Case 1:15-cv-00956 Document 1 Filed 10/27/15 Page 1 of 29

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

VALERIE GONZALES, and MARIA SALAZAR, on behalf of themselves and all others similarly situated,
Plaintiffs, v.
CITY OF AUSTIN,
Defendant.

Civil Action No. 15-cv-_9_5_6_____

CLASS ACTION COMPLAINT

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NATURE OF THE ACTION 1. Plaintiffs in this case face the threat of jail solely because they cannot afford to pay their debts. The City of Austin regularly jails people who are too poor to pay their fines and fees for petty misdemeanors, such as traffic tickets, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, the City jails people without appointing an attorney to represent them and without asking whether they have the money to pay their debt. Plaintiffs bring this class action to vindicate their constitutional rights to counsel, due process, and equal protection. 2. The City jails people through its operation of the Austin Municipal Court, which has criminal jurisdiction limited to the least serious crimes punishable in the State of Texas. The court assesses impoverished people exorbitant fines and fees, then arrests and jails people who fall behind on their payments, violating their constitutional rights in the process. This practice deprives people of their physical liberty, threatens the stability of their employment and housing, and separates them from their children and families. 3. Through this case, Plaintiffs seek to ensure only that the City provides basic procedural protections before it jails people for failing to pay fines and fees for traffic tickets and other petty misdemeanors. The City’s constitutionally deficient process results in the imprisonment of hundreds of people each year. Plaintiffs seek an injunction prohibiting the City from jailing people who are too poor to pay without the procedural protections guaranteed by the Sixth and Fourteenth Amendments.
JURISDICTION AND VENUE 4. This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. § 2201 et seq., and the Sixth and Fourteenth Amendments to the United States Constitution. This Court has
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jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and § 1343 (civil rights jurisdiction).
5. Venue in this district is proper under 28 U.S.C. § 1391(b)(1), because the City of Austin resides in this district, and under § 1391(b)(2), because a substantial part of the events giving rise to the Plaintiffs’ claims occurred in this district.
PARTIES 6. Plaintiff Valerie Gonzales is a thirty-one-year-old mother who resides in Austin, Texas. She lives near the federal poverty level.1 She is at risk of being jailed, without an attorney to defend her, due to her inability to pay her debt for traffic tickets. 7. Plaintiff Maria Salazar is a thirty-year-old mother who resides in Austin, Texas. She lives near the federal poverty level. She is at risk of being jailed, without an attorney to defend her, due to her inability to pay her debt for traffic tickets. 8. Defendant City of Austin is a municipality organized under the laws of the State of Texas. The City of Austin has established the Austin Municipal Court as a department of the City. The City of Austin may be served with process by serving the City Clerk, Mayor, Treasurer, or Secretary at 301 W. 2nd Street, Austin, Texas 78701.
1 See Annual Update of the HHS Poverty Guidelines, 80 Fed. Reg. 3236 (Jan. 22, 2015), available at https://www.federalregister.gov/articles/2015/01/22/2015-01120/annual-update-ofthe-hhs-poverty-guidelines - t-1. Each year, the U.S. Department of Health and Human Services establishes the federal poverty guidelines based on the consumer price index for that year. The federal poverty level is used to determine eligibility for governmental assistance. For example, people who make up to 400% of the federal poverty level are eligible for health insurance tax credits.
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FACTS Valerie Gonzales
9. Plaintiff Valerie Gonzales is a thirty-one-year-old mother and caretaker of five disabled minor children. She lives with her children in Austin.
10. The Austin Municipal Court jailed Ms. Gonzales for failure to pay her traffic tickets in August 2015. At the time of her arrest and incarceration, Ms. Gonzales was unemployed because the store where she worked had recently closed. She lived with her husband, who earned approximately $2000 a month. Ms. Gonzales had been living near the poverty line and in and out of homelessness. Even when Ms. Gonzales was working, her family had made at most $36,000 a year to support a family of six, or 110% of the federal poverty level. They received, and continue to receive, food stamps, Medicaid, and public assistance for housing.
11. Over a period of nine years, the City of Austin gave Ms. Gonzales many tickets including two tickets for speeding, two tickets for other minor traffic offenses, and twelve tickets for offenses resulting from poverty, such as driving without a valid driver’s license, driving without insurance, and failing to register her car. Ms. Gonzales and her husband did not have enough money to pay these debts because of their modest income and the expenses necessary to feed and shelter their family.
12. Ms. Gonzales received many tickets because she could not pay for insurance or current registration for her car. The Department of Public Safety also prohibited Ms. Gonzales from obtaining a valid driver’s license due to her outstanding tickets. Nevertheless, Ms. Gonzales had to keep driving to care for her family. She was stuck—she was repeatedly ticketed for offenses such as driving without a valid license, but she was unable to obtain a valid license until she paid off all of her traffic tickets.
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13. On the evening of August 16, 2015, Ms. Gonzales was a passenger in a car accident. Officers who responded to the scene arrested Ms. Gonzales because of outstanding warrants on her traffic tickets.
14. At the jail, the officers treated her as they would treat a dangerous mentally ill person because she was crying as a result of the car accident. They handcuffed her, stripped her naked, forced her to wear a mask over her face, and locked her alone in an observation cell. After about thirty minutes, one guard concluded that this harsh treatment was unnecessary. Officers then allowed Ms. Gonzales to dress and took her to a hospital to be checked for injuries from the car accident. After Ms. Gonzales returned from the hospital, she waited more than twelve hours to see an Austin Municipal Court judge.
15. The judge told Ms. Gonzales that he would not accept any excuses for her failure to pay the tickets. Ms. Gonzales tried to explain her financial situation, but the judge told her that she would be sent to jail if she could not pay $1000 that day.
16. The judge did not ask Ms. Gonzales about her income, her dependents, or other factors bearing on her ability to pay. He did not inquire into Ms. Gonzales’s ability to complete community service. He did not consider reducing the debts based on Ms. Gonzales’s ability to pay.
17. The judge stated that Ms. Gonzales would remain in jail for forty-five days. Upon information and belief, the judge calculated this term on the basis of Ms. Gonzales’s debt, which was more than $4500, and his assumption that the Travis County Sheriff would release Ms. Gonzales after she “satisfied” $100 of the debt with each day in jail.
18. At no point in Ms. Gonzales’s traffic ticket cases did the court inquire into her ability to afford counsel, take any steps to appoint counsel, or obtain a knowing, voluntary, and
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intelligent waiver of Ms. Gonzales’s right to counsel. Ms. Gonzales cannot afford counsel. She was not represented by counsel when she entered a plea on any one of her underlying traffic tickets. She did not waive her right to counsel in any of those proceedings.
19. Ms. Gonzales sat in jail for two days. On the third day, with the assistance of pro bono counsel whom she obtained without any assistance from the court, Ms. Gonzales petitioned the Austin Municipal Court for her release. Her counsel argued that she was unconstitutionally incarcerated. Based on counsel’s motion, the court found Ms. Gonzales to be indigent and agreed to release her with jail credit of $200 per day of jail time and an order to work off the remaining debt by completing 395 hours of community service. The court did not reduce Ms. Gonzales’s outstanding debt.
20. After Ms. Gonzales was released, one of her sons, who is in elementary school and severely disabled, had repeated and serious psychiatric issues at school. Ms. Gonzales was called to the school nearly every day to manage her son’s behavior and take him to appointments with his psychiatrist to adjust his medication.
21. As a result of these repeated childcare issues, Ms. Gonzales lost her job. Her husband also moved out of the house and stopped supporting the family. At the same time, Ms. Gonzales’s oldest son stopped living with a cousin and moved back into her home.
22. Ms. Gonzales and her five children spent a few weeks living on Social Security income and occasional child support payments from the children’s father. She began a new job the week of October 19, 2015, and she now earns approximately $2000 a month, an income that leaves her household near the federal poverty level. Despite her best efforts, she does not make enough money to pay the full amount of her debt to the Austin Municipal Court.
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23. It would be a hardship for Ms. Gonzales to perform community service. Ms. Gonzales called the court to attempt to negotiate a workable solution, but she was instructed to simply perform the community service hours that she could. Court staff instructed Ms. Gonzales that if she did not satisfy her community service obligation of 18 hours a month, the court would eventually issue a warrant for her arrest. Ms. Gonzales is at risk of the Austin Municipal Court issuing warrants, which she cannot afford to clear, and jailing her to “satisfy” her debts. Maria Salazar
24. Plaintiff Maria Salazar is a thirty-year-old mother and primary caretaker of her six minor children. She lives with her children and her boyfriend in Austin.
25. Ms. Salazar is seven months pregnant. She has been diagnosed with anemia during pregnancy, and she is taking iron supplements.
26. For the last four years, Ms. Salazar has been the sole caretaker for her six children. She and her children receive public assistance for housing, food stamps, and Medicaid. Three of her children receive child support, and in November, she expects that her other three children will begin receiving child support.
27. Ms. Salazar is not employed because she is the primary caretaker for her eighteenmonth-old twins, for whom she cannot afford child care. In the past, she has worked as a manager for a commercial cleaning company. Despite her best efforts, she does not make enough money to pay the full amount of her debt to the Austin Municipal Court.
28. Since April 2015, Ms. Salazar’s boyfriend has been living with her and her children. He is employed as a welder. Even with his support, Ms. Salazar’s household income is near the federal poverty line. Ms. Salazar’s boyfriend also supports his two children, who do not live with him.
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29. Over a period of eleven years, the City of Austin gave Ms. Gonzales many tickets including six for speeding and eight for offenses resulting from poverty, such as driving without a valid driver’s license and driving without insurance. Ms. Salazar did not have enough money to pay these debts because of her modest income and the expenses necessary to feed and shelter her family.
30. Ms. Salazar received many tickets because she could not pay to have the suspension on her driver’s license lifted or pay for insurance. The Department of Public Safety prohibited Ms. Salazar from obtaining a valid driver’s license due to her outstanding tickets. Nevertheless, Ms. Salazar had to keep driving to care for her family. She was stuck—she was repeatedly ticketed for offenses such as driving without a license and insurance, but she was unable to obtain a license or afford insurance until she paid off all of her traffic tickets.
31. In August 2015, a police officer pulled Ms. Salazar over. The officer ultimately arrested her because of outstanding warrants from the unpaid tickets as well as a child support hold. (The child support was an administrative mistake, and she later had the hold cleared.) Ms. Salazar was five months pregnant at the time. She was taken to Travis County jail, where she spent the night waiting to see an Austin Municipal Court judge, whom she saw the next morning.
32. The judge told Ms. Salazar that he would order her to complete community service to satisfy the debts on her ten tickets with outstanding warrants. He ordered Ms. Salazar to complete a total of 336 hours of community service at 30 hours of community service a month, with the first 30 hours due September 29, 2015. Ms. Salazar wanted to ask for a payment plan because of the difficulties of completing community service due to her pregnancy and her childcare responsibilities, but the judge did not give her a chance to do so.
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33. The judge did not ask Ms. Salazar about her income, her dependents, or other factors bearing on her ability to pay. He did not inquire into her ability to complete community service. He did not consider reducing the debts based on Ms. Salazar’s ability to pay.
34. As a result of the arrest in August 2015, the City again charged Ms. Salazar for driving without a valid driver’s license. She has an upcoming court hearing for that charge.
35. After Ms. Salazar was released from jail, she completed 50 hours of community service. On or about September 29, 2015, when Ms. Salazar went to Austin Municipal Court and turned in proof of the work she had completed, the clerk’s office employee at the window told Ms. Salazar that she had more cases that would be coming into warrant status later that month. He told her to come back the next week and talk to the judge presiding over a walk-in docket, in order to have the judge add all of her other tickets to the community service order and clear them all through community service.
36. On October 5, 2015, Ms. Salazar returned to the Austin Municipal Court and appeared for the walk-in docket. She told the judge that she needed to add the cause numbers from her other tickets to her community service order, so that she could satisfy the debts in all of her cases with community service. The judge added the remaining cause numbers and ordered Ms. Salazar to complete an additional 25 hours of community service.
37. Ms. Salazar was visibly pregnant during this court appearance. Ms. Salazar also explicitly expressed her concern to the judge that she would not be able to complete her community service requirements because she is expecting a baby in December 2015. The judge told Ms. Salazar to mention the issue at her next court appearance for her newest charge of driving without a valid license. He did not inquire into Ms. Salazar’s ability to pay or consider
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whether community service would be an undue hardship to her given her present circumstances. Instead, the judge left Ms. Salazar’s community service order in place.
38. Ms. Salazar had been arrested due to Austin Municipal Court warrants on one occasion prior to August 2015. In 2013, an officer arrested Ms. Salazar because of outstanding warrants on her traffic tickets and booked her into Travis County Jail. Ms. Salazar was brought before an Austin Municipal Court judge.
39. The judge ordered Ms. Salazar to complete community service every month for several months. The judge did not ask Ms. Salazar about her ability to pay, and he did not consider reducing the debts based on her ability to pay. He did not inquire into her ability to complete community service. Ms. Salazar was released the same day.
40. Ms. Salazar was unable to complete the community service as ordered by the court in 2013. Circumstances such as Ms. Salazar’s inability to afford childcare, as well as her pregnancy with twins, made performing community service a hardship.
41. At no point in Ms. Salazar’s traffic ticket cases did the court inquire into her ability to afford counsel, take any steps to appoint counsel, or obtain a knowing, voluntary, and intelligent waiver of her right to counsel. While each of Ms. Salazar’s cases was pending, she was unable to afford counsel. She was not represented by counsel when she entered a plea on any one of her underlying traffic tickets. She did not waive her right to counsel in any of those proceedings.
42. At no point in Ms. Salazar’s traffic ticket cases did the court make a meaningful determination about her ability to pay. At no point did the court consider whether the community service ordered would be an undue hardship for Ms. Salazar.
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43. Ms. Salazar is likely unable to complete her current community service requirements because of her pregnancy and impending childbirth. She is at risk of the Austin Municipal Court issuing warrants, which she cannot afford to clear, and jailing her to “satisfy” her debts. I. Legal Framework for the Austin Municipal Court’s Jurisdiction Over Petty Crimes
44. The City of Austin vests the Austin Municipal Court with jurisdiction over “fine only” crimes, which include Class C misdemeanors. Austin, Tex., Charter art. VI; Tex. Gov. Code §§ 29.003, 30.00003–30.00005. Class C misdemeanors are the least serious crimes punishable in the State of Texas, such as failure to signal while changing lanes or entering a park after hours.
45. Under municipal law, the City Council has appointed a Presiding Judge and a Clerk of Court for the Austin Municipal Court. Austin, Tex., City Code §§ 2-10-2, 2-10-11. The Presiding Judge has the duty to adopt “rules for the orderly trial of a case in the municipal court.” Id. The Austin Municipal Court is made up of nine full-time and eleven part-time judges.
46. The Presiding Judge and the Clerk of Court act as policymakers for the Austin Municipal Court. References to “the Austin Municipal Court” or “the court” denote an entity that includes municipal judges and staff in the clerk’s office. II. Constitutional Protections for People Prosecuted in Austin Municipal Court
47. The Due Process and Equal Protection Clauses of the Fourteenth Amendment, along with the Sixth Amendment, protect people who are prosecuted for petty crimes, such as Class C misdemeanors.
48. The Due Process Clause requires courts to hold an ability to pay hearing before jailing a poor person for failure to pay a criminal judgment debt. Bearden v. Georgia, 461 U.S.
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660 (1983). At that hearing, the court must inquire into the reason the person failed to pay and consider alternatives to jail, such as tailoring the debt to the person’s resources. Id. at 672.
49. The Equal Protection Clause prohibits courts from jailing someone for a fine-only offense solely because she lacks the ability to pay. Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970).
50. The Sixth Amendment prohibits courts from jailing a person for a conviction secured without the assistance of counsel for the accused. Argersinger v. Hamlin, 407 U.S. 25 (1972). If a trial court fails to appoint counsel for the accused in a misdemeanor case, the court cannot impose a jail term as punishment for a resulting conviction. Id. Without the assistance of counsel at trial, the court can never impose a term of imprisonment for that offense. Alabama v. Shelton, 535 U.S. 654 (2002).
51. The Equal Protection Clause of the Fourteenth Amendment prohibits the government from stripping criminal judgment debtors of the rights afforded to civil judgment debtors and using unduly harsh methods of debt collection for criminal judgment debt. James v. Strange, 407 U.S. 128 (1972). III. The Austin Municipal Court’s Policies and Practices Violate the Constitutional
Rights of People Who Are Too Poor to Pay 52. Class C prosecutions in Austin Municipal Court trap people who are too poor to pay in an endless cycle of accumulating debt. The court burdens people who are too poor to pay with additional fees and logistical hurdles at every step of the process, then arrests people who cannot pay and denies them the procedural protections required by the Constitution. For people who are too poor to pay, the almost-inevitable result of this system is jail time. 53. The first step in the life of nearly every Class C prosecution is a ticket. When a police officer issues a ticket, she instructs the recipient to sign the bottom of the ticket, which
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contains a promise to pay a fine or appear in Austin Municipal Court. People who are capable of paying their tickets in a lump sum typically resolve their cases by mailing the court a check.
54. People who are too poor to pay must appear in court. If a person fails to appear in court, the judge has the option to either reschedule the appearance without a formal order, issue a summons ordering the person to appear, or issue a warrant for the person’s arrest. Tex. Code Crim. Proc. Arts. 15.03, 45.014.
55. The Austin Municipal Court has a policy and practice of issuing an arrest warrant and increasing all fines by 50% the first time a person fails to appear. The court charges a $50 fee for each ticket for which a warrant has been issued—the first of many fees the court adds on top of the initial ticket. The court also charges “bail” to clear these warrants. “Bail” is the full amount that the ticket would cost if the person who received the ticket pled guilty. People who are too poor to pay the “bail” are not allowed to clear their warrant by rescheduling a court date over the phone.
56. People with open warrants for failing to appear in court are arrested as a result of encounters with the police. Once arrested, they are taken before a judge of the Austin Municipal Court.
57. Once a person appears in court—whether voluntarily or upon arrest—the next step is to either go to trial, plead no contest, or plead guilty. Upon conviction, Texas law authorizes the court to assess a fine up to $500, court costs, and various fees that cause the debt to spiral further out of control.
58. For example, the Austin Municipal Court has a policy and practice of charging a $25 fee to set up a payment plan for each ticket. In other words, if someone with three tickets
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asks for a payment plan because she is too poor to pay her tickets up front, the court charges her an extra $75.
59. The Austin Municipal Court has a policy and practice of charging a $30 fee for a credit card payment or check that is rejected.
60. The Austin Municipal Court has a policy and practice of charging a $30 driver’s license renewal suspension fee to people who are too poor to pay their tickets. In addition, when the court refers a ticket to a collection agency, the court charges a 30% collection fee.
61. Texas law provides the Austin Municipal Court with many options for easing the burden of these fines and fees on people who are too poor to pay. The court is authorized to convert the debt to a civil judgment, order the ticket recipient to make payments under a payment plan, or order her to discharge her debt through community service. Tex. Code Crim. Proc. Arts. 45.0047, 45.049. The court is also authorized to waive part or all of the outstanding debt for any person who is too poor to pay or perform community service without undue hardship. Id. Art. 45.0491.
62. The Austin Municipal Court fails to consider the full range of these options. The court has a policy and practice of refusing to partially or fully waive debt, or collect debt as a civil judgment, for people too poor to pay in full. The court has a policy and practice of limiting people to two options—community service or a payment plan on the full amount of the debt— regardless of whether these options impose an undue hardship.
63. Taking advantage of these two options is not easy. The Austin Municipal Court’s payment plan application does not include spaces for explaining essential financial information, such as how many children a person has, or whether they receive governmental assistance for the poor. The Austin Municipal Court does not post a community service application on its website.
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Clerk’s office staff have a policy and practice of refusing to offer the payment plan or community service options unless a person has already missed the deadline to pay their fines and fees, risking issuance of a warrant and additional fees.
64. The Austin Municipal Court has a policy and practice of issuing an arrest warrant called a “capias pro fine” warrant if a person misses their deadline to make payments or perform community service. For people who appear in person, prove their poverty, and establish a payment plan, Clerk’s office staff refuse to clear their capias warrants until the person makes a payment. Capias warrants put people who are too poor to pay at high risk of being arrested and jailed.
65. For people whose cases are referred to a collections agency, the court has a policy and practice of refusing to clear capias warrants unless the court receives separate payments on each outstanding ticket. In other words, even if a person is making regular payments toward the balance of one ticket, the court refuses to clear outstanding capias warrants on that person’s other tickets.
66. The Austin Municipal Court has a policy and practice of demanding arbitrary, onthe-spot payments from people who appear in court—whether voluntarily or upon arrest—to clear a capias pro fine warrant. For people with smaller debts, the court has a policy and practice of demanding the amount of money in the person’s pockets before letting them go. For people with larger debts, the court asks how much money the person would be able to produce that day, and orders the person to produce that amount under the threat of jail time.
67. The Austin Municipal Court also charges a $50 fee for each capias pro fine warrant the court issues. In other words, if a ticket recipient is too poor to pay or perform community service, she is subjected to an endless cycle of warrants that increase the debt she
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owes to the court. For example, for a person who is too poor to make payments or take time off

from work, debt from a single ticket for failure to signal while changing lanes can accumulate

like so:

Fine Court Costs Late Fine Increase (50%) Arrest Warrant Fee Check Return Fee Payment Plan Fee License Renewal Suspension Fee Capias Warrant Fee
Collection Fee Total

$ 66.00 $ 103.00 $ 33.00 $ 50.00 $ 30.00 $ 25.00 $ 30.00 $ 50.00 $ 387.00 x 1.30 $ 503.01

68. The Austin Municipal Court adjudicates over 150,000 Class C misdemeanor cases per year, resulting in approximately $30 million in gross collections.
69. As described in detail below, the Austin Municipal Court has a policy and practice of jailing people who take too long to satisfy their ever-growing debts. The court has a policy and practice of jailing people until their debts are “satisfied,” or for a “total layout” of the debt. The court then issues “jail credit,” or monetary credit for jail time, at a default rate of $100 per day. That default rate can be modified arbitrarily. The court has a policy and practice of adjusting the amount of jail credit granted per day based on the date the Travis County Sheriff’s Office releases people who are jailed. In so doing, the court delegates authority to the Sheriff’s Office to determine how long people must sit in jail to “satisfy” their debt.
70. The Austin Municipal Court does not automatically issue jail credit in all cases. In cases where jail credit is not automatically issued, people who are jailed must provide proof of incarceration to the Austin Municipal Court—even if the Austin Municipal Court is the same

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court that committed the person to jail. The Austin Municipal Court has a policy and practice of charging people a fee in order to obtain proof that the court jailed them.
71. These policies and practices affect thousands of Austin residents. The Austin Municipal Court issued jail credit in nearly 20,000 cases in fiscal year 2012–2013. During that same period, the Austin Municipal Court refused to waive one dollar of outstanding debt in any of its more than 170,000 cases. A. The Austin Municipal Court Jails People Solely Because They Are Too Poor to Pay,
Without Inquiring Into Ability to Pay or Alternative Punishments 72. The Austin Municipal Court has a policy and practice of jailing people solely because they are unable to satisfy their criminal judgment debt, even if they can demonstrate that their failure to pay or perform community service was not willful. 73. The Austin Municipal Court has a policy and practice of bringing people who are arrested on capias pro fine warrants to Central Booking, where they are processed into Travis County Jail. Their clothes and belongings are confiscated. They are brought before a municipal judge in jail-issued striped pajamas, shackled to one another at the wrist. Under these circumstances, the court holds brief hearings to determine whether to send each person to jail. 74. The Austin Municipal Court has a policy and practice of jailing people without any meaningful inquiry into their reasons for failing to pay. The court jails people without inquiring into their income, expenses, household dependents, or other circumstances bearing on their ability to pay. 75. The Austin Municipal Court has a policy and practice of holding jail commitment hearings without prior notice that the hearing will take place, and without informing ticket recipients that their ability to pay or perform community service is a crucial issue in the hearing.
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76. The Austin Municipal Court has a policy and practice of failing to provide form financial information affidavits to arrestees during jail commitment hearings.
77. The Austin Municipal Court has a policy and practice of failing to make meaningful inquiries into alternatives to imprisonment, including collection of outstanding debt as civil judgment debt and reducing or waiving debts.
78. The court’s policies and practices are reflected in the preprinted form the court uses to commit people to jail. The form, which judges fill in by hand, does not include a space to enter meaningful factual findings about constitutionally-required considerations, such as the person’s ability to pay, the adequacy of alternative punishments, and the necessity of jail time to satisfy the state’s interest in punishment. There is no preprinted form for tailoring outstanding debts to the person’s resources.
79. The court’s policies and practices are reinforced by the Austin City Code. Section 2-10-21 of the Austin City Code provides: “If a defendant defaults on payment of a fine or fails to comply with alternative sentencing, a judge may imprison the defendant until the fine is paid in full.” This Section does not require the court to inquire into ability to pay or consider alternative punishments, such as tailoring a fine to the person’s resources, for people who are unable to pay.
80. These policies and practices are also reinforced by the Austin Municipal Court Rules. Rule 9.4, “Inability to Pay Fine,” provides that the court “may” order a payment plan or community service in lieu of immediate payment of a fine, “[i]f the defendant qualifies.” The Rules do not describe the criteria for permitting people to satisfy their debts through payment plans or community service. The Rules do not require the court to consider alternative punishments, such as tailoring a fine to the person’s resources, for people who are unable to pay.
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81. The court has a policy and practice of failing to provide any procedures or guidelines for jailing people who have not paid their outstanding debts. No provision of the Austin City Code or the Austin Municipal Court Rules establishes such procedures or guidelines.
82. The best evidence of the court’s failure to consider alternatives to jail is its own data on debt waivers. The Austin Municipal Court’s self-reported data indicate that the court waived debt in just 11 of more than 600,000 cases between September 2011 and September 2015. During the same time period, on information and belief, the court jailed more than 2000 people.
83. Altogether, the Austin Municipal Court has a policy and practice of failing to comply with any aspect of the ability to pay hearing required under the Due Process Clause. As a result, the court has a policy and practice of jailing people solely because they are unable to satisfy their criminal judgment debt2, in violation of their rights under the Equal Protection Clause. People who are genuinely unable to make debt payments or perform community service, such as the named Plaintiffs, are jailed solely because of their lack of resources.
84. As evidenced by the Austin Municipal Court Rules and preprinted form orders, these policies and practices are so persistent and widespread that knowledge of the policies and practices is attributable to municipal policymakers. B. The Municipal Court Imprisons People For Criminal Convictions Entered Without
Assistance of Counsel 85. The Austin Municipal Court has a policy and practice of entering Class C misdemeanor convictions without the benefit of counsel for the accused, and then using those convictions as a basis for jailing people.
2 Plaintiffs do not challenge the court’s authority to jail people for willful nonpayment of debt or other actions in contempt of court.
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86. The Austin Municipal Court has a policy and practice of refusing to appoint counsel for people charged with Class C misdemeanors. No provision of the Austin City Code or the Austin Municipal Court Rules discusses appointing counsel in these cases. The Austin Municipal Court has no system for appointing counsel. The Austin Municipal Court’s website states that the court does not appoint counsel.
87. The Austin Municipal Court has the power to jail people for failure to pay their criminal judgment debt. Tex. Code Crim. Proc. Art. 45.4046. The Austin Municipal Court has a policy and practice of using this power to impose a jail term to punish Class C offenses.
88. The court has a policy and practice of issuing orders jailing people “on the above stated cause(s),” which are the underlying Class C offenses. The court has a policy and practice of jailing people to “lay out” or “satisfy” the fines and fees imposed for the underlying Class C offenses. The court therefore has a policy and practice of jailing people as a result of their Class C misdemeanor convictions entered without the assistance of counsel.
89. The Austin Municipal Court has a policy and practice of failing to obtain knowing, voluntary, and intelligent waivers of counsel from people whom the court later jails for Class C offenses.
90. As evidenced by the lack of a system for appointing counsel and hundreds of people jailed each year, these policies and practices are so persistent and widespread that knowledge of the policies and practices is attributable to municipal policymakers. C. The Municipal Court Employs Unduly Harsh and Discriminatory Terms for
Collecting Criminal Judgment Debt, in Contrast to Civil Judgment Debt 91. If the debt resulting from Class C tickets were owed to a private party as a civil debt, the tools available to the debt collector would be much more limited. The Texas Constitution prohibits jailing almost any civil debtors, with narrow exceptions for debtors in
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contempt of court who have willfully failed to pay a legal financial obligation. Tex Const. Art. I, § 18; Ex parte Sutherland, 526 S.W.2d 536 (Tex. 1975).
92. Even civil debtors in contempt of court have significantly stronger procedural protections than the protections afforded by the Austin Municipal Court. Civil debtors are entitled to meaningful written notice of the accusations against them, appointed counsel for their defense, a hearing on willfulness, the complete defense of inability to pay, and a written commitment order if the court decides to imprison the contemnor. Tex. Fam. Code § 157.163; Ex parte Chambers, 898 S.W.2d 257 (Tex. 1995); In re Griffith, 434 S.W.3d 643 (Tex. App. Houston 2014); In re Acceptance Ins. Co., 33 S.W.3d 443 (Tex. App. Ft. Worth 2000); Ex parte Rosser, 899 S.W.2d 382 (Tex. App. Houston 1995); Ex parte Strickland, 724 S.W.2d 132 (Tex. App. Eastland 1987).
93. The Austin Municipal Court has a policy and practice of failing to provide criminal judgment debtors these basic protections.
94. The Austin Municipal Court’s policy and practice of collecting Class C debt is unduly harsh and discriminatory as applied to people who are too poor to pay. The threat of imprisonment also induces impoverished families to forego paying for basic needs, such as paying their electricity bill, in order to make their payments.
95. The Austin Municipal Court has a policy and practice of failing to give people who are jailed meaningful written notice of the accusations against them, failing to appoint counsel, failing to hold meaningful hearings on ability to pay, and failing to draft written commitment orders for a specific jail term. These policies and practices are so well-settled and widespread that knowledge of the policies and practices is attributable to municipal policymakers.
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CLASS ACTION ALLEGATIONS 96. The named Plaintiffs bring this action on behalf of themselves and all others similarly situated under Rule 23 of the Federal Rules of Civil Procedure. They seek to represent the class of all persons who, now or in the future, are unable to satisfy their criminal judgment debt assessed in Class C misdemeanor cases in Austin Municipal Court. 97. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(1)-(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure. I. Numerosity, Rule 23(a)(1) 98. Members of the putative class are so numerous that joinder is impracticable. In fiscal year 2012–2013, the Austin Municipal Court and issued 65,711 warrants and commitment orders. 3 During that year, 19.1% of Austin residents lived below the poverty line. Even if impoverished people are marginally over- or under-represented in Austin Municipal Court cases, warrants, and commitment orders, there are thousands of people who are too poor to pay their tickets, and are currently being threatened with arrest and incarceration. 99. Joinder is also impracticable because membership in the putative class is fluid. New people are ticketed and convicted every day—the average life cycle of a Class C prosecution is just 230 days. Moreover, financial stability is uncertain for people with lower incomes, and someone who is capable of paying their tickets one day may find themselves impoverished the next, due to job loss, injury, or other unforeseen circumstances. Finally, putative class members may moot their claims by serving jail time or paying fines and fees by choosing to miss payments on necessary household expenses.
3 The Austin Municipal Court reports data about warrants and commitment orders together, as one data point, to the Office of Court Administration.
22

Case 1:15-cv-00956 Document 1 Filed 10/27/15 Page 23 of 29
100. Finally, joinder is impracticable because members of the putative class are poor. They are unable to pay for an attorney to represent their interests or invest the time and money necessary to investigate and litigate their claims pro se. II. Commonality, Rule 23(a)(2)
101. The relief sought is common to all members of the putative class, and common questions of law and fact exist as to all members of the class. The Plaintiffs seek to enjoin the Austin Municipal Court’s unconstitutional policies and practices on a classwide basis. They also seek a declaration that the Austin Municipal Court’s policies and practices violate the Sixth Amendment right to counsel and the Due Process and Equal Protection rights of all putative class members.
102. Among the most important, but not the only, common questions of law and fact are:
a. Whether the Austin Municipal Court has a policy and practice of failing to ask about the reasons for a person’s failure to pay before imprisoning that person for failure to pay;
b. Whether the Austin Municipal Court has a policy and practice of failing to consider alternative punishments before imprisoning a person for failure to pay;
c. Whether the Austin Municipal Court has a policy and practice of declining to appoint counsel in Class C misdemeanor cases, then jailing people for the resulting convictions;
d. Whether the foregoing policies and practices violate the Sixth Amendment, the Due Process Clause, and/or the Equal Protection Clause;
e. Whether the foregoing policies and practices are officially promulgated policies, final decisions by municipal policymakers, practices or customs so widespread and well-settled that knowledge is attributable to municipal policymakers, or the byproduct of Defendant’s deliberate indifference to putative class members’ rights under the Sixth Amendment, the Due Process Clause, and/or the Equal Protection Clause.
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Case 1:15-cv-00956 Document 1 Filed 10/27/15 Page 24 of 29
III. Typicality, Rule 23(a)(3) 103. The named Plaintiffs’ claims are typical of the claims of the putative class
members, and they have the same interests as all other members of the putative class that they represent. The named Plaintiffs’ claims arise from the same course of conduct as claims of the putative class, and their claims are based on the same legal theories as those of the putative class.
104. None of the named Plaintiffs has received unusual treatment by the Austin Municipal Court. Each of them is at risk of suffering injuries—arrest and incarceration—that are typical of injuries that would be suffered from the City’s constitutional violations.
105. By pursuing their claims that the Austin Municipal Court’s policies and practices concerning criminal judgment debt collection violates the law in the manner alleged, the named Plaintiffs will likewise benefit every other member of the putative class. IV. Adequacy, Rule 23(a)(4)
106. The named Plaintiffs are adequate representatives of the putative class because they are members of the class and because their interests coincide with, and are not antagonistic to, those of the class.
107. There are no known conflicts of interest among putative class members, all of whom have a similar interest in vindicating the constitutional rights to which they are entitled.
108. Both named Plaintiffs are familiar with the Austin Municipal Court procedures challenged here and the constitutional protections she seeks to vindicate. The named Plaintiffs are prepared to respond to discovery requests in this case. They are enthusiastic about fulfilling the role and duties of a class representative protecting the fundamental constitutional rights of Austin’s poorest residents.
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Case 1:15-cv-00956 Document 1 Filed 10/27/15 Page 25 of 29
109. Plaintiffs are represented by attorneys from the Texas Fair Defense Project, the University of Texas Civil Rights Clinic, and Susman Godfrey L.L.P. All three entities have experience litigating complex civil rights matters in federal court. Attorneys from the Texas Fair Defense Project and the Civil Rights Clinic have investigated municipal ticketing in Austin for months. Moreover, Susman Godfrey has extensive experience litigating complex civil cases, including class actions, in federal courts across the country, including this Court, the Fifth Circuit Court of Appeals, and the U.S. Supreme Court. Affidavits from Plaintiffs’ counsel describing their qualifications accompany the motion for class certification filed simultaneously with this complaint.
110. Plaintiffs and their attorneys will fairly and adequately protect the interests of the members of the Class. V. Rule 23(b)(2)
111. Class action status is appropriate because Defendants have acted and refused to act on grounds generally applicable to the putative class. Defendants’ policies and practices with regard to failure to inquire into ability to pay before jailing, failure to consider adequate alternatives to imprisonment before jailing, jailing for convictions obtained without the assistance of counsel, and denying core procedural protections for civil judgment debtors apply equally to the class regardless of differences among class members.
112. Plaintiffs seek final injunctive and declaratory relief with respect to the constitutional protections due to people prosecuted for Class C offenses in Austin Municipal Court.
113. Injunctive and declaratory relief with respect to each claim would be appropriate to the class as a whole. All putative class members are entitled to the constitutional protections Plaintiffs seek to enforce.
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Case 1:15-cv-00956 Document 1 Filed 10/27/15 Page 26 of 29
CLAIMS FOR RELIEF Count One: Failure to Inquire Into Ability to Pay and Alternatives to Incarceration
(Section 1983 and Due Process Clause) 114. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 115. The Austin Municipal Court has a policy and practice of jailing people who are too poor to pay their criminal judgment debt, without first inquiring into the reasons the person has failed to pay the debt and adequate alternatives to incarceration. 116. Jailing a person who is too poor to pay her debt without first inquiring into the reasons she has failed to pay her debt and adequate alternatives to incarceration violates the Due Process Clause of the Fourteenth Amendment. Bearden v. Georgia, 461 U.S. 660, 666 (1983).
Count Two: Commitment to Jail Solely Due to Inability to Pay (Section 1983 and Equal Protection Clause)
117. Plaintiffs incorporate by reference allegations in the foregoing paragraphs. 118. The Austin Municipal Court has a policy and practice of jailing people solely because they are unable to pay their debts arising from fines for Class C misdemeanors. 119. Jailing a person solely because they lack the resources to pay a fine violates the Equal Protection Clause of the Fourteenth Amendment. Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970).
Count Three: Commitment to Jail for Convictions Without Assistance of Counsel (Section 1983 and the Right to Counsel and Due Process Clauses) 120. Plaintiffs incorporate by reference the allegations in the foregoing paragraphs. 121. The Austin Municipal Court has a policy and practice of failing to appoint counsel for people charged with Class C misdemeanor offenses or to obtain a knowing, voluntary, and intelligent waiver of the right to counsel. The Austin Municipal Court also has a
26

Case 1:15-cv-00956 Document 1 Filed 10/27/15 Page 27 of 29
policy and practice of jailing people to satisfy judgments of conviction for Class C misdemeanors that were obtained without the assistance of counsel.
122. The Sixth Amendment right to counsel applies against state and local governments as incorporated through the Due Process Clause of the Fourteenth Amendment.
123. Sentencing a person to imprisonment as a result of a criminal conviction obtained without the assistance of counsel, and in the absence of a knowing, voluntary, and intelligent waiver of the right to counsel, violates the Sixth Amendment right to counsel. Alabama v. Shelton, 535 U.S. 654 (2002); Argersinger v. Hamlin, 407 U.S. 25 (1972).
Count Four: Unduly Harsh and Discriminatory Debt Collection (Section 1983 and Equal Protection Clause)
124. Plaintiffs incorporate by reference the allegations in the foregoing paragraphs. 125. The Austin Municipal Court has a policy and practice of without notice or appointment of counsel, failing to make findings of willfulness before jailing, and jailing people with unclear orders of commitment to collect Class C debts. Use of these tactics for civil judgment debt collection is prohibited by Texas law. 126. The tactics used by the Austin Municipal Court are unduly harsh and discriminatory methods of debt collection when compared with the debt collection tactics permitted by a private creditor. 127. Use of unduly harsh and discriminatory debt collection practices against people who are too poor to pay criminal judgment debt violates the Equal Protection Clause of the Fourteenth Amendment. James v. Strange, 407 U.S. 128 (1972).
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REQUEST FOR RELIEF
WHEREFORE, Plaintiffs request that this Court issue the following relief:
1. An injunction prohibiting Defendants from:
a. imprisoning class members for failure to satisfy their debt without inquiring into the reasons for their failure to satisfy the debt or adequate alternatives to imprisonment, specifically, tailoring the debt to the class member’s resources;
b. imprisoning class members solely because they lack the resources to satisfy their debt;
c. imprisoning class members as a result of convictions for which the class member did not have assistance of counsel or knowingly, intelligently, and voluntarily waive that right; and
d. imprisoning class members to collect criminal judgment debt without the core legal protections required for collection of debt by a private creditor;
2. A declaration that the foregoing practices violate the class members’
constitutional rights as alleged;
3. An order and judgment granting reasonable attorneys’ fees and costs pursuant to
42 U.S.C. § 1988; and
4. Any other relief this Court deems just and proper.
Respectfully Submitted,
By: /s/ Rebecca Bernhardt
Rebecca Bernhardt Texas Bar No. 24001729 Susanne Pringle Texas Bar No. 24083686 Texas Fair Defense Project 510 S. Congress Ave., Suite 208 Austin, TX 78704 (512) 637-5220 (t) (512) 637-5224 (f) rbernhardt@fairdefense.org
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Case 1:15-cv-00956 Document 1 Filed 10/27/15 Page 29 of 29
springle@fairdefense.org Ranjana Natarajan Texas Bar No. 24071013 Trisha Trigilio Texas Bar No. 24075179 University of Texas School of Law Civil Rights Clinic 727 East Dean Keeton Street Austin, TX 78705 Tel: 512-232-7222 Fax: 512-232-0800 rnatarajan@law.utexas.edu ttrigilio@law.utexas.edu Joseph S. Grinstein (TX Bar No. 24002188) Neal Manne (TX Bar No. 12937980) SUSMAN GODFREY LLP 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666 jgrinstein@susmangodfrey.com nmanne@susmangodfrey.com
29

 
 Case: 1:15-cv-956 As of: 10/23/2017 04:30 PM CDT 1 of 6
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:15−cv−00956−SS

CLOSED

Gonzales et al v. City of Austin Assigned to: Judge Sam Sparks Cause: 42:1983 Civil Rights Act
Plaintiff Valerie Gonzales TERMINATED: 12/08/2015

Date Filed: 10/27/2015 Date Terminated: 03/16/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Brian A. Coleman Drinker Biddle & Reath LLP 1500 K Street, N.W., Suite 1100 Washington, DC 20005 202−842−8800 Fax: 202−842−8465 Email: brian.coleman@dbr.com TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph S. Grinstein Susman Godfrey, L.L.P. 1000 Louisiana Suite 5100 Houston, TX 77002 (713) 653−7824 Fax: (713) 654−6666 Email: jgrinstein@susmangodfrey.com TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lindsay B. Orr Drinker Biddle & Reath LLP 222 Delaware Ave., Ste. 1410 Wilmington, DE 19801 302−467−4200 Fax: 302−467−4201 Email: Lindsay.Orr@dbr.com TERMINATED: 12/08/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Neal Stuart Manne Susman Godfrey L.L.P. 1000 Louisiana Suite 5100 Houston, TX 77002−5096 (713) 653−7827 Fax: (713) 654−6666 Email: nmanne@susmangodfrey.com TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ranjana Natarajan Civil Rights Clinic, University of Texas School of Law 727 E. Dean Keeton St.

Case: 1:15-cv-956 As of: 10/23/2017 04:30 PM CDT 2 of 6

Austin, TX 78705 512−232−7222 Fax: 512−232−0800 Email: rnatarajan@law.utexas.edu TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Bernhardt Texas Fair Defense Project 314 E. Highland Mall Blvd., Suite 108 Austin, TX 78752 (512) 637−5220 Fax: 512−637−5224 Email: rbernhardt@fairdefense.org TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susanne Ashley Pringle Texas Fair Defense Project 314 E. Highland Mall Blvd. Suite 108 Austin, TX 78752 (512) 637−5220 x103 Fax: (512) 637−5224 Email: springle@fairdefense.org TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trisha Trigilio ACLU of Texas 1500 McGowen Street Houston, TX 77004 713.942.8146 Fax: 713.942.8966 Email: ttrigilio@aclutx.org TERMINATED: 12/08/2015 ATTORNEY TO BE NOTICED

Plaintiff
Maria Salazar TERMINATED: 12/08/2015

represented by Brian A. Coleman (See above for address) TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph S. Grinstein (See above for address) TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay B. Orr (See above for address) TERMINATED: 12/08/2015 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Neal Stuart Manne (See above for address) TERMINATED: 12/08/2015

Case: 1:15-cv-956 As of: 10/23/2017 04:30 PM CDT 3 of 6

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ranjana Natarajan (See above for address) TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Bernhardt (See above for address) TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susanne Ashley Pringle (See above for address) TERMINATED: 12/08/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trisha Trigilio (See above for address) TERMINATED: 12/08/2015 ATTORNEY TO BE NOTICED

Plaintiff Karian Harris

represented by Brian A. Coleman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph S. Grinstein (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Lindsay B. Orr (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Neal Stuart Manne (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ranjana Natarajan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Rebecca Bernhardt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Susanne Ashley Pringle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Trisha Trigilio

Case: 1:15-cv-956 As of: 10/23/2017 04:30 PM CDT 4 of 6
(See above for address) TERMINATED: 01/27/2016 ATTORNEY TO BE NOTICED

V. Defendant City of Austin

represented by Christine G. Edwards Assistant City Attorney P.O. Box 1546 Austin, TX 78767−1546 (512) 974−2419 Fax: 512/974−6490 Email: chris.edwards@austintexas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robin E. Harris Loiacono Law Group 3800 N. Lamar Blvd., Suite 200 Austin, TX 78756 (512) 299−9598 Email: robinharris@lolawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/27/2015 10/27/2015 10/27/2015
10/27/2015 10/27/2015
10/27/2015 10/27/2015 10/29/2015 11/17/2015

# Docket Text
1 COMPLAINT ( Filing fee $ 400 receipt number 0542−7903906), filed by Valerie Gonzales, Maria Salazar. (Attachments: # 1 Civil Cover Sheet)(Trigilio, Trisha) (Entered: 10/27/2015)
2 REQUEST FOR ISSUANCE OF SUMMONS by Valerie Gonzales, Maria Salazar. (Trigilio, Trisha) (Entered: 10/27/2015)
Case Assigned to Judge Sam Sparks. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (so) (Entered: 10/27/2015)
3 Summons Issued as to City of Austin. (so) (Entered: 10/27/2015)
4 MOTION to Certify Class by Valerie Gonzales, Maria Salazar. (Attachments: # 1 Ex. A, Gonzales Declaration October 2015, # 2 Ex. B, Gonzales Case List, # 3 Ex. C, Gonzales Declaration August 2015, # 4 Ex. D, Salazar Declaration, # 5 Ex. E, Austin Municipal Court Data 2011−2015, # 6 Ex. F, Application for Extension to Pay, # 7 Ex. G, Austin Municipal Court Internal Rule 13.3, # 8 Ex. H, Austin City Code 2−10−21, # 9 Ex. I, Rules of Austin Municipal Court, # 10 Ex. J, Austin Municipal Court Website: Appointment of Counsel, # 11 Ex. K, Austin Budget 2014−2015 (Excerpt), # 12 Ex. L, U.S. Census Quickfacts: Austin, Texas, # 13 Ex. M, Bernhardt Declaration, # 14 Ex. N, Pringle Declaration, # 15 Ex. O, Natarajan Declaration, # 16 Ex. P, Trigilio Declaration, # 17 Ex. Q, Grinstein Declaration)(Trigilio, Trisha) (Entered: 10/27/2015)
5 DEFICIENCY NOTICE: re 4 MOTION to Certify Class (dm) (Entered: 10/27/2015)
6 ATTACHMENT of Proposed Order Granting Class Certification to 4 MOTION to Certify Class by Valerie Gonzales, Maria Salazar. (Trigilio, Trisha) (Entered: 10/27/2015)
7 SUMMONS Returned Executed by Valerie Gonzales, Maria Salazar. City of Austin served on 10/27/2015, answer due 11/17/2015. (Trigilio, Trisha) (Entered: 10/29/2015)
8 Motion to Dismiss for Failure to State a Claim by City of Austin. (Attachments: # 1 Proposed Order)(Edwards, Christine) (Entered: 11/17/2015)

Case: 1:15-cv-956 As of: 10/23/2017 04:30 PM CDT 5 of 6

11/19/2015 11/19/2015 11/20/2015
11/20/2015
11/24/2015 12/01/2015 12/08/2015 12/28/2015 12/29/2015 12/30/2015
01/04/2016 01/05/2016 01/08/2016 01/08/2016 01/11/2016 01/11/2016 01/11/2016

9 MOTION to Appear Pro Hac Vice by Susanne Ashley Pringle ( Filing fee $ 100 receipt number 0542−7973277) by Brian A. Coleman on behalf of Valerie Gonzales, Maria Salazar. (Pringle, Susanne) (Entered: 11/19/2015)
10 MOTION to Appear Pro Hac Vice by Susanne Ashley Pringle ( Filing fee $ 100 receipt number 0542−7973493) by Lindsay B. Orr on behalf of Valerie Gonzales, Maria Salazar. (Pringle, Susanne) (Entered: 11/19/2015)
11 ORDER GRANTING 9 Motion to Appear Pro Hac Vice for Brian A. Coleman. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (os) (Entered: 11/20/2015)
12 ORDER GRANTING 10 Motion to Appear Pro Hac Vice for Lindsay B. Orr. Pursuant to our Administrative Policies and Procedures for Electronic Filing, the attorney hereby granted to practice pro hac vice in this case must register for electronic filing with our court within 10 days of this order. Signed by Judge Sam Sparks. (os) (Entered: 11/20/2015)
13 Unopposed MOTION for Extension of Time to File Response/Reply to Motion to Dismiss by Valerie Gonzales, Maria Salazar. (Attachments: # 1 Proposed Order)(Grinstein, Joseph) (Entered: 11/24/2015)
14 ORDER GRANTING 13 Motion for Extension of Time to File Response. Signed by Judge Sam Sparks. (dm) (Entered: 12/01/2015)
15 AMENDED COMPLAINT against All Defendants amending, filed by Karian Harris.(Trigilio, Trisha) (Entered: 12/08/2015)
16 ORDER DISMISSING 4 Motion to Certify Class; DISMISSING without prejudice 8 Motion to Dismiss. Signed by Judge Sam Sparks. (td) (Entered: 12/29/2015)
17 Motion Re−urging Motion to Dismiss for Failure to State a Claim 8 by City of Austin. (Edwards, Christine) Modified on 12/29/2015 to correct motion type (td). (Entered: 12/29/2015)
18 Response in Opposition to Motion, filed by Karian Harris, re 8 Motion to Dismiss for Failure to State a Claim filed by Defendant City of Austin, 17 Motion to Dismiss for Failure to State a Claim filed by Defendant City of Austin (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Proposed Order)(Grinstein, Joseph) (Entered: 12/30/2015)
19 ORDER, ( Status Conference set for 1/13/2016 09:00 AM before Judge Sam Sparks,). Signed by Judge Sam Sparks. (dm) (Entered: 01/04/2016)
20 MOTION for Extension of Time to File Response/Reply as to 18 Response in Opposition to Motion, by City of Austin. (Attachments: # 1 Proposed Order)(Edwards, Christine) (Entered: 01/05/2016)
21 MOTION for Leave to Exceed Page Limitation by City of Austin. (Attachments: # 1 Proposed Order)(Edwards, Christine) (Entered: 01/08/2016)
22 REPLY to Response to Motion, filed by City of Austin, re 8 Motion to Dismiss for Failure to State a Claim filed by Defendant City of Austin (Edwards, Christine) (Entered: 01/08/2016)
23 NOTICE of Attorney Appearance by Robin E. Harris on behalf of City of Austin (Harris, Robin) (Entered: 01/11/2016)
24 ORDER GRANTING 20 Motion for Extension of Time to File Response. Signed by Judge Sam Sparks. (dm) (Entered: 01/11/2016)
25 REPLY to Response to Motion, filed by Valerie Gonzales, Karian Harris, Maria Salazar, re 8 Motion to Dismiss for Failure to State a Claim filed by Defendant City of Austin Surreply To Defendant's Motion to Dismiss (Attachments: # 1 Exhibit E, # 2 Exhibit F, # 3 Exhibit G, # 4 Exhibit H, # 5 Exhibit I, # 6 Exhibit J)(Grinstein, Joseph) (Entered: 01/11/2016)

Case: 1:15-cv-956 As of: 10/23/2017 04:30 PM CDT 6 of 6

01/11/2016
01/12/2016 01/13/2016 01/19/2016 01/19/2016 01/26/2016 01/27/2016 03/16/2016 03/16/2016 03/23/2016
04/04/2016

26 Opposed MOTION to Certify Class by Karian Harris. (Attachments: # 1 Ex. A, Decl. of Karian Harris, # 2 Ex. B, Docket Sheets for Karian Harris, # 3 Ex. C, Austin Municipal Court Data, # 4 Ex. D, Payment Plan Application, # 5 Ex. E, Austin Municipal Court Internal Rule, # 6 Ex. F, Decl. of Valerie Gonzales, # 7 Ex. G, Decl. of Maria Salazar, # 8 Ex. H, Decl. of Juan Martinez, # 9 Ex. I, Austin City Code 2−10−21, # 10 Ex. J, Austin Municipal Court Rules, # 11 Ex. K, Austin Municipal Court Website, # 12 Ex. L, Austin City Budget Excerpt, # 13 Ex. M, US Census Austin Data, # 14 Ex. N, Decl. of Rebecca Bernhardt, # 15 Ex. O, Decl. of Susanne Pringle, # 16 Ex. P, Decl. of Ranjana Natarajan, # 17 Ex. Q, Decl. of Trisha Trigilio, # 18 Ex. R, Decl. of Joseph Grinstein, # 19 Ex. S, Decl. of Brian Coleman)(Trigilio, Trisha) (Entered: 01/11/2016)
27 ORDER GRANTING 21 Motion for Leave to File Excess Pages. Signed by Judge Sam Sparks. (dm) (Entered: 01/12/2016)
28 Minute Entry for proceedings held before Judge Sam Sparks: Status Conference held on 1/13/2016. Motions taken under advisement, written order forthcoming. (Minute entry documents are not available electronically.). (Court Reporter Lily Reznik.)(dm) (Entered: 01/13/2016)
29 Proposed Scheduling Order by Valerie Gonzales, Karian Harris, Maria Salazar. (Grinstein, Joseph) (Entered: 01/19/2016)
30 STIPULATION Order Regarding Briefing Schedule for Plainitiff's Motion for Class Certification by Valerie Gonzales, Karian Harris, Maria Salazar. (Grinstein, Joseph) (Entered: 01/19/2016)
31 Unopposed MOTION to Withdraw as Attorney for Plaintiff, by Trisha Trigilio by Karian Harris. (Trigilio, Trisha) (Entered: 01/26/2016)
32 ORDER GRANTING 31 Motion for Trisha Trigilio to Withdraw as Attorney. Signed by Judge Sam Sparks. (os) (Entered: 01/27/2016)
33 ORDER GRANTING 17 Motion Re−Urging Motion to Dismiss. Signed by Judge Sam Sparks. (td) (Entered: 03/16/2016)
34 ORDER DISMISSING CASE WITHOUT PREJUDICE. Signed by Judge Sam Sparks. (td) (Entered: 03/16/2016)
35 Transcript filed of Proceedings held on January 13, 2016, Proceedings Transcribed: All Pending Matters. Court Reporter/Transcriber: Lily I. Reznik, Telephone number: 512−391−8792. Parties are notified of their duty to review the transcript to ensure compliance with the FRCP 5.2(a)/FRCrP 49.1(a). A copy may be purchased from the court reporter or viewed at the clerk's office public terminal. If redaction is necessary, a Notice of Redaction Request must be filed within 21 days. If no such Notice is filed, the transcript will be made available via PACER without redaction after 90 calendar days. The clerk will mail a copy of this notice to parties not electronically noticed Redaction Request due 4/13/2016, Redacted Transcript Deadline set for 4/25/2016, Release of Transcript Restriction set for 6/21/2016, (Reznik, Lily) (Entered: 03/23/2016)
36 ADVISORY TO THE COURT by City of Austin. (Edwards, Christine) (Entered: 04/04/2016)

 
 Case 1:15-cv-00956-SS Document 15 Filed 12/08/15 Page 1 of 26

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION
KARIAN HARRIS, on behalf of herself and all others similarly situated,
Plaintiff, v.
CITY OF AUSTIN,
Defendant.

Civil Action No. 15-cv-956-SS

FIRST AMENDED COMPLAINT

Case 1:15-cv-00956-SS Document 15 Filed 12/08/15 Page 2 of 26
NATURE OF THE ACTION 1. Plaintiffs in this case face the threat of jail solely because they cannot afford to pay their debts. The City of Austin regularly jails people who are too poor to pay their fines and fees for petty misdemeanors, such as traffic tickets, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. Specifically, the City jails people without appointing an attorney to represent them and without asking whether they have the money to pay their debt. Plaintiffs bring this class action to vindicate their constitutional rights to counsel, due process, and equal protection. 2. The City jails people through its operation of the Austin Municipal Court, which has criminal jurisdiction limited to the least serious crimes punishable in the State of Texas. The court charges impoverished people exorbitant fines and fees, then arrests and jails people who fall behind on their payments, violating their constitutional rights in the process. This practice deprives people of their physical liberty, threatens the stability of their employment and housing, and separates them from their children and families. 3. Through this case, Plaintiffs seek to ensure only that the City provides basic procedural protections before it jails people for failing to pay fines and fees for traffic tickets and other petty misdemeanors. The City’s constitutionally deficient process results in the imprisonment of hundreds of people each year. Plaintiffs seek an injunction prohibiting the City from jailing people who are too poor to pay without the procedural protections guaranteed by the Sixth and Fourteenth Amendments.
JURISDICTION AND VENUE 4. This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. § 2201 et seq., and the Sixth and Fourteenth Amendments to the United States Constitution. This Court has
2

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jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and § 1343 (civil rights jurisdiction).
5. Venue in this district is proper under 28 U.S.C. § 1391(b)(1), because the City of Austin resides in this district, and under § 1391(b)(2), because a substantial part of the events giving rise to the Plaintiff’s claims occurred in this district.
PARTIES 6. Plaintiff Karian Harris is a thirty-five-year-old mother who resides in Austin, Texas. She lives near the federal poverty level. She is at risk of being jailed, without an attorney to defend her, due to her inability to pay her debt for traffic tickets. 7. Defendant City of Austin is a municipality organized under the laws of the State of Texas. The City of Austin has established the Austin Municipal Court as a department of the City. The City of Austin may be served with process by serving the City Clerk, Mayor, Treasurer, or Secretary at 301 W. 2nd Street, Austin, Texas 78701.
FACTS Karian Harris
8. Plaintiff Karian Harris is a thirty-five-year-old mother and sole caretaker of seven minor children. She lives with her children in Austin.
9. Ms. Harris makes less than $500 a month at her job as a childcare aid at Barrington Elementary School, which amounts to less than $6000 a year. She has no other sources of income. She receives food stamps, Section 8 housing assistance, and free school lunches for her children.
10. Over the last 14 years, the City of Austin gave Ms. Harris many traffic tickets. Ms. Harris did not have enough money to pay her traffic ticket debts because of her modest income and the expenses necessary to feed and shelter her children.
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11. Ms. Harris received most of her tickets because she could not afford expenses like a car inspection or insurance. Nevertheless, Ms. Harris had to keep driving to care for her children. She was stuck—she was repeatedly ticketed for offenses such as driving without insurance, but she could not afford insurance or afford to pay off all of her traffic tickets.
12. In December 2010, Ms. Harris was arrested for warrants resulting from her unpaid traffic tickets owed to the City of Austin. She was three months pregnant when she was arrested. After she was arrested, she was taken to Travis County Jail, where she waited to see an Austin Municipal Court judge.
13. The judge ordered Ms. Harris to spend more than two weeks in jail while pregnant. She missed Christmas with her children while in jail and was released on her daughter’s birthday, December 26, 2010. While in jail, Ms. Harris was especially concerned for the wellbeing of her unborn child and her six-month-old baby.
14. The judge did not ask Ms. Harris about her income, her dependents, or other factors bearing on her ability to pay. He did not inquire into her ability to complete community service. He did not consider reducing the debts based on Ms. Harris’s ability to pay.
15. If the judge had asked, Ms. Harris would have explained that she was working as a housekeeper for only about $6.50 an hour for 25 hours a week. Ms. Harris also would have told him that she had been assigned community service for her tickets, but that she could not satisfy her community service requirements because she was pregnant and because when she was not at work she had to watch her children—one of whom was only six months old at the time of Ms. Harris’s arrest.
16. As a result of her incarceration in 2010, Ms. Harris missed work and lost her job as a housecleaner. Her financial struggles were even worse when she was finally released.
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17. About two years after her 2010 arrest, Ms. Harris received three more tickets, all of which arose from a single traffic stop in January 2013. One ticket was for driving without a valid license, one for driving without insurance, and the last for an expired registration. Ms. Harris could not afford to pay those tickets.
18. In June 2013, Ms. Harris was arrested for outstanding warrants resulting from her unpaid traffic tickets owed to the City of Austin. She was four months pregnant when she was arrested. After she was arrested, she was taken to Travis County Jail, where she waited to see an Austin Municipal Court judge.
19. The judge ordered Ms. Harris to either pay $600 or spend four days in jail. Ms. Harris could not afford to pay and was committed to jail for the four days.
20. The judge did not ask Ms. Harris about her income, her dependents, or other factors bearing on her ability to pay. He did not consider reducing the debts based on Ms. Harris’s ability to pay.
21. If the judge had asked, Ms. Harris would have explained that she was not working and could not afford to pay the tickets.
22. On information and belief, Ms. Harris was not offered community service on those tickets. Even if she had been offered community service, she would not have been able to complete it, because she had six young children at home and was pregnant with her seventh child.
23. At no point in Ms. Harris’s traffic ticket cases did the court inquire into her ability to afford counsel, take any steps to appoint counsel, or obtain a knowing, voluntary, and intelligent waiver of Ms. Harris’s right to counsel. Ms. Harris could not and cannot afford counsel. She was not represented by counsel when she entered a plea on any of her underlying tickets nor when she
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was arrested and jailed for failure to pay. She did not waive her right to counsel at any of those proceedings.
24. Since the court jailed Ms. Harris in 2013, the City has given her two more tickets— one for lack of insurance, and the other for not having a driver’s license. The Department of Public Safety will not allow Ms. Harris to renew her driver’s license because the City has reported Ms. Harris for failure to pay her traffic tickets.
25. Ms. Harris has appeared in court on these tickets and made her best effort to satisfy the court’s order. Most recently, in August 2015, the court ordered Ms. Harris to pay $75 a month until the debt was paid off. She paid one installment before losing her job. She was able to find new employment at Barrington Elementary, but because she makes so little money, she cannot afford to pay $75 a month.
26. At no point in Ms. Harris’s traffic ticket cases did the court consider reducing or tailoring her debt to her ability to pay.
27. The court has issued two past due warning notices to Ms. Harris, but the court will not offer her any solution other than performing community service that it is a hardship to perform or paying a debt she cannot afford.
28. Ms. Harris is at risk of the Austin Municipal Court issuing warrants, which she cannot afford to clear, and then jailing her without any inquiry into her ability to pay her tickets, forcing her to spend days in jail unable to care for her children. I. Legal Framework for the Austin Municipal Court’s Jurisdiction Over Petty Crimes
29. The City of Austin vests the Austin Municipal Court with jurisdiction over “fine only” crimes, which include Class C misdemeanors. Austin, Tex., Charter art. VI; Tex. Gov. Code
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§§ 29.003, 30.00003–30.00005. Class C misdemeanors are the least serious crimes punishable in the State of Texas, such as failure to signal while changing lanes or entering a park after hours.
30. Under municipal law, the City Council has appointed a Presiding Judge and a Clerk of Court for the Austin Municipal Court. Austin, Tex., City Code §§ 2-10-2, 2-10-11. The Presiding Judge has the duty to adopt “rules for the orderly trial of a case in the municipal court.” Id. The Austin Municipal Court is made up of nine full-time and eleven part-time judges.
31. The Presiding Judge and the Clerk of Court act as final policymakers for the Austin Municipal Court. They set municipal policies and practices entirely separate from—and in some cases contrary to—the municipal judges’ authority under state law. References to “the Austin Municipal Court” or “the court” denote an entity that includes municipal judges and staff in the clerk’s office. II. Constitutional Protections for People Prosecuted in Austin Municipal Court
32. The Due Process and Equal Protection Clauses of the Fourteenth Amendment, along with the Sixth Amendment, protect people who are prosecuted for petty crimes, such as Class C misdemeanors.
33. The Due Process Clause requires courts to hold an ability to pay hearing before jailing a poor person for failure to pay a criminal judgment debt. Bearden v. Georgia, 461 U.S. 660 (1983). At that hearing, the court must inquire into the reason the person failed to pay and consider alternatives to jail, such as tailoring the debt to the person’s resources. Id. at 672.
34. The Equal Protection Clause prohibits courts from jailing someone for a fine-only offense solely because she lacks the ability to pay. Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970).
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35. The Sixth Amendment prohibits courts from jailing a person for a conviction secured without the assistance of counsel for the accused. Argersinger v. Hamlin, 407 U.S. 25 (1972). If a trial court fails to appoint counsel for the accused in a misdemeanor case, the court cannot impose a jail term as punishment for a resulting conviction. Id. The trial court is prohibited both from imposing a jail term immediately upon conviction, and from activating a suspended jail term for subsequent failure to abide by the terms of the court’s judgment. Alabama v. Shelton, 535 U.S. 654 (2002). Without the assistance of counsel at trial, the court can never impose a term of imprisonment for that offense. Id.
36. The Equal Protection Clause of the Fourteenth Amendment prohibits the government from stripping criminal judgment debtors of the rights afforded to civil judgment debtors and using unduly harsh methods of debt collection for criminal judgment debt. James v. Strange, 407 U.S. 128 (1972). III. The Austin Municipal Court’s Policies and Practices Violate the Constitutional
Rights of People Who Are Too Poor to Pay 37. Class C prosecutions in Austin Municipal Court trap people who are too poor to pay in an endless cycle of accumulating debt. The court burdens people who are too poor to pay with additional fees and logistical hurdles at every step of the process, then arrests people who cannot pay and denies them the procedural protections required by the Constitution. For people who are too poor to pay, the almost-inevitable result of this system is jail time. 38. The first step in the life of nearly every Class C prosecution is a ticket. When a police officer issues a ticket, she instructs the recipient to sign the bottom of the ticket, which contains a promise to pay a fine or appear in Austin Municipal Court. People who are capable of paying their tickets in a lump sum typically resolve their cases by mailing the court a check.
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39. People who are too poor to pay must appear in court. If a person fails to appear in court, the judge has the option to either reschedule the appearance without a formal order, issue a summons ordering the person to appear, or issue a warrant for the person’s arrest. Tex. Code Crim. Proc. Arts. 15.03, 45.014.
40. The Austin Municipal Court has a policy and practice of issuing an arrest warrant and increasing all fines by 50% the first time a person fails to appear. The court charges a $50 fee for each ticket for which a warrant has been issued—the first of many fees the court adds on top of the initial ticket. The court also charges “bail” to clear these warrants. “Bail” is the full amount that the ticket would cost if the person who received the ticket pled guilty. People who are too poor to pay the “bail” are not allowed to clear their warrant by rescheduling a court date over the phone.
41. People with open warrants for failing to appear in court are arrested as a result of encounters with the police. Once arrested, they are taken to Austin Municipal Court.
42. Once a person appears in court—whether voluntarily or upon arrest—the next step is to go to trial, plead no contest, or plead guilty. Upon conviction, Texas law authorizes the court to assess a fine up to $500, court costs, and various fees that cause the debt to spiral further out of control.
43. For example, the Austin Municipal Court has a policy and practice of charging a $25 fee to set up a payment plan for each ticket. In other words, if a person has three tickets and she is too poor to pay them up front, the court charges her an extra $75.
44. The Austin Municipal Court has a policy and practice of charging a $30 fee for a credit card payment or check that is rejected.
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45. The Austin Municipal Court has a policy and practice of charging a $30 driver’s license renewal suspension fee to people who are too poor to pay their tickets. In addition, when the court refers a ticket to a collection agency, the court charges a 30% collection fee.
46. The Austin Municipal Court has many options for easing the burden of these fines and fees on people who are too poor to pay. The court is authorized to convert the debt to a civil judgment, order the ticket recipient to make payments under a payment plan, or order her to discharge her debt through community service. Tex. Code Crim. Proc. Arts. 45.0047, 45.049. The court is also authorized to waive part or all of the outstanding debt for any person who is too poor to pay or perform community service without undue hardship. Id. Art. 45.0491.
47. The Austin Municipal Court fails to consider the full range of these options. The court has a policy and practice of refusing to partially or fully waive debt, or collect debt as a civil judgment, for people too poor to pay in full. The court has a policy and practice of limiting people to two options—community service or a payment plan on the full amount of the debt—regardless of whether these options impose an undue hardship.
48. Taking advantage of these two options is not easy. The Austin Municipal Court’s payment plan application fails to include spaces for explaining essential financial information, such as how many children a person has, or whether they receive governmental assistance for the poor. The Austin Municipal Court does not post a community service application on its website. Clerk’s office staff have a policy and practice of refusing to offer the payment plan or community service options unless a person has already missed the deadline to pay their fines and fees, risking issuance of a warrant and additional fees.
49. The Austin Municipal Court has a policy and practice of issuing an arrest warrant called a “capias pro fine” warrant if a person misses their deadline to make payments or perform
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community service. For people who appear in person, prove their poverty, and establish a payment

plan, Clerk’s office staff refuse to clear their capias warrants until the person makes a payment.

Capias warrants put people who are too poor to pay at high risk of being arrested and jailed.

50. For people whose cases are referred to a collections agency, the court has a policy

and practice of refusing to clear capias warrants unless the court receives separate payments on

each outstanding ticket. In other words, even if a person is making regular payments toward the

balance of one ticket, the court refuses to clear outstanding capias warrants on that person’s other

tickets. The longer that a capias warrant remains outstanding, the higher the risk that a person who

is too poor to pay will be arrested and jailed.

51. The Austin Municipal Court has a policy and practice of demanding arbitrary, on-

the-spot payments from people who appear in court—whether voluntarily or upon arrest—to clear

a capias pro fine warrant. For people with smaller debts, the court has a policy and practice of

demanding the amount of money in the person’s pockets before letting them go. For people with

larger debts, the court asks how much money the person would be able to produce that day, and

orders the person to produce that amount under the threat of jail time. The process is like a

shakedown.

52. The Austin Municipal Court also charges a $50 fee for each capias pro fine warrant

the court issues. In other words, if a ticket recipient is too poor to pay or perform community

service, she is subjected to an endless cycle of warrants that increase the debt she owes to the court.

For example, for a person who is too poor to make payments or take time off from work, debt from

a single ticket for failure to signal while changing lanes can accumulate like so:

Fine Court Costs Late Fine Increase (50%) Arrest Warrant Fee

$ 66.00 $ 103.00 $ 33.00 $ 50.00

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Check Return Fee Payment Plan Fee License Renewal Suspension Fee Capias Warrant Fee
Collection Fee Total

$ 30.00 $ 25.00 $ 30.00 $ 50.00 $ 387.00 x 1.30 $ 503.01

53. The Austin Municipal Court adjudicates over 150,000 Class C misdemeanor cases per year, resulting in approximately $30 million in gross collections.
54. As described in detail below, the Austin Municipal Court has a policy and practice of jailing people who take too long to satisfy their ever-growing debts. The court has a policy and practice of jailing people until their debts are “satisfied,” or for a “total layout” of the debt. The court then issues “jail credit,” or monetary credit for jail time, at a default rate of $100 per day. That default rate can be modified arbitrarily. The court has a policy and practice of adjusting the amount of jail credit granted per day based on the date the Travis County Sheriff’s Office releases people who are jailed. In other words, the Sheriff’s Office has unilateral authority to determine how long people must spend in jail until they “satisfy” their debt.
55. The Austin Municipal Court does not automatically issue jail credit in all cases. In cases where jail credit is not automatically issued, people who are jailed must provide proof of incarceration to the Austin Municipal Court—even if the Austin Municipal Court is the same court that committed the person to jail. The Austin Municipal Court has a policy and practice of charging people a fee in order to obtain proof that the court jailed them.
56. These policies and practices affect thousands of Austin residents. The Austin Municipal Court issued jail credit in nearly 20,000 cases in fiscal year 2012–2013. During that same period, the Austin Municipal Court refused to waive one dollar of outstanding debt in any of its more than 170,000 cases.

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A. The Austin Municipal Court Jails People Solely Because They Are Too Poor to Pay, Without Inquiring Into Ability to Pay or Alternative Punishments 57. The Austin Municipal Court has a policy and practice of jailing people solely
because they are unable to satisfy their criminal judgment debt, even if they can demonstrate that their failure to pay or perform community service was not willful.
58. The Austin Municipal Court has a policy and practice of bringing people who are arrested on capias pro fine warrants to Central Booking, where they are processed into Travis County Jail. Their clothes and belongings are confiscated. They are brought before a municipal judge in jail-issued striped pajamas, shackled to one another at the wrist. Under these circumstances, the court holds brief hearings to determine whether to send each person to jail.
59. The Austin Municipal Court has a policy and practice of jailing people without any meaningful inquiry into their reasons for failing to pay. The court jails people without inquiring into their income, expenses, household dependents, or other circumstances bearing on their ability to pay.
60. The Austin Municipal Court has a policy and practice of holding jail commitment hearings without prior notice that the hearing will take place, and without informing ticket recipients that their ability to pay or perform community service is a crucial issue in the hearing.
61. The Austin Municipal Court has a policy and practice of failing to provide form financial information affidavits to arrestees during jail commitment hearings.
62. The Austin Municipal Court has a policy and practice of failing to make meaningful inquiries into alternatives to imprisonment, including collection of outstanding debt as civil judgment debt and reducing or waiving debts.
63. The court’s policies and practices are reflected in the preprinted form the court uses to commit people to jail. The form, which judges fill in by hand, does not include a space to enter
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meaningful factual findings about constitutionally-required considerations, such as the person’s ability to pay, the adequacy of alternative punishments, and the necessity of jail time to satisfy the state’s interest in punishment. There is no preprinted form for tailoring outstanding debts to the person’s resources.
64. The court’s policies and practices are reinforced by the Austin City Code. Section 2-10-21 of the Austin City Code provides: “If a defendant defaults on payment of a fine or fails to comply with alternative sentencing, a judge may imprison the defendant until the fine is paid in full.” This Section does not require the court to inquire into ability to pay or consider alternative punishments, such as tailoring a fine to the person’s resources, for people who are unable to pay.
65. These policies and practices are also reinforced by the Austin Municipal Court Rules. Rule 9.4, “Inability to Pay Fine,” provides that the court “may” order a payment plan or community service in lieu of immediate payment of a fine, “[i]f the defendant qualifies.” The Rules do not describe the criteria for permitting people to satisfy their debts through payment plans or community service. The Rules do not require the court to consider alternative punishments, such as tailoring a fine to the person’s resources, for people who are unable to pay.
66. The court has a policy and practice of failing to provide any procedures or guidelines for jailing people who have not paid their outstanding debts. No provision of the Austin City Code or the Austin Municipal Court Rules establishes such procedures or guidelines.
67. The best evidence of the court’s failure to consider alternatives to jail is its own data on debt waivers. The Austin Municipal Court’s self-reported data indicate that the court waived debt in just 11 of more than 600,000 cases over a four-year period. By comparison, on information and belief, the court jailed more than 1700 people in just one year during the same time period.
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68. Altogether, the Austin Municipal Court has a policy and practice of failing to comply with any aspect of the ability to pay hearing required under the Due Process Clause. As a result, the court has a policy and practice of jailing people solely because they are unable to satisfy their criminal judgment debt1, in violation of their rights under the Equal Protection Clause. People who are genuinely unable to make debt payments or perform community service, such as Ms. Harris, are jailed solely because of their lack of resources.
69. This is not a policy and practice set by state law. In fact, state law prohibits municipal judges from jailing people for a crime without an ability to pay hearing required under the Due Process Clause. Tex. Code Crim. Proc. Art. 45.046. Denial of the ability to pay hearing required under the Due Process Clause is a strictly municipal policy and practice.
70. As evidenced by the Austin Municipal Court Rules and preprinted form orders, these policies and practices are so persistent and widespread that knowledge of the policies and practices is attributable to municipal policymakers. The policymakers with final authority to remedy this constitutional violation have failed to do so. B. The Municipal Court Imprisons People For Criminal Convictions Entered Without
Assistance of Counsel 71. The Austin Municipal Court has a policy and practice of entering Class C misdemeanor convictions without the benefit of counsel for the accused, and then using those convictions as a basis for jailing people. 72. The Austin Municipal Court has a policy and practice of refusing to appoint counsel for people charged with Class C misdemeanors. No provision of the Austin City Code or the Austin
1 Plaintiffs do not challenge the court’s authority to jail people for willful nonpayment of debt or other actions in contempt of court.
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Municipal Court Rules discusses appointing counsel in these cases. The Austin Municipal Court has no system for appointing counsel.
73. The Austin Municipal Court has the power to jail people for failure to pay their criminal judgment debt. Tex. Code Crim. Proc. Art. 45.4046. The Austin Municipal Court has a policy and practice of using this power to impose a jail term to punish Class C offenses.
74. The court has a policy and practice of issuing orders jailing people “on the above stated cause(s),” which are the underlying Class C offenses. The court has a policy and practice of jailing people to “lay out” or “satisfy” the fines and fees imposed for the underlying Class C offenses. The court therefore has a policy and practice of jailing people as a result of their Class C misdemeanor convictions entered without the assistance of counsel.
75. This is not a policy and practice set by state law. In fact, state law prohibits municipal judges from jailing indigent people without appointing counsel in their underlying criminal cases. Tex. Code. Crim. Proc. Art. 1.051(c). Likewise, state law prohibits municipal judges from jailing anyone for Class C offenses without first making a determination that the person willfully refused to pay, as opposed to failing to pay due to indigency. Tex. Code Crim. Proc. 45.046. Jailing people without appointment of counsel in their defense is a strictly municipal policy and practice.
76. As evidenced by the lack of a system for appointing counsel and hundreds of people jailed each year, these policies and practices are so persistent and widespread that knowledge of the policies and practices is attributable to municipal policymakers. The policymakers with final authority to remedy this constitutional violation have failed to do so.
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C. The Municipal Court Employs Unduly Harsh and Discriminatory Terms for Collecting Criminal Judgment Debt, in Contrast to Civil Judgment Debt 77. If the debt resulting from Class C tickets were owed to a private party as a civil
debt, the tools available to the debt collector would be much more limited. The Texas Constitution prohibits jailing almost any civil debtors, with narrow exceptions for debtors in contempt of court who have willfully failed to pay a legal financial obligation. Tex Const. Art. I, § 18; Ex parte Sutherland, 526 S.W.2d 536 (Tex. 1975).
78. Even civil debtors in contempt of court have significantly stronger procedural protections than the protections afforded by the Austin Municipal Court. Civil debtors are entitled to meaningful written notice of the accusations against them, appointed counsel for their defense, a hearing on willfulness, the complete defense of inability to pay, and a written commitment order if the court decides to imprison the contemnor. Tex. Fam. Code § 157.163; Ex parte Chambers, 898 S.W.2d 257 (Tex. 1995); In re Griffith, 434 S.W.3d 643 (Tex. App. Houston [1st Dist.] 2014); In re Acceptance Ins. Co., 33 S.W.3d 443 (Tex. App. Ft. Worth 2000); Ex parte Rosser, 899 S.W.2d 382 (Tex. App. Houston 1995); Ex parte Strickland, 724 S.W.2d 132 (Tex. App. Eastland 1987).
79. The Austin Municipal Court has a policy and practice of stripping criminal judgment debtors of these basic protections.
80. The Austin Municipal Court’s policy and practice of collecting Class C debt is unduly harsh and discriminatory as applied to people who are too poor to pay. The threat of imprisonment also induces impoverished families to forego paying for basic needs, such as paying their electricity bill, in order to make their payments.
81. This is not a policy and practice set by state law. In fact, state law requires appointed counsel, a hearing on willfulness, and the complete defense of inability to pay before jailing a
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person for failure to pay traffic tickets. Tex. Code Crim Proc. 45.046. These unduly harsh and discriminatory methods of debt collection are a strictly municipal policy and practice.
82. The Austin Municipal Court has a policy and practice of failing to give people who are jailed meaningful written notice of the accusations against them, and failing to appoint counsel, hold meaningful hearings on ability to pay, and draft written commitment orders for a specific jail term. These policies and practices are so well-settled and widespread that knowledge of the policies and practices is attributable to municipal policymakers.
CLASS ACTION ALLEGATIONS 83. The named Plaintiff brings this action on behalf of herself and all others similarly situated under Rule 23 of the Federal Rules of Civil Procedure. She seeks to represent the class of all persons who, now or in the future, are unable to satisfy their criminal judgment debt assessed in Class C misdemeanor cases in Austin Municipal Court. 84. This action is brought and may properly be maintained as a class action pursuant to Rule 23(a)(1)-(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure. I. Numerosity, Rule 23(a)(1) 85. Members of the putative class are so numerous that joinder is impracticable. In fiscal year 2012–2013, the Austin Municipal Court disposed of 174,790 cases and issued 65,711 warrants and commitment orders.2 During that year, 19.1% of Austin residents lived below the poverty line. Even if impoverished people are marginally over- or under-represented in Austin Municipal Court cases, warrants, and commitment orders, there are thousands of people who are too poor to pay their tickets, and are currently being threatened with arrest and incarceration.
2 The Austin Municipal Court reports data about warrants and commitment orders together, as one data point, to the Office of Court Administration.
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86. Joinder is also impracticable because membership in the putative class is fluid. New people are ticketed and convicted every day—the average life cycle of a Class C prosecution is just 230 days. Moreover, financial stability is uncertain for people with lower incomes, and someone who is capable of paying their tickets one day may find themselves impoverished the next, due to job loss, injury, or other unforeseen circumstances. Finally, putative class members may moot their claims by serving jail time or paying fines and fees by choosing to miss payments on necessary household expenses.
87. Finally, joinder is impracticable because members of the putative class are poor. They are unable to pay for an attorney to represent their interests or invest the time and money necessary to investigate and litigate their claims pro se. II. Commonality, Rule 23(a)(2)
88. The relief sought is common to all members of the putative class, and common questions of law and fact exist as to all members of the class. This action seeks to enjoin the Austin Municipal Court’s unconstitutional policies and practices on a classwide basis. This action also seeks a declaration that the Austin Municipal Court’s policies and practices violate the Sixth Amendment right to counsel and the Due Process and Equal Protection rights of all putative class members.
89. Among the most important, but not the only, common questions of law and fact are: a. Whether the Austin Municipal Court has a policy and practice of failing to ask about the reasons for a person’s failure to pay before imprisoning that person for failure to pay; b. Whether the Austin Municipal Court has a policy and practice of failing to consider alternative punishments before imprisoning a person for failure to pay; c. Whether the Austin Municipal Court has a policy and practice of declining to appoint counsel in Class C misdemeanor cases, then jailing people for the resulting convictions;
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d. Whether the foregoing policies and practices violate the Sixth Amendment, the Due Process Clause, and/or the Equal Protection Clause;
e. Whether the foregoing policies and practices are officially promulgated policies, final decisions by municipal policymakers, practices or customs so widespread and well-settled that knowledge is attributable to municipal policymakers, or the byproduct of Defendant’s deliberate indifference to putative class members’ rights under the Sixth Amendment, the Due Process Clause, and/or the Equal Protection Clause.
III. Typicality, Rule 23(a)(3) 90. The named Plaintiff’s claims are typical of the claims of the putative class members,
and she has the same interests as all other members of the putative class that she represents. The named Plaintiff’s claims arise from the same course of conduct as claims of the putative class, and her claims are based on the same legal theories as those of the putative class.
91. The named Plaintiff has not received unusual treatment by the Austin Municipal Court. She is at risk of suffering injuries—arrest and incarceration—that are typical of injuries that would be suffered from the City’s constitutional violations.
92. By pursuing her claims that the Austin Municipal Court’s policies and practices concerning criminal judgment debt collection violate the law in the manner alleged, the named Plaintiff will likewise benefit every other member of the putative class. IV. Adequacy, Rule 23(a)(4)
93. The named Plaintiff is an adequate representative of the putative class because she is a member of the class and because her interests coincide with, and are not antagonistic to, those of the class.
94. There are no known conflicts of interest among putative class members, all of whom have a similar interest in vindicating the constitutional rights to which they are entitled.
95. The named Plaintiff is familiar with the Austin Municipal Court procedures challenged here and the constitutional protections she seeks to vindicate. The named Plaintiff is
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prepared to respond to discovery requests in this case. She is enthusiastic about fulfilling the role and duties of a class representative protecting the fundamental constitutional rights of Austin’s poorest residents.
96. The Plaintiff is represented by attorneys from the Texas Fair Defense Project, the University of Texas Civil Rights Clinic, Susman Godfrey, and Drinker Biddle & Reath LLP. All four entities have experience litigating complex civil rights matters in federal court. Attorneys from the Texas Fair Defense Project and the Civil Rights Clinic have investigated municipal ticketing in Austin for months. Moreover, Susman Godfrey and Drinker Biddle have extensive experience litigating complex civil cases, including class actions, in federal courts across the country, including this Court, the Fifth Circuit Court of Appeals, and the U.S. Supreme Court. Affidavits from Plaintiff’s counsel describing their qualifications accompany the motion for class certification filed simultaneously with the original complaint.
97. The Plaintiff and her attorneys will fairly and adequately protect the interests of the members of the Class. V. Rule 23(b)(2)
98. Class action status is appropriate because Defendant has acted and refused to act on grounds generally applicable to the putative class. Defendant’s policies and practices with regard to failure to inquire into ability to pay before jailing, failure to consider adequate alternatives to imprisonment before jailing, jailing for convictions obtained without the assistance of counsel, and denying core procedural protections for civil judgment debtors apply equally to the class regardless of differences among class members.
99. The putative class seeks final injunctive and declaratory relief with respect to the constitutional protections due to people prosecuted for Class C offenses in Austin Municipal Court.
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Case 1:15-cv-00956-SS Document 15 Filed 12/08/15 Page 22 of 26
100. Injunctive and declaratory relief with respect to each claim would be appropriate to the class as a whole. All putative class members are entitled to the constitutional protections the Plaintiff seeks to enforce.
CLAIMS FOR RELIEF Count One: Failure to Inquire Into Ability to Pay and Alternatives to Incarceration
(Section 1983 and Due Process Clause) 101. Plaintiff incorporates by reference allegations in the foregoing paragraphs. 102. The Austin Municipal Court has a policy and practice of jailing people who are too poor to pay their criminal judgment debt, without first inquiring into the reasons the person has failed to pay the debt and adequate alternatives to incarceration. 103. Jailing a person who is too poor to pay her debt without first inquiring into the reasons she has failed to pay her debt and adequate alternatives to incarceration violates the Due Process Clause of the Fourteenth Amendment. Bearden v. Georgia, 461 U.S. 660, 666 (1983).
Count Two: Commitment to Jail Solely Due to Inability to Pay (Section 1983 and Equal Protection Clause)
104. Plaintiff incorporates by reference allegations in the foregoing paragraphs. 105. The Austin Municipal Court has a policy and practice of jailing people solely because they are unable to pay their debts arising from fines for Class C misdemeanors. 106. Depriving a person of her liberty solely because she lacks the resources to make a payment violates the Equal Protection Clause of the Fourteenth Amendment. Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. 235 (1970).
Count Three: Commitment to Jail for Convictions Without Assistance of Counsel (Section 1983 and the Right to Counsel and Due Process Clauses) 107. Plaintiff incorporates by reference allegations in the foregoing paragraphs.
22

Case 1:15-cv-00956-SS Document 15 Filed 12/08/15 Page 23 of 26
108. The Austin Municipal Court has a policy and practice of failing to appoint counsel for people charged with Class C misdemeanor offenses or to solicit a knowing, voluntary, and intelligent waiver of the right to counsel. The Austin Municipal Court also has a policy and practice of jailing people to satisfy judgments of conviction for Class C misdemeanors that were obtained without the assistance of counsel.
109. The Sixth Amendment right to counsel applies against state and local governments as incorporated through the Due Process Clause of the Fourteenth Amendment.
110. Sentencing a person to imprisonment as a result of a criminal conviction obtained without the assistance of counsel violates the Sixth Amendment right to counsel. Argersinger v. Hamlin, 407 U.S. 25 (1972).
Count Four: Unduly Harsh and Discriminatory Debt Collection (Section 1983 and Equal Protection Clause)
111. Plaintiff incorporates by reference allegations in the foregoing paragraphs. 112. The Austin Municipal Court has a policy and practice of using proceedings without notice or appointment of counsel, failing to make findings of willfulness before jailing, and jailing people with unclear orders of commitment to collect Class C debts. Use of these tactics for civil judgment debt collection is prohibited by Texas law. 113. The tactics used by the Austin Municipal Court are unduly harsh and discriminatory methods of debt collection when compared with the debt collection tactics permitted by a private creditor. 114. Use of unduly harsh and discriminatory debt collection practices against people who are too poor to pay criminal judgment debt violates the Equal Protection Clause of the Fourteenth Amendment. James v. Strange, 407 U.S. 128 (1972).
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Case 1:15-cv-00956-SS Document 15 Filed 12/08/15 Page 24 of 26
REQUEST FOR RELIEF
WHEREFORE, Plaintiff requests that this Court issue the following relief:
1. An injunction prohibiting Defendant from:
a. imprisoning class members for failure to satisfy their debt without inquiring into the reasons for their failure to satisfy the debt or adequate alternatives to imprisonment, specifically, tailoring the debt to the class member’s resources;
b. imprisoning class members solely because they lack the resources to satisfy their debt;
c. imprisoning class members as a result of convictions for which the class member did not have assistance of counsel or knowingly, intelligently, and voluntarily waive that right; and
d. imprisoning class members to collect criminal judgment debt without the core legal protections required for collection of debt by a private creditor;
2. A declaration that the foregoing practices violate the class members’ constitutional
rights as alleged;
3. An order and judgment granting reasonable attorneys’ fees and costs pursuant to
42 U.S.C. § 1988; and
4. Any other relief this Court deems just and proper.
Respectfully Submitted,
By: /s/ Rebecca Bernhardt
Rebecca Bernhardt Texas Bar No. 24001729 Susanne Pringle Texas Bar No. 24083686 Texas Fair Defense Project 510 S. Congress Ave., Suite 208 Austin, TX 78704 (512) 637-5220 (t) (512) 637-5224 (f) rbernhardt@fairdefense.org
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Case 1:15-cv-00956-SS Document 15 Filed 12/08/15 Page 25 of 26
springle@fairdefense.org
Ranjana Natarajan Texas Bar No. 24071013 Trisha Trigilio Texas Bar No. 24075179 University of Texas School of Law Civil Rights Clinic 727 East Dean Keeton Street Austin, TX 78705 Tel: 512-232-7222 Fax: 512-232-0800 rnatarajan@law.utexas.edu ttrigilio@law.utexas.edu
Joseph S. Grinstein (TX Bar No. 24002188) Neal Manne (TX Bar No. 12937980) Justin Nelson (TX Bar No. 24034766) SUSMAN GODFREY LLP 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666 jgrinstein@susmangodfrey.com nmanne@susmangodfrey.com jnelson@susmangodfrey.com
Brian A. Coleman (pro hac vice) DRINKER BIDDLE & REATH LLP 1500 K Street, N.W. Washington, D.C. 20005-1209 Telephone: (202) 842-8800 Facsimile: (202) 842-8465 Brian.Coleman@dbr.com
Lindsay B. Orr (pro hac vice) DRINKER BIDDLE & REATH LLP 222 Delaware Ave., Suite 1410 Wilmington, DE 19801-1621 Telephone: (302) 467-4200 Facsimile: (302) 467-4201 Lindsay.Orr@dbr.com
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Case 1:15-cv-00956-SS Document 15 Filed 12/08/15 Page 26 of 26

CERTIFICATE OF SERVICE

By my signature below, I certify that on December 8, 2015, this filing was served on all

counsel of record via the Court’s electronic case filing system.

Dated: December 8, 2015

By: /S/ Trisha Trigilio

Trisha Trigilio Texas Bar No. 24075179 University of Texas School of Law Civil Rights Clinic 727 East Dean Keeton Street Austin, TX 78705 Tel: 512-232-7222 Fax: 512-232-0800 ttrigilio@law.utexas.edu

26

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

rn
2016 MAR 16 PM 2: 33

KARIAN HARRIS, On Behalf of Herself and All Others Similarly Situated,
Plaintiff,

-vs-

CITY OF AUSTIN,

Defendant.

Case No. A-15-CA-956-SS

BE IT REMEMBERED on the 13th day of January 2016, the Court held a hearing in the
above-styled cause, and the parties appeared by and through counsel. Before the Court is Defendant City of Austin's Motion Re-Urging Defendant's Rule 1 2(b)(6) Motion to Dismiss [#17], Defendant's Rule 12(b)(6) Motion to Dismiss [#8], Plaintiff Karian Harris's Response [#18] in opposition, Defendant's Reply [#22] in support, and Plaintiff's Surreply [#25] in opposition. Having considered the documents, the governing law, the arguments of the parties at hearing, and the file as a whole, the Court now enters the following opinion and orders.
Background1
Plaintiff Karian Harris, on behalf of herself and a prospective class, brings this 42 U.S.C. § 1983 suit against the City of Austin. Harris claims the City has a practice ofjailing people who
are too poor to pay their fines and fees for traffic tickets and other petty misdemeanors in violation
As this is a motion to dismiss, the background facts are drawn from Hanis's complaint and accepted as true for present purposes to the extent they are not legal conclusions. See, e.g., Leatherman v. Tarrant Cly. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993).

of their constitutional rights to due process, equal protection, and counsel. Harris seeks a declaration the City's alleged practices violate the Fourteenth and Sixth Amendments to the United States Constitution and an injunction prohibiting the City fromjailing people who cannot paybecause they
lack the ability to do so.
A. Karian Harris
Harris is a thirty-five-year-old single mother who lives in Austin with her seven children. She makes less than $6,000 per year as a childcare aid at an elementary school, and receives food stamps, Section 8 housing assistance, and free school lunches for her children. Over the last 14
years, Harris has received a number of traffic tickets, most of which were citations for driving
without a current inspection or without insurance. According to Harris, she could not afford expenses like a car inspection, car insurance, or the fines associated with her traffic citations, but
continued to drive "to care for her children." First Am. Compi. [#15] ¶ 11. Warrants for Harris's arrest were issued as a result of her unpaid traffic tickets, and in
December 2010, Harris was arrested. An Austin Municipal Court judge ordered Harris to spend "more than two weeks injail[.]" Id. ¶ 13. Before ordering Harris be incarcerated for failure to pay her fines and fees, the judge "did not ask Ms. Harris about her income, her dependents, or other factors bearing on her ability to pay"; nor did he "inquire into her ability to complete community service," "consider reducing the debts based on [her] ability to pay," or appoint counsel for Harris. Id. ¶ 14. At the time, Harris was working as a housekeeper, making $6.50 per hour and working 25 hours per week; as a result of her incarceration, Harris lost her job.
In January2013, Harris was pulled over and cited for driving without a valid license, expired registration, and driving without insurance. Harris could not afford to pay the fines associated with
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those tickets, and more warrants were issued for Harris's arrest based on her failure to pay. Harris was arrested in June 2013, and an Austin Municipal Court judge, again without inquiring into Harris's ability to pay her fines or appointing her counsel, ordered Harris either to pay $600 or spend four days in jail. Harris went to jail.
Since her 2013 incarceration, Harris has received two more traffic tickets for lack of car
insurance and for driving without a valid license. Harris appeared in court regarding the tickets and was ordered to pay $75 per month until her traffic debts were paid off; she paid one installment, then lost her job and stopped paying. While Harris is now employed, she cannot afford to pay $75 per
month on her current income, and cannot renew her driver's license because of her unpaid tickets. B. Austin Municipal Court & Class C Prosecutions
The City vests the Austin Municipal Court with jurisdiction over "fine-only" crimes, or Class C misdemeanors, such as failing to signal when changing lanes or entering a park after hours. First
Am. Compi. [#151 ¶ 29. The City Council appoints the Austin Municipal Court's Clerk of Court and Presiding Judge. Id. ¶ 30. The Presiding Judge "has the duty to adopt 'rules for the orderly trial of a case in the municipal court." Id. Harris alleges the Presiding Judge and Clerk of Court "act as
final policymakers for the Austin Municipal Court[,]" setting "municipal policies and practices
entirely separate fromand in some cases contrary tothe municipal judges' authority under state
law." Id. ¶31. As in Harris's case, Class C prosecutions typically start with a ticket being issued by a police
officer. The person ticketed must sign the ticket, which contains a promise either to pay a fine or to appear in Austin Municipal Court. If a person does not pay the fine and does not appear in court, the municipal judge may reschedule the appearance, issue a summons ordering the person to appear,
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or issue a warrant for the person's arrest. First Am. Compl. [#15] ¶ 39 (citing TEx. CODE CRIM. PRO. arts. 15.03, 45.014). Harris alleges the Austin Municipal Court "has apolicy and practice of issuing an arrest warrant and increasing all fines by 50% the first time a person fails to appear"; additionally, for each ticket for which a warrant issues, the court charges an additional $50 fee. Id. ¶ 40. These
warrants can be cleared from a person's record, but only through the payment of "bail"the full
amount the ticket would cost if the ticketed person pled guilty to the offense. Id.
Once arrested pursuant to an outstanding warrant, the ticketee must go to trial, plead no
contest, or plead guilty. Id. ¶ 42. If convicted, the court may assess a fine of up to $500 and require
the ticketee pay court costs. Id. Various other fees may also apply; for example, the Austin Municipal Court charges a $25 fee to set up a payment plan (for each outstanding ticket), a $30 fee for any payment by check or credit card that is rejected, and a $30 fee for driver's license renewal
suspension. Id. ¶ 45. Further, if a ticket is sent to a collections agency, the court charges a 30%
collection fee. Id.
According to Harris, although Texas law permits the partial or full waiver of such debts or the conversion ofsuch debts to civiljudgments for those who are too poor to pay their fines and fees, "the court has a policy and practice of limiting people to two optionscommunity service or a payment plan on the full amount of the debtregardless of whether these options impose an undue hardship." Id. ¶ 47. Additionally, Harris claims, ifa person misses a payment or community service, the court issues a "capias pro fine" warrant for that person's arrest, for which the court charges
another $50 fee. Id. ¶J 49, 52. If the person appears in court to clear the capias warrants, the court either "demand[s] the amount of money in the person's pockets" if the outstanding debt is small, or if it is large, "asks how much money the person would be able to produce that day, and orders the

person to produce that amount under the threat ofjail time." Id. ¶ 51. Once debts associated with capias warrants are sent to collections, the warrants can only be cleared if the person makes separate payments on each outstanding ticket. Id. ¶ 50.
Those who cannot pay are ultimately subject to ajail commitment hearing, jailed, and issued "jail credit" against their debt for time served, Id. ¶J 54, 55, 60. No inquiry into ability to pay or to perform community service takes place at these hearings, and the persons jailed are not represented by court-appointed counsel. Id. ¶IJ 59, 72. Harris alleges the amount of credit given for a day in jail is typically $100, but can vary based on the length of time the person spends in jail before being released by the Travis County Sheriff's Office. Id. C. Procedural History
Former named plaintiffs Valerie Gonzales and Maria Salazar filed the initial complaint in this action on October 27, 2015. See Compl. [#1]. On December 8, 2015, Harris filed the First Amended Complaint, which removed Gonzales and Salazar as named plaintiffs and replaced them with Harris. See First Am. Compl. [#15]. The First Amended Complaint raises four § 1983 claims: (1) a Fourteenth Amendment due process claim predicated on the Austin Municipal Court's alleged failure to inquire into ability to pay and alternatives to incarceration; (2) a Fourteenth Amendment equal protection claim predicated upon the Austin Municipal Court's alleged policy ofj ailing people solely because they are too poor to pay their fines; (3) a Sixth Amendment right to counsel claim; and (4) a Fourteenth Amendment equal protection claim predicated on the Austin Municipal Court's
allegedly discriminatory methods of debt collection. See id. ¶J 101-14.
After the First Amended Complaint was filed, the City re-urged its previously filed motion to dismiss. See Mot. Re-Urging Mot. Dismiss [#17]. The motion is now ripe for decision.
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Analysis
I. Legal Standard Federal Rule of Civil Procedure 8(a)(2) requires a complaint to contain "a short and plain
statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). A motion under Federal Rule of Civil Procedure 12(b)(6) asks a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). The plaintiff must plead sufficient facts to state a claim for relief that is facially plausible. Ashcrofi v. Iqbal, 556 U.s. 662, 678 (2009); Bell Ad. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Iqbal, 566 U.S. at 678. Although a plaintiff's factual allegations need not establish that the defendant is probably liable, they must
establish more than a "sheer possibility" that a defendant has acted unlawfully. Id. Determining
plausibility is a "context-specific task," and must be performed in light of a court's "judicial
experience and common sense." Id. at 679. In deciding a motion to dismiss under Rule 12(b)(6), a court generally accepts as true all
factual allegations contained within the complaint. Leatherman v. Tarrant Cly. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). However, a court is not bound to accept legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). Although all reasonable inferences will be resolved in favor of the plaintiff, the plaintiff must plead "specific facts, not mere conclusory allegations." Tuchman v. DSC Commc 'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994). In deciding a motion to dismiss, courts may consider the complaint, as well as other sources such as documents incorporated into the complaint by reference,

and matters ofwhich a court may takejudicial notice. & Tel/abs. Inc. v. Makor Issues Rights, Ltd.,
551 U.S. 308, 322 (2007).
II. Application Under 42 U.S.C. § 1983, "[a]ny person who, under color of any law, statute, ordinance,
regulation, custom, or usage of any State, shall subject or cause to be subjected, any person to the deprivation of any rights, privileges or immunities secured by the Constitution of the United States, shall . . . be liable to the party injured . . . ." A municipality is a "person" subject to suit under § 1983. See Monell v. NYC. Dept. ofSoc. Servs., 436 U.S. 658, 690 (1978). InMonell, however, the Supreme Court held a municipality can be liable under § 1983 only where the municipality itself causes the constitutional violation at issue. See id. at 694-95. Specifically, a municipality can be sued "if it is alleged to have caused a constitutional tort through 'a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." Zarnow v. City ofWichita Falls, 614 F.3d 161, 166 (5th Cir. 2010) (quoting City ofSt. Louis v. Praprotnik, 485 U.S. 112, 121 (1988)). Alternatively, a municipality can be held liable "where the constitutional
deprivation is pursuant to a governmental custom, even if such custom has not received formal
approval." Id. (citingMonell, 436 U.S. at 690-91). Municipal liabilityunder § 1983 requires proof of three elements: (1) apolicymaker; (2) an official policy; and (3) a violation of constitutional rights whose moving force is the policy or custom. Id. (quoting Piotrowski v. City ofHouston, 237 F.3d 567, 578 (5th Cir. 2001)).
In its motion to dismiss, the City argues it cannot be liable under § 1983 for having a policy of wrongfully incarcerating indigent defendants because the relevant decisions were made by
municipal judges acting in their judicial capacities. Even if Harris's allegations concerning Austin
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municipal judges' failure in practice to appoint counsel and conduct indigency hearings are true, the City claims, those judges are performing judicial functions, and actions taken by municipal judges in their judicial capacities caimot constitute municipal policy. The Court agrees with the City, and finds Harris's complaint must be dismissed.
In support of its position, the City relies in large part on two Circuit opinions: Johnson v. Moore, 958 F.2d 92(5th Cir. 1992), andEggarv. City ofLivingston, 40 F.3d 312 (9th Cir. 1994). In Johnson, the plaintiff sued a municipal court judge and the municipality under § 1983, alleging 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. Johnson, 958 F.2d at 93. The plaintiff claimed the judge's actions in sending him to jail without affording him representation were part of an official municipal policy. Id. Affirming dismissal of the plaintiff's § 1983 claims, the panel explained "[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 v. Taylor, 834 F.2d 1213, 1221-22 (5th Cir. 1988); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir. 1985); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). The Circuit recognized its previous decision in Familias Unidas v. Briscoe distinguished "administrative duties," the exercise of 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. (citing Familias Unidas, 619 F.2d at 404). The panel observed the Johnson plaintiff was not contending the municipal court judge jailed him pursuant to "administrative or other non-judicial duties," and instead argued only that "the municipal judge is a final policymaker whose official actions constitute municipal policy." Id. Rejecting the plaintiff's position, the panel explained his argument "ignores the distinction we have

consistently drawn between ajudge' sjudicial 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.
In Eggar v. City ofLivingston, the second case relied upon by the City, the Ninth Circuit
affirmed the lower court's grant of summary judgment on the plaintiffs' § 1983 claims to a city and
municipal judge on grounds the plaintiffs failed to demonstrate the municipal judge was a municipal
policymaker or had followed an unconstitutional city policy. 40 F. 3d at 313. The Eggar plaintiffs
alleged the city "had a policy of imprisoning indigent defendants without offering appointed counsel
and without securing an effective waiver of the right to counsel" and that the defendant judge "acted
as a policy maker for the [c]ity" when he failed to meaningfully advise indigent defendants of their
rights. Id. at 313, 14. Further, the Eggar plaintiffs argued the judge "operated outside of his state
judicial capacity by consistently violating [state] law regarding the right to counsel." Id. at 315.
Citing to Johnson and Familias Unidas, the Ninth Circuit rejected the plaintiffs' arguments.
First, the panel explained whether the judge violated state law regarding the right to counsel was
irrelevant to the question whether he was performing a judicial or administrative function:
That Judge Travis allegedly performed his duty to advise indigents of their rights in a way that makes a mockery of those rights does not make that duty administrative. The Judge's failure to follow state law or federal constitutional law does not transform his "cattle-call" method of counseling into municipal policymaking. As state law makes clear, the Judge's obligationto address the rights ofdefendants arises from his membership in the state judiciary. It is lamentable, but irrelevant, that he failed miserably to meet this obligation under both state and federal standards: he
simply is not a municipal decision maker in this context.
Id. at 315-16 (citation omitted). The court also rejected the plaintiffs' theory of liability based on
policy and custom, explaining that because the judge "was functioning as a state judicial officer, his

acts and omissions were not part of a city policy or custom. A municipality cannot be liable for judicial conduct it lacks the power to require, control, or remedy, even if that conduct parallels or appears entangled with the desires of the municipality." Id. at 316.
Han-is, in response, states Johnson and Eggar "do not stand for the broad proposition that a municipal judge never establishes municipal policies and practices" and that the correct question is "whether municipal judges are exercising power conferred by state law or are acting as municipal policymakers." Resp. [#18] at 14. Harris invites the Court to infer the Presiding Judge cannot be "exercising power conferred by state law" (and therefore must, presumably, be acting as a municipal policymaker) in creating procedures concerning indigency and incarceration because those procedures violate state law, which requires municipal courtjudges hold an indigencyhearingbefore a person may be jailed for failure to pay a judgment debt and provides an indigent defendant facing the prospect ofjail is entitled to counsel. See TEX. CRIM. PROC. CODE art. 45.046(a)(2) ("When... the defendant defaults in the discharge of the judgment, the judge may order the defendant confined
in jail. . . if the judge at a hearing makes a written determination that.. . the defendant is indigent
and . . . has failed to make a good faith effort to discharge the fines and costs [by performing community service] and. . . could have discharged the fines and costs [by performing community service] without experiencing anyundue hardship."); id. art. 1.051(c) (indigent defendant "is entitled to have an attorney appointed to represent him in any adversary judicial proceeding that may result in punishment by confinement[.]")
According to Harris, this Court should instead look to the Eighth Circuit's decision in Williams v. Butler, 863 F.2d 1398 (8th Cir. 1988) (en banc), and a District of Columbia district court opinion, Singletaiy v. D.C., 685 F. Supp. 2d 81 (D.D.C. 2010), for guidance. In Williams v. Butler,
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two former clerks of a municipal court sued the municipal judge in his official capacity under § 1983, alleging the judge terminated them in violation of their First Amendment rights. 863 F.2d
at 1399. The judge filed a third-party complaint against the municipality, alleging it was liable for any damages assessed against him, and the trial court agreed. Id. Ultimately, the Eighth Circuit affirmed the district court, reasoning the municipality could be held liable for the judge's actions
because the municipality conferred on the judge "an absolute delegation of authority" concerning
employment decisions in the municipal court. Id. at 1402. The Williams court emphasized that the judge's authority to hire and fire court employees was unconstrained by any other policymaker, which was emphasized by the city's litigation position that it "was not empowered to hire or fire municipal court employees" and a personnel statement from the municipal court which treated municipal court employees "differently and completely separate from any other municipal employee." Id. at 1402-03. The court also noted hiring and firing were traditional municipal functions and that a state statute authorized the judge of that particular municipal court to make employment decisions. Id. at 1403.
The district court in Singletary v. District of Columbia denied the District of Columbia (D.C.)'s motion to dismiss the plaintiffs § 1983 claim seeking to hold D.C. liable for the D.C. Parole Board's allegedly wrongful revocation of the plaintiff's parole. 665 F. Supp. 2d at 83. The
plaintiff alleged that at the time the D.C. Parole Board made the decision to revoke his parole, it was
the final municipal decision-maker with respect to parole revocationa characterization that D.C.
did not challenge. Id. at 90. Citing to Eggar and Johnson, among other cases, D.C. argued it could not be liable for the actions of the Parole Board because like "a single judicial decision made by a municipality's judge or court," a single decision of the Parole Board could not "expose a
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municipality to [ 1983] liability" because it could not constitute municipal policy. See id. at 92 & n.7. The Singletaiy court rejected that argument for two reasons: first, because the D.C. Parole
Board was "an executive entity," not apart ofthe judicial branch, even ifits revocation decision was quasi-judicial in nature; and second, because "the cases relied upon by [D.C.] do not. . . establish
the overarching principle that judicial action can never give rise to municipal liability." Id. at 92. Specifically, the Singletary court construed Johnson, Eggar, and the other cases D.C. cited to:
stand for the much more limited proposition that a municipality may not be held liable under Section 1983 for actions taken by a municipal judge pursuant to his or her authority under state law, as the judge's actions in such a case are properly attributed to the state rather than the municipality. That is, that the judges are not acting as final policymakers for the local governmental entities. These cases are consistent with the Supreme Court's recognition that local government officials may
in some cases be treated as acting on behalf of the state rather than the local
governmental entities.
Id. (citing McMillian v. Monroe Co., Alabama, 520 U.S. 781(1997) (finding that "Alabama sheriffs, when executing their law enforcement duties, represent the State of Alabama, not their counties")).
Based upon the cases cited by both parties, it seems to the Court 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. The key question, to be clear, is whether the judge was acting in ajudicial role or a non-judicial role at the time he or she took the challenged action. Williams is an example of that principle in action; in Williams, the city delegated all of its hiring and firing authority to the municipal judge, and agreed that it had no hand in or authority over the judge's decisions about employees of the municipal court. As such, it was proper to hold the municipality liable for the judge's actions, because the judge was not exercising
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a judicial function pursuant to his "authority under state law," but a traditionally municipal, nonjudicial function delegated to him by the municipality. See Williams, 863 F.2d at 1402. Similarly, when the Johnson court held "a municipal judge acting in his or her judicial capacity to enforce state
law does not act as a municipal official," it explicitly distinguished the exercise of administrative duties from the exercise of judicial duties and noted municipal liability could flow only from the
former. See Johnson, 958 F.2d at 94.
Harris, however, conflates the source ofjudicial power"authority under state law"with
the legality ofthe challenged judicial action under state law, arguing that in failing to hold indigency
hearings and provide counsel, the Presiding Judge and other municipal court judges could not have been "acting in [their] judicial capacity to enforce state law" because they are violating it. Harris is incorrect. The distinction between a judge who is exercising judicial authority and a judge who is acting as a municipal policymaker does not turn upon whether or not the judge's judicial pronouncements are made in accordance with state law. Stated more plainly, a municipal judge's illegal pronouncement does not become a non-judicial act merely because it is illegal. Cf Mireles v. Waco, 502 U.S. 9, 12-13 (1991) ("[W]hether an act by a judge is a 'judicial' one relates to the
nature of the act itself, i.e., whether it is a function normally performed by a judge.... Of course,
a judge's direction to police officers to carry out a judicial order with excessive force is not a
'function normally performedby a judge.' But. .. [i]fjudicial immunity means anything, it means that a judge will not be deprived of immunity because the action he took was in error.. . or was in excess of his authority.") (internal quotations and citations omitted).
As explained above, precisely this argument was presented to and rejected by the Ninth Circuit in Eggar. The Eggar plaintiffs took the position the municipal judge "operated outside of
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his state judicial capacity by consistently violating [state] law regarding the right to counsel." 40 F.3d at 315. The panel rejected that argument, explaining a municipal judge's "failure to follow state
law or federal constitutional law" by neglecting to inform criminal defendants of their right to counsel did not "transform" that failure "into municipal policymaking." Eggar, 40 F.3d at 315-16;
("It is lamentable, but irrelevant, that [the judge] failed miserably to meet this obligation under both state and federal standards: he simply is not a municipal decision maker in this context."). This was
so because the function the judge was carrying outdeciding whether or how to advise municipal court defendants oftheir rights"ar[ose] from his membership in the statejudiciary." Id. Similarly,
the function municipal judges of the Austin Municipal Court carry out in determining whether an
individual should be jailed for failure to pay is no less a judicial function, arising from the power
vested in municipal judges by the state of Texas, ifthosejudges are flouting the law in discharging
it.
Finally, Harris argues that the municipal judges are executing municipal policy in this case because the Austin City Code gives the Presiding Judge authority to adopt "rules for the orderly trial
of a case in the municipal court," AUSTIN CITY CODE § 2-10-11 (B)(2), and "the Municipal Court has adopted rules that lead to the unconstitutional practices challenged in this case[.]" Resp. [#18] at 19. The Court caimot agree. First, the promulgation of rules for the orderly trial of cases seems to the Court to be more judicial than non-judicial in nature. While rulemaking is obviously not
adjudicative, rules of court regulate procedure"the judicial process for enforcing rights and duties
recognized by substantive law and for justly administering a remedy and redress for disregard or infraction of them." Sibbach v. Wilson, 312 U.S. 1, 14(1941); see also United States v. Smith, 686 F. Supp. 847, 864 (D. Cob. 1988) (characterizing rules "formulated by the judiciary" of "internal
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management," "regulation," and "administrati[on]" as "within the shadow of the judicial power")

The Austin Municipal Court's Rules, it should be noted, are issued by judicial order signed by the

Presiding Judge. See Resp. [#18] Ex. B (Rules) at 3.

Second, even assuming for the sake of argument that the Rules can be characterized as

municipal policy, those Rules plainly contemplate the exercise ofjudicial discretion, as they do not

mandate that municipal judges take any particular action with respect to any defendant. The relevant

Rules are as follows:

9.4 Inability to Pay Fine.

If a defendant does not appeal the court's

decision, but is unable to pay the fine when due, the defendant may request an

extension to pay or a payment plan. If the defendant qualifies, the court may allow

the defendant to pay the fine in installments or discharge the fine by performing

community service.

9.5 Warrant. If a defendant does not pay the fine, meet all obligations of an
installment payment plan, or discharge the fine by performing community service as ordered by the court, a warrant will be issued which will subject the defendant to arrest.

Rules at 12. Nothing in these rules in any way requires a judge to commit a defendant to jail where

the defendant is unable to pay. Rather, the court "may allow" the defendant to discharge the debt

in a number of other ways. If in the event the defendant does not satisfy his or her obligations as

determined by the municipal judge, a warrant will issue for the defendant's arrest. Nothing about
these Rules alters the fact that in all cases, the municipal judge hearing each individual caseand

in so doing, acting in his judicial capacitymakes the ultimate decisions about what will or will not

happen in a particular defendant's case. In sum, as the Fifth Circuit has repeatedly held, "[t]he City

cannot be liable under § 1983 for having a 'policy' of wrongfully incarcerating indigent defendants because the relevant decisions were made by a municipal judge acting in his judicial capacity."

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Whisenant v. City ofHaltom City, 106 F. App'x 915, 917 (5th Cir. 2004) (dismissing § 1983 claim against city based on city's alleged policy of incarcerating defendants unable to pay misdemeanor fines without holding indigencyhearings or appointing counsel); DeLeon v. City ofHaltom City, 106 F. App'x 909, 911(5th Cir. 2004) ("We reject the contention that the City had the power to set
judicial policy for a municipal judge,.. . or that it could have ratified a municipal judge's judicial conduct, even ifits policymakers knew ofthe judge's conduct and approved ofit."); see also Burks
v. Price, CIVIL ACTION NO. 6:13cv746, 2015 WL 3622684, at *8 (E.D. Tex. June 10, 2015) ("[A]ny decisions regarding whether or not to hold an indigency hearing would be made by the judge, not by the municipality. The Fifth Circuit has held that a municipal judge acting in his judicial capacity does not act as a municipal official or lawmaker.") (citingJohnson, 958 F.2d at 94).
Harris's allegation the City of Austin has an unconstitutional policy as to municipal court proceedings conducted by a judge in the exercise of his or her judicial authority does not support a claim for relief against the City under 42 U.S.C. § 1983. As such, the City's motion to dismiss is
due to be granted. Conclusion
Accordingly:
IT IS ORDERED that Defendant City of Austin's Motion Re-Urging Defendant's
Rule 12(b)(6) Motion to Dismiss [#17] is GRANTED; and IT IS ORDERED that Plaintiff Karian Harris's complaint in the above-styled and
numbered cause is DISMISSED WITHOUT PREJUDICE.
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/day SIGNED this the

of March 2016.

SAM SPARKS UNITED STATES DISTRICT JUDGE

956 mot dism ord ba4.wpd

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