ODonnell v. Harris County, Texas et al
MEMORANDUM AND OPINION entered DENYING 131 MOTION for Reconsideration of 125 Memorandum and Opinion.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
MARANDA LYNN ODONNELL, et al.,
On behalf of themselves and all others
HARRIS COUNTY, TEXAS, et al.,
March 01, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-1414
MEMORANDUM AND OPINION
Under McMillian v. Monroe County, 520 U.S. 781 (1997), district courts must assess “the
liability of local governments under § 1983” by “ask[ing] whether governmental officials are final
policymakers for the local government in a particular area, or on a particular issue.” Id. at 785. In
its December 16, 2016 Memorandum and Opinion, the court denied Harris County’s motion to
dismiss and found that, applying the McMillian factors, Harris County could be liable for the
legislative and administrative actions of the Harris County Sheriff and the 16 Harris County
Criminal Courts at Law Judges. (Docket Entry No. 125). Harris County moved the court to
reconsider its holding that the County Judges act as county, rather than as state, policymakers when
they promulgate their written Rules of Court and when they administratively enforce unwritten
policies that allegedly detain misdemeanor arrestees without timely consideration of their ability to
pay bail or their eligibility for nonfinancial conditions of release. (Docket Entry No. 131). Harris
County does not seek reconsideration of the court’s holding that Harris County could be liable for
the policymaking decisions of the Harris County Sheriff.
Harris County does not raise new arguments or evidence that the court did not already
carefully consider in its prior ruling. Based on the reasons set out in the prior ruling, as well as in
this memorandum and opinion, the County’s motion for reconsideration is denied.
The Legal Standard for a Motion for Reconsideration
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See St. Paul Mercury Ins. Co. v. Fair Grounds Corp., 123 F.3d 336, 339 (5th Cir.
1997) (“[T]he Federal Rules of Civil Procedure do not recognize a general motion for
reconsideration.”). A court retains the power to revise an interlocutory order before entering
judgment adjudicating the parties’ claims, rights, and liabilities. FED. R. CIV. P. 54(b). A Rule 59(e)
motion “calls into question the correctness of a judgment.” Templet v. HydroChem Inc., 367 F.3d
473, 478–79 (5th Cir. 2004) (citing In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)).
A motion that asks the court to change an order or judgment is generally considered a motion to alter
or amend under Rule 59(e). eTool Development, Inc. v. Nat’l Semiconductor Corp., 881 F.Supp.2d
745, 748–49 (E.D. Tex. 2012).
A Rule 59(e) motion “‘must clearly establish either a manifest error of law or fact or must
present newly discovered evidence’ and ‘cannot be used to raise arguments which could, and should,
have been made before the judgment issued.’” Rosenzweig v. Azurix Corp., 332 F.3d 854, 863–64
(5th Cir. 2003) (quoting Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). Changing
an order or judgment under Rule 59(e) is an “extraordinary remedy” that courts use sparingly.
Templet, 367 F.3d at 479; see also 11 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE
§ 2810.1 at 124 (2d ed. 1995). The Rule 59(e) standard “favors denial of motions to alter or amend
a judgment.” S. Constructors Grp., Inc. v. Dynalectric Co., 2 F.3d 606, 611 (5th Cir. 1993). A
motion to reconsider may not be used to relitigate matters, raise arguments, or submit evidence that
could have been presented before the judgment or order was entered. 11 WRIGHT & MILLER
§ 2810.1 at 127–28 (footnotes omitted).
Harris County argues that the County Judges are policymakers for the State of Texas, and
not for Harris County, because under Texas law: (1) the County Judges are statutory judges who
differ from constitutional county judges with local administrative responsibilities; (2) the County
Judges are similar to district court judges who have been found to be state actors; and (3) Harris
County does not adjudicate state crimes or approve the County Rules of Court. (Docket Entry No.
131). The County extensively briefed these arguments and urged them at the hearings held on
August 18 and November 28, 2016. (See Docket Entry No. 25 at 5–11; No. 44 at 48–69; No. 83 at
11–19; No. 102 at 2–7; No. 114 at 1–4; No. 122 at 72–94). The court carefully evaluated each
argument in its earlier Memorandum and Opinion. (Docket Entry No. 125 at 42–55; see also id. at
41 (“The [McMillian] question is fact-intensive and requires careful judgment under applicable
law.”)). The County raises no new arguments or case law in its motion that would merit the
“extraordinary remedy” of a changed judgment. Templet, 367 F.3d at 479. Even if the County had
presented new information, its arguments remain unpersuasive.
Constitutional County Judges Compared to Statutory County Judges
The County argues that the court misapplied case law concerning Texas constitutional county
judges to the statutory Harris County Criminal Courts at Law Judges. (Docket Entry No. 131 at
2–4). As the court noted in its Memorandum and Opinion, some Texas county courts are established
directly by the State Constitution (“constitutional county courts”), while others with specialized
functions, such as criminal adjudication, may be established by the Legislature (“statutory county
courts”). TEX. CONST. ART. V, §§ 1, 15. The Harris County Criminal Courts at Law are statutory
county courts. TEX. GOV’T CODE § 25.1033. In Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.
1980), the Fifth Circuit ruled that a constitutional county judge acted on behalf of the State, and not
the county, when he enforced a statute requiring disclosure of the membership lists of certain
organizations. Id. at 404. But the court noted that the “unique structure of county government in
Texas” gives constitutional county judges “numerous executive, legislative and administrative
chores in the day-to-day governance of the county,” some of which might support county, rather
than state, liability. Id.
The County argues that Familias Unidas is inapplicable to statutory county judges because
they “have absolutely no role in county governance” and only adjudicate crimes under state law.
(Docket Entry No. 131 at 2). But this court identified—and the County does not dispute—local
administrative and legislative functions the statutory County Judges perform. The court’s prior
ruling described some of these functions:
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). . . . The Harris County Criminal Courts at Law 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” . . . . The Rules of Court
mandate the use of secured financial bail; prescribe presumptions in certain misdemeanor
cases; provide for the appointment of counsel; promulgate a code of judicial conduct; and
instruct sheriffs, district attorneys, and other county officers in how to administer their tasks
of imposing and collecting secured financial bail.
(Docket Entry No. 125 at 48, 51–52).
The County notes that § 25.0003(b) of the Texas Government Code states that “[a] statutory
county court does not have jurisdiction over causes and proceedings concerning roads, bridges, and
public highways and the general administration of county business that is within the jurisdiction of
the commissioners court of each county.” (Docket Entry No. 131 at 2) (quoting, with emphasis,
TEX. GOV’T CODE § 25.0003(b)). But this case concerns County rules and policies regulating
pretrial detention and release in misdemeanor cases. The question is not whether the County Judges
have general regulatory authority over all local issues, including roads and public welfare, but
whether the County Judges have specific regulatory authority over the local issues of setting bail and
setting the conditions of the pretrial release of misdemeanor arrestees. Under Texas law, the County
Judges do have this authority. Like constitutional county judges, “at least in those areas in which
[a statutory County Judge], alone, is the final authority or ultimate repository of county power,” a
statutory County Judge may be “a policymaker whose official conduct and decisions could be
attributed to the county under section 1983.” Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir.
For the reasons explained in the court’s Memorandum and Opinion, the County Judges are
“the final authority or ultimate repository of county power” when they choose among alternatives
in their discretion to promulgate the written Rules of Court or administratively oversee unwritten
customs or practices that apply countywide to the regulation of bail and pretrial detention of
misdemeanor arrestees. (Docket Entry No. 125 at 42–55). The motion for reconsideration on this
basis is denied.
County Judges Compared to District Judges
The County argues that statutory county judges are not significantly distinguishable from
Texas district judges, and that “district judges are state actors.” (Docket Entry No. 131 at 4).
Although the McMillian Court considered certain generally applicable or categorical factors to
analyze whether a sheriff was a local policymaker or a state actor, the Court made clear that “our
understanding of the actual function of a government official, in a particular area, will necessarily
be dependant on the official’s functions under relevant state law.” 520 U.S. at 786. The McMillian
analysis is function-specific. See, e.g., Brewster v. Shasta County, 275 F.3d 803, n.1 (9th Cir. 2001)
(“McMillian clearly instructs that determination of whether a sheriff is a state or county actor
depends on an analysis of the precise function at issue, in this case, the sheriff’s crime investigation
Applying this analysis, the Fifth Circuit has held that Texas district judges act as state
officials when they perform the specific function of appointing counsel in particular cases. 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 civil contempt proceedings); Clanton
v. Harris County, 893 F.2d 757, 758 (5th Cir. 1990) (per curiam) (same). But the County cannot
extrapolate from these holdings a general rule that Texas district judges are always state actors,
much less extend that rule to the County Judges.1 Separate from analyzing whether county judges
are substantially similar to district judges, this court must analyze the McMillian factors for the
County Judges’ specific function of regulating countywide pretrial processes, including the setting
The comparison to Texas district judges does not provide a categorical basis to rule that
County Judges are state actors in all of their functions. The motion for reconsideration on this basis
Indeed, the County’s instructive comparison of Texas district judges and county judges may well
support a finding that, in the particular function of regulating countywide pretrial processes and bail settings,
the district judges act as local policymakers. That question is not before the court.
The County argues that the only identifiable difference between Texas district judges and statutory
county judges is the process of appointment and removal. (Docket Entry No. 131 at 4). The County insists
that this “difference cannot be dispositive.” (Id. at7). The court does not consider these factors dispositive,
but it does give them some weight within the totality of the analysis, as did other cases on which the County
principally relies. See 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 judges “appointed initially through a non-partisan
selection process by the governor” contributed to finding they were state actors).
Harris County Functions
The County argues that: (1) because Harris County has no judicial branch, the County Judges
serve no local County functions under McMillian; and (2) because the County does not approve the
County Judges’ Rules of Court, it cannot be liable for the policies enacted in those rules. (Docket
Entry No. 131 at 7–8). The court addressed this argument when it held that “ the existence of
multiple and overlapping authorities cannot, on its own, shield officers or official bodies from
liability.” (Docket Entry No. 125 at 76); see also McCollum v. Livingston, Civil No. 14-3253, 2017
WL 608665 (S.D. Tex. Feb. 3, 2017) (same). “[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.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). The fact that
the Texas Constitution does not vest judicial power in Harris County does not absolve the County
from liability for local policymakers’ choices among alternatives to legislate and implement a
pretrial-detention system for misdemeanor arrestees in Harris County. See McMillian, 520 U.S. at
786 (“This is not to say that state law can answer the question for us by, for example, simply
labeling as a state official an official who clearly makes county policy.”).
“[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 its Memorandum and Opinion, the court examined the many factors
supporting a finding that the Harris County Criminal Courts at Law Judges make policy on behalf
of Harris County, including their electoral constituency; their jurisdiction; the processes of removal
and vacancy appointment; the sources of funding, equipment, and personnel; their local
administrative, legislative, and judicial responsibilities; and their classification in federal and state
case law. (Docket Entry No. 125 at 42–55). Other County employees, including arresting officers,
pretrial services personnel, jailers, and administrative assistants implement policies that are not
mandated by state law but are rather the decisions of local policymakers. In Harris County, those
policymakers are the County Judges.
Harris County’s motion for reconsideration, Docket Entry No. 131, is denied.
SIGNED on March 1, 2017, at Houston, Texas.
Lee H. Rosenthal
Chief United States District Judge
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