ODonnell v. Harris County, Texas et al
ORDER of CLARIFICATION entered regarding 316 MOTION for Clarification as to 304 Preliminary Injunction. The court denies the request for modification as unnecessary. The court appreciates the Sheriff's thoughtful requests and his commit ment to complying with the court's Order and to continue collaborative efforts to implement the County's planned reforms to the misdemeanor bail system. If further clarification is needed, the Sheriff must promptly notify the court and a conference will be held on May 12, 2017, at 2:00 p.m. in Courtroom 11-B.(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.,
May 10, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-1414
ORDER OF CLARIFICATION
The Harris County Sheriff has moved for a modification and clarification of this court’s
Order of Preliminary Injunction issued April 28, 2017. (Docket Entry No. 316). The court denies
the request for modification as unnecessary, clarifies the Order, and will, if the Sheriff believes that
a hearing remains necessary, hold it on Friday, May 12, at 2:00 p.m. in Courtroom 11-B.
The Sheriff first requests authority to create and administer an affidavit of financial condition
for misdemeanor defendants in cases in which Pretrial Services officers do not complete and deliver
the affidavits to the Sheriff in a timely manner, as specified in the court’s Order. (Docket Entry No.
316 at 2–3). As the administrator of the Harris County Jail, with all “powers, duties, and
responsibilities” of administration, the Sheriff does not need authorization from this court to proceed
as requested. TEX. LOC. GOV’T CODE §§ 351.035, 351.041. Under the court’s Order, Pretrial
Services must work with the misdemeanor arrestees to complete the affidavits of financial condition
and timely deliver the completed affidavits to the Sheriff’s Office. The Sheriff may, without further
court order, administer affidavits to arrestees detained in the County Jail for whom the Sheriff
believes Pretrial Services has not or will not timely complete these steps.
The Sheriff requests clarification that the Order authorizes him to use the Peace Officer’s
Unsecured Bail Bond to effectuate the Order. (Docket Entry No. 316, Ex. 2). The Sheriff is correct
that the Order authorizes this step.
The Sheriff also asks for clarification on various timing issues. The first issue is whether
probable cause hearings should be scheduled in the same way for those released on unsecured bond
as for those released on secured money bail. (Id. at 5). The answer is yes. The Sheriff specifically
asks about misdemeanor defendants who do not have a probable cause hearing until the 23rd hour,
and about defendants for whom the administrative processes of release take significant time. (Id.
at 5, 7). To clarify the timing issues, the court’s Order is satisfied so long as either the probable
cause hearing or the administrative processes for executing an unsecured bond is begun no later than
the 24th hour after arrest. The court understands that some administrative processes will take longer
than others, particularly for misdemeanor defendants who have their probable cause hearings right
at the statutory limit of 24 hours.
The Sheriff also asks whether misdemeanor defendants who are granted unsecured bail under
the court’s Order are otherwise subject to the Central Records Division’s processes of review and
release. The answer is yes.
The Sheriff asks whether he has discretion to accept partial payments of secured money bail.
(Id. at 5). The answer is no; the Order does not create or add this authority. Judicial officers set the
amount of bail. Misdemeanor defendants may pay the full amount as a cash bond or pay the
bondsman’s premium in order to be released on secured money bail. Misdemeanor defendants who
cannot pay either, as shown by the affidavit of financial condition, are subject to the money bail
amount set, but the Sheriff must accept it on an unsecured basis. It is not the Sheriff’s duty or within
his discretion to assess or collect partial payments falling between these alternatives.
The Sheriff seeks a modification of the court’s Order to permit the Houston Police
Department or the Sheriff’s Office to order direct release of misdemeanor defendants before they
are taken to the Harris County Jail. The court cannot grant this request. The Houston Police
Department may order direct release from the City Jail if otherwise authorized to do. But the City
of Houston and its Police Department are not parties to this litigation or subject to this court’s
orders. If the County Sheriff otherwise has the authority to order direct release from the City Jail,
he may do so, without further order from this court.1 The court’s Order takes effect when the Sheriff
takes custody of misdemeanor defendants, whether he exercises that custody before transport to the
County Jail or afterwards.
Finally, the Sheriff asks whether, in the rare circumstance that a DWI defendant does not
have a probable cause hearing within 24 hours, it is the Sheriff’s duty to impose alcohol abuse
treatment conditions or other pretrial supervision conditions in place of a magistrate’s order under
Texas Code of Criminal Procedure article 17.441 and article 17.03(c). (Docket Entry No. 316 at 6).
The answer is no. The Sheriff’s authority under this Order is limited to accepting bail, either
secured or unsecured. Bail amounts and nonfinancial conditions of pretrial release and supervision
are at the discretion of Harris County judicial officers. Texas law requires that misdemeanor
defendants who do not have a probable cause hearing within 24 hours be released on unsecured bail,
and Texas law does not provide discretion to officers with custody of these defendants to impose
additional conditions of pretrial release. See TEX. CODE CRIM. PRO. art. 17.033. The proper
recourse in DWI cases is to take the steps necessary for the defendant to appear before a magistrate
promptly, as Texas law already requires.
The court acknowledges the Sheriff’s recently filed supplement resolving this issue. (Docket Entry
The court appreciates the Sheriff’s thoughtful requests and his commitment to complying
with the court’s Order and to continue collaborative efforts to implement the County’s planned
reforms to the misdemeanor bail system. If further clarification is needed, the Sheriff must promptly
notify the court and a conference will be held on May 12, 2017, at 2:00 p.m. in Courtroom 11-B.
SIGNED on May 10, 2017, at Houston, Texas.
Lee H. Rosenthal
Chief United States District Judge
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