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Odonnell v. Harris County

United States Court of Appeals, Fifth Circuit

February 14, 2018

MARANDA LYNN ODONNELL, Plaintiff - Appellee

         Appeals from the United States District Court for the Southern District of Texas

          Before CLEMENT, PRADO, and HAYNES, Circuit Judges.

          EDITH BROWN CLEMENT, Circuit Judge:

         Maranda ODonnell and other plaintiffs (collectively, "ODonnell") brought a class action suit against Harris County, Texas, and a number of its officials-including County Judges, [1] Hearing Officers, and the Sheriff (collectively, the "County")-under 42 U.S.C. § 1983. ODonnell alleged the County's system of setting bail for indigent misdemeanor arrestees violated Texas statutory and constitutional law, as well as the equal protection and due process clauses of the Fourteenth Amendment. ODonnell moved for a preliminary injunction, and the County moved for summary judgment. After eight days of hearings, at which the parties presented numerous fact and expert witnesses and voluminous written evidence, the district court denied the County's summary judgment motion and granted ODonnell's motion for a preliminary injunction. The County then applied to this court for a stay of the injunction pending appeal, but the motion was denied, and the injunction went into effect. Before this court now is the County's appeal, seeking vacatur of the injunction and raising numerous legal challenges.

         For the reasons set forth, we affirm most of the district court's rulings, including its conclusion that ODonnell established a likelihood of success on the merits of its claims that the County's policies violate procedural due process and equal protection. We disagree, however, with the district court's analysis in three respects: First, its definition of ODonnell's liberty interest under due process was too broad, and the procedures it required to protect that interest were too onerous. Second, it erred by concluding that the County Sheriff can be sued under § 1983. Finally, the district court's injunction was overbroad. As a result, we will dismiss the Sheriff from the suit, vacate the injunction, and order the district court to modify its terms in a manner consistent with this opinion.


         We need not conduct an exhaustive review of the facts. The district court's account is expansive: It comprised over 120 pages of factual findings, including not only the specific details of the County's bail-setting procedures, but also the history of bail and recent reform attempts nationwide.

         Bail in Texas is either secured or unsecured. Secured bail requires the arrestee to post bond either out of the arrestee's pocket or from a third-party surety (often bail bondsmen, who generally require a 10% non-refundable premium in exchange for posting bond). Unsecured bail, by contrast, allows the arrestee to be released without posting bond, but if he fails to attend his court date and/or comply with any nonfinancial bail conditions, he becomes liable to the County for the bail amount. Both secured and unsecured bail may also include nonfinancial conditions to assure the detainee's attendance at future hearings.

         The basic procedural framework governing the administration of bail in Harris County is set by the Texas Code of Criminal Procedure and local rules promulgated by County Judges. See Tex. Gov't Code § 75.403(f). When a misdemeanor defendant is arrested, the prosecutor submits a secured bail amount according to a bond schedule established by County Judges. See Harris County Criminal Courts at Law Rule 9 (hereinafter, "Local Rule"). Bonds are then formally set by Hearing Officers and County Judges. Tex. Code. Crim. Pro. art. 2.09, 17.15. Hearing Officers are generally responsible for setting bail amounts in the first instance. This often occurs during the arrestee's initial probable cause hearing, which must be held within 24 hours of arrest. Tex. Code Crim. Pro. art. 17.033; Local Rule County Judges review the Hearing Officers' determinations and can adjust bail amounts at a "Next Business Day" hearing. Local Rule 4.3.1.

         The Hearing Officers and County Judges are legally proscribed from mechanically applying the bail schedule to a given arrestee. Instead, the Texas Code requires officials to conduct an individualized review based on five enumerated factors, which include the defendant's ability to pay, the charge, and community safety. Tex. Code of Crim. Pro. art. 17.15. The Local Rules explicitly state the schedule is not mandatory. They also authorize a similar, individualized assessment using factors which partially overlap with those listed in the Code. Local Rule 4.2.4. Hearing Officers and County Judges sometimes receive assessments by Pretrial Services, which interviews the detainees prior to hearings, calculates the detainees flight and safety risk based on a point system, and then makes specific recommendations regarding bail.[2]

         Despite these formal requirements, the district court found that, in practice, County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was incompetent to do so. The district court noted that the statutorily-mandated probable cause hearing (where bail is usually set) frequently does not occur within 24 hours of arrest. The hearings often last seconds, and rarely more than a few minutes. Arrestees are instructed not to speak, and are not offered any opportunity to submit evidence of relative ability to post bond at the scheduled amount.

         The court found that the results of this flawed procedural framework demonstrate the lack of individualized assessments when officials set bail. County officials "impose the scheduled bail amounts on a secured basis about 90 percent of the time. When [they] do change the bail amount, it is often to conform the amount to what is in the bail schedule." The court further found that, when Pretrial Services recommends release on personal bond, Hearing Officers reject the suggestion 66% of the time. Because less than 10% of misdemeanor arrestees are assigned an unsecured personal bond, some amount of upfront payment is required for release in the vast majority of cases.

         The court also found that the "Next Business Day" hearing before a County Judge fails to provide a meaningful review of the Hearing Officer's bail determinations. Arrestees routinely must wait days for their hearings. County Judges adjust bail amounts or grant unsecured bonds in less than 1% of cases. Furthermore, prosecutors routinely offer time-served plea bargains at the hearing, and arrestees are under immense pressure to accept the plea deals or else remain incarcerated for days or weeks until they are appointed a lawyer.

         The district court further noted the various ways in which the imposition of secured bail specifically targets poor arrestees. For example, under the County's risk-assessment point system used by Pretrial Services, poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court. Thus, an arrestee's impoverishment increased the likelihood he or she would need to pay to be released.

         The court also observed that Hearing Officers imposed secured bails upon arrestees after having been made aware of an arrestee's indigence by the risk-assessment reports or by the arrestee's own statements. And further, after extensive review of numerous bail hearings, the court concluded Hearing Officers were aware that, by imposing a secured bail on indigent arrestees, they were ensuring that those arrestees would remain detained.

         The court rejected the argument that imposing secured bonds served the County's interest in ensuring the arrestee appeared at the future court date and committed no further crime. The court's review of reams of empirical data suggested the opposite: that "release on secured financial conditions does not assure better rates of appearance or of law-abiding conduct before trial compared to release on unsecured bonds or nonfinancial conditions of supervision." Instead, the County's true purpose was "to achieve pretrial detention of misdemeanor defendants who are too poor to pay, when those defendants would promptly be released if they could pay." In short, "secured money bail function[ed] as a pretrial detention order" against the indigent misdemeanor arrestees.

         The district court also reviewed voluminous empirical data and academic literature to evaluate the impact of pretrial detention on an arrestee. The court found that the expected outcomes for an arrestee who cannot afford to post bond are significantly worse than for those arrestees who can. In general, indigent arrestees who remain incarcerated because they cannot make bail are significantly more likely to plead guilty and to be sentenced to imprisonment. They also receive sentences that are on average twice as long as their bonded counterparts. Furthermore, the district court found that pretrial detention can lead to loss of job, family stress, and even an increase in likeliness to commit crime.

         The court concluded that ODonnell had established a likelihood of success on the merits of their claim that the County violated both the procedural due process rights and the equal protection rights of indigent misdemeanor detainees. It granted the motion for a preliminary injunction, requiring the implementation of new safeguards and the release of numerous detainees subjected to the insufficient procedures.


         This court reviews a "district court's grant of a preliminary injunction . . . for abuse of discretion." Women's Med. Cty. of Nw. Hous. v. Bell, 248 F.3d 411, 418-19 (5th Cir. 2001). "Findings of fact are reviewed only for clear error; legal conclusions are subject to de novo review." Id. at 419. "Issuance of an injunction rests primarily in the informed discretion of the district court. Yet injunctive relief is a drastic remedy, not to be applied as a matter of course." Marshall v. Goodyear Tire & Rubber Co., 554 F.2d 730, 733 (5th Cir. 1977) (internal citations omitted). A district court abuses its discretion if it issues an injunction that "is not narrowly tailored to remedy the specific action which gives rise to the order as determined by the substantive law at issue." Scott v. Schedler, 826 F.3d 207, 211 (5th Cir. 2016) (internal quotation marks and alterations omitted).


         The County raises a number of arguments that do not implicate the merits of ODonnell's constitutional claims. We address these first.

         A. Liability of County Judges and Sheriff under § 1983

         The County appeals the district court's ruling that the County Judges and Sheriff could be sued under 42 U.S.C. § 1983. Liability under § 1983 attaches to local government officers "whose [unlawful] decisions represent the official policy of the local governmental unit." Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Whether an officer has been given this authority is "a question of state law." Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). "Official policy" includes unwritten widespread practices that are "so common and well settled as to constitute a custom that fairly represents municipal policy." Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc)). And unlawful decisions include "acquiescence in a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity." Jett, 491 U.S. at 737 (internal quotation marks omitted).

         Though a judge is not liable when "acting in his or her judicial capacity to enforce state law, " Moore, 958 F.2d at 94, we agree with the district court that the County Judges are appropriate parties in this suit. Texas law explicitly establishes that the Judges are "county officers, " Tex. Const. art. V § 24, imbued with broad authority to promulgate rules that will dictate post-arrest policies consistent with the provisions of state law, Tex. Gov't Code § 75.403(f). Here, ODonnell alleged that, despite having this authority, County Judges acquiesced in an unwritten, countywide process for setting bail that violated both state law and the Constitution. In other words, they sue the County Judges as municipal officers in their capacity as policymakers. Section 1983 affords them an appropriate basis to do so.

         We agree with the County that its Sheriff is not an appropriate party, however. The Sheriff does not have the same policymaking authority as the County Judges. To the contrary, the Sheriff is legally obliged to execute all lawful process and cannot release prisoners committed to jail by a magistrate's warrant-even if prisoners are committed "for want of bail." See Tex. Code Crim. Pro. arts. 2.13, 2.16, 2.18; Tex. Loc. Gov't Code § 351.041(a) (noting the Sheriff's authority is "subject to an order of the proper court"). State statutes, in other words, do not authorize the County Sheriff to avoid executing judicial orders imposing secured bail by unilaterally declaring them unconstitutional. Accordingly, the County Sheriff cannot be sued under § 1983.

         B. Younger Abstention

         The County next argues that Younger abstention precludes our review of ...

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