of Sacramento, Civil No. 16-185, 2016 WL
5930563 (E.D. Cal. Oct. 10, 2016), is unavailing. The court in Welchen dismissed a similar bail challenge
under Rule 12(b)(6) because it was persuaded that the rational-basis standard applied and “[t]he state’s
interest in ensuring criminal defendants appear for trial dates is a legitimate one, and detaining individuals
before their arraignment is rationally related to that legitimate interest.” Id. at *11. The court relied on Harris
v. McRae, 448 U.S. 297, 322 (1980), in holding that rational-basis review is appropriate “[w]here a statutory
classification does not itself impinge on a right or liberty protected by the Constitution . . . .” But in this
circuit, Pugh and subsequent cases lead to a different analysis. The en banc Pugh court made clear that
“[r]ules under which personal liberty is to be deprived are limited by the constitutional guarantees of all . . . .
The incarceration of those who cannot [meet a money bail requirement], without meaningful consideration
of other possible alternatives, infringes on both due process and equal protection requirements.” 572 F.2d
at 1057; see also id. at 1058 (“We view such deprivation of liberty of one who is accused but not convicted
of crime as presenting a question having broader effects and constitutional implications than would appear
from a rule stated solely for the protection of indigents.”); Williams v. Farrior, 626 F.Supp. 983, 985 (S.D.
Miss. 1986) (“For the purposes of the Fourteenth Amendment’s Equal Protection Clause, it is clear that a bail
system which allows only monetary bail and does not provide for any meaningful consideration of other

28

the Harris County bail system. The parties dispute, for example, whether secured bail ensures
attendance at court proceedings, (compare Docket Entry No. 54 ¶ 132 with No. 80 at 37–38);
whether the plaintiffs had an opportunity to raise their inability to pay within 48 hours of arrest,
(compare No. 54 ¶¶ 21–32 with No. 80 at 46–48); and whether a typical misdemeanor defendant is
detained solely for inability to pay bail, (compare No. 54 ¶¶ 51, 121 with No. 80 at 20 n.28). On the
last point alone, the plaintiffs allege hundreds of misdemeanor defendants detained solely by
indigence; the defendants allege the number is “very small, if any.” (Id.). These disputes go to the
merits of the rationality and legitimacy of the government’s bail procedure. Without a developed
factual record these disputes cannot be resolved. A motion to dismiss is not the right way to resolve
these disputes.
The equal protection claim survives the motion to dismiss.
3.

Due Process

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 (1991); Gerstein v. Pugh, 420
U.S. 103 (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. While a rule

possible alternatives for indigent pretrial detainees infringes on both equal protection and due process
requirements.”); United States v. Flowers, 946 F.Supp.2d 1295 (M.D. Ala. 2013) (“[I]t violates the
Constitution’s guarantee of equal protection under the laws to convert a fine-only sentence into a prison term
based on inability to pay.”).

29

requiring courts to determine probable cause before every arrest “would constitute an intolerable
handicap for legitimate law enforcement,” id. at 113, 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 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. 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.
“Even then,” the Court noted, “every effort must be made to expedite the combined proceedings.”
Id. (citing Gerstein, 420 U.S. at 124).
The plaintiffs allege that although the Hearing Officers attempt to hold probable-cause
hearings within 48 hours after arrest, the hearings are at best fleeting and perfunctory. (Docket
Entry No. 54 ¶ 67). The misdemeanor arrestees appear by videolink. (Id. ¶ 56). The plaintiffs
allege that the Hearing Officers deliberately and inflexibly refuse to consider the inability to meet
financial conditions of release. Instead, the Hearing Officers mechanically impose the scheduled
bail amounts. (Id. ¶¶ 64–73). The arrestees are told not to speak. (Id. ¶¶ 23, 70). If this is a “bail
hearing” for Riverside purposes, it clearly does not include consideration of indigence. Nor is it
clear that the Riverside 48-hour presumptions would apply to the inquiry into the inability to pay
bail or the eligibility for release on nonfinancial conditions. These are both inquiries judicial
officers must make “every effort . . . to expedite.” Id. In the Fourth Amendment’s probable-cause
context, courts have held state actors to significantly shorter periods to conduct “administrative
30

tasks.” See, e.g., Sanders v. City of Houston, 543 F.Supp. 694 (S.D. Tex. 1982) (city enjoined from
detaining prisoners more than 24 hours to complete administrative tasks). Or courts have found
factual disputes that must be resolved before the court could rule on whether a delay was reasonable
under due process. See, e.g., Berry v. Baca, 379 F.3d 764 (9th Cir. 2004) (jury must determine
whether a 29-hour delay after authorized release was reasonable); Gramenos v. Jewel Companies,
Inc., 797 F.2d 432 (7th Cir. 1986) (jury must decide whether 4-hour delay between arrest and
appearance before magistrate was reasonable).
The 48-hour probable-cause-hearing standard announced in Riverside is not a safe harbor
for the defendants under Rule 12(b)(6).17 The plaintiffs do not challenge the timing of the probablecause hearings. They challenge the delay before any judicial officer allows a misdemeanor arrestee
an opportunity to raise the inability to pay bail or eligibility for release on a personal bond; they
challenge the Hearing Officers’ refusal to consider nonfinancial conditions of release; and they
challenge the refusal of the County Judges to allow categories of misdemeanor arrestees, including
those who are homeless, to be considered for release on nonfinancial conditions. The plaintiffs
allege customs or practices of delaying this hearing for up to a week, until indigent defendants have
court-appointed counsel who move for a hearing on the inability to pay bail or the eligibility for
release without financial conditions. (Docket Entry No. 54 ¶ 104).
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

17

Collins v. Ainsworth, 382 F.3d 529 (5th Cir. 2004), does not support a safe harbor. The Fifth
Circuit noted that under Mississippi law, “[t]here is no right to post bail within 24 hours of arrest.” Id. at 545.
The summary judgment evidence showed that the plaintiffs were arrested on Sunday night and able to post
bond on Monday morning, and that this delay was reasonable based on the practical need to bring judges to
the rural detention center. For that reason, and unlike the allegations in this case, the delay applied equally
to all arrestees. Those who could pay bail were not released any sooner than those who could not, and all
arrestees were released at the earliest practical opportunity.

31

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.18
Even if the law were clear that considering inability to pay bail within 48 hours of arrest is
sufficient due process, the plausible factual allegations in the complaint make dismissal
inappropriate. At least two of the named plaintiffs allegedly remained in detention for at least four
days before they could even raise their inability to pay bail and eligibility for release on a personal
bond before a judicial officer. (Docket Entry No. 54 ¶¶ 25–32). The plaintiffs allege that hundreds
of recorded probable-cause hearings show that Hearing Officers refuse to consider the inability to
pay bail or to consider alternatives to release on financial conditions. Statistical studies show that
the County Judges confirm the imposition of prescheduled bail amounts in 99 percent of the
misdemeanor-arrest cases. (Id. ¶¶ 51, 97). Even if 48 hours is the standard for due process—and
the parties agree that 48 hours would be the outer limit—the complaint alleges sufficient facts to
support a plausible inference that the defendants have violated the plaintiffs’ due-process rights.19

18

The claim is similar to that in Turner v. Rogers, 564 U.S. 431 (2011), in which the Supreme Court
found a Due Process Clause violation after a father was incarcerated for civil contempt without an inquiry
into his inability to pay child support and written state law required that such an inquiry be made. Id. at 449.
19

As Bearden, discussed above, noted, the level of review for due-process challenges to pretrial
detention is functionally similar to that for equal-protection challenges. 461 U.S. at 665–66. The defendants
point to Bell, 441 U.S. at 520, for the proposition that challenges to pretrial detention merit only rational-basis
review. Bell held that challenges to the conditions of pretrial detention—such as overcrowding, the quality
of food or of medical care, and the like—deserve rational-basis review. Challenges to the legality of the
detention itself merit the more searching review of Williams, 399 U.S. at 235, Tate, 401 U.S. at 395, Bearden,
461 U.S. at 665–66, and Pugh, 572 F.2d at 1056. See United States v. Salerno, 481 U.S. 739, 748–51 (1987)
(restrictions on pretrial release of adult arrestees must be carefully limited to serve a compelling governmental
interest); see also United States v. Montalvo-Murillo, 495 U.S. 711, 716 (1990) (release prior to trial is a
“vital liberty interest”); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has
always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental
action.”); Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th
Cir. 2014) (en banc) (applying strict scrutiny to challenge of pretrial detention under the Due Process Clause).

32

The due-process claim survives the motion to dismiss.
4.

The Conclusion on the Constitutional Challenges

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 (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 case
include whether detaining a misdemeanor arrestee solely because that individual cannot pay the
scheduled bail amount to obtain release on bond is rationally related to a legitimate government
interest or is sufficiently tailored to a substantial government interest to stand. A more developed
factual record is necessary to answer these questions.
The defendants’ motion to dismiss for failure to state a constitutional claim is denied.
C.

Younger Abstention

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
33

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 (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).
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 (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.
34

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.
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 raised as a defense in a subsequent criminal
prosecution. The complaint alleges that many misdemeanor defendants plead guilty to end their
pretrial detention. (Docket Entry No. 54 ¶ 100). The Fifth Circuit’s reasoning applies squarely to
a case such as plaintiff Robert Ryan Ford’s, in which a misdemeanor defendant moots his own
constitutional claims over the delay in obtaining release by pleading guilty to end that delay. (See
Docket Entry No. 80 at 23).
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 (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. 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, — F.App’x —, 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
35

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 (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
36

that a class action will be certified and meet Younger’s first factor. See Hicks v. Miranda, 422 U.S.
332, 349 (1975) (Younger abstention may apply if state proceedings are initiated after suit is filed
in federal court). Other courts have ruled that class certification satisfies the first factor of Younger.
See Mudd, 437 F.Supp. at 510 (“The definition of the plaintiff class virtually guarantees that some
proceeding involving at least one member of the class is now pending or will be pending in [state
court] at the time an order is entered in this case.”), aff’d, 482 F.2d 1283 (7th Cir. 1978)
(“proceedings are now in process for other members of the plaintiff class”). The second and third
factors, however, must also be satisfied.
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 (“[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
(“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 (1977); Juidice v. Vail, 430 U.S. 327 (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 (1973). To find that the plaintiffs have an adequate hearing on their constitutional
37

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)).
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 would decline to decide most cases raising those challenges, no matter how
significant. See Sprint, 134 S.Ct. at 593 (“Divorced from their quasi-criminal context, the three
Middlesex conditions would extend Younger to virtually all parallel state and federal proceedings.”).
Careful case management to allow time for reform, not abstention, is the better response to the
defendants’ argument. The defendants’ hope for resolution on such a basis is not appropriately

38

considered a factor supporting dismissal based on Younger.20
The defendants’ motion to dismiss under Younger abstention is denied.
IV.

Section 1983’s Application to Particular Defendants
A.

Does each defendant make policy for Harris County, represent the State of
Texas, or act in a personal capacity?

“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 (1988) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (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 (1989) (quoting Praprotnik, 485 U.S. at 124 n.1). “[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.
In McMillian v. Monroe County, 520 U.S. 781 (1997), the Supreme Court found that an
Alabama sheriff alleged to have suppressed exculpatory evidence was not a final county

20

The Second Circuit has extended Younger’s comity principles to administrative and legislative
regulation of criminal procedure, including bail procedures. See Kaufman v. Kaye, 466 F.3d 83 (2d Cir.
2006) (citing Wallace v. Kern, 481 F.2d 621 (2d Cir. 1973); Wallace v. Kern, 499 F.2d 1345 (2d Cir. 1975);
Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975)). Some courts outside the Second Circuit have found this
reasoning persuasive. See Mudd, 437 F.Supp. at 512–13; Mounkes, 922 F.Supp. at 1512–13. The Fifth
Circuit has not extended Younger this far, and the defendants’ reliance on Second Circuit case law does not
save their argument.

39

policymaker under § 1983, but rather “represents the State of Alabama.” Id. at 783. 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; see also Pembaur, 475 U.S. at 483
(“[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.”).
The Court considered numerous factors to determine whether a sheriff allegedly acting to
approve a policy of suppressing exculpatory evidence did so as a state or as a county policymaker.
Support for treating the sheriff as a state policymaker included general factors such as the sheriff’s
inclusion in the state constitution’s executive article, the sheriff’s subjection to the same
impeachment procedures as state officers, the state-court rulings holding sheriffs liable as state
actors for ordinary torts, the governor and state attorney general’s power to direct the sheriff’s
enforcement procedures, and the fact that state statutes directed the sheriff to enforce state law in
local counties but withheld authority to enforce criminal law from the counties themselves. Factors
supporting the sheriff’s role as a final policymaker for the county included the county’s payment of
his salary and supply of his equipment, the fact that his jurisdiction was coterminous with county
borders, and the fact that the sheriff was elected solely by county voters. The Court majority
decided that the balance tipped in favor of finding the sheriff a state actor for the alleged policy of
suppressing exculpatory evidence, noting that “[t]he county’s payment of the sheriff’s salary does
not translate into control over him, since the county neither has the authority to change his salary
nor the discretion to refuse payment completely.” Id. at 791. The four dissenters largely agreed on
40

the relevant factors but disagreed about their relative weight. The dissenters would have treated the
final three factors—the county’s salary payments and the limit of the sheriff’s jurisdiction and
constituency to the county—decisive and find that the sheriff was a county policymaker under §
1983. Id. at 804 (Ginsburg, J., dissenting). The question is fact-intensive and requires careful
judgment under applicable law.
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,”
41

but that the Sheriff “releases arrestees who pay their money bail,” generally before or at the booking
stage. (Id. ¶ 11, 42).
Harris County responds that it cannot be liable under § 1983 because under the McMillian
factors, the County Judges administering bail procedures are policymakers (if at all) for the State
of Texas, not Harris County. (Docket Entry 83 at 12–19). The County argues that it cannot be liable
for the Hearing Officers’ practices because these are subject to the County Judges’ review, so the
Hearing Officers cannot be “final” policymakers for the County. (Id. at 24–25). The County argues
that because the Sheriff does not make bail policy for Harris County, his jail-administration practices
cannot be the “moving force” behind the constitutional violations the plaintiffs allege. (Id. at 9–11
(citing Piotrowski, 237 F.3d at 580)).
The § 1983 policymaking liability of each party is considered in turn.
1.

The Harris County Criminal Courts at Law Judges

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 twothirds 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
42

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.
a.

The County Judges make policy for Harris County by enacting
written bail procedures.

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.
A statutory county court has the same jurisdiction and is regulated by the same rules as a

43

constitutional county court. Id. § 25.0003. The County Commissioners Court, an administrative
body made up of Harris County-elected commissioners and a presiding County Judge, sets the
County Judges’ salaries, fills any County Court vacancy, and provides the County Court’s facilities,
equipment, and personnel such as clerks, sheriffs, and lawyers.21 Id. § 25.0005–10; TEX. CONS. ART.
V, § 18(b). Harris County Judges are elected by Harris County voters. TEX. CONS. ART. V, § 15.
The Harris County Criminal Courts at Law have exclusive original jurisdiction over Class A and
Class B misdemeanors (which can result in fines greater than $500 or prison sentences) in Harris
County. See TEX. GOV’T CODE § 26.045.
“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

21

The presiding judge is the county judge of the constitutional county court, not the statutory county
courts at law. TEX. CONS. ART. V, §§ 15–18.

44

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).22 State law does not require the policy choices the plaintiffs allege and
challenge here. State law does not require the County Judges to use only secured money bail based
solely on the scheduled bail amounts, rather than unsecured or personal bonds. See RULES OF
COURT 9.1. State law does not require district attorneys to apply the bail schedule without
considering ability to pay. See id., Rule 2.3. State law does not prevent misdemeanor arrestees from
raising the issue of their inability to pay and eligibility for release on nonfinancial conditions until

22

Harris County’s submission of supplemental authority, (Docket Entry No. 114), misses this point.
The County suggests that recent resolutions from the Texas Judicial Council on bail policy and practices in
the State shows that regulating bail is exclusively a matter of state legislation and policy. But the fact that
the Judicial Council recommends state legislation or a constitutional amendment shows only that the Judicial
Council would prefer bail regulation to become regulated exclusively by the State. “Authority to make
municipal policy may be granted directly by a legislative enactment or may be delegated by an official who
possesses such authority.” City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). Under the current Texas
Government Code, authority to act has been delegated to county judges, who make local policymaking
decisions regulating bail procedures.

45

they have counsel and are before a County Judge rather than a Hearing Officer. See id., Rule 24.3.

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. 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.23
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;

23

For the same reason, the County Judges’ argument that “[s]ince Plaintiffs are challenging directly
Texas Code of Criminal Procedure Article 17.15, the Texas Attorney General is clearly a necessary and
proper party” fails. (Docket Entry No. 80 at 1 n.1). The complaint does not challenge the Roberson or Code
of Criminal Procedure factors as written, or as adopted by the County Rules of Court. The complaint
challenges: (1) the other written procedures the County Judges have promulgated in their discretion within
the Roberson/Code factors, and (2) the alleged practices of county officers that systematically contravene the
rules as written. Challenged court rules are not “state statutes” for purposes of Federal Rule of Civil
Procedure 5.1. See, e.g., McKay v. Federspiel, Civil No. 14-10252, 2014 WL 1400091, at *9 (E.D. Mich.
Apr. 10, 2014).
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.

46

(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.24 The County defendants also note that the Fifth Circuit has treated Texas
district judges as state actors under § 1983. See Hamill v. Wright, 870 F.2d 1032, 1037 (5th Cir.
1989) (Texas district judges were not acting as county policymakers when they failed to appoint
counsel in a civil contempt proceeding); Clanton v. Harris County, 893 F.2d 757, 758 (5th Cir.
1990) (per curiam) (same).
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

24

See also Ward v. City of Norwalk, 640 F.App’x 462, 464 (6th Cir. 2016) (“The Akron Municipal
Court is part of the Ohio state court system, established by the Ohio legislature. It is subject to the
supervision of the Ohio Supreme Court. The municipal court may not be abolished by the city council, nor
may the council expand or restrict the court’s jurisdiction.” (quoting Foster v. Walsh, 864 F.2d 416, 418–19
(6th Cir. 1988)).

47

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. 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.
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 cases.” Id. § 75.403(d)(3). Harris County
provides the equipment and funds for the Criminal Courts at Law County Judges to operate, and to
pay their salaries. Id. § 25.0005, 25.0010. The County Judges’ jurisdiction is geographically
48

coterminous with Harris County’s borders. Only Harris County voters elect the Harris County
Judges. Id. § 25.1033. The County Commissioners Court fills County Court vacancies. Id. §
25.0009. Case law emphasizes the “unique structure of county government in Texas” that grants
county judges “numerous executive, legislative and administrative chores in the day-to-day
governance of the county.”25 Briscoe, 619 F.2d at 404. Promulgating written rules, procedures, or
policies, as well as overseeing unwritten customs or practices regulating bail, in all misdemeanor
cases in every Harris County court, is among the County Judges’ legislative and administrative
powers and duties in Harris County governance. As to both the written policies and procedures and
the informal customs and practices challenged in this case, the County Judges have “virtually
absolute sway over the particular tasks or areas of responsibility entrusted to [them] by state statute
and accountability to no one other than the voters for [their] conduct therein.” Bigford, 834 F.2d at
1222 (internal quotation marks omitted).
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

25

The last three factors distinguish Texas county government from the Indiana county courts and
case law examined in Woods, 940 F.2d at 279. See, e.g., Parsons v. Bourff, 739 F.Supp. 1266, 1267 (S.D.
Ind. 1989) (vacancy appointment by governor was an important factor for finding that the court clerk acts on
the behalf of the state); Pruitt v. Kimbrough, 536 F.Supp. 764, 766 (N.D. Ind. 1982) (“County government
has no judicial branch under Indiana law . . . . Accordingly, Article 2 of Title 36 of the Indiana Code relating
to county government, makes no reference to any county judicial office,” and Lake County judges “are
appointed initially through a non-partisan selection process by the governor.”).
These factors also distinguish Texas county judges from the Texas district judges, who have been
found to be state actors under § 1983. See Hamill, 870 F.2d at 1037. District judges do not preside over the
County Commissioners Courts. Judicial districts may encompass more than one county, and district court
vacancies are filled not by a county commissioners court but by the governor. TEX. CONST. ART. V, § 28;
TEX. GOV’T CODE § 24.025.

49

to the county.” Davis v. Tarrant County, 565 F.3d 214, 227 (5th Cir. 2009) (quoting Kruegar 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 him to jail without appointing him
counsel or obtaining a waiver of his right to counsel. Id. at 93. Affirming dismissal of the plaintiff’s
§ 1983 claims, the panel explained that “[w]e have repeatedly held . . . that a municipal judge acting
in his or her judicial capacity to enforce state law does not act as a municipal official or lawmaker.”
Id. at 94 (citing Bigford , 834 F.2d at 1221–22; Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.
1985); Briscoe, 619 F.2d at 404). The Circuit recognized that its previous decision in Briscoe
distinguished “administrative duties,” which might be actionable as municipal policy under Monell,
from a judge’s “judicial function, in which he or she effectuates state policy by applying state law.”
Id. The Johnson plaintiff did not argue that the municipal judge had jailed him pursuant to
“administrative or other non-judicial duties,” but only that “the municipal judge [was] a final
policymaker whose official actions constitute municipal policy.” Id. The panel rejected the
argument, explaining that it “ignores the distinction we have consistently drawn between a judge’s
50

judicial and administrative duties. Only with respect to actions taken pursuant to his or her
administrative role can a judge be said to institute municipal policy under . . . Monell.” Id.
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
51

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, 958 F.2d at 94. The plaintiffs allege that the
written bail schedule and rules have been amended by the customs or practices that require acrossthe-board rigid application in all courts of secured financial bail without considering eligibility for
release on nonfinancial conditions or the inability to pay bail until after counsel is appointed and
makes a motion raising these issues. The plaintiffs allege that the County Judges “provide[] blanket
generic instructions” knowingly ratifying these customs and practices. (Docket Entry No. 54 ¶ 19).
The alleged customs or practices do not give a judge discretion in any case to pick among alternative
approaches. The alleged customs or practices impose rules for every case in every court. Even after
the written Rules of Court were formally amended to “favor” release on personal recognizance for
those arrested for twelve categories of misdemeanors, (Docket Entry No. 80 at 19), the County
Judges allegedly continue to follow the customs or practices of requiring district attorneys and
Hearing Officers to apply the bail schedule to require financial conditions of release for all
misdemeanor defendants, and to impose the prescheduled bail amounts, detaining all those who
cannot pay and delaying any opportunity to raise the inability to pay until long after wealthier
defendants have posted bond and been released, (Docket Entry No. 54 ¶¶ 71–73, 84–85).
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
52

Circuit. See Davis, 565 F.3d at 227; see also DeLeon v. City of Haltom City, 106 F.App’x 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 F.App’x 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 judgespecific 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 (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 647, 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 County’s motion to dismiss on the this basis
53

is denied.
b.

The County Judges represent the State of Texas in their direct
enforcement of article 17.15 of the Texas Code of Criminal
Procedure.

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. 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.
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.26
(Docket Entry No. 80 at 17 and Ex. 4). They also sent a letter dated November 18, 2016 to all

26

The court takes notice of this and the following letter as a public record or alternatively under the
instruction that “[i]n so attaching [documents to a motion to dismiss], the defendant merely assists the plaintiff
in establishing the basis of the suit, and the court in making the elementary determination of whether a claim
has been stated.” Collins, 224 F.3d at 499.

54

counsel who practice in the Harris County Criminal Courts at Law. Again, all sixteen County
Judges signed. This letter encouraged attorneys to review bail settings at their clients’ initial court
appearances. (Docket Entry No. 106 at 19 and Ex. 6). As noted, however, the initial counseled
court appearances are usually after the probable-cause hearing and varying periods after wealthier
defendants who can pay the scheduled bail amounts do so and are released.
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.
c.

The County Judges are not proper parties in their personal
capacities.

The complaint seeks injunctive and declaratory relief against the County Judges in both their
official and personal capacities. (Docket Entry No. 54 ¶ 20). The plaintiffs concede that a claim
against a municipal policymaker acting in an official capacity is redundant to a claim against the
municipality when it is a party. (Docket Entry No. 92 at 35); see also Graham, 473 U.S. at 165–66.
By contrast, a claim against State officers acting in their official capacity is not duplicative of a
claim against the State because the State has Eleventh Amendment immunity from suit. State actors
sued in their official capacity under § 1983 may be proper parties when the claim seeks prospective
relief only. Young, 209 U.S. at 123. State officers acting in their official capacity are not liable for
55

damages under § 1983 but may be sued for damages in their personal capacities. Will v. Michigan
Dep’t. of State Police, 491 U.S. 58 (1989).
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 (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.27 The claims for relief against the sixteen
County Judges in their personal capacities are dismissed.
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.
2.

The Harris County Sheriff
a.

The Sheriff is a County Policymaker to the extent he knowingly
enforces invalid orders of detention.

27

Courts outside this circuit have held that injunctive relief is categorically unavailable in personalcapacity § 1983 suits. See Hill v. Shelander, 924 F.2d 1370, 1374 (7th Cir. 1991) (“[I]njunctive relief against
a state official may be recovered only in an official capacity suit.”); accord Marsh v. Kirschner, 31 F.Supp.2d
79, 80 (D. Conn. 1998); Hernandez v. Kiley, Civil No. 86-7948, 1987 WL 12194, at *2 (N.D. Ill. June 5,
1987) (plaintiffs must “surrender . . . the request for injunctive relief” if they persist in an a personal capacity
suit).

56

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 long been recognized that, in Texas, the county sheriff is the county’s final
policymaker in the area of law enforcement by virtue of the sheriff’s election to office.” Colle v.
Brazos Cty., Tex., 981 F.2d 237, 244 n.35 (5th Cir. 1993) (quoting Turner v. Upton County, 915 F.2d
133, 136 (5th Cir. 1990)).
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 F.App’x 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
57

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
58

court orders he enforced were invalid. (Docket Entry No. 100 at 2–5). But these arguments show
why De Luna’s reasoning does apply. Fines, as Sheriff Hickman notes, are imposed only after
conviction and “are purely punitive.” (Id. at 3). De Luna made clear that a misdemeanor conviction
does not strip away due-process rights, including the right to raise the inability to pay a fine-only
punishment before that punishment is converted into detention. See De Luna, 286 F.Supp. at 647
(citing Doe, 733 F.Supp. at 248–49; Bearden, 461 U.S. at 665). The due process concerns in De
Luna apply with greater force to pretrial bail, because those arrested and charged but not convicted
“remain clothed with a presumption of innocence and with their constitutional guarantees intact.”28
Pugh, 572 F.2d at 1056.
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

28

See also U.S. SOI, Varden v. City of Clanton, Civil No. 15-34, 2015 WL 5387219 (M.D. Ala. Sept.
14, 2015) (rule that the Fourteenth Amendment “prohibits punishing a person for his poverty, and this
includes deprivations of liberty based on the inability to pay fixed-sum bail amounts . . . applies with special
force” to pretrial defendants).

59

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 Bryan Cty., 520 U.S. at 404). Harris County argues that Sheriff Hickman
is not a municipal policymaker as to the rules, customs, or practices at issue because his decisions
are not the “moving force” behind the plaintiffs’ alleged injuries. (Docket Entry No. 84 at 13–14).
The County argues that the bail schedule is the policy about which the plaintiffs complain, but “the
sheriff does not fix bail.” Walker v. Hodge, 4 F.3d 991, 991 n.2 (5th Cir. 1993).
The facial validity of the bail schedule or the amounts of bail is not what the plaintiffs
60

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
61

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.
b.

The Sheriff represents the State of Texas to the extent he enforces
judicial orders of detention.

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 Constitution’s judiciary article. A sheriff can be
removed from office by state district judges presiding over the sheriff’s county.29 The Texas Code
of Criminal Procedure provision setting out the factors that guide an officer’s discretion to set bail
apply to “the court, judge, magistrate, or officer taking the bail.” TEX. CODE CRIM. PRO. art. 17.15.
An “officer taking the bail” includes the jailer. Id. art. 17.025. Although typically “the sheriff does
not fix bail,” Walker, 4 F.3d at 991 n.2, and the Texas Code of Criminal Procedure requires a sheriff
to execute “legal process which it is made his duty by law to execute,” art. 2.16,30 the five-factor
discretionary test for setting bail applies by its terms to the Harris County Sheriff. The plaintiffs
allege that the Sheriff detains misdemeanor defendants on bail before a Hearing Officer sets bail and

29

The Fifth Circuit has held that district judges are state actors under § 1983 when they execute their
duty to appoint counsel. See Hamill, 870 F.2d at 1037.
30

See also TEX. LOCAL GOV’T CODE § 85.021 (“The sheriff shall execute all process and precepts
directed to the sheriff by legal authority.”).

62

does so under conditions that prevent access to counsel or to family absent an offer to pay the
scheduled bail amount. (Docket Entry No. 54 ¶¶ 40, 48–51, 90–94).
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). The relevant Texas and
California statutes are similar,31 and Buffin’s reasoning is persuasive here. The parties dispute

31

Compare CAL. PENAL CODE § 1268 (defining admission to bail as the order of a competent court
or magistrate) with TEX. CODE CRIM. PRO. art. 16.16–17 (granting judges of the court of appeals, district
courts, and county courts the authority to admit to bail or issue warrants of detention for insufficient bail

63

whether Sheriff Hickman acts with knowledge of, or with deliberate indifference as to whether,
misdemeanor defendants are detained for no reason other than their inability to pay. Based on the
current pleadings and record, prospective relief could run against the Sheriff in his official capacity
as a State officer tasked by State statutes with detaining misdemeanor arrestees in County Jail. See
also Echols v. Parker, 909 F.2d 795, 800 (5th Cir. 1990) (a district attorney was a state actor in
enforcing a state anti-boycott statute and the state was liable for attorney’s fees under § 1988).
Factual disputes as to what the Sheriff knew when misdemeanor arrestees were detained in the
County Jail solely because they could not afford to pay bail precludes dismissal of the claims against
the Sheriff in his official capacity.
c.

The Sheriff is not a proper party in his personal capacity.

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.32 The plaintiffs do not
seek damages but rather prospective relief against the Harris County Sheriff’s office. To the extent
the Sheriff is a final policymaker for Harris County, the suit against him in his official capacity is
duplicative of the suit against Harris County. Should the facts show that the Sheriff enforces facially
valid process without actual knowledge of, or deliberate indifference as to whether there is, a
constitutional violation, the Sheriff in his official capacity is a proper party as a State actor subject
to prospective relief under Ex parte Young. See Buffin, 2016 WL 6025486, at *9. The personalcapacity claim against Sheriff Hickman is dismissed.
collected). Compare CAL. PENAL CODE § 1269b (requiring judges to set a bail schedule and hold bail
hearings and sheriffs to accept bail and release defendants as provided by the judicial warrants) with TEX.
CODE CRIM. PRO. art. 15.17 (requiring a sheriff to produce a defendant before a magistrate and permitting
the magistrate to admit the accused to bail); art. 17.15 (requiring the court, judge, magistrate or officer taking
the bail to regulate the amount of bail), art. 17.20 (empowering sheriffs to take bail), art. 17.29 (requiring
release of defendants who pay bail).
32

See Part IV.A.1.c. above.

64

3.

The Harris County Hearing Officers

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 decide among the alternative bail procedures the Texas Code and Harris
County Rules make available to them. See Pembaur, 475 U.S. at 482–83. For purposes of

65

municipal liability, the Hearing Officers’ supervisors—the County Judges—are the proper parties.33
See Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999) (“A court’s task is to identify
those officials or governmental bodies who speak with final policymaking authority for the local
government actor concerning the action alleged to have caused the particular constitutional or
statutory violation.”); accord Truvia v. Julien, 187 F.App’x 346 (5th Cir. 2006) (dismissing suit
against an assistant district attorney because only the district attorney was a final policymaker of the
challenged policy); see also Rhode v. Denson, 776 F.2d 107, 110 (5th Cir. 1985) (a constable
subordinate to a county judge “a fortiori could not alone make policy for [the] County”). The
County Judges allegedly know of the Hearing Officers’ custom or practice, approve it, and
informally direct or implicitly allow it be official County policy. The Hearing Officers cannot make
county policy by their customs or practices; they provide the basis for the County Judges to do so.
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

33

In their filing of supplemental authority, (Docket Entry No. 118), the County Judges argue that
they do not supervise the Hearing Officers because only three County Judges sit on a board with six other
judicial officials to appoint hearing officers. TEX. GOV’T CODE § 54.852. For the reasons explained above,
the court finds that the County Judges’ appointment power is one factor of their control. The board can
appoint, oversee, and terminate hearing officers with or without cause, and the board can act with a quorum
of six judges, of which the County Judges can make up half. The County Judges also promulgate the written
Rules of Court that direct the Hearing Officers in setting bail, and the complaint alleges that the County
Judges promulgate unwritten instructions and acquiesce in the known practices of the Hearing
Officers—practices the County Judges could correct in their written Rules but choose not to do so. (See, e.g.,
Docket Entry No. 54 ¶¶ 19, 56, 84–85). The County Judges rely on a letter they wrote to the Hearing Officers
on August 8, 2016, to argue that the court should abstain from hearing this case because the County Judges
are effectively proceeding to reform the system. (Docket Entry No. 80 at 17 and Ex. 4). They now argue that
this letter provides no evidence of their supervisory control of the Hearing Officers. (Docket Entry No. 118
at 3). The County Judges cannot have it both ways. If the letter meaningfully instructed the Hearing Officers
in their duties under the law, it is at least one additional factor showing that the County Judges act in a
supervisory administrative or enforcement-officer role over the Hearing Officers.

66

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 not become a non-judicial act merely because it is illegal.”).
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.
4.

Conclusion on Municipal Liability for Harris County

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. “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. 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
67

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. 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
68

behalf, the County Judges and Sheriff are liable for prospective relief in their official capacities.
Young, 209 U.S. at 123.
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 declaratory relief
against them in their personal capacities, which they do not move to dismiss.
B.

Are the defendants immune from suit or from liability?
1.

Harris County

“[M]unicipalities, unlike States, do not enjoy a constitutionally protected immunity from
suit.” Jinks v. Richland Cty., 538 U.S. 456, 466 (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 (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.
2.

Harris County Officials

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.34 But county officials may be immune under § 1983 when they either: (1) act in a

34

See, e.g., De Luna v. Hidalgo County, 853 F.Supp.2d 623, 626 n.1 (S.D. Tex. 2012); Brown v.
Harris County, Civil No. 7-644, 2010 WL 774138, at *14 (S.D. Tex. Mar. 2, 2010); Allen v. County of
Galveston, Civil No. 7-341, 2009 WL 890452, at *4 (S.D. Tex. Mar. 30, 2009); Delgado v. Webb County,

69

legislative capacity on behalf of the State, Tenney v. Brandhove, 341 U.S. 367, 379 (1951); or (2)
act in a judicial capacity as either state or municipal actors, Pierson v. Ray, 386 U.S. 547, 553–54
(1967). Legislative immunity for state legislators is absolute as to both suits for damages and for
prospective relief. Supreme Court of Virginia, 446 U.S. at 734. Judicial immunity is absolute as
to damages suits. Pierson, 386 U.S. at 553–54. The Federal Courts Improvement Act of 1996, Pub.
L. No. 104–317, amended § 1983 to make judicial officers acting in their judicial capacities immune
from injunctive relief unless “a declaratory decree was violated or declaratory relief was
unavailable.” 42 U.S.C. § 1983.
a.

The County Judges

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. 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
immune from suit. Id. at 732–34.
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

Civil No. 4-182, 2006 WL 133468, at *2 (S.D. Tex. Jan. 17, 2006); Connor v. Harris County, Civil No. 8878, 1992 WL 337420 (S.D. Tex. Sep. 17, 1992).

70

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 (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. The Court has also extended legislative immunity
to local legislators sued for damages in their personal capacities. See Lake County Estates v. Tahoe
Regional Planning Authority, 440 U.S. 391, 405 (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 (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 (“Regardless of the level of government, the exercise
of legislative discretion should not be inhibited by judicial interference . . . .”).
71

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. 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 liable.35 Id. at 736. To the extent the County Judges
are state actors in their direct enforcement of the Texas Code of Criminal Procedure article 17.15,
they too are liable to prospective relief under § 1983.36
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 (1993). The “touchstone” for a judicial act is the “performance

35

And because the state supreme court heard appeals from lower court decisions in disciplinary
cases, the Court noted, without deciding, that the state-court judges could be liable for declaratory or
injunctive relief “with respect to their judicial acts.” Supreme Court of Virginia, 446 U.S. at 735–56.
36

See Part IV.A.1.b. above.

72

of the function of resolving disputes between parties, or of authoritatively adjudicating private
rights.” Id. at 435–36 (quoting Burns v. Reed, 500 U.S. 478, 500 (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. Unit B 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; see also Forrester v. White,
484 U.S. 219, 229 (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.
73

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 promulgation of general
rules on bar admission was nonjudicial (citing District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 485 (1983)).
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 F.App’x 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.
b.

The County Sheriff

Sheriff Hickman seeks dismissal under Mays v. Sudderth, 97 F.3d 107 (5th Cir. 1996). In
74

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. 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 Entry No. 54 ¶¶ 23, 49–50). There
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is no basis to dismiss the Harris County Sheriff for reasons of immunity.
c.

The County Hearing Officers

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.
V.

Conclusion
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 (internal citations
and quotation marks omitted). Because “municipalities often spread policymaking authority among
various officers and official bodies,” Pembaur, 475 U.S. at 483, 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
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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 immune from injunctive or declaratory
relief in their capacities as rulemakers and enforcement officers of the Harris County bail
procedures, whether those rules are promulgated formally in writing or informally through custom
and practice. Harris County and the County Sheriff are not immune from either injunctive or
declaratory relief.
The court will hear arguments on February 21, 2016, on the plaintiffs’ motions for class
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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.
SIGNED on December 16, 2016, at Houston, Texas.

______________________________________
Lee H. Rosenthal
Chief United States District Judge

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