U.S. District Court SOUTHERN DISTRICT OF TEXAS (Houston) CIVIL DOCKET FOR CASE #: 4:19-cv-00226

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Russell et al v. Harris County, Texas et al Assigned to: Chief Judge Lee H Rosenthal Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 01/21/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Dwight Russell

represented by Alec George Karakatsanis Civil Rights Corps 1601 Connecticut Avenue NW Suite 800 Washington, DC 20009 202-894-6142 Email: alec@civilrightscorps.org ATTORNEY TO BE NOTICED

Elizabeth Anne Rossi Civil Rights Corps 1601 Connecticut Ave. NW Suite 800 Washington, DC 20009 202-894-6142 Email: elizabeth@civilrightscorps.org PRO HAC VICE ATTORNEY TO BE NOTICED

Joseph S Grinstein Susman Godfrey LLP 1000 Louisiana Ste 5100 Houston, TX 77002 713-653-7824 Fax: 713-654-3354 Email: jgrinstein@susmangodfrey.com ATTORNEY TO BE NOTICED

Liyah Brown Texas Civil Rights Project 2202 Alabama St Houston, TX 77002 832-767-3650 Email: liyah@texascivilrightsproject.org ATTORNEY TO BE NOTICED
Meagan Taylor Harding Texas Civil Rights Project 405 Main Street 7th Floor Houston, TX 77002 512-474-5073 Email: meagan@texascivilrightsproject.org TERMINATED: 04/09/2020
Michael Gervais Susman Godfrey L.L.P. 1900 Avenue of the Stars Ste 1400 Los Angeles, NY 90067 212-336-8330 Email: mgervais@susmangodfrey.com ATTORNEY TO BE NOTICED
Mimi Murray Digby Marziani Texas Civil Rights Project 1405 Montropolis Dr Austin, TX 78741 512-474-5073 Email: mimi@texascivilrightsproject.org ATTORNEY TO BE NOTICED
Natalia Marissa Cornelio Houston, TX 77002 832-767-3650 Email: nataliacornelio@gmail.com TERMINATED: 05/10/2019
Peter Blackmer Steffensen Texas Civil Rights Project

Plaintiff Johnnie Pierson

1405 Montopolis Dr Austin, TX 78741 512-474-5073 Email: peter@texascivilrightsproject.org ATTORNEY TO BE NOTICED
Neal S Manne Susman Godfrey LLP 1000 Louisiana Ste 5100 Houston, TX 77002-5096 713-653-7827 Email: nmanne@susmangodfrey.com ATTORNEY TO BE NOTICED
represented by Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Anne Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph S Grinstein (See above for address) ATTORNEY TO BE NOTICED
Liyah Brown (See above for address) ATTORNEY TO BE NOTICED
Meagan Taylor Harding (See above for address) TERMINATED: 04/09/2020
Michael Gervais (See above for address) ATTORNEY TO BE NOTICED
Mimi Murray Digby Marziani (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Joseph Ortuno

Natalia Marissa Cornelio (See above for address) TERMINATED: 05/10/2019
Peter Blackmer Steffensen (See above for address) ATTORNEY TO BE NOTICED
Neal S Manne (See above for address) ATTORNEY TO BE NOTICED
represented by Alec George Karakatsanis (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Anne Rossi (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Joseph S Grinstein (See above for address) ATTORNEY TO BE NOTICED
Liyah Brown (See above for address) ATTORNEY TO BE NOTICED
Meagan Taylor Harding (See above for address) TERMINATED: 04/09/2020
Michael Gervais (See above for address) ATTORNEY TO BE NOTICED
Mimi Murray Digby Marziani (See above for address) ATTORNEY TO BE NOTICED
Natalia Marissa Cornelio (See above for address) TERMINATED: 05/10/2019

Plaintiff Maurice Wilson
Plaintiff Christopher Clack
V. Defendant Harris County, Texas

Peter Blackmer Steffensen (See above for address) ATTORNEY TO BE NOTICED
Neal S Manne (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Blackmer Steffensen (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Anne Rossi (See above for address) ATTORNEY TO BE NOTICED
represented by Peter Blackmer Steffensen (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Anne Rossi (See above for address) ATTORNEY TO BE NOTICED
represented by Melissa Lynn Spinks Harris County Attorney's Office 1019 Congress 15th Floor Houston, TX 77002 713-274-5132 Fax: 713-755-8924 Email: melissa.spinks@cao.hctx.net TERMINATED: 08/26/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Brandon Marc Draper Assistant County Attorney

Defendant Sheriff Ed Gonzalez
Defendant Judge Hazel B Jones

1019 Congress 15th Floor Houston, TX 77002 713-274-5358 Email: brandon.draper@cao.hctx.net ATTORNEY TO BE NOTICED
Rachel Susan Fraser Harris County Attorney 1019 Congress St 15th Fl Houston, TX 77002 713-274-5383 Email: rachel.fraser@cao.hctx.net ATTORNEY TO BE NOTICED
represented by Murray J Fogler Fogler, Brar, O'Neil & Gray LLP 909 Fannin St Suite 1640 2 Houston Center Houston, TX 77002 713-481-1010 Fax: 713-574-3224 Email: mfogler@foglerbrar.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Lynn Jimenez Harris County Attorney's Office 1019 Congress 15th Floor Houston, TX 77002 713-274-5140 Fax: 713-755-8924 Email: Victoria.Jimenez@Sheriff.hctx.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello Office of the Attorney General Law Enforcement Defense Div

Defendant Nikita Harmon

PO Box 12548 Austin, TX 78602 512-463-2080 Fax: (512) 457-4654 Email: courtney.corbello@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon Office of the Attorney General of TX P.O. Box 12548 Austin, TX 78711-2548 512-463-2080 Fax: 512-370-9410 Email: Emily.Landon@oag.texas.gov ATTORNEY TO BE NOTICED
Jonathan M Pena Office of the Attorney General PO Box 12548 Austin, TX 78701 512-463-2080 Email: jonathan.pena@oag.texas.gov ATTORNEY TO BE NOTICED
Landon Allen Wade Office of the Attorney General Law Enforcement Defense Division P.O. Box 12548 Austin, TX 78711-2548 512-463-2080 Email: landon.wade@oag.texas.gov ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address)

Defendant Robert Johnson
Defendant Kelli Johnson

ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED

Defendant Randy Roll
Defendant DaSean Jones
Defendant Danilo Lacayo

represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) TERMINATED: 09/25/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address)

Defendant Chuck Silverman Defendant Abigail Anastasio
Defendant Jason Luong

ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED

Defendant Greg Glass
Defendant Brian Warren Defendant Frank Aguilar
Defendant

Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED

Chris Morton
Defendant Josh Hill
Defendant Hilary Unger

represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED

Defendant Lori Chambers Gray
Defendant Amy Martin

Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by George Allan Van Fleet G. Allan Van Fleet, P.C. 6218 Elm Heights LN Suite 201 Houston, TX 77081-2409 713-826-1954 Email: allanvanfleet@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Courtney Brooke Corbello Office of the Attorney General Law Enforcement Defense Div PO Box 12548 Austin, TX 78602 512-463-2080 Fax: (512) 457-4654 TERMINATED: 08/19/2020
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED

Defendant Herb Ritchie
Defendant Ramona Franklin
Defendant Jesse McClure, III

represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED

Defendant George Powell
Defendant Brock Thomas

Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED
represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Emily Marie Landon (See above for address) ATTORNEY TO BE NOTICED
Jonathan M Pena (See above for address) ATTORNEY TO BE NOTICED
Landon Allen Wade (See above for address) ATTORNEY TO BE NOTICED

Defendant Lisa A. Gray
Movant Jason Callicotte
Movant Devin Paul Cole
Movant Mario Garza
V. Amicus Paul Bettencourt

represented by Courtney Brooke Corbello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jason Callicotte 2118 Washington Houston, TX 77007 PRO SE
represented by Devin Paul Cole 02145549 Harris County Jail 1200 Baker St Houston, TX 77002 PRO SE
represented by Kevin R Pennell Pennell Law Firm PLLC 19 Briar Hollow Lane Suite110 Houston, TX 77027 713-965-7568 Fax: 713-583-9455 Email: kevin@pennellfirm.com ATTORNEY TO BE NOTICED
represented by Gary M Polland Polland and Associates 1533 W Alabama St Houston, TX 77006 713-621-6335 Fax: 713-622-6334 Email: pollandlaw@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Amicus Sam Harless
Amicus Dan Huberty
Amicus Briscoe Cain
Amicus Dennis Paul
Amicus Tom Oliverson
Amicus James Murphy
Amicus Dwayne Bohac
Amicus

represented by Gary M Polland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M Polland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M Polland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M Polland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M Polland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M Polland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gary M Polland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Valoree Swanson Interested Party Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only
Interested Party District Attorney Kim Ogg

represented by Gary M Polland (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Arthur Biggs Office of the Attorney General P.O. Box 12548, Capitol Station Austin, TX 78711 512-463-2120 Email: adam.biggs@oag.texas.gov ATTORNEY TO BE NOTICED
Kimberly Ann Gdula Office of the Attorney General P.O. Box 12548-Capitol Station Austin, TX 78711-2548 512-463-2120 Fax: 512-320-0667 Email: kimberly.gdula@oag.texas.gov ATTORNEY TO BE NOTICED
Todd Alan Dickerson Office of the Attorney General of Texas 300 W. 15th St. 11th Floor, MC-019 Austin, TX 78711 512-475-4082 Email: todd.dickerson@oag.texas.gov ATTORNEY TO BE NOTICED
represented by Scott Anthony Durfee Assistant District Attorney 1201 Franklin 6th Flr Houston, TX 77002 713-755-5816 Fax: 713-368-9275 Email: durfee_scott@dao.hctx.net

Interested Party Lina Hidalgo Harris County Judge
V. Intervenor Governor Gregg Abbott
Intervenor State Of Texas

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kathryn M Kase Kathryn M Kase, Attorney at Law 3720 Greenbriar PO Box 980849 Houston, TX 77098-9998 713-444-2044 Email: kmkase@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Arthur Biggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Ann Gdula (See above for address) ATTORNEY TO BE NOTICED
Todd Alan Dickerson (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Arthur Biggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline Alyssa Merideth Office of the Texas Attorney General P O Box 12548 Capital Statcion MC-019 Austin, TX 78711-2548 512-463-2120 Email:

Intervenor Judge Chuck Silverman

caroline.merideth@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kimberly Ann Gdula (See above for address) ATTORNEY TO BE NOTICED
Todd Alan Dickerson (See above for address) ATTORNEY TO BE NOTICED
represented by Anastasia Liounakos Davis Wright et al 1919 Pennsylvania Avenue Suite 800 Washington, DC 20006 202-973-4283 Email: anastasialiounakos@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Don Bradford Hardin , Jr. David Wright Tremaine LLP 1919 Pennsylvania Avenue Suite 800 Washington, DC 20006 202-973-4238 Email: bradfordhardin@dwt.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
George Allan Van Fleet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Matthew Diggs Davis Wright et al 920 Fifth Avenue Suite 3300 Seattle, WA 98104 206-757-8175 Email: matthewdiggs@dwt.com

Intervenor Hon. Brian E Warren

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by George Allan Van Fleet (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 01/21/2019
01/21/2019 01/22/2019
01/22/2019 01/23/2019 01/23/2019

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541-21691765) filed by Dwight Russell, Joseph Ortuno, Pierson Johnnie. (Attachments: # 1 Exhibit Exhibit 1 - Dwight Russell Declaration, # 2 Exhibit Exhibit 2 - Johnnie Pierson Declaration, # 3 Exhibit Exhibit 3 - Joseph Ortuno Declaration, # 4 Exhibit Exhibit 4 - Felony Bail Schedule)(Manne, Neal) (Entered: 01/21/2019)
2 MOTION to Certify Class by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 2/11/2019. (Attachments: # 1 Exhibit Exhibit 1 - Declaration of A Karakatsanis, # 2 Exhibit Exhibit 2 - Declaration of N Cornelio, # 3 Proposed Order)(Manne, Neal) (Entered: 01/21/2019)
3 ORDER Scheduling Rule 16 Conference With the Court and Setting Out the Requirements for Initial Pretrial Work. Initial Conference set for 4/12/2019 at 02:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal. (Signed by Chief Judge Lee H Rosenthal) (Attachments: # 1 Attachments) Parties notified.(JenniferOlsonadi, 4) (Entered: 01/22/2019)
4 NOTICE of Appearance by Natalia M. Cornelio on behalf of Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Cornelio, Natalia) (Main Document 4 replaced on 1/22/2019) (leddins, 4). (Entered: 01/22/2019)
5 MOTION for Alex Karakatsanis to Appear Pro Hac Vice by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 2/13/2019. (Manne, Neal) (Entered: 01/23/2019)
6 MOTION for Elizabeth Rossi to Appear Pro Hac Vice by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 2/13/2019. (Manne, Neal) (Entered: 01/23/2019)

01/23/2019 01/23/2019 01/25/2019 01/25/2019 01/28/2019
01/28/2019 02/01/2019
02/04/2019 02/05/2019 02/05/2019

7 NOTICE of Appearance by Lexie G. White on behalf of Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (White, Lexie) (Entered: 01/23/2019)
8 NOTICE of Appearance by Joseph S. Grinstein on behalf of Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Grinstein, Joseph) (Entered: 01/23/2019)
9 ORDER granting 5 Motion for Alec Karakatsanis to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(gkelner, 4) (Entered: 01/25/2019)
10 ORDER granting 6 Motion for Elizabeth Ann Rossi to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(rguerrero, 4) (Entered: 01/28/2019)
11 AMENDED 2 MOTION by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 2/19/2019. (Attachments: # 1 Exhibit Ex. 1 - Amended Declaration of A. Karakatsanis, # 2 Exhibit Ex. 2 - Declaration of N. Cornelio, # 3 Proposed Order Ex. 3 - Proposed Order)(Manne, Neal) (Entered: 01/28/2019)
12 AMENDED 6 MOTION by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 2/19/2019. (Manne, Neal) (Entered: 01/28/2019)
13 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on February 1, 2019. The parties must submit a proposed order abating the case for 90 days by Monday, February 4, 2019. The court will schedule a status conference following the expiration of the abatement. Appearances: Neal S Manne.(Court Reporter: B. Slavin), filed.(leddins, 4) (Entered: 02/04/2019)
14 Unopposed MOTION to Stay by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 2/25/2019. (Attachments: # 1 Proposed Order Proposed Order)(Manne, Neal) (Entered: 02/04/2019)
15 ORDER entered GRANTING 14 Unopposed MOTION to Stay , STAYED flag set. The IPTC will be reset by separate notice. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 02/05/2019)
16 NOTICE of Resetting. Parties notified. Initial Conference reset for 6/19/2019 at 10:30 AM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 02/05/2019)

02/06/2019 02/06/2019 02/08/2019 05/02/2019 05/06/2019 05/06/2019 05/08/2019 05/09/2019 05/10/2019 05/10/2019 05/31/2019

17 NOTICE of Appearance by Melissa L. Spinks on behalf of Harris County, Texas, filed. (Spinks, Melissa) (Entered: 02/06/2019)
18 NOTICE of Appearance by Victoria Jimenez & Murray Fogler on behalf of Sheriff Ed Gonzalez, filed. (Jimenez, Victoria) (Entered: 02/06/2019)
19 NOTICE of Appearance by Elizabeth B. Hadaway on behalf of Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Hadaway, Elizabeth) (Entered: 02/08/2019)
20 NOTICE of Appearance by Meagan Harding on behalf of Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Harding, Meagan) (Entered: 05/02/2019)
21 Unopposed MOTION for Natalia Cornelio to Withdraw as Attorney by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 5/28/2019. (Attachments: # 1 Proposed Order)(Cornelio, Natalia) (Entered: 05/06/2019)
22 MOTION for Mimi Marziani to Appear Pro Hac Vice by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 5/28/2019. (lcorbett, 7) (Entered: 05/08/2019)
23 ORDER granting 22 Motion for Mimi Marziami to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(kpicota, 4) (Entered: 05/08/2019)
24 Joint MOTION to Stay Proceedings for 60 Days by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 5/30/2019. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 05/09/2019)
25 ORDER granting 21 Unopposed MOTION for Natalia Cornelio to Withdraw as Attorney. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(gclair, 4) (Entered: 05/10/2019)
26 ORDER Granting 24 Joint MOTION to Stay Proceedings for 60 Days ( Status Conference set for 7/10/2019 at 08:30 AM in Courtroom 11B before Chief Judge Lee H Rosenthal), (Signed by Chief Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 05/10/2019)
***Deadlines terminated. The IPTC set for 6/19 is canceled based on the status conference set for 7/10/19 when the case was stayed. (leddins, 4) (Entered: 05/31/2019)

06/12/2019 07/22/2019 07/25/2019 10/08/2019 01/10/2020 03/27/2020
03/27/2020 03/27/2020

27 NOTICE of Resetting. Parties notified. Status Conference reset for 7/24/2019 at 10:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 06/12/2019)
28 NOTICE of Resetting. Parties notified. Status Conference reset for 7/25/2019 at 11:00 AM in Courtroom 11B before Chief Judge Lee H Rosenthal, filed. (leddins, 4) (Entered: 07/22/2019)
29 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on July 25, 2019. The parties informed the court as to the status. Appearances: Elizabeth Rossi/Meagan Harding/Neal Manne for Pltfs. and Victoria Jimenez/ Melissa Spinks for Defts.(Court Reporter: N. Forrest), filed.(leddins, 4) (Entered: 07/25/2019)
30 NOTICE of Change of Address by Civil Rights Corps, counsel for Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Rossi, Elizabeth) (Entered: 10/08/2019)
31 NOTICE Joint Notice of Status of Settlement Negotiations by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Rossi, Elizabeth) (Entered: 01/10/2020)
32 MOTION for Temporary Restraining Order by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 4/17/2020. (Attachments: # 1 Exhibit A - Letters from Prominent Local Physicians & Letter from CEO of Harris Health, Dr. Esmaeil Porsa, # 2 Exhibit B Expert Declaration of Dr. Elizabeth Chiao, # 3 Exhibit C - Expert Declaration of Dr. Jaimie Meyer, # 4 Exhibit D - Declaration of Sarah V. Wood, # 5 Exhibit E - Felony Bail Schedule, # 6 Exhibit F - March 20, 2020 General Order of Felony Judges, # 7 Exhibit G - State Commission on Judicial Conduct Documents Part 1, # 8 Exhibit H State Commission on Judicial Conduct Documents Part 2, # 9 Exhibit I - Felony Court Docket Schedule, # 10 Exhibit J - Court Operations Emergency Order, # 11 Exhibit K - Felony Pretrial Detention Reports, # 12 Proposed Order)(Rossi, Elizabeth) (Entered: 03/27/2020)
33 MOTION for Michael Gervais to Appear Pro Hac Vice by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 4/17/2020. (Gervais, Michael) (Entered: 03/27/2020)
34 ORDER entered: The Court orders the defendants and the Texas Attorney General to respond to the plaintiffs' motion for a temporary restraining order by 4/1/2020. A Hearing is set for 4/3/2020 at 09:00 AM by videoconferencing before Chief Judge Lee H Rosenthal.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 03/27/2020)

03/27/2020 03/27/2020 03/27/2020
03/29/2020 03/29/2020 03/29/2020

35 ORDER granting 33 Motion for Michael Gervais to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(ShoshanaArnow, 4) (Entered: 03/27/2020)
36 MOTION for Liyah Brown to Appear Pro Hac Vice by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 4/17/2020. (Marziani, Mimi) (Entered: 03/27/2020)
37 AGREED Minute Entry ORDER: entered: for proceedings held before Chief Judge Lee H Rosenthal. TELEPHONE CONFERENCE held on 3/27/2020. Telephone Conference set for 3/30/2020 at 04:00 PM by telephone before Chief Judge Lee H Rosenthal Appearances: Victoria Jimenez, Melissa Spinks, Michael Gervais, Joseph Grinstein, Alec Karakatsanis, Elizabeth Rossi, Neal Manne, Murray Fogler and Adam Biggs., filed.(leddins, 4) (Entered: 03/29/2020)
38 MOTION to Intervene by Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, filed. Motion Docket Date 4/20/2020. (Attachments: # 1 Exhibit Memorandum in Support, # 2 Exhibit Notice of Opposition, # 3 Exhibit Proposed Order)(Biggs, Adam) (Entered: 03/29/2020)
39 ADVISORY by Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, filed. (Attachments: # 1 Exhibit EO GA13)(Biggs, Adam) (Entered: 03/29/2020)
40 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Teleconference held on March 29, 2020. The parties' responses to the Texas Attorney General's motion to intervene are due on March 30, 2020, at 5:00 p.m. The March 30 teleconference is reset to March 31, 2020, at 4:00 p.m. The parties agreed that Harris County District Attorney Kim Ogg should be added to the list of interested nonparties in the case. The plaintiffs agreed to give a copy of their future filings to the Texas Attorney General's counsel and to file any document containing arrestees' personal information under seal. Counsel for the defendants will inform the court and parties of the status of the release of all arrestees affected by Judge Herb Ritchie's March 20, 2020, General Order Bond Order. The parties and the court discussed limiting the relief sought such that all parties could agree. The parties and the court also discussed the possibility of resolving the immediate issues expeditiously and within state and local authority by forming a consensual plan to reduce the Jail population in response to and during the national emergency in a way that protects the public health and safety of those in the Jail, those in contact with them, and the community at large. The court delayed the previously-scheduled March 30 teleconference to give the parties time to investigate that possibility.

03/30/2020 03/30/2020 03/30/2020
03/30/2020 03/30/2020 03/30/2020 03/31/2020
03/31/2020 03/31/2020

Appearances: Neal Manne, Joseph Grinstein, Alec Karakatsanis, Elizabeth Rossi, Adam Biggs, Victoria Jimenez, Melissa Spinks, Darren McCarty, Murray Fogler, Rodney Ellis, Joseph Hughes, Liyah Brown, Kathryn Kase.(Court Reporter: G. Dye), filed.(leddins, 4) Modified on 3/30/2020 (leddins, 4). Modified on 4/3/2020 (leddins, 4). (Entered: 03/29/2020)
41 ORDER granting 36 Motion for Liyah Brown to Appear Pro Hac Vice for Pierson Johnnie, Joseph Ortuno, Dwight Russell. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 03/30/2020)
42 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of TRO Hearing, 3/29/2020, Judge Lee H. Rosenthal. 3-Day turnaround requested. Court Reporter/Transcriber: Gayle Dye, filed. (White, Lexie) (Entered: 03/30/2020)
43 AO 435 TRANSCRIPT REQUEST by Adam Arthur Biggs for Transcript of hearing on Plaintiff's for Motion for Temporary Restraining Order on March 29, 2020 before Hon. Lee H. Rosenthal. 3Day turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Biggs, Adam) (Entered: 03/30/2020)
44 SUPPLEMENT to 32 MOTION for Temporary Restraining Order by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed.(Rossi, Elizabeth) (Entered: 03/30/2020)
45 RESPONSE to 38 MOTION to Intervene filed by Pierson Johnnie, Joseph Ortuno, Dwight Russell. (Rossi, Elizabeth) (Entered: 03/30/2020)
46 ORDER entered GRANTING 38 MOTION to Intervene. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 03/30/2020)
47 NOTICE of Filing of Exhibit re: 32 MOTION for Temporary Restraining Order by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Attachments: # 1 Exhibit A - Letter from People Detained in the Harris County Jail, # 2 Exhibit B - Declaration of Caitlin Halpern)(Rossi, Elizabeth) (Entered: 03/31/2020)
48 NOTICE of Appearance by Murray Fogler on behalf of Sheriff Ed Gonzalez, filed. (Fogler, Murray) (Entered: 03/31/2020)
49 TRANSCRIPT re: Teleconference Hearing held on March 29, 2020, before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Dye.

03/31/2020
04/01/2020 04/01/2020 04/01/2020 04/01/2020 04/01/2020

Ordering Party Adam Biggs Release of Transcript Restriction set for 6/29/2020., filed. (gdye, ) (Entered: 03/31/2020)
57 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Teleconference held on March 31, 2020. Counsel for Harris County Judge Lina Hidalgo informed the court that Judge Hidalgo is planning to order the release of pretrial felony arrestees who have been detained for nonviolent offenses and have no history of violent offenses, among other conditions. The court heard from the parties on their opinions on the potential order and on potential relief from this court. The court urged stakeholders that if they plan to object to any proposed releases under Judge Hidalgo's order, they do so by April 3, 2020. The StateIntervenors informed the court that they would be filing a response to the motion for a temporary restraining order on April 1, 2020. The court waived any obligation for a response to that filing, and schedules the next teleconference for April 3, 2020, at 11 A.M. C.D.T. Appearances: Michael Gervais, Liyah Brown, Joseph Grinstein, Alec Karakatsanis, Elizabeth Rossi, Neal Manne, Scott Durfee, Adam Biggs, Murray Fogler, Victoria Jimenez, Melissa Spinks, Kevin Markowski, Darren McCarty, Kathryn Kase. (Court Reporter: K.Miller), filed.(leddins, 4) Modified on 4/3/2020 (leddins, 4). (Entered: 04/02/2020)
50 Notice of Filing of Official Transcript as to 49 Transcript. Party notified, filed. (jdav, 4) (Entered: 04/01/2020)
51 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of Hearing, 03/31/2020, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (White, Lexie) (Entered: 04/01/2020)
52 AO 435 TRANSCRIPT REQUEST by Intervenor/Adam Arthur Biggs for Transcript of Hearing, 03/31/2020, Judge Lee H. Rosenthal. 3-Day turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Biggs, Adam) (Entered: 04/01/2020)
53 MOTION for Temporary Restraining Order by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 4/22/2020. (Attachments: # 1 Exhibit A - Executive Order GA 13, # 2 Exhibit B Tennessee Order, # 3 Exhibit C - South Carolina Order, # 4 Exhibit D Michigan Order, # 5 Proposed Order)(Rossi, Elizabeth) (Entered: 04/01/2020)
54 RESPONSE in Opposition to 32 MOTION for Temporary Restraining Order, filed by Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, Gregg Abbott, State Of Texas. (Attachments: # 1 Exhibit List, # 2 Exhibit 1 - Declaration of Houston

04/01/2020
04/01/2020 04/02/2020 04/03/2020 04/03/2020 04/03/2020

Chief of Police Art Acevedo, # 3 Exhibit 2 - Declaration of Allen Police Chief Brian Harvey, # 4 Exhibit 3 - Declaration of Arlington Police Chief Will Johnson, # 5 Exhibit 4 - Declaration of Police Chief Derick Miller, # 6 Exhibit 5 - Declaration of Deer Park Chief of Police Gregg Grigg, # 7 Exhibit 6 - Declaration of Frisco Police Chief David Shilson, # 8 Exhibit 7 - Declaration of Fort Worth Police Chief Edwin Kraus, # 9 Exhibit 8 - March 31, 2020 Letter from Garland Police Department, # 10 Exhibit 9 - Declaration of Daniel Scesny, # 11 Exhibit 10 - Declaration of Irving Police Chief Jeff Spivey, # 12 Exhibit 11 - Declaration of Lewisville Police Chief Kevin Deaver, # 13 Exhibit 12 - Declaration of Pearland Police Chief Johnny Spires, # 14 Exhibit 13 - Declaration of Plano Police Chief Ed Drain, # 15 Exhibit 14 - Declaration of Gregory W. Rushin, # 16 Exhibit 15 Declaration of David Maxwell, # 17 Exhibit 16 - Declaration of Director of Department of Public Safety Steven McCraw, # 18 Exhibit 17 - March 31, 2020 Letter from Texas Police Chiefs Association, # 19 Exhibit 18 - Declaration of Bob Bushman, # 20 Exhibit 19 Declaration of Andy Kahan, # 21 Exhibit 20 - Resolution - Major County Sheriffs of America, # 22 Proposed Order)(Biggs, Adam) (Entered: 04/01/2020)
55 Unopposed MOTION for Leave to File Excess Pages by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas, filed. Motion Docket Date 4/22/2020. (Attachments: # 1 Proposed Order)(Biggs, Adam) (Entered: 04/01/2020)
56 Additional EXHIBITS re: 54 Response in Opposition to Motion,,,,,, by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas, filed.(Biggs, Adam) (Entered: 04/01/2020)
58 TRANSCRIPT re: Telephonic Hearing held on March 31, 2020 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party Adam Biggs Release of Transcript Restriction set for 7/1/2020., filed. (kmiller, ) (Entered: 04/02/2020)
59 Notice of Filing of Official Transcript as to 58 Transcript. Party notified, filed. (JenniferOlson, 4) (Entered: 04/03/2020)
60 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of Hearing, 4/3/20, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (White, Lexie) (Entered: 04/03/2020)
61 ADVISORY by Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, filed.(Biggs, Adam) (Entered: 04/03/2020)

04/03/2020
04/05/2020 04/06/2020 04/06/2020 04/06/2020 04/06/2020 04/06/2020
04/06/2020

83 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Teleconference held on April 3, 2020. The court heard argument on the plaintiffs' April 1, 2020, temporary restraining order motion, (Docket Entry No. 53), and received a status update on the implementation of Harris County Judge Lina Hidalgo's April 1 Order on releasing certain jail detainees. The court also heard argument on the nature of the individualized bail hearing process for felony arrestees. The parties and the Harris County District Attorney will submit the filings discussed on the record by April 6, 2020, at 9:00 a.m. Appearances: Adam Biggs, Murray Fogler, Victoria Jimenez, Melissa Spinks, Michael Gervais, Liyah Brown, Joseph Grinstein, Alec Karakatsanis, Elizabeth Rossi, Meagan Harding, Neal Manne, Scott Durfee, Kathryn Kase, Joanne Musick.(Court Reporter: K. Miller), filed.(leddins, 4) (Entered: 04/08/2020)
***Set/Reset Hearings: Telephone Conference set for 4/7/2020 at 11:00 AM by telephone before Chief Judge Lee H Rosenthal (leddins, 4) (Entered: 04/05/2020)
62 ADVISORY by Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, filed.(Biggs, Adam) (Entered: 04/06/2020)
63 ADVISORY by Kim Ogg, filed.(Durfee, Scott) Modified on 4/6/2020 (leddins, 4). The Advisory was corrected at DE 64. (Entered: 04/06/2020)
64 AMENDED ADVISORY by Kim Ogg, filed.(Durfee, Scott) Modified on 4/6/2020 (leddins, 4). (Entered: 04/06/2020)
65 STATEMENT by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 04/06/2020)
66 STATEMENT of Plaintiffs re: 32 MOTION for Temporary Restraining Order, 53 MOTION for Temporary Restraining Order by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Attachments: # 1 Exhibit A - Hidalgo April 1 Order, # 2 Exhibit B - Ritchie April 3 Order to Sheriff, # 3 Exhibit C - Ritchie April 2 First Amended General Order Bond for Certain Offenses, # 4 Exhibit D - Judge Susan Brown email re EO GA 13, # 5 Exhibit E - Declaration of Chief Public Defender Alex Bunin, # 6 Exhibit F - Declaration of Cole Lautermilch)(Rossi, Elizabeth) (Entered: 04/06/2020)
67 RESPONSE in Opposition to 53 MOTION for Temporary Restraining Order, filed by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9,

04/06/2020
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# 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Proposed Order)(Biggs, Adam) (Entered: 04/06/2020)
68 Unopposed MOTION for Leave to File Excess Pages by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas, filed. Motion Docket Date 4/27/2020. (Attachments: # 1 Proposed Order)(Biggs, Adam) (Entered: 04/06/2020)
69 ORDER entered requesting additional briefing from the parties. Advisories must be filed by April 7, 2020 at 9:00 am CDT. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 04/06/2020)
70 AO 435 TRANSCRIPT REQUEST by State Intervenors/Adam Arthur Biggs for Transcript of Hearing, 4/3/20, Hon. Lee H. Rosenthal. 3-Day turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Biggs, Adam) (Entered: 04/06/2020)
71 NOTICE of Resetting. Parties notified. Telephone Conference reset for 4/7/2020 at 03:30 PM by telephone before Chief Judge Lee H Rosenthal, filed. NOTE: The change is to TIME only. (leddins, 4) (Entered: 04/06/2020)
72 ADVISORY by Kim Ogg, filed.(Durfee, Scott) (Entered: 04/07/2020)
73 ADVISORY by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas, filed.(Biggs, Adam) (Entered: 04/07/2020)
74 ADVISORY by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Attachments: # 1 Exhibit A - Second Declaration of Alex Bunin)(Rossi, Elizabeth) (Entered: 04/07/2020)
75 PROPOSED ORDER re: 32 MOTION for Temporary Restraining Order, 53 MOTION for Temporary Restraining Order, filed. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 04/07/2020)
76 NOTICE of Filing of Supplement to Second Declaration of Alex Bunin (Dkt. 74-1) re: 74 Advisory by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Attachments: # 1 Exhibit A - Supplement to Second Declaration of Alex Bunin (Dkt. 74-1))(Rossi, Elizabeth) (Entered: 04/07/2020)

04/07/2020

77 TRANSCRIPT re: Telephonic Hearing held on April 3, 2020 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party Adam Biggs Release of Transcript Restriction set for 7/6/2020., filed. (kmiller, ) (Entered: 04/07/2020)

04/07/2020

78 MOTION for Leave to File Amicus Curiae Brief by Paul Bettencourt, Sam Harless, Dan Huberty, Briscoe Cain, Dennis Paul, Tom Oliverson, James Murphy, Dwayne Bohac, Valoree Swanson, filed. Motion Docket Date 4/28/2020. (Polland, Gary) (Entered: 04/07/2020)

04/07/2020

79 Hearing EXHIBITS re: 32 MOTION for Temporary Restraining Order, 53 MOTION for Temporary Restraining Order by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Attachments: # 1 Exhibit 1 - Declaration of Giovanni Arias)(Rossi, Elizabeth) (Entered: 04/07/2020)

04/07/2020

85 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Teleconference held on April 7, 2020. The court heard argument on the plaintiffs' April 1 and April 7 proposed temporary restraining orders, (Docket Entry Nos. 53, 75), and the nature of the individualized bail hearing process for felony arrestees. The court also received a status update on detainee releases under Administrative Judge Herb Ritchie's Orders, the implementation of the Governor's Executive Order GA-13, and the state of COVID-19 at the Harris County Jail. The parties and the Harris County District Attorney will submit the filings discussed on the record by April 8, 2020, at 9:00 a.m. or 12:00 p.m., depending on the filing. Appearances: Adam Biggs, Murray Fogler, Victoria Jimenez, Melissa Spinks, Michael Gervais, Joseph Grinstein, Alec Karakatsanis, Elizabeth Rossi, Meagan Harding, Neal Manne, Scott Durfee, Phillip Lionberger, Joseph Hughes, Todd Dickerson, Kathryn Kase, Joanne Musick, Alex Bunin.(Court Reporter: K. Miller), filed.(leddins, 4) (Entered: 04/08/2020)

04/07/2020

118 LETTER RECEIVED REGARDING COVID-19 CONCERNS in Harris County Jail, filed. (Attachments: # 1 SEALED Letter)(hcarr, 4) (Entered: 04/14/2020)

04/08/2020 80 Notice of Filing of Official Transcript as to 77 Transcript. Party notified, filed. (jdav, 4) (Entered: 04/08/2020)

04/08/2020

81 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of Hearing, 04/07/2020, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (White, Lexie) (Entered: 04/08/2020)

04/08/2020 82 AO 435 TRANSCRIPT REQUEST by Intervenors/Adam Arthur Biggs for Transcript of Hearing, 04/07/2020, Lee H. Rosenthal. 3-Day

04/08/2020 04/08/2020 04/08/2020 04/08/2020 04/08/2020 04/08/2020 04/08/2020
04/08/2020 04/08/2020

turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Biggs, Adam) (Entered: 04/08/2020)
84 ORDER granting 78 MOTION for Leave to File Amicus Curiae Brief.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 04/08/2020)
86 STATEMENT Report by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 04/08/2020)
87 STATEMENT by Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, filed. (Attachments: # 1 Exhibit Cruson v. Jackson, # 2 Exhibit In Re Greg Abbott)(Biggs, Adam) (Entered: 04/08/2020)
88 REPLY in Support of 32 MOTION for Temporary Restraining Order, 53 MOTION for Temporary Restraining Order, filed by Pierson Johnnie, Joseph Ortuno, Dwight Russell. (Rossi, Elizabeth) (Entered: 04/08/2020)
89 NOTICE pursuant to Chief Judge Lee Rosenthal Order by Lina Hidalgo, filed. (Kase, Kathryn) (Entered: 04/08/2020)
90 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durfee, Scott) (Entered: 04/08/2020)
91 ORDER entered: The court thanks the parties and the Harris County District Attorney for the latest advisories and statements. The court requires the following additional information. All parties must provide their positions on Judge Hidalgos proposed procedures. The plaintiffs must also address the District Attorney's statements on the latest information from the Harris County District Judges. The parties and the District Attorney must also consult with an authoritative representative from the District Judges and submit an update on the District Judges' views on the latest advisories. These responses are due April 9, 2020, at 10:30 a.m. CDT.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) Modified on 4/8/2020 (leddins, 4). (Entered: 04/08/2020)
92 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durfee, Scott) (Entered: 04/08/2020)
93 NOTICE re: 92 Advisory by Kim Ogg, filed. (Durfee, Scott) (Entered: 04/08/2020)

04/09/2020

94 ADVISORY by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas, filed.(Biggs, Adam) (Entered: 04/09/2020)

04/09/2020 95 ADVISORY by Kim Ogg, filed.(Durfee, Scott) (Entered: 04/09/2020)

04/09/2020 96 ADVISORY by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed.(Rossi, Elizabeth) (Entered: 04/09/2020)

04/09/2020 97 RESPONSE Sheriff's Position on Judge Hidalgo's Proposal, filed by Sheriff Ed Gonzalez. (Fogler, Murray) (Entered: 04/09/2020)

04/09/2020 98 Proposed Findings of Fact by Pierson Johnnie, Joseph Ortuno, Dwight Russell(Rossi, Elizabeth) (Entered: 04/09/2020)

04/09/2020

99 ORDER entered requiring further questions/responses. Responses are to be filed by 10:30 am on April 10, 2020. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 04/09/2020)

04/09/2020

100 ORDER granting 68 Motion for Leave to File Excess Pages. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 04/09/2020)

04/09/2020

101 ORDER entered. The court has received the attached emails from families of Harris County Inmates. (Signed by Chief Judge Lee H Rosenthal) (Attachments: # 1 Email, # 2 Email) Parties notified.(leddins, 4) (Entered: 04/09/2020)

04/09/2020

102 LETTERS/EMAILS RECEIVED REGARDING COVID-19 CONCERNS, filed. (Attachments: # 1 Email, # 2 Email)(leddins, 4) (Entered: 04/09/2020)

04/09/2020

103 MOTION for Meagan Harding to Withdraw as Attorney by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 4/30/2020. (Harding, Meagan) (Entered: 04/09/2020)

04/09/2020

104 NOTICE of New Authority re: 32 MOTION for Temporary Restraining Order, 53 MOTION for Temporary Restraining Order by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Attachments: # 1 Exhibit A - Valdez-Jimenez v. Frye, No. 76417 (Apr. 9, 2020))(Rossi, Elizabeth) (Entered: 04/09/2020)

04/09/2020

105 ORDER granting 103 Motion to Withdraw as Attorney. Attorney Meagan Taylor Harding terminated and removed from electronic notifications for this case..(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jdav, 4) (Entered: 04/10/2020)

04/10/2020 106 ADVISORY by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed.(Rossi, Elizabeth) (Entered: 04/10/2020)

04/10/2020 107 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durfee, Scott) (Entered: 04/10/2020)

04/10/2020

108 TRANSCRIPT re: Telephonic Hearing held on April 7, 2020 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Kathleen Miller. Ordering Party Adam A. Biggs Release of Transcript Restriction set for 7/9/2020., filed. (kmiller, ) (Entered: 04/10/2020)

04/10/2020

109 NOTICE of Appearance by Peter Steffensen on behalf of Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Steffensen, Peter) (Entered: 04/10/2020)

04/10/2020

110 LETTERS/EMAILS RECEIVED Regarding COVID-19 Concerns, filed. (Attachments: # 1 letter, # 2 letter, # 3 letter)(leddins, 4) (Entered: 04/10/2020)

04/10/2020

111 ADVISORY by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Attachments: # 1 Exhibit A - Second Declaration of Sarah Wood)(Rossi, Elizabeth) (Entered: 04/10/2020)

04/11/2020

112 NOTICE of Temporary Restraining Order Against Executive Order GA-13 by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Attachments: # 1 Exhibit 1 - TRO Enjoining EO GA 13 (Dkt. 53-1), # 2 Exhibit 2 - Letter Re: TCDLA v. Abbott)(Rossi, Elizabeth) (Entered: 04/11/2020)

04/12/2020

113 ADVISORY by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas, filed. (Attachments: # 1 Exhibit SCOTEX Stay Order)(Biggs, Adam) (Entered: 04/12/2020)

04/13/2020 114 Notice of Filing of Official Transcript as to 108 Transcript. Party notified, filed. (jdav, 4) (Entered: 04/13/2020)

04/13/2020 115 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A)(Durfee, Scott) (Entered: 04/13/2020)

04/13/2020

116 LETTERS RECEIVED REGARDING COVID-19 CONCERNS in Harris County Jail filed. (Attachments sealed) (Attachments: # 1 Little email, # 2 Macha email)(leddins, 4) (Entered: 04/13/2020)

04/13/2020

117 Hearing EXHIBITS re: 32 MOTION for Temporary Restraining Order, 53 MOTION for Temporary Restraining Order by Pierson Johnnie, Joseph Ortuno, Dwight Russell (Attachments: # 1 Exhibit A -

chart showing growth of COVID-19 infections in the Cook County Jail, # 2 Exhibit B - chart showing growth of COVID-19 infections among people detained in Washington, D.C., # 3 Exhibit C - chart showing growth of COVID-19 infections in the Harris County Jail)(Rossi, Elizabeth) (Entered: 04/13/2020)

04/13/2020

119 MOTION to Intervene and Pleading in Intervention by Jason Callicotte, filed. Motion Docket Date 5/4/2020. (Attachments: # 1 cover letter, # 2 Envelope)(sguevara, 4) (Entered: 04/14/2020)

04/13/2020 120 MOTION for Appointment of Counsel by Jason Callicotte, filed. Motion Docket Date 5/4/2020. (sguevara, 4) (Entered: 04/14/2020)

04/13/2020 121 EMERGENCY MOTION for Bail Hearing by Jason Callicotte, filed. Motion Docket Date 5/4/2020. (sguevara, 4) (Entered: 04/14/2020)

04/14/2020

122 MEMORANDUM AND ORDER entered: DENYING 53 MOTION for Temporary Restraining Order, DENYING 32 MOTION for Temporary Restraining Order. On Tuesdays and Fridays by 5:00 p.m., starting April 17, 2020, the parties and interested nonparties must continue to provide the court with information on: (1) the number of pretrial felony arrestees unable to pay a secured bond who have been released on a personal bond with no remaining disputes preventing that release; (2) the number who remain in pretrial custody because they are unable to pay a secured bond and whose release on a personal bond is challenged by the District Attorney; (3) the population of felony pretrial arrestees in the Harris County Jail; (4) the length of delays before individualized formal bail hearings after such hearings are requested; and (5) the number of arrestees and workers in the Jail who have positive COVID19 test results and the number with pending test results. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 04/14/2020)

04/14/2020

123 LETTERS RECEIVED REGARDING COVID-19 CONCERNS in Harris County Jail, filed. (Attachments sealed) (Attachments: # 1 Huber Letter)(sanderson, 4) Modified on 4/17/2020 (leddins, 4). (Letter removed from this case and re-docketed in the correct USDC case. Not a Harris County Inmate) (Entered: 04/16/2020)

04/17/2020 124 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Durfee, Scott) (Entered: 04/17/2020)

04/21/2020 125 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 04/21/2020)

04/21/2020 126 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Durfee, Scott) (Entered: 04/21/2020)

04/23/2020

127 NOTICE of Response to DAO Advisory re: 126 Advisory by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. (Attachments: # 1 Exhibit A - Third Declaration of Alex Bunin)(Rossi, Elizabeth) (Entered: 04/23/2020)

04/24/2020 128 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 04/24/2020)

04/24/2020 129 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Durfee, Scott) (Entered: 04/24/2020)

04/27/2020

130 LETTERS RECEIVED REGARDING COVID-19 CONCERNS, filed. (Attachments: # 1 Winston Letter, # 2 Menges Letter, # 3 Black Letter, # 4 Hammerly Letter, # 5 Vasquez Letter, # 6 Berry Letter)(leddins, 4) (Entered: 04/27/2020)

04/28/2020 131 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 04/28/2020)

04/28/2020

132 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Durfee, Scott) (Entered: 04/28/2020)

04/29/2020 133 Letter from Ronald Thomas Drakos re: Coronavirus, filed. (ShoshanaArnow, 4) (Entered: 04/29/2020)

04/29/2020 134 Letter from Skyler Rice re: Coronavirus, filed. (ShoshanaArnow, 4) (Entered: 04/29/2020)

05/01/2020 135 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 05/01/2020)

05/01/2020

136 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Durfee, Scott) (Entered: 05/01/2020)

05/05/2020

137 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Durfee, Scott) (Entered: 05/05/2020)

05/05/2020 138 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 05/05/2020)

05/06/2020

139 MOTION to Lift Stay by Pierson Johnnie, Joseph Ortuno, Dwight Russell, filed. Motion Docket Date 5/27/2020. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 05/06/2020)

05/06/2020

140 First AMENDED COMPLAINT against Sheriff Ed Gonzalez, Harris County, Texas filed by Pierson Johnnie, Dwight Russell, Joseph Ortuno, Maurice Wilson, Christopher Clack. (Attachments: # 1 Exhibit 1 - First Amended Class Action Complaint, # 2 Exhibit 2 - First Amended Class Action Complaint (redline))(Rossi, Elizabeth) (Entered: 05/06/2020)

05/06/2020

141 Unopposed MOTION to Supplement Plaintiffs' Amended Motion to Certify Class as to 11 AMENDED 2 MOTION by Christopher Clack, Pierson Johnnie, Joseph Ortuno, Dwight Russell, Maurice Wilson, filed. Motion Docket Date 5/27/2020. (Attachments: # 1 Appendix 1 Supplemental Brief in Support of Plaintiffs' Amended Motion to Certify Class, # 2 Exhibit 1 - Declaration of Christopher Clack, # 3 Exhibit 2 Declaration of Maurice Wilson, # 4 Proposed Order)(Rossi, Elizabeth) (Entered: 05/06/2020)

05/06/2020

142 MOTION to Modify Court's Order as to 122 Memorandum and Order,,,, by Christopher Clack, Pierson Johnnie, Joseph Ortuno, Dwight Russell, Maurice Wilson, filed. Motion Docket Date 5/27/2020. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 05/06/2020)

05/06/2020

143 ORDER entered GRANTING 141 Unopposed MOTION to Supplement Plaintiffs' Amended Motion to Certify Class as to 11 AMENDED 2 MOTION. The parties no longer need to file twice weekly updates. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 05/06/2020)

05/07/2020

144 MOTION for Todd A. Dickerson to Appear Pro Hac Vice by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas, filed. Motion Docket Date 5/28/2020. (Dickerson, Todd) (Entered: 05/07/2020)

05/08/2020 145 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 05/08/2020)

05/08/2020

146 ORDER granting 144 Motion for Todd A. Dickerson to Appear Pro Hac Vice for Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 05/08/2020)

05/08/2020 147 ADVISORY by Kim Ogg, filed.(Durfee, Scott) (Entered: 05/08/2020)

05/11/2020 148 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Durfee, Scott) (Entered: 05/11/2020)

05/15/2020

149 NOTICE that Defendants No Longer Oppose Plaintiffs' Motion to Lift the Stay and Renewed Motion to Lift the Stay re: 139 MOTION to Lift Stay by Christopher Clack, Pierson Johnnie, Joseph Ortuno, Dwight Russell, Maurice Wilson, filed. (Attachments: # 1 Exhibit A Emails)(Rossi, Elizabeth) (Entered: 05/15/2020)

05/15/2020 150 ADVISORY by Sheriff Ed Gonzalez, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Fogler, Murray) (Entered: 05/15/2020)

05/15/2020

151 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Durfee, Scott) (Entered: 05/15/2020)

05/16/2020

152 ORDER entered: GRANTING 139 MOTION to Lift Stay. By May 22, 2020, the parties must confer and file a proposed scheduling order, including a deadline for the state intervenors to respond to or answer the amended complaint. The parties may submit separate proposals if they disagree.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4) (Entered: 05/16/2020)

05/18/2020

153 ORDER denying 119 Motion to Intervene; denying 120 Motion to Appoint Counsel; denying 121 Motion for Emergency bond hearing. The parties mustinform the Harris County Public Defenders Office of Callicottes request for assistance with obtaining a bail hearing as soon as possible. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 05/18/2020)

05/18/2020 154 Unsworn DECLARATION of Jason Callicotte, filed.(sanderson, 4) (Entered: 05/18/2020)

05/21/2020

155 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Christopher Clack, Pierson Johnnie, Joseph Ortuno, Dwight Russell, Maurice Wilson, filed.(Rossi, Elizabeth) (Entered: 05/21/2020)

05/21/2020

156 ORDER Scheduling Conference set for 5/28/2020 at 02:00 PM in by Zoom before Chief Judge Lee H Rosenthal. The court invites interested nonparties, specifically District Attorney Kim Ogg, Chief Public Defender Alex Bunin, and Administrative Judge Herb Ritchie, to attend and participate. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(rguerrero, 4) (Entered: 05/21/2020)

05/21/2020

157 ORDER - On May 28, 2020, at 10:30 a.m. CDT, the court will hold a hearing by Zoom to discuss the proposed scheduling order, discovery, and other next steps. The court invites interested nonparties, specifically District Attorney Kim Ogg, Chief Public Defender Alex Bunin, and Administrative Judge Herb Ritchie, to attend and

participate. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 05/21/2020)

05/22/2020 158 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 05/22/2020)

05/22/2020

159 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Durfee, Scott) (Entered: 05/22/2020)

05/28/2020

160 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on May 28, 2020. The court, the parties, and interested nonparties discussed the status of efforts to hold prompt bail hearings over Zoom or by telephone given the limited availability of courtrooms. This court will hold another conference on the status of greatly expanding these efforts, and on the best approach to possible continued settlement negotiations, on June 4, 2020. Chief Public Defender Bunin agreed to encourage the defense bar to file prompt motions for bail hearings, and Administrative Judge Ritchie agreed to encourage the other Harris County felony judges to use technology to conduct bail hearings even when they do not have access to their courtrooms. This court informed Administrative Judge Ritchie that federal courtroom space is available for bail hearings if it would be helpful. The parties and the court also discussed the proposed scheduling order, which the court will enter with the addition of the monthly conferences described on the record. All conferences and oral arguments will be by Zoom unless otherwise ordered. Appearances: Adam Biggs, Elizabeth Rossi, Murray Fogler, Victoria Jimenez, Melissa Spinks, Kathryn Kase, Joseph Grinstein, Michael Gervais, Alec Karakatsanis, Neal Manne, Scott Durfee, Joanna Musik, Kim Ogg, Dominique Stafford, Alex Bunin and Judge Ritchie.(Court Reporter: N. Forrest), filed.(leddins, 4) Modified on 5/30/2020 (leddins, 4). (Entered: 05/29/2020)

05/29/2020 161 ADVISORY by Sheriff Ed Gonzalez, filed. (Attachments: # 1 Exhibit)(Fogler, Murray) (Entered: 05/29/2020)

05/29/2020

162 SCHEDULING ORDER. Amended Pleadings due by 8/14/2020. Joinder of Parties due by 8/14/2020 Pltf Expert Report due by 4/16/2021. Deft Expert Report due by 5/14/2021. Discovery due by 3/12/2021. Dispositive Motion Filing due by 8/1/2021. Joint Pretrial Order due by 8/15/2021. Interim Conference set for 6/4/2020 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Docket Call set for 9/13/2021 at 08:30 AM in Courtroom 11B before Chief Judge Lee H Rosenthal Status Conference set for 6/26/2020 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Interim Pretrial Conference set for 7/31/2020 at 01:30 PM in Courtroom 11B

before Chief Judge Lee H Rosenthal Status Conference set for 8/28/2020 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Interim Pretrial Conference set for 9/25/2020 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Status Conference set for 10/30/2020 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Interim Pretrial Conference set for 12/4/2020 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Status Conference set for 1/8/2021 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Interim Pretrial Conference set for 1/29/2021 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Status Conference set for 2/26/2021 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Interim Pretrial Conference set for 3/26/2021 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Status Conference set for 4/30/2021 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Interim Pretrial Conference set for 5/28/2021 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Status Conference set for 6/25/2021 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal Status Conference set for 7/30/2021 at 01:30 PM in Courtroom 11B before Chief Judge Lee H Rosenthal(Signed by Chief Judge Lee H Rosenthal) Parties notified.(rguerrero, 4) (Entered: 05/29/2020)

05/29/2020

163 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Durfee, Scott) (Entered: 05/29/2020)

06/04/2020

166 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on June 4, 2020. The court granted the plaintiffs' motion, (Docket Entry No. 142), to limit the parties and interested nonparties required weekly updates to include only: the population of felony pretrial arrestees in the Harris County Jail; the number of arrestees and workers in the Jail who have positive COVID-19 test results; and the number with pending test results. The court received a report from the parties and interested nonparties on the status of efforts to significantly expand remote, formal, individualized bail hearings. Administrative Judge Ritchie agreed to work with the Sheriff and other felony judges to hold remote hearings at least four days per week, and to hold at least twelve hearings simultaneously during the time allotted for those hearings. Administrative Judge Ritchie agreed that the felony judges could designate their homes as courtrooms during remote hearings if necessary. In addition, until June 11, 2020, Administrative Judge Ritchie agreed to work with his colleagues to try automatically scheduling formal bail hearings for defendants who are arguably eligible for pretrial release on a personal bondeven if the District Attorney disputes that eligibility under Executive Order GA-13 or other

applicable orders or lawsafter potentially eligible defendants are denied personal bonds at initial post arrest proceedings. The hearings for these defendants will be scheduled to happen promptly within days of the initial denials of pretrial release on personal bonds, or as soon as possible if a potentially eligible defendant has already been waiting in the backlog. No formal motion or request for a formal hearing will be required. The parties and interested nonparties in this case will reconvene for a status conference in this court via Zoom on June 11, 2020, at 1:30 p.m.. Appearances: Elizabeth Rossi, Murray Fogler, Victoria Jimenez, Melissa Spinks, Kathryn Kase, Michael Gervais, Joseph Grinstein, Alec Karakatsanis, Peter Steffensen, Neal Manne, Scott Durfee, Judge Ritche, Kim Ogg, Erica Hudson, Trevor Zel, Alex Bunin Steven Diver and Mark Thesson.(Court Reporter: J. Sanchez), filed.(leddins, 4) (Entered: 06/07/2020)

06/05/2020

164 MOTION for Caroline Alyssa Merideth to Appear Pro Hac Vice by State Of Texas, filed. Motion Docket Date 6/26/2020. (mmapps, 4) (Entered: 06/05/2020)

06/05/2020 165 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 06/05/2020)

06/06/2020

167 ORDER granting 164 Motion for Caroline A.Merideth to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 06/08/2020)

06/11/2020

168 AO 435 TRANSCRIPT REQUEST by State Intervenors / Adam Arthur Biggs for Transcript of Status Conference on June 11, 2020 before the Honorable Lee H. Rosenthal. 3-Day turnaround requested. Court Reporter/Transcriber: Kathleen Miller, filed. (Biggs, Adam) (Entered: 06/11/2020)

06/11/2020

169 EMERGENCY MOTION FOR BAIL REVIEW PURSUANT TO COVID-19 PANDEMIC by Dwight Russell, filed. Motion Docket Date 7/2/2020. (Attachments: # 1 Cover Sheet, # 2 Envelope)(scastillo, 1) (Entered: 06/11/2020)

06/11/2020

170 MOTION to Intervene by Dwight Russell, filed. Motion Docket Date 7/2/2020. (Attachments: # 1 Cover Letter, # 2 Envelope)(scastillo, 1) (Entered: 06/11/2020)

06/11/2020

175 AMENDED Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on June 11, 2020. The court heard an update on the status of efforts to set formal individualized baildetermination hearings promptly, for both new arrestees and for those who were arrested earlier and have been in jail. All arrestees are entitled to formal individualized bail-determination hearings whether or

not they are eligible for release on personal bonds. That said, priority in scheduling prompt hearings, without the need for counsel's or the detainee's motion or request, is given first to those new arrestees and the backlog of detainees arrested before the new procedures were begun, who may be eligible for pretrial release on personal bonds, and those who may be eligible for release because of good-time credits. Prioritized prompt automatically scheduled hearings will be set and held even if there is a dispute as to eligibility for release and even if a personal bond was denied in an informal hearing. This prioritization is intended to reduce the jail population to address the grave public health risks from COVID-19. The plaintiffs had no objection, while recognizing that other arrestees, who may not be facially eligible for pretrial release on personal bonds, are also entitled to prompt formal individualized bail-determination hearings, even if their lawyers have not filed a motion requesting one. The Sheriff agreed to circulate updated lists of all felony pretrial detainees who may be eligible for pretrial release on personal bonds under Executive Order GA-13 and other applicable orders and laws, even if there is a dispute as to eligibility and even if release on a personal bond was previously denied in an informal hearing. These lists will include new arrestees and the backlog of detainees who have not yet had a formal bail determination hearing, even if they had an informal hearing. The lists will also include those who may be eligible for release on good-time credits based on recent state-court decisions. As to those in the good-time category, the list will include what court each defendant is in and whether a motion has been filed seeking his or her release on the basis of good-time credits. The Sheriff will circulate the lists to all parties and those interested nonparties who have requested them, including the Harris County felony district judges, the District Attorney, the Chief Public Defender, the president of the Harris County Criminal Lawyers Association, the Texas Attorney General, and this court. Harris County Felony District Judge Brian Warren agreed to contact prosecutors and defense attorneys to inquire about holding prompt individualized baildetermination hearings for pretrial felony detainees on his docket who may be eligible for pretrial release on personal bonds, even if eligibility is disputed and even if informal hearings have been held. Judge Warren will also advise his fellow felony judges about best practices for holding prompt formal individualized bail-determination hearings for all felony pretrial detainees during the pandemic. The president of the Harris County Criminal Lawyers Association, Mr. Mark Thiessen, agreed to post to the Association's website or listserv the lists of pretrial felony detainees who may be eligible for release on personal bonds, again, even if eligibility is disputed and even if bonds have been denied in earlier informal hearings. Mr. Thiessen will encourage private defense counsel to look for their clients on the lists and request formal bail hearings accordingly. Chief Public Defender Alex Bunin will

provide similar support to members of his staff. The court encouraged the parties and interested nonparties to confer on defining and listing the violent convictions or charges that may disqualify a felony pretrial detainee for pretrial release on a personal bond under Executive Order GA-13 or other applicable orders or laws. Going forward, the court, the parties, and the interested nonparties will convene for weekly status conferences via Zoom on Thursdays at 1:30 p.m. CDT. Appearances: Michael Gervais, Joseph Grienstein, Alec Karakatsanis, Neal Manne, Elizabeth Rossi, Peter Steffensen, Melissa Spinks, Murray Fogler, Victoria Jimenez, Adam Biggs, Eric Hudson, Scott Durfee, Kathryn Kase, Judge Warren, Judge Ritchie, Mark Thiessen, Stephen Driver, Sarah Wood, Alex Bunin, Kim Ogg, David Mitcham.(Court Reporter: H. Alcaraz), filed.(leddins, 4) Modified on 6/15/2020 (leddins, 4). (Entered: 06/15/2020)

06/12/2020 171 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 06/12/2020)

06/13/2020

172 TRANSCRIPT re: Status Conference held on 6/11/20 before Chief Judge Lee H Rosenthal. Court Reporter Heather Alcaraz. Ordering Party Adam Biggs. Release of Transcript Restriction set for 9/11/2020, filed. (halcaraz, ) (Entered: 06/13/2020)

06/15/2020 173 Notice of Filing of Official Transcript as to 172 Transcript. Party notified, filed. (jdav, 4) (Entered: 06/15/2020)

06/15/2020 174 NOTICE of Appearance by Rachel Fraser on behalf of Harris County, Texas, filed. (Fraser, Rachel) (Entered: 06/15/2020)

06/16/2020

176 Opposed MOTION for Extension of Time of deadline to answer or move in response to the First Amended Class Action Complaint by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, filed. Motion Docket Date 7/7/2020. (Attachments: # 1 Proposed Order)(Biggs, Adam) (Entered: 06/16/2020)

06/16/2020

177 AO 435 TRANSCRIPT REQUEST by Melissa Spinks for Transcript of Status Conference on 6/13/20 before Judge Rosenthal. 3-Day turnaround requested. Court Reporter/Transcriber: Heather Alcaraz, filed. (Spinks, Melissa) (Entered: 06/16/2020)

06/18/2020

189 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on June 18, 2020. The court heard an update on the status of efforts by the felony district judges to automatically and promptly set formal individualized bail-determination hearings, with counsel present, on the record, for both new arrestees and for those who were arrested earlier and have been detained. The court reiterated that

all arrestees are entitled to formal individualized bail-determination hearings, whether or not they are ultimately found eligible for release on bail. The Sheriff's June 19, 2020, weekly report should identify bottlenecks or barriers to automatically setting and promptly holding formal, on the record, individualized bail-determination hearings. The Sheriff agreed to continue sending lists of detainees to Harris County felony district judges and others to help the judges set and hold prompt hearings. The parties and interested nonparties must confer with Harris County Pretrial Services and Judge Hidalgos counsel to ensure that Pretrial Services shares the PSAs and related information judges use in the bail-determination process with prosecutors, defense lawyers, and other constituents entitled to see them. The June 26, 2020, status conference is reset to June 29, 2020, at 1:30 p.m. CDT. Appearances: Adam Biggs, Elizabeth Rossi, Murray Fogler, Victoria Jimenez, Melissa Spinks, Kathryn Kase, Michael Gervais, Joseph Grinstein, Alec Karakatsanis, Peter Steffensen, Neal Manne, Scott Durfee, Alex Bunin, Judge Ritchie(Court Reporter: M. Malone), filed.(leddins, 4) Modified on 8/13/2020 (leddins, 4). (Entered: 06/25/2020)

06/19/2020 178 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 06/19/2020)

06/24/2020

179 ORDER granting 176 Motion for Extension of Time to Respond to the Complaint. The intervenors and defendants responses are due 14 days after the plaintiffs submit their second amended complaint, which the court gives the plaintiffs leave to file. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 06/24/2020)

06/24/2020

180 Unopposed MOTION to Add Party Hon. Chuck Silverman by Chuck Silverman, filed. Motion Docket Date 7/15/2020. (Van Fleet, George) (Entered: 06/24/2020)

06/24/2020

181 Unopposed MOTION to Intervene by Chuck Silverman, filed. Motion Docket Date 7/15/2020. (Attachments: # 1 Brief in Support of Judge Chuck Silverman's Motion to Intervene, # 2 Proposed Order (Proposed) Order Granting Judge Chuck Silverman's Motion to Intervene)(Van Fleet, George) (Entered: 06/24/2020)

06/24/2020

182 Opposed MOTION for Anastasia Liounakos to Appear Pro Hac Vice by Chuck Silverman, filed. Motion Docket Date 7/15/2020. (Van Fleet, George) (Entered: 06/24/2020)

06/24/2020

183 Opposed MOTION for Bradford Hardin to Appear Pro Hac Vice by Chuck Silverman, filed. Motion Docket Date 7/15/2020. (Van Fleet, George) (Entered: 06/24/2020)

06/24/2020

184 Unopposed MOTION for Matthew Diggs to Appear Pro Hac Vice by Chuck Silverman, filed. Motion Docket Date 7/15/2020. (Van Fleet, George) (Entered: 06/24/2020)

06/24/2020

185 Unopposed MOTION for Anastasia Liounakos to Appear Pro Hac Vice by Chuck Silverman, filed. Motion Docket Date 7/15/2020. (Van Fleet, George) (Entered: 06/24/2020)

06/24/2020

186 Unopposed MOTION for Don Bradford Hardin to Appear Pro Hac Vice by Chuck Silverman, filed. Motion Docket Date 7/15/2020. (Van Fleet, George) (Entered: 06/24/2020)

06/24/2020 187 ORDER granting 186 Motion for Don Bradford Hardin Jr. to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jdav, 4) (Entered: 06/25/2020)

06/24/2020

188 ORDER granting 185 Motion for Anastasia Liounakos to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jdav, 4) (Entered: 06/25/2020)

06/24/2020

190 ORDER granting 184 Motion for Matthew Diggs to Appear Pro Hac Vice.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jdav, 4) (Entered: 06/25/2020)

06/25/2020

191 ORDER granting 180 Motion to Add Party; granting 181 Motion to Intervene.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jdav, 4) (Entered: 06/25/2020)

06/26/2020

192 Unopposed MOTION to Intervene by Brian E Warren, filed. Motion Docket Date 7/17/2020. (Attachments: # 1 Proposed Order)(Van Fleet, George) (Entered: 06/26/2020)

06/26/2020 193 NOTICE of Opposition by Brian E Warren, filed. (Van Fleet, George) (Entered: 06/26/2020)

06/26/2020 194 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 06/26/2020)

06/26/2020

195 Second AMENDED COMPLAINT against Sheriff Ed Gonzalez, Harris County, Texas, Hazel B Jones, Nikita Harmon, Robert Johnson, Kelli Johnson, Randy Roll, DaSean Jones, Danilo Lacayo, Chuck Silverman, Abigail Anastasio, Jason Luong, Greg Glass, Brian Warren, Frank Aguilar, Chris Morton, Josh Hill, Hilary Unger, Lori Chambers Gray, Amy Martin, Herb Ritchie, Ramona Franklin, Jesse McClure, III, George Powell, Brock Thomas filed by Pierson Johnnie, Maurice Wilson, Dwight Russell, Joseph Ortuno, Christopher Clack. (Attachments: # 1 Exhibit 1 - Second Amended Complaint, # 2 Exhibit

2 - Second Amended Complaint (redline))(Rossi, Elizabeth) (Entered: 06/26/2020)

06/28/2020

196 ORDER Granting Unopposed 192 Motion to Intervene by Judge Brian E. Warren.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 06/29/2020)

06/29/2020 197 ANSWER to 140 Amended Complaint/Counterclaim/Crossclaim etc., by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 06/29/2020)

06/29/2020

198 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on June 29, 2020. The court heard an update on the status of efforts by the felony district judges to automatically and promptly set formal individualized bail-determination hearings, with counsel present, on the record, for both new arrestees and for those who were arrested earlier and have been detained. The parties described communication breakdowns that prevented a timely review of felony detainees who are facially eligible for release. The court ordered the following: by June 30, 2020, the Sheriff must create an updated list of all felony pretrial detainees facially eligible for release who have not yet received an individualized hearing, and send the list to all parties and interested nonparties. Within 48 hours of receiving that list, the District Attorney's Office and the State-intervenors must review the list and respond with the names of any detainees for whom they have objections to release. Upon receipt of that information, the district judges must promptly release those detainees for whom there are no disputes as to the criteria for release and for whom there are no other reasons for continued detention, such as immigration holds. As to those who are the subject of dispute as to whether the individual pretrial detainee could meet the criteria for release, if there is no dispute, no other hold, and bond is informally denied, the detainee is entitled to an individualized, evidential, counseled, formal bail determination hearing to be set on a prompt basis. But those who are not promptly released are still entitled to a prompt, formal, and evidential bail determination hearing to resolve the dispute or determine if other grounds support or weigh against bail. This includes those not on the 525 person list, who may or may not be clearly eligible for a personal bond, or whose eligibility is disputed, who are entitled to an on the record, counseled, individual bail determination hearing, and a finding as to why the bail conditions cannot be sufficiently fashioned to ward against new criminal conduct or failure to appear. The slow program this past week is apparently due to way the Sheriff sends information on the 525 inmates to the District Attorney and other parties, who all deserve fast attention. Because it was sent in a way that masked the large amount of embedded information, important information about individual detainees in specific courts was not followed up on by the DA. Now

that the DA understands how the information will be transmitted in the future, no such delays should be encountered. These steps should reduce the jail population in accordance with the legal limits on releasing pretrial felony detainees, convicted of nothing, yet left in limbo in the jail and exposed to a high risk of catching and spreading the of virus. The spread is, of course, not only to other inmates, but to the guards who come in and out each day to guard, tend to, feed, clean up after, and provide medications to the detainees who are symptomatic or have tested positive. The guards return home each night to their unsuspecting families. And the cycle of contagion continues. Pretrial detention, particularly for a minor, nonviolent offense, is never intended to be a death sentence. Our charge is to make sure that does not happen from the policies specifying and omitting steps that might have avoided dire consequences. The next status conference is set for Monday, July 6, at 1:30 p.m. C.D.T. Appearances: Adam Biggs, Murray Fogler, Victoria Jimenez, Melissa Spinks, Kathryn Kase, Scott Durfee, Kim Ogg, Judge Herb Ritchie, Michael Gervais, Alec Karakatsanis, Peter Steffensen, Neal Manne, George Van Fleet, Anastasia Liounakos, Bradford Hardin, Matthew Diggs and Alex Bunin.(Court Reporter: K. Metzger), filed.(leddins, 4) (Entered: 06/30/2020)

07/01/2020

199 AO 435 TRANSCRIPT REQUEST by State Intervenors / Adam Arthur Biggs for Transcript of Status Conference on June 29, 2020 before the Honorable Lee H. Rosenthal. 3-Day turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (Biggs, Adam) (Entered: 07/01/2020)

07/01/2020

200 NOTICE of Appearance by Courtney Corbello on behalf of Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb Ritchie, Brock Thomas, Hilary Unger, Lori Gray, filed. (Corbello, Courtney) Modified on 7/9/2020 (JenniferOlson, 4). (Entered: 07/01/2020)

07/02/2020 201 ADVISORY by Kim Ogg, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit B)(Durfee, Scott) (Entered: 07/02/2020)

07/02/2020

202 ADVISORY by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, filed.(Biggs, Adam) (Entered: 07/02/2020)

07/02/2020

The court withdraws the minute entry dated June 29, 2020, (Docket Entry No. 198), and substitutes the revised minute entry: Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference

held on June 29, 2020. The court heard an update on the status of efforts by the felony district judges to promptly set formal individualized bail-determination hearings, with counsel present, on the record, for both new arrestees and for those who were arrested earlier and have been detained. The parties described communication breakdowns that prevented a timely review of felony pretrial detainees who are facially eligible for release. The court memorializes the agreement among the stakeholders as to procedures that would work toward the shared goal of safely reducing the jail population, consistent with state orders and governing case and statutory law. The parties agreed to the following procedures to work toward the shared goal of safely reducing the jail population, consistent with state orders, governing case and statutory law, and public safety: by June 30, 2020, the Sheriff will create an updated list of felony pretrial detainees whose charges and criminal history appear to make them facially eligible for release, who have not yet received an individualized hearing, and send the list to parties and interested nonparties. Within 48 hours of receiving that list, the District Attorney's Office will review the list and respond with the names of detainees for whom they have objections to release. Upon receipt of that information, the district judges will review the lists of detainees for whom there are no disputes as to the criteria for release and for whom there are no other reasons for continued detention, such as immigration holds, and consider whether they can be released on bond with no or reduced financial conditions. As to those who are the subject of dispute as to whether the individual pretrial detainee could meet the criteria for release, if there is no dispute, no other hold, and bond is informally denied, the detainee is entitled to an individualized, evidentiary, counseled, formal bail-determination hearing to be set on a prompt basis. The slow program this past week is apparently due to way the Sheriff sends information on those detainees who it believes appear to meet the criteria for pretrial release on personal bonds to the District Attorney and other parties. Because it was sent in a way that masked the large amount of embedded information, important information about individual detainees in specific courts was not followed up on by the DA. The Sheriff and District Attorney's Office agreed to steps to attempt to avoid that problem. Pretrial detention is never intended to be a death sentence. Our charge is to make sure that does not happen. The next status conference is set for Monday, July 6, at 1:30 p.m. C.D.T. (leddins, 4) (Entered: 07/02/2020)
07/02/2020 203 NOTICE of Appearancee of Lead Attorney by Randy Roll, filed. (Corbello, Courtney) (Entered: 07/02/2020)
07/03/2020 204 OBJECTIONS to Remark (PUBLIC ENTRY),,,,,,,,,,, , filed by Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Lisa A.

Gray, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb Ritchie, Randy Roll, Brock Thomas, Hilary Unger. (Corbello, Courtney) (Entered: 07/03/2020)

07/06/2020 205 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 07/06/2020)

07/06/2020

210 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on July 6, 2020. The court noted that the previous minute entry, (Docket Entry No. 198), was intended to reflect agreements among the stakeholders participating in the weekly status conferences to achieve the shared goal of safely reducing the Harris County prison population in order to better protect the health and safety of the detainees, jail staff, and the community. The court heard an update on the status of efforts by the parties to determine and release those whose eligibility for release is undisputed and to set formal individualized bail-determination hearings, with counsel present, on the record for others. The plaintiffs told the court that they would like to seek limited discovery from the Harris County district judges to advance the case. The request is opposed. By July 10, 2020, the plaintiffs must file their proposed discovery requests, including written interrogatories, document requests, and deposition notices. Opposing parties may submit objections to these requests by July 17, 2020. A Zoom hearing is set for July 24, 2020, at 2:00 p.m. C.D.T. This replaces the July 31 hearing previously set. Appearances: Adam Biggs, Courtney Corbello, Murray Fogler, Victoria Jimenez, Melissa Spinks, Kathryn Kase, Scott Durfee, Kim Ogg, Alec Karakatsanis, Sarah Wood, Alex Bunin, Rachel Frazier, Mark Thiessen, Peter Steffensen, Neal Manne, Joanne Musick, George Van Fleet, Anastasia Liounakos, Bradford Hardin, Matthew Diggs.(Court Reporter: K. Metzger), filed.(leddins, 4) (Entered: 07/09/2020)

07/07/2020

206 AO 435 TRANSCRIPT REQUEST by State Intervenors / Adam Arthur Biggs for Transcript of Status Conference on July 6, 2020 before the Honorable Lee H. Rosenthal. 3-Day turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (Biggs, Adam) Modified on 7/8/2020 (leddins, 4). (Entered: 07/07/2020)

07/07/2020

212 Letter from Jason Callicotte, filed. [Mr. Callicotte's attorney has advised the court that this document should be filed in 4:19cv226, per his client.] (BeverlyWright, 4) (Entered: 07/10/2020)

07/08/2020 207 TRANSCRIPT re: Status Conference held on 6/29/20 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber K. Metzger.

Ordering Party Adam Biggs Release of Transcript Restriction set for 10/6/2020., filed. (kmetzger) (Entered: 07/08/2020)

07/09/2020 208 Notice of Filing of Official Transcript as to 207 Transcript. Party notified, filed. (olindor, 4) (Entered: 07/09/2020)

07/09/2020 209 ANSWER to 195 Amended Complaint/Counterclaim/Crossclaim etc.,, by Harris County, Texas, filed.(Fraser, Rachel) (Entered: 07/09/2020)

07/10/2020

211 Opposed MOTION for Discovery by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson, filed. Motion Docket Date 7/31/2020. (Attachments: # 1 Exhibit A Proposed Interrogatories, # 2 Exhibit B - Proposed Requests for Production, # 3 Exhibit C - Notice of Deposition, # 4 Proposed Order)(Steffensen, Peter) (Entered: 07/10/2020)

07/10/2020

213 TRANSCRIPT re: Status Conference held on 7/6/2020 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber K. Metzger. Ordering Party Adam Biggs Release of Transcript Restriction set for 10/8/2020., filed. (kmetzger) (Entered: 07/10/2020)

07/10/2020

214 MOTION to Dismiss 195 Amended Complaint/Counterclaim/Crossclaim etc.,, by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, filed. Motion Docket Date 7/31/2020. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Proposed Order)(Biggs, Adam) (Entered: 07/10/2020)

07/12/2020

215 NOTICE of Filing of Amended Proposed Requests for Production re: 211 Opposed MOTION for Discovery by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson, filed. (Attachments: # 1 Exhibit 1 - Amended Proposed Requests for Production)(Rossi, Elizabeth) (Entered: 07/12/2020)

07/16/2020

216 NOTICE of Exhibits from The Attorney General of Texas., filed. (Attachments: # 1 Location of disk with Exhibits)(jguajardo, 4) (Entered: 07/16/2020)

07/17/2020

217 RESPONSE in Opposition to 211 Opposed MOTION for Discovery, filed by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only. (Attachments: # 1 Proposed Order)(Biggs, Adam) (Entered: 07/17/2020)

07/17/2020

218 RESPONSE in Opposition to 211 Opposed MOTION for Discovery, filed by Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Lisa A. Gray, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb Ritchie, Randy Roll, Brock Thomas, Hilary Unger. (Attachments: # 1 Proposed Order)(Corbello, Courtney) (Entered: 07/17/2020)

07/21/2020 219 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 07/21/2020)

07/23/2020

220 REPLY in Support of 211 Opposed MOTION for Discovery, filed by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson. (Steffensen, Peter) (Entered: 07/23/2020)

07/24/2020

221 MOTION to Intervene, MOTION to Consolidate Lead Case No. 4:19cv00226 and Member Case No. 4:20cv02490( Motion Docket Date 8/14/2020.) by Devin Paul Cole, filed. (sguevara, 4) (Entered: 07/24/2020)

07/24/2020

225 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on July 24, 2020. The court heard an update from the parties on the voluntary efforts to promptly set formal individualized bail-determination hearings, with counsel present, on the record, for both new arrestees and for those who were arrested earlier and have been detained. The court heard argument on the plaintiffs motion for expedited discovery. (Docket Entry No. 211). The court granted the motion, finding that the plaintiffs have shown good cause to proceed because of the need for a reliable record to support the legal and factual issues in this case and the persistence of the COVID-19 threat for the jail population, jail employees, and the greater community. The court ordered more limited discovery than requested, as stated on the record. Counsel for the plaintiffs will submit a proposed order reflecting those limits to the court. The next status conference is scheduled for August 7, 2020, at 2 P.M. on Zoom. Appearances: Adam Biggs, Courtney Corbello, Elizabeth Rossi, Murray Fogler, Victoria Jimenez, Rachel Fraser, Melissa Spinks, Kathryn Kase, Scott Durfee, Joseph Grinstein, Alec Karakatsanis, Neal Manne, Allan Van Fleet, Bradford Hardin, David Mitcham, Alex Bunin, Mark Thiessen.(Court Reporter: K. Metzger), filed.(leddins, 4) (Entered: 07/28/2020)

07/27/2020

222 AO 435 TRANSCRIPT REQUEST by State Intervenors/Adam Arthur Biggs for Transcript of Status Conference on July 24, 2020 before the Honorable Lee H. Rosenthal. 14-Day turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (Biggs, Adam) (Entered: 07/27/2020)

07/27/2020

223 NOTICE of Proposed Order re: 211 Opposed MOTION for Discovery by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson, filed. (Attachments: # 1 Proposed Order)(Steffensen, Peter) (Entered: 07/27/2020)

07/27/2020

224 Unopposed MOTION for Extension of Time to Respond to State Intervenors' Motion to Dismiss by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson, filed. Motion Docket Date 8/17/2020. (Attachments: # 1 Proposed Order)(Steffensen, Peter) (Entered: 07/27/2020)

07/28/2020

226 ORDER - Granting 211 Plaintiffs Partially-Opposed Motion for Leave to Take Limited Discovery. It is further ORDERED that the Felony Judges must respond to Plaintiffs discovery requests no later than August 24, 2020. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 07/28/2020)

07/28/2020

227 ORDER granting 224 Motion for Extension of Time to Respond to State Intervenors Motion to Dismiss. Plaintiffs response to the State Intervenors Motion to Dismiss, Doc. 214, is due on the same date as Plaintiffs response to the forthcoming motion to dismiss from the Felony Judges represented by the Attorney General. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 07/28/2020)

07/30/2020

228 MOTION to Dismiss 195 Amended Complaint/Counterclaim/Crossclaim etc.,, Pursuant to Fed. R. Civ. P. 12(b)(1) by Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb Ritchie, Randy Roll, Brock Thomas, Hilary Unger, filed. Motion Docket Date 8/20/2020. (Attachments: # 1 Proposed Order)(Corbello, Courtney) (Entered: 07/30/2020)

08/03/2020

229 Unopposed MOTION for Extension of Time Motion for August 27 deadline to respond to Defendants' and Intervenors' Motions to Dismiss by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson, filed. Motion Docket Date 8/24/2020. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 08/03/2020)

08/03/2020

230 ORDER granting 229 Motion for Extension of Time; re: 228 MOTION to Dismiss 195 Amended Complaint.,, Pursuant to Fed. R. Civ. P. 12(b)(1), 214 MOTION to Dismiss 195 Amended Complaint . Responses due by 8/27/2020..(Signed by Chief Judge Lee H Rosenthal) Parties notified.(rguerrero, 4) (Entered: 08/03/2020)

08/05/2020

231 TRANSCRIPT re: Status Conference held on 7/24/2020 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber K. Metzger. Ordering Party Adam Arthur Biggs Release of Transcript Restriction set for 11/3/2020., filed. (kmetzger) (Entered: 08/05/2020)

08/05/2020 232 ADVISORY by Sheriff Ed Gonzalez, filed.(Jimenez, Victoria) (Entered: 08/05/2020)

08/06/2020 233 Notice of Filing of Official Transcript as to 231 Transcript. Party notified, filed. (mmapps, 4) (Entered: 08/06/2020)

08/07/2020

234 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on August 7, 2020. The court heard an update from the parties on the voluntary efforts to promptly set formal individualized bail-determination hearings, with counsel present, on the record, for both new arrestees and for those who were arrested earlier and have been detained. The court commended the parties efforts to review the lists of current detainees and identify those for whom there are no objections to release, and suggested they continue to do so. The next status conference is set for August 21, 2020, at 2 P.M., by Zoom. Appearances: Adam Biggs, Courtney Corbello, Elizabeth Rossi, Murray Fogler, Victoria Jimenez, Rachel Fraser, Melissa Spinks, Scott Durfee, Joseph Grinstein, Neal Manne, George Van Fleet, Bradford Hardin and Mark Thiessen.(Court Reporter: F. Warner), filed.(leddins, 4) (Entered: 08/11/2020)

08/13/2020

235 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 2/1/19, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Bruce Slavin, filed. (White, Lexie) (Entered: 08/13/2020)

08/13/2020

236 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 7/25/19, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Nichole Forrest, filed. (White, Lexie) (Entered: 08/13/2020)

08/13/2020

237 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 5/28/19, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Nichole Forrest, filed. (White, Lexie) (Entered: 08/13/2020)

08/13/2020

238 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 6/4/20, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Johnny Sanchez, filed. (White, Lexie) (Entered: 08/13/2020)

08/13/2020

239 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 6/11/20, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Heather Alcaraz, filed. (White, Lexie) (Entered: 08/13/2020)

08/13/2020

240 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 6/18/20, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Heather Alcaraz, filed. (White, Lexie) (Entered: 08/13/2020)

08/13/2020

241 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 6/29/20, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (White, Lexie) (Entered: 08/13/2020)

08/13/2020

242 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 7/6/20, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (White, Lexie) (Entered: 08/13/2020)

08/13/2020

243 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 7/24/20, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Kathy Metzger, filed. (White, Lexie) (Entered: 08/13/2020)

08/13/2020

244 AO 435 TRANSCRIPT REQUEST by Alexandra White for Transcript of Hearing/Status Conference, 8/7/20, Lee H. Rosenthal. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Fred Warner, filed. (White, Lexie) (Entered: 08/13/2020)

08/17/2020

245 Mail Returned Undeliverable as to Jason Callicotte re: 230 Order on Motion for Extension of Time,, filed. (sgonzalez, 5) (Entered: 08/17/2020)

08/17/2020

246 Mail Returned Undeliverable as to Jason Callicotte re: 233 Notice of Filing of Official Transcript, filed. (address updated and docs 233 and 230 re-noticed) (jdav, 4) (Entered: 08/17/2020)

08/18/2020

247 TRANSCRIPT re: Hearing held on 5/28/20 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Nichole Forrest, RDR, CRR, CRC. Release of Transcript Restriction set for 11/16/2020., filed. (NicholeForrest, ) (Entered: 08/18/2020)

08/18/2020

248 TRANSCRIPT re: Hearing held on 7/25/19 before Chief Judge Lee H Rosenthal. Court Reporter/Transcriber Nichole Forrest, RDR, CRR, CRC. Release of Transcript Restriction set for 11/16/2020., filed. (NicholeForrest, ) (Entered: 08/18/2020)

08/19/2020

249 Notice of Filing of Official Transcript as to 248 Transcript, 247 Transcript. Party notified, filed. (hcarr, 4) (Entered: 08/19/2020)

08/19/2020

250 NOTICE of attorney substitution by Lori C. Gray. Attorney G. Allan Van Fleet added. Attorney Courtney Brooke Corbello terminated, filed. (Diggs, Matthew) (Entered: 08/19/2020)

08/20/2020 251 ADVISORY by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 08/20/2020)

08/20/2020

252 Opposed MOTION to Intervene by Mario Garza, filed. Motion Docket Date 9/10/2020. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Proposed Order)(Pennell, Kevin) (Entered: 08/20/2020)

08/20/2020 253 NOTICE of Change of Address by Jason Callicotte, filed. (sguevara, 4) (Entered: 08/20/2020)

08/21/2020

254 AO 435 TRANSCRIPT REQUEST by Plaintiffs/Alexandra White for Transcript of Status Conference Hearing, 8/21/20, Lee H. Rosenthal. 3Day turnaround requested. Court Reporter/Transcriber: Heather Alcaraz, filed. (White, Lexie) (Entered: 08/21/2020)

08/21/2020

260 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on August 21, 2020. The court heard an update from the parties on the voluntary efforts to promptly set formal individualized bail-determination hearings, with counsel present, on the record, for both new arrestees and for those who were arrested earlier and have been detained. By September 4, 2020, the court asks the parties to provide updated information on these efforts, including how many formal individualized bail-determination hearings are scheduled, and, if they are requested by detainees, how long they occur after that request. The state intervenors and felony judges must reply to the plaintiffs response brief by September 10, 2020. Oral argument on the motions to dismiss is set for October 5, 2020, at 10:30 A.M. The next status conference will be held on September 11, 2020, at 2 P.M. via Zoom. Participant information will be sent separately. Appearances: Adam Biggs, Courtney Corbello, Allan Van Fleet, Elizabeth Rossi, Peter Steffensen, Kevin Pennell, Murray Fogler, Victoria Jimenez, Rachel Fraser, Kathryn Kase, Scott Durfee, Kim Ogg, Joanne Musick, Neal Manne, Bradford Hardin, David Mitcham, Alex Bunin, Ellen Gaffney, Brandon Draper, Sarah Wood, Landon Wade, Clay Bowman and Melissa Spinks.(Court Reporter: H. Alcaraz), filed.(leddins, 4) (Entered: 08/28/2020)

08/25/2020 255 ANSWER to 195 Amended Complaint/Counterclaim/Crossclaim etc.,, by Lori Chambers Gray, filed.(Diggs, Matthew) (Entered: 08/25/2020)

08/25/2020

256 Unopposed MOTION for Leave to File Excess Pages by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson, filed. Motion Docket Date 9/15/2020. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 08/25/2020)

08/26/2020

257 NOTICE of attorney substitution by Harris County, Texas. Attorney Rachel Fraser added. Attorney Melissa Lynn Spinks terminated, filed. (Fraser, Rachel) (Entered: 08/26/2020)

08/26/2020 258 MOTION Petition for a Writ of Mandamus, Motion for Declaratory Judgment by Devin Paul Cole, filed. Motion Docket Date 9/16/2020. (Attachments: # 1 cover letter)(jdav, 4) (Entered: 08/26/2020)

08/27/2020

259 RESPONSE in Opposition to 228 MOTION to Dismiss 195 Amended Complaint/Counterclaim/Crossclaim etc.,, Pursuant to Fed. R. Civ. P. 12(b)(1), 214 MOTION to Dismiss 195 Amended Complaint/Counterclaim/Crossclaim etc.,, , filed by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson. (Attachments: # 1 Appendix 1 - Summary of Exhibits A1-A18, C, and E1-E18, # 2 Appendix 2 - Summary of Exhibits A19, A20, # 3 Exhibit A1-A18 - Bail Hearing Videos, # 4 Exhibit B - Order Appointing Public Defender at Art. 15.17 Bail Hearings, # 5 Exhibit C - Bail Orders Associated With Exhibits A1-A18, # 6 Exhibit D - Felony Judges' Direct Filing Order, # 7 Exhibit E1 - Ortuno case records, # 8 Exhibit E2 - Pierson case records, # 9 Exhibit E3 - Russell case records, # 10 Exhibit E4 - Clack case records, # 11 Exhibit E5 - Wilson case records, # 12 Exhibit E6 - C.C. case records, # 13 Exhibit E7 E.A. case records, # 14 Exhibit E8 - B.Y. case records, # 15 Exhibit E9 - K.B. case records, # 16 Exhibit E10 - S.H. case records, # 17 Exhibit E11 - M.C-A case records, # 18 Exhibit E12 - D.V. case records, # 19 Exhibit E13 - E.M. case records, # 20 Exhibit E14 - G.R. case records, # 21 Exhibit E15 - C.M. case records, # 22 Exhibit E16 - R.G. case records, # 23 Exhibit E17 - N.A. case records, # 24 Exhibit E18 R.M. case records, # 25 Exhibit F - Jail and Bond Docket Schedule for Felony Courts, # 26 Exhibit G - Ethics Complaint Against Defendant District Judge Ramona Franklin)(Rossi, Elizabeth) (Entered: 08/27/2020)

08/31/2020

261 Docketed Error - NOTICE of Appearance by Landon Wade (CoCounsel) on behalf of Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb

Ritchie, Randy Roll, Brock Thomas, Hilary Unger, filed. (Landon, Emily) Modified on 8/31/2020 (hlerma, 4). (Entered: 08/31/2020)

08/31/2020

262 NOTICE of Appearance by Landon Wade (Co-Counsel) on behalf of Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb Ritchie, Randy Roll, Brock Thomas, Hilary Unger, filed. (Wade, Landon) (Entered: 08/31/2020)

08/31/2020

263 NOTICE of Appearance by Jonathan M. Pena on behalf of Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb Ritchie, Randy Roll, Brock Thomas, Hilary Unger, filed. (Pena, Jonathan) (Entered: 08/31/2020)

09/01/2020 264 NOTICE of Appearance by Brandon Draper on behalf of Harris County, Texas, filed. (Draper, Brandon) (Entered: 09/01/2020)

09/01/2020

265 MOTION to Compel by Devin Paul Cole, filed. Motion Docket Date 9/22/2020. (Attachments: # 1 cover, # 2 Envelope)(jdav, 4) (Entered: 09/01/2020)

09/02/2020

266 Unopposed MOTION for Extension of Time to file Reply in Support of Motion to Dismiss by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, filed. Motion Docket Date 9/23/2020. (Attachments: # 1 Proposed Order)(Biggs, Adam) (Entered: 09/02/2020)

09/02/2020

267 Unopposed MOTION to Seal Exhibits C, E1E18, and G (Docket Entry Numbers 259-5, 259-7259-24, and 259-26) by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson, filed. Motion Docket Date 9/23/2020. (Attachments: # 1 Proposed Order)(Rossi, Elizabeth) (Entered: 09/02/2020)

09/02/2020

268 NOTICE of Filing of Redacted Exhibits re: 259 Response in Opposition to Motion,,,,,, by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson, filed. (Attachments: # 1 Exhibit C Bail Orders Associated With Exhibits A1-A18, # 2 Exhibit E1 - Ortuno case records, # 3 Exhibit E2 - Pierson case records, # 4 Exhibit E3 Russell case records, # 5 Exhibit E4 - Clack case records, # 6 Exhibit E5 - Wilson case records, # 7 Exhibit E6 - C.C. case records, # 8 Exhibit E7 - E.A. case records, # 9 Exhibit E8 - B.Y. case records, # 10 Exhibit E9 - K.B. case records, # 11 Exhibit E10 - S.H. case

records, # 12 Exhibit E11 - M.C-A case records, # 13 Exhibit E12 D.V. case records, # 14 Exhibit E13 - E.M. case records, # 15 Exhibit E14 - G.R. case records, # 16 Exhibit E15 - C.M. case records, # 17 Exhibit E16 - R.G. case records, # 18 Exhibit E17 - N.A. case records, # 19 Exhibit E18 - R.M. case records, # 20 Exhibit G - Ethics Complaint Against Defendant District Judge Ramona Franklin)(Rossi, Elizabeth) (Entered: 09/02/2020)

09/02/2020

269 ORDER granting 267 Motion to Seal exhibits filed as Docket Entry Numbers 259-5, 259-7259-24, and 259-26.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(rguerrero, 4) (Entered: 09/02/2020)

09/02/2020

270 MOTION for Extension of Time Deadline to File Reply in Support of Motio to Dismiss (Dkt. No. 228 ) by Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Lori Chambers Gray, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb Ritchie, Randy Roll, Brock Thomas, Hilary Unger, filed. Motion Docket Date 9/23/2020. (Attachments: # 1 Proposed Order)(Corbello, Courtney) (Entered: 09/02/2020)

09/02/2020

271 Corrected MOTION for Extension of Time Deadline to File Reply in Support of Motion to Dismiss [Dkt. No. 228] by Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb Ritchie, Randy Roll, Brock Thomas, Hilary Unger, filed. Motion Docket Date 9/23/2020. (Attachments: # 1 Proposed Order)(Corbello, Courtney) (Entered: 09/02/2020)

09/03/2020

272 Agreed MOTION for Protective Order by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson, filed. Motion Docket Date 9/24/2020. (Attachments: # 1 Exhibit 1 - Agreed Protective Order)(Rossi, Elizabeth) (Entered: 09/03/2020)

09/03/2020

273 ORDER granting 271 Motion for Extension of Time to reply to 228 MOTION to Dismiss 195 Amended Complaint. Replies due by 9/25/2020.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(rguerrero, 4) (Entered: 09/03/2020)

09/03/2020

274 ORDER granting 270 Motion for Extension of Time to reply to 214 MOTION to Dismiss 195 Amended Complaint. Replies due by 9/25/2020.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(rguerrero, 4) (Entered: 09/03/2020)

09/03/2020

275 ORDER Granting 256 Motion for Leave to File Excess Pages.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(jguajardo, 4) (Entered: 09/03/2020)

09/03/2020

276 Agreed PROTECTIVE ORDER - granting 272 Agreed MOTION for Protective Order. (Signed by Chief Judge Lee H Rosenthal) Parties notified.(sanderson, 4) (Entered: 09/03/2020)

09/04/2020

277 TRANSCRIPT re: Status Conference held on 8/21/20 before Chief Judge Lee H Rosenthal. Court Reporter Heather Alcaraz. Ordering Party Alexandra White. Release of Transcript Restriction set for 12/3/2020, filed. (halcaraz, ) (Entered: 09/04/2020)

09/04/2020 278 SUPPLEMENT to 260 Status Conference,,,,, by Lori Chambers Gray, filed.(Diggs, Matthew) (Entered: 09/04/2020)

09/04/2020 279 STATUS REPORT by Sheriff Ed Gonzalez, filed.(Fogler, Murray) (Entered: 09/04/2020)

09/08/2020

280 Mail Returned Undeliverable as to Jason Callicotte re: 230 Order on Motion for Extension of Time,, filed. (RTS)(sguevara, 4) (Entered: 09/09/2020)

09/09/2020 281 Notice of Filing of Official Transcript as to 277 Transcript. Party notified, filed. (mmapps, 4) (Entered: 09/09/2020)

09/10/2020

282 RESPONSE in Opposition to 252 Opposed MOTION to Intervene, filed by Christopher Clack, Joseph Ortuno, Johnnie Pierson, Dwight Russell, Maurice Wilson. (Attachments: # 1 Exhibit A - District Court 2014 Bail Schedule, # 2 Proposed Order)(Steffensen, Peter) (Entered: 09/10/2020)

09/10/2020 283 RESPONSE to 252 Opposed MOTION to Intervene , filed by Lori Chambers Gray. (Diggs, Matthew) (Entered: 09/10/2020)

09/11/2020

286 Minute entry for proceedings before the Hon. Lee H. Rosenthal. Status conference held on 09/11/2020. The court heard an update from the parties on the voluntary efforts to promptly set formal individualized bail-determination hearings, with counsel present, on the record, for both new arrestees and for those who were arrested earlier and have been detained. Appearances: Adam Biggs, Courtney Corbello, Elizabeth Rossi, Kevin Pennell, Murray Fogler, Victoria Jimenez, Scott Durfee, Alec Karakatsanis, Neal Manne, Anastasia Liounakos, Bradford Hardin, Rachel Fraser Joanne Musick, Alex Bunin, Joseph Grinstein, Peter Steffensen, Landon Wade, Eileen Gaffney and Mark Thiessen. (Court Reporter: K. Metzger), filed.(leddins, 4) (Entered: 09/22/2020)

09/16/2020

284 Plaintiff's Emergency Motion to Compel Injunctive Relief Due to the Intentional and Wanton Infliction of Pain and Suffering in Violation of the 8th and 14th Amendment's to the U.S. Constitution and the American's with Disabilities Act of 1990 and Amendments Act of 2009 by Dwight Russell, filed. Motion Docket Date 10/7/2020. (EdnitaPonce, 1) (Entered: 09/16/2020)

09/18/2020

The Interim Pretrial Conference set for 9/25/20 is terminated. (leddins, 4) (Entered: 09/18/2020)

09/18/2020

285 NOTICE of Appearance by Kimberly Gdula on behalf of Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas, filed. (Gdula, Kimberly) (Entered: 09/18/2020)

09/23/2020

287 NOTICE of Setting. Parties notified. Pre-Motion Conference set for 9/30/2020 at 11:00 AM by video before Chief Judge Lee H Rosenthal, filed. The Zoom link will be posted to the Court's public calendar for participation. (leddins, 4) (Entered: 09/23/2020)

09/23/2020

288 MOTION to Compel Judgement in Favor of Plaintiffs by Devin Paul Cole, filed. Motion Docket Date 10/14/2020. (Attachments: # 1 Cover Letter, # 2 Envelope)(MelissaMorgan, 4) (Entered: 09/24/2020)

09/24/2020

289 Mail Returned Undeliverable as to Devin Paul Cole re: 233 Notice of Filing of Official Transcript, filed. (thanniable, 4) (Entered: 09/25/2020)

09/24/2020

290 Mail Returned Undeliverable as to Devin Paul Cole re: 281 Notice of Filing of Official Transcript, filed. (thanniable, 4) (Entered: 09/25/2020)

09/25/2020

291 NOTICE of attorney substitution by Danilo Lacayo. Attorney G. Allan Van Fleet added. Attorney Courtney Brooke Corbello terminated, filed. (Diggs, Matthew) (Entered: 09/25/2020)

09/25/2020

292 REPLY in Support of 228 MOTION to Dismiss 195 Amended Complaint/Counterclaim/Crossclaim etc.,, Pursuant to Fed. R. Civ. P. 12(b)(1), filed by Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel B Jones, Jason Luong, Amy Martin, Jesse McClure, III, Chris Morton, George Powell, Herb Ritchie, Randy Roll, Brock Thomas, Hilary Unger. (Corbello, Courtney) (Entered: 09/25/2020)

09/25/2020 293 REPLY to Response to 214 MOTION to Dismiss 195 Amended Complaint/Counterclaim/Crossclaim etc.,, , filed by Gregg Abbott, Ken

Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas. (Biggs, Adam) (Entered: 09/25/2020)

09/25/2020

294 Unopposed MOTION for Adam Arthur Biggs to Withdraw as Attorney by Gregg Abbott, Ken Paxton, Attorney General of the State of Texas in his Official Capacity, Only, State Of Texas, filed. Motion Docket Date 10/16/2020. (Attachments: # 1 Proposed Order)(Biggs, Adam) (Entered: 09/25/2020)

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 Case 4:19-cv-00226 Document 46 Filed on 03/30/20 in TXSD
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 2
United States District Court Southern District of Texas
ENTERED
March 30, 2020
David J. Bradley, Clerk

DWIGHT RUSSELL, et al., Plaintiffs,
v. HARRIS COUNTY, TEXAS, et al.,
Defendants.

§

§

§

§

§

CIVIL ACTION NO. H-19-226

§

§

§

§

ORDER GRANTING UNOPPOSED MOTION TO INTERVENE

After the plaintiffs moved for a temporary restraining order, the State of Texas, Governor

of Texas, and Attorney General of Texas moved to intervene under Federal Rule of Civil Procedure

24(a)(2). (Docket Entry No. 38-1). The plaintiffs indicated that they do not oppose the

intervention. (Docket Entry No. 45).

“Rule 24(a)(2) governs intervention of right based on an interest in the action.” St. Bernard

Par. v. Lafarge N. Am., Inc., 914 F.3d 969, 974 (5th Cir. 2019). The Fifth Circuit has established

a four-pronged test for intervention under Rule 24(a)(2):

(1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair his ability to protect that interest; [and] (4) the applicant’s interest must be inadequately represented by the existing parties to the suit.

Id. (quoting Sommers v. Bank of Am., N.A., 835 F.3d 509, 512 (5th Cir. 2016)). “Federal courts should allow intervention where no one would be hurt and the greater justice could be attained.” Texas v. United States, 805 F.3d 653, 656 (5th Cir. 2015) (quoting Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)).

Case 4:19-cv-00226 Document 46 Filed on 03/30/20 in TXSD Page 2 of 2 The court finds that the requirements of Rule 24(a)(2) are met. The intervenors timely
moved for intervention and have important interests potentially involved in this action that will not be adequately represented by the existing parties.
The State of Texas, Governor of Texas, and Attorney General of Texas’s motion to intervene, (Docket Entry No. 38), is granted.
SIGNED on March 30, 2020, at Houston, Texas. _______________________________ Lee H. Rosenthal Chief United States District Judge
2

 
 Case 4:19-cv-00226 Document 45 Filed on 03/30/20 in TXSD Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

PLAINTIFFS’ RESPONSE TO ATTORNEY GENERAL’S MOTION TO INTERVENE

Plaintiffs do not oppose intervention of the Texas Attorney General. However, many of

the factual claims and legal principles cited in the memorandum are not correct.

Date: March 30, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Mimi Marziani Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 Meagan T. Harding Texas State Bar No. 24080179 Southern District No. 3365526 Texas Civil Rights Project 405 N Main St, Suite 716

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400

Case 4:19-cv-00226 Document 45 Filed on 03/30/20 in TXSD Page 2 of 2

Houston, TX 77002 Phone: 512-474-5073 ext 118 liyah@texascivilrightsproject.org mimi@texascivilrightsproject.org meagan@texascivilrightsproject.org

Los Angeles, CA 90067 Telephone: (310) 789-3100

CERTIFICATE OF SERVICE I certify that on March 30, 2020 a true and correct copy of this document properly was served on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas Procedures for Electronic Filing.

/s/ Elizabeth Rossi Elizabeth Rossi

 
 Case 4:19-cv-00226 Document 44 Filed on 03/30/20 in TXSD Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

PLAINTIFFS’ SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER

Plaintiffs need emergency relief now. Every hour increases the likelihood they will contract COVID-19 and suffer extreme illness or death,1 and that they will spread the disease to other

incarcerated people, staff at the jail, the broader community, and the nurses and doctors who will

be forced to treat an uncontrollable outbreak of COVID-19 in downtown Houston.

I. This Court Has Broad Discretion to Issue Temporary Relief

This Court began its March 29, 2020, telephonic hearing by noting the unprecedented

nature of the situation facing all of us. The Court noted that any temporary emergency relief it

ordered would be predicated on the very narrow exigencies of that situation, and that these

exigencies could dissipate in short order. After the Court made those observations, the Court and

the parties learned of the first positive COVID-19 test inside the jail.

To be sure, a temporary restraining order is an “extraordinary” remedy. Ridgely v. Fed.

Emergency Mgmt. Agency, 512 F.3d 727, 734 (5th Cir. 2008). However, the Court is well within

its authority to enter an agreed order by the parties immediately that it could review within a matter

1 Elizabeth Chuck, What is a ventilator? The ‘critical resource’ that is in short supply (Mar. 25, 2020), https://www.nbcnews.com/health/health-news/what-ventilator-critical-resource-currently-short-supply-n1168641
1

Case 4:19-cv-00226 Document 44 Filed on 03/30/20 in TXSD Page 2 of 9
of days with a full record. Indeed, because of its extraordinary nature, limited duration, and exigent circumstances, “[a] circuit court normally has no authority to review a TRO.” Faulder v. Johnson, 178 F.3d 741, 742 (5th Cir. 1999). In this way, settled appellate procedure protects the district court’s power to exercise its discretion on an abbreviated time-frame and with an abbreviated record in extraordinary, exigent circumstances—like the ones here—to protect against irreparable harm while the parties assemble a record and make more fulsome arguments. Exceptions to the unavailability of appellate review exist in certain circumstances where the temporary restraining order (“TRO”) is more like a preliminary injunction order, for example, when the TRO was entered following an adversarial hearing, with development of a full factual record with witnesses and documentary evidence, and following substantive legal argument by the parties. Knoles v. Wells Fargo Bank, N.A., 513 F. App’x 414, 415 (5th Cir. 2013); Sampson v. Murray, 415 U.S. 61, 86– 88 (1974). A TRO might also be appealable when it extends beyond the 14-day time limit set forth in Federal Rule of Civil Procedure 65(b)(2). Connell v. Dulien Steel Prod., Inc., 240 F.2d 414, 418 (5th Cir. 1957) (explaining that appeals are generally not allowed from TROs because they expire before the time required for an appeal and generally are issued without full briefing, argument, or a developed factual record, and because it is unfair to subject a district court to appellate review before an ample opportunity for a hearing).
Here, Plaintiffs understand the limitations of the temporary relief they sought and understand that the evidentiary and legal record developed at a preliminary injunction hearing, should they continue to request such a hearing, or a trial on the merits, may lead the Court to enter very different relief. But Plaintiffs here seek emergency, temporary relief, limited to a matter of days that the Court can and should revisit following development of a full factual and legal record.
II. The Risk of Irreparable Harm, Including Death, Has Increased Since Plaintiffs Filed Their Motion
2

Case 4:19-cv-00226 Document 44 Filed on 03/30/20 in TXSD Page 3 of 9

On Sunday, March 29, the Houston Chronicle reported that the first detained person in the Harris County Jail has tested positive for COVID-19.2 This person has been in the jail almost two weeks, since March 17.3 Thirty other people in the jail have shown symptoms, and another 500 may have been exposed.4 Similar outbreaks are happening in jails around the country. As of Sunday morning, there were 103 inmates and 80 staff in New York City jails who are positive for COVID-19.5 “The current infection rate at local jails [in New York City] is 14.51 per 1,000 people, more than 7 times higher than New York City and 87 times higher than the United States at large.”6 In Cook County Jail, the number of confirmed positive cases jumped from 2 to 89 in several days.7 Twelve guards there are infected. As this Court noted at the hearing, the first inmate in a federal prison died on Saturday, March 28 of COVID-19.8
The CEO of the local County health care system, Dr. Esmaeil Porsa, warns that an outbreak is imminent in Harris County. He explained that “[t]he Harris County Jail . . . pose[s] a real and immediate danger to the health of the community,” warning that “a concentrated outbreak” in the jail “would not only be a tragedy in itself but also have the compounding effect of leaving fewer beds for other members of our community.” Plaintiffs have clearly demonstrated a risk of

2 Gabrielle Banks & Nicole Hensley, First Harris County Jail inmate tests positive for COVID-19 (Mar. 29, 2020),

https://www.houstonchronicle.com/news/houston-texas/houston/article/First-Harris-County-Jail-inmate-tests-

positive-15164825.php

3 Id.

4 Id.

5 Jessica Schulberg & Angelina Chapin, Prisoners at Rikers Say It’s Like a ‘Death Sentence’ As Coronavirus Spreads

(Mar.

28,

2020)

https://www.huffpost.com/entry/rikers-prisoners-

coronavirus_n_5e7e705ec5b6256a7a2a995d?guccounter=1

6 Id. (emphasis added).

7 Cook County Jail population and COVID-19 tracker, Source: Cook County Sheriff’s Office (updated daily),

https://datastudio.google.com/u/0/reporting/1AI4THiXJ_6Nt-

9NXwE0MfO_DUaa1Koxi/page/hcyJB?s=oQGghs5nYPk

8 Aristos Georgiou, Louisiana Inmate, 49, Dies from COVID-19, The First in Bureau of Prisons Federal Custody to

Succumb to Coronavirus (Mar. 29, 2020), https://www.newsweek.com/first-federal-inmate-49-coronavirus-bureau-

prisons-facility-louisiana-1494862

3

Case 4:19-cv-00226 Document 44 Filed on 03/30/20 in TXSD Page 4 of 9
irreparable harm from continued detention in violation of their constitutional rights, and in the context of a pandemic.
It has also become clear that the other options considered and urged by the Court on March 29 are not going to happen. Prior to the March 29 hearing, the Sheriff and the County concluded that they have no state-law authority to compel the felony judges to hold constitutionally appropriate hearings or otherwise to act at all to avert disaster. Despite efforts by the Sheriff, County representatives, Plaintiffs, representatives of local hospitals, law professors, religious leaders, and others to convince the felony judges to act, several felony judges report that their colleagues are deadlocked and unwilling to agree on any relief of the scope requested by the Sheriff. After the hearing on March 29, the felony judges, through Judge Ritchie, again declined to act other than through time-consuming individualized proceedings that all parties understand are a physical impossibility given logistics of court closures, emergency attorney notification, prosecution and defense resources, and inmate transport at a facility in outbreak crisis. The Court expressed a preference yesterday for a solution that somehow might happen without the Court’s involvement. Plaintiffs warned against this approach as a mirage; it was. Plaintiffs are before this Court on their constitutional claims and make this TRO request for one reason: there are no other options. Absent action by this Court, the constitutional rights of the Plaintiffs will continue to be denied, and they will suffer irreparable harm that soon will be beyond the ability of this Court or anyone else to remedy.
III. Plaintiffs are Likely to Succeed on the Merits Individuals arrested in Harris County have no opportunity to seek relief because there is no mechanism for most new arrestees to appear in front of a felony judge for two to four weeks even under normal circumstances. Ex. D, ¶ 48; Ex. I. With the County Judge’s emergency order to close
4

Case 4:19-cv-00226 Document 44 Filed on 03/30/20 in TXSD Page 5 of 9
most courts on most days, Ex. J, and the rising infection among Sheriff staff, it is unclear whether, when, or how bail hearings will occur going forward. And, in any event, the felony judges disagree that they need to make a finding that pretrial detention serves a government interest at these hearings if and when they do occur. See Dkt. 32 at 24–31.
Plaintiffs are people who are presumptively innocent and who are in jail only because they cannot make a monetary payment. One simple fact lies at the heart of this case: the state has not made a finding that the detention of any Plaintiff class member serves any interest, in violation of multiple lines of binding Supreme Court precedent. See Dkt. 32 at 24–31. The U.S. Constitution forbids pretrial detention that is not necessary for either public safety or to prevent flight from prosecution. Id. New class members are arrested and subjected to these violations each day.
The Attorney General has no response to this precedent. At the hearing on Sunday, March 29, the Attorney General asserted that this case is only about “procedures,” and that “substantive” relief is unavailable because of ODonnell. That is plainly wrong. First, ODonnell was not only about “procedures”—the Fifth Circuit upheld this Court’s holding that it violates a person’s equal protection right—which is a substantive constitutional right—not to be detained due solely to indigence. ODonnell v. Harris County, 892 F.3d 147, 157 (5th Cir. 2018) (quotations omitted) (“[W]e have already concluded that the incarceration of those who cannot [pay money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.”). The en banc Fifth Circuit concluded as much decades ago. Pugh v. Rainwater, 572 F.2d 1052, 1057 (5th Cir. 1978) (en banc). Second, and more importantly, Plaintiffs in this case raise substantive claims in their Complaint and Motion that are not addressed at all in ODonnell, including the fundamental right to pretrial liberty.9 Dkt. 1 at 41; Dkt. 32 at 25–
9 Governor Greg Abbott’s Executive Order GA 13, issued on Sunday, March 29, purports to bar release after arrest, except through payment of money, for large categories of individuals in Texas. Dkt. 39-1. As written, the edict
5

Case 4:19-cv-00226 Document 44 Filed on 03/30/20 in TXSD Page 6 of 9
26 (“But ODonnell did not consider the second substantive constitutional right in this case: the
‘fundamental’ federal right to pretrial liberty.”); ODonnell, 892 F.3d at 157 (“Here, our focus is
the law of Texas.”). The difference between substantive and procedural rights, lost on the Attorney
General, has been explained by the Supreme Court in the clearest terms. Dkt. 32 at 22–24; see,
e.g., Washington v. Harper, 494 U.S. 210, 220 (1990) (explaining the difference between and
interaction among substantive and procedural claims). If only procedural remedies were available
when a plaintiff proved a violation of a substantive right, such as the right to equal protection under
the law, a state court judge could hold a hearing and announce, without violating the Constitution:
“I conclude that no conceivable government interest in public safety or court appearance is served
by your pretrial detention, but I am detaining you anyway because I held a hearing.” That is not,
and never has been, the law with respect to any substantive constitutional right enshrined in the
American Bill of Rights.10
Next, the Attorney General suggested that the current Defendants cannot grant full relief.
That contention misunderstands over a century of binding law. A person suffering unconstitutional
purports to allow the release of anyone who can pay, but to bar release of many arrestees who cannot pay, even if a state judge rules that the person poses no public safety or flight risk. It then purports to suspend the speedy trial rights of those arrestees who cannot pay. This order is flagrantly unconstitutional for reasons identical to Plaintiffs’ claims in this case, although it goes further: it not only allows detention (of only the poor) without a finding that any government interest is served, it purports to suspend the authority of the state judiciary and to bar release without monetary payment even if a state judge affirmatively concludes that a person must be released because they pose no risk of flight or danger to the community. This Executive Order cannot trump federal law, and even on its own terms does not purport to bar the bulk of the relief the parties discussed for non-violent arrestees. 10 For example, in the Eighth Amendment context, the Supreme Court has held that procedural protections alone are not sufficient to implement the “substantive [rule] that life without parole is an excessive sentence for children whose crimes reflect transient immaturity.” Montgomery v. Louisiana, 136 S. Ct. 718, 735 (2016). “Even if a court considers a child’s age before sentencing him or her to a lifetime in prison,” the Court admonished, “that sentence still violates the Eighth Amendment for a child whose crime reflects ‘unfortunate yet transient immaturity.’” Id. at 734 (emphasis added); see also Malvo v. Mathena, 893 F.3d 265, 274 (4th Cir. 2018) (Montgomery confirmed that a court violates this substantive rule whenever it sentences a juvenile offender to life without parole “without first concluding that the offender’s ‘crimes reflect permanent incorrigibility’” (emphasis added)), petition for cert. filed, No. 18-217 (U.S. Aug. 20, 2018). Unless a court finds that a child is permanently corrupt, it may not sentence him or her to life in prison with no possibility of parole. Montgomery, 136 S. Ct. at 736-737. Protecting a substantive liberty interest, in other words, requires not just considering the questions the Constitution demands; it requires answering those questions.
6

Case 4:19-cv-00226 Document 44 Filed on 03/30/20 in TXSD Page 7 of 9
conduct may sue the government agent enforcing that conduct against her, at least since the Supreme Court decided Ex Parte Young, 209 U.S. 123 (1908). Here, Plaintiffs can obtain all the relief they seek from the County and the Sheriff, as Judge Sutton recently explained for a unanimous panel of the Sixth Circuit in an opinion upholding a preliminary injunction prohibiting a Tennessee Sheriff from enforcing unconstitutional bail orders issued by state court judges. McNeil v. Community Probation Servs., LLC, 945 F.3d 991 (6th Cir. 2019) (holding that the Sheriff was a proper Ex parte Young actor, who could be enjoined from enforcing unconstitutional bail orders that resulted in detention of people who could not afford to pay the secured amount). And, of course, the Fifth Circuit itself reinstated the Sheriff as a proper defendant in ODonnell under Ex parte Young and concluded that he was subject to injunctive relief for his role in enforcing unconstitutional bail orders against indigent people arrested for misdemeanors in Harris County. ODonnell, 892 F.3d at 165–67. As the Sixth Circuit explained, there are “plenty of cases” like this one, enjoining a state or local enforcement actor from violating the federal constitution. McNeil, 945 F.3d at 996. No other Defendant need be joined for this Court to issue temporary, emergency relief requiring the Sheriff and the County to temporarily cease enforcing certain financial conditions of pretrial release.
IV. Conclusion For purposes of emergency temporary relief, the County and the Sheriff do not contest the factual allegations in Plaintiffs’ Motion, that Plaintiffs are likely to succeed on the merits of their constitutional arguments, that relief is in the public interest, or that Plaintiffs are facing the ongoing irreparable harms caused by pretrial detention, including but not limited to a heightened risk of serious illness or death given the spread of COVID-19 and the inability to prevent the spread of the virus or protect people detained in the Harris County Jail from it. They do not contest that the
7

Case 4:19-cv-00226 Document 44 Filed on 03/30/20 in TXSD Page 8 of 9

harm to Plaintiffs will have ripple effects throughout the Harris County community, jeopardizing the lives and safety of the staff who work in the jail, the families and communities to which the people in the jail go home each night, and the doctors and nurses who will have to treat a surge in patients once COVID-19 breaks out there. Accordingly, this Court should adopt the emergency, temporary relief proposed by the Sheriff, County, and Plaintiffs. Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009).
There is no question that this is a matter of life and death. The question is whether this Court will act.

Date: March 30, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Mimi Marziani Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 Meagan T. Harding Texas State Bar No. 24080179 Southern District No. 3365526 Texas Civil Rights Project 405 N Main St, Suite 716 Houston, TX 77002 Phone: 512-474-5073 ext 118 liyah@texascivilrightsproject.org mimi@texascivilrightsproject.org meagan@texascivilrightsproject.org

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100

8

Case 4:19-cv-00226 Document 44 Filed on 03/30/20 in TXSD Page 9 of 9 CERTIFICATE OF SERVICE
I certify that on March 30, 2020 a true and correct copy of this document properly was served on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas Procedures for Electronic Filing.
/s/ Elizabeth Rossi Elizabeth Rossi
9

 
 Case 4:19-cv-00226 Document 32 Filed on 03/27/20 in TXSD Page 1 of 51

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

MOTION AND MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

I. Introduction

A public health catastrophe of historic proportion looms in the Harris County Jail. Only

this Court can avert it. With every passing hour, the risk of disaster increases. All eyes turn to this

Court in this dire moment. Thousands of lives may hang in the balance.

As the novel coronavirus that causes COVID-19 has spread across the globe, hundreds of thousands of people have been infected and thousands of people have died.1 There is no known cure. The Harris County Jail has never confronted a global health pandemic like this one.2 By the

admission of the County and the Sheriff, the jail is unequipped to prevent transmission of COVID-

19 among people detained at the jail and the jail staff, or to isolate and treat individuals who

become infected there. As Sheriff Ed Gonzalez explained in a desperate public warning:

1 The World Health Organization has officially classified the spread of Covid-19 as a global pandemic. See World Health Organization, Director-General Opening Remarks (March 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-opening-remarks-at-the-media-briefing-on-covid19---11-march-2020.
2 Given COVID-19’s contagiousness and relatively high death rate, particularly in vulnerable populations, the President ordered a 15-day directive to avoid gatherings in groups of more than 10 people. The President’s Coronavirus Guidelines for America, Whitehouse.gov (Mar. 16, 2020), https://www.whitehouse.gov/wpcontent/uploads/2020/03/03.16.20_coronavirus-guidance_8.5x11_315PM.pdf.
1

Case 4:19-cv-00226 Document 32 Filed on 03/27/20 in TXSD Page 2 of 51
“Currently have 8,000 individuals, most pre-trial, in tight quarters.”3 The jail has “[v]ery limited services. No capacity for ICU care. If someone older and/or with frail health gets the virus it can be a death sentence. Plus spread like wildfire. . . Individuals would need to be taken to our public health system, which does not have capacity to handle an outbreak in the jail and the anticipated needs of the general community.”4 On March 20, prominent Houston physicians wrote an emergency letter to Sheriff Gonzalez, Commissioners Court, and the judges stating that they “urge the County’s leadership to take swift action today to avert the catastrophic loss of life that would result if and when the Harris County jail becomes a vector for Covid-19.” Ex. A at 2 (Harris County Physicians’ Letter); see also Ex. A at 4 (Letter from Dr. Esmaeil Porsa, President and CEO of Harris Health) (“The Harris County Jail . . . pose[s] a real and immediate danger to the health of the community.”); Ex. A at 2 (“[T]he Harris County Jail is a ticking time bomb that has the potential to devastate the lives of inmates, jail personnel, and others throughout the entire Harris County community”).5 Dr. Elizabeth Chiao, expert in infectious diseases, writes that “The horizon of risk for COVID-19 in [the Harris County Jail] is a matter of days, not weeks.” Ex. B ¶ 43
Plaintiff class members (“Plaintiffs”) are confined in jail cells at the Harris County Jail solely because they cannot pay enough money to be allowed to return to their homes, families, jobs, and communities. As of Wednesday, among many other people, this list included:
 About 65 people charged with possession of a controlled substance, penalty group 1, 1-4 grams;
 About 53 people charged with possession of less than a gram of a controlled substance, penalty group 1 or 2;
3 Ed Gonzalez (@SheriffEd_HCSO), TWITTER (Mar. 21, 2020, 8:41 AM), https://twitter.com/SheriffEd_HCSO/status/1241344221921136641. 4 Id. (Mar. 21, 2020, 8:05 AM), https://twitter.com/SheriffEd_HCSO/status/1241335204905713664 (emphasis added); id. (Mar. 20, 5:19 PM), https://twitter.com/SheriffEd_HCSO/status/1241112204067381249. (“Jail health is community health.”). 5 Ex. B (Expert Declaration of Dr. Elizabeth Chiao) ¶ 4; see also Ex. C (Declaration of Dr. Jaimie Meyer, filed in Velesaca v. Wolf et al, Case No. 1:20-cv-01803-AKH, Mar. 16, 2020); Ex. A (Letter from Harris County Physicians).
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 About 47 people charged with theft under $2500 with two or more prior convictions;
 About 44 people charged with unauthorized use of a motor vehicle;6 and  About 39 people charged with credit/debit card abuse, forgery, or fraudulent
use/possession of an ID. Their continued detention, and the detention of hundreds of additional people cycling in and out of the jail daily, poses a much larger “public safety” risk than granting the relief Plaintiffs seek. Ex. B ¶¶ 28–44; id. ¶ 41 (“From a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in the Harris County Jail at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release[.]”).
There has been no inquiry or findings concerning their ability to pay, and no one has made any finding that subjecting Plaintiffs to a heightened risk of contracting a life-threatening and incurable virus, separating Plaintiffs from their children and families, interrupting medications and medical care, and taking them away from their jobs and homes is necessary to serve the government’s compelling interests in preventing flight or reasonably assuring public safety, as the federal Constitution requires. United States v. Salerno, 481 U.S. 739, 751 (1987); Bearden v. Georgia, 461 U.S. 660, 672 (1983). Not only has the pandemic created the risk of a health catastrophe for Plaintiffs—who are presumed innocent—it has made it even more difficult for them to receive basic constitutional protections. Court appearances are being canceled and lawyer visits are being indefinitely postponed. It is unclear whether or when Plaintiffs will have an opportunity to challenge their unconstitutional detention.7 Even before the pandemic, people
6 Total Population Stats, March 25, 2020, Harris County Sheriff’s Office, https://charts.hctx.net/dr00226/App/DR15AUG19All. 7 These harms are in addition to the typical harms people detained pretrial always face, even absent the risk of death from a novel virus. As a result of their pretrial detention, Plaintiffs suffer a greater likelihood of conviction and longer sentences, as well as other cascading, negative effects on their physical, mental, and economic well-being. The irreparable harms of Defendants’ practices will extend to the health and well-being of Plaintiffs’ children, who are
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arrested for felonies were waiting three to four weeks after arrest to see a district judge and have
any opportunity to seek their release at hearings that comply with the Constitution.
Plaintiffs seek an emergency order from this Court requiring Defendants not to enforce
pretrial detention orders against Plaintiff class members unless they provide constitutionally adequate bail proceedings.8 Plaintiffs ask that this emergency request be heard as expeditiously
as possible. Absent immediate action by this Court, some Plaintiffs likely will face the ultimate
irreparable harm: death.
II. The Parties Agree On the Facts, the Merits, and the Balance of Harms
The parties have conferred numerous times prior to filing this emergency motion. First,
the Parties appear to agree concerning the facts about local bail practices set forth in the declaration
of Sarah Wood, Policy Director for the Harris County Public Defender’s Office. Ex. D.
Defendants also appear to agree that Plaintiffs are likely to succeed on the merits of their
claim because, as the same Defendants agreed in ODonnell, it violates the Equal Protection and
Due Process Clauses of the U.S. Constitution to detain a person solely because the person cannot
afford to make a monetary payment, unless the government treats the order to pay secured bail like
a detention order and provides the person with notice, a hearing with counsel and an opportunity
to present and confront evidence, and findings on the record by clear and convincing evidence that
deprived of the ability to hug their parent; have higher rates of anxiety and depression; suffer shame and social stigma; and are six times more likely to become involved in the criminal legal system themselves—all because of their parent’s detention due to inability to pay. This year, 90,000 children will be separated from a parent by the Harris County jail. The vast majority of these forced separations would be avoided if the family could pay enough money. Nancy P. Correa, MPH, et al., The Forgotten Families: A Needs Assessment on Children with Incarcerated Parents in Harris County, Texas (February 2019). 8 See McNeil v. Community Probation Servs., Inc., 945 F.3d 991, 996 (6th Cir. 2019) (upholding a preliminary injunction prohibiting a sheriff from enforcing unconstitutional bail orders and stating that “[t]here are plenty of cases allowing injunction actions like this one” pursuant to principles set forth in Ex parte Young, 209 U.S. 123 (1908); ODonnell v. Harris Cty., 892 F.3d 147, 165 (5th Cir. 2018) (holding that the Sheriff is "authorized to decline to enforce orders requiring payment of prescheduled bail amounts as a condition of release for said defendants if the orders are not accompanied by a record showing that the required individual assessment was made and an opportunity for formal review was provided").
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pretrial detention is necessary because no other alternatives can reasonably serve the government’s interests in court appearance and public safety.
Finally, Defendants also appear to agree that the public interest and balance of harms weigh overwhelmingly in favor of immediately providing Plaintiffs with constitutionally adequate bail hearings that would determine whether their ongoing pretrial detention is absolutely necessary, given the COVID-19 pandemic and the threat it poses to every person detained at the jail. County Judge Hidalgo told the Houston Chronicle that “[h]ealthcare professionals have urged us to reduce the amount of people in the jail.”9 She told the Chronicle that mitigating an outbreak is “a very high priority” because if Covid-19 arrives, it “could spread like wildfire.”10 And Defendant Sheriff Ed Gonzalez has compared the situation to “three massive ships docked in downtown Houston,” telling the Chronicle that an outbreak in the jail would be a catastrophe for “the region” that would overwhelm the hospitals. The Sheriff has called for “bold action” to avoid the impending devastation.11 He stated, “Jails and prisons are fertile ground for the spread of infectious disease . . . My nightmare scenario is that an outbreak happens at the county jail.”12
Yet despite this, more than 4,000 people languish at the jail, convicted of nothing, with no finding having been made that their detention serves any government interest. They are detained
9 Gabrielle Banks, Exclusive: Lina Hidalgo seeking compassionate releases at Harris County Jail due to coronavirus (Mar. 26, 2020), available at https://www.houstonchronicle.com/news/houston-texas/houston/article/Harris-CountyJudge-Lina-Hidalgo-seeking15159260.php?utm_campaign=CMS%20Sharing%20Tools%20(Premium)&utm_source=t.co&utm_medium=referr al. 10 Gabrielle Banks, Sheriff Gonzalez is seeking compassionate release of some inmates at the Harris County Jail (Mar. 19, 2020), available at https://www.houstonchronicle.com/news/houston-texas/houston/article/harris-countysheriff-gonzalez-jail-inmate-release15143578.php?utm_campaign=CMS%20Sharing%20Tools%20(Premium)&utm_source=t.co&utm_medium=referr al. 11 Id. 12 Id.
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only because they are poor. Harris County does not dispute that they would be released almost immediately if they could make a payment. More such persons arrive at the jail each day.
Although the parties apparently agree on the facts, the merits, and the need for an immediate remedy, Defendants have failed to devise one. Time is running out. As of last night, fifteen people detained in the jail were quarantined, and a sixth deputy was confirmed positive for Covid-19. Continued logistical, political, and bureaucratic delays are intolerable in light of the risk of unnecessary loss of life. The Parties have been unable to agree on a plan for conducting constitutionally adequate bail proceedings, and on how to prioritize certain categories of arrestees against whom existing orders of detention must not be enforced if adequate bail proceedings do not occur. Plaintiffs do not question the abiding good faith of the County and the Sheriff. But good faith cannot excuse the extraordinary jeopardy into which Defendants are placing the Plaintiffs, all the while violating their fundamental constitutional rights. Plaintiffs respectfully request an immediate order (1) requiring the Parties to confer on relief, including a plan for conducting bail hearings, and (2) ordering the Parties to submit either an agreed proposed order or their respective alternative proposals within 24 hours of this Court’s order.
III. Nature and Stage of Proceedings On January 21, 2019, Named Plaintiffs Dwight Russell, Johnnie Pierson, and Joseph
Ortuno filed this civil rights class action lawsuit on behalf of themselves and thousands of other people charged with felony offenses and detained in the Harris County Jail solely because they cannot afford to pay money bail. They sought injunctive relief and moved simultaneously for class certification of a Rule 23(b)(2) class seeking purely equitable relief. On February 4, 2019, the parties jointly requested a 90-day stay to discuss settlement, Dkt. 14, which the Court granted, Dkt. 15. In May 2019, the parties sought a further stay of proceedings to continue good-faith settlement
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discussions. Dkt. 24. The same parties and counsel were then engaged in intensive negotiations regarding the misdemeanor bail lawsuit, ODonnell v. Harris County, the resolution of which the parties believed would implement certain systems with the potential to improve felony bail practices as well. On July 25, 2019, the parties informed the Court that they were nearing an agreement on the misdemeanor case and requested additional time to continue discussions regarding the felony system. On January 10, 2020, the Parties informed the Court that negotiations were continuing in good faith. Dkt. 31.
Since filing this lawsuit, the parties and other stakeholders have been engaged in earnest negotiations, attempting to reach agreement on constitutional post-arrest policies and procedures for felony arrestees. However, more than a year has passed since Plaintiffs sued and circumstances have changed significantly. The Harris County jail is quickly becoming a disaster area that could explode in pandemic, in large part due to the overwhelming number of class members who are being detained illegally solely because they cannot make monetary payments. While other jurisdictions across the country have taken bold steps to decrease the jail population, Harris County has not. The Plaintiff class cannot wait any longer. Accordingly, they now seek emergency relief from this Court while this case proceeds to final resolution.
IV. Factual Background At a hearing on this Motion, Plaintiffs will prove the facts set forth below. A. Arrest and the Initial Bail-Setting Process For decades, Harris County has used a predetermined money bail schedule, promulgated
through administrative order by the Harris County District Court Judges (“the felony judges”), to determine financial conditions of pretrial release for felony arrestees in Harris County. See Ex. E (Felony Bond Schedule); Ex. D (Wood Declaration) ¶ 5. The schedule currently requires
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arrestees charged with certain offenses to remain in custody until a magistrate determines conditions of release at a probable cause hearing. Id. ¶ 6. For all other arrestees, the schedule lists an amount of money the person must pay for release. Id. ¶ 7. Anyone who cannot pay the predetermined amount will be detained. Id. ¶ 8. On March 20, in the midst of the global Covid-19 pandemic, the felony judges promulgated an order requiring the release of people whose highest offense of arrest is one of 20 state jail felony offenses. Ex. F (General Order Bond Order); Ex. D ¶ 9. After several days of delay, as of Wednesday, March 24, the order had apparently gone into effect, but not everyone eligible for release was being released . Id. ¶ 10. As the order applies only to certain offenses that comprise a small percentage of arrests, large categories of people will still be detained after arrest without a constitutionally adequate hearing to determine ability to pay or whether detention is necessary. Id. ¶ 11.
About 75% of people arrested for felonies in Harris County are arrested by either Harris County or the Houston Police Department (“HPD”).13 Id. ¶ 12. Those people are taken after arrest to the Joint Processing Center (“JPC”). Id. ¶ 13. People arrested by other arresting agencies are sometimes taken to “field stations” before being transported to the JPC. Id. ¶ 14.
At the scene, officials call the District Attorney’s Office’s (DAO) hotline to ask whether they will accept charges. If the DAO declines charges, the person is released. Id. ¶ 15. If the DAO accepts charges, the officer submits a probable cause statement and the DAO files a complaint with the District Clerk who creates a case number and assigns the case to a specific judge’s court. Id. ¶ 16. Pretrial Services then runs the person’s information through an algorithm to create a “risk assessment” score and applies the County bail schedule using the charged offense and the
13 Harris County Pretrial Services, 2017 Annual Report (2017), at 16, https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf
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person’s “risk” score to identify the scheduled amount of money required for release. Id. ¶ 17. Once the scheduled amount is set, the person can pay the amount and, absent another basis
for detention, the person will be released. Id. ¶ 18. If a person arrested by an agency other than the Harris County Sheriff’s Office or HPD pays the amount required for release pursuant to the bail schedule before transport to the JPC, the person may be released without being transported to or booked into the Harris County Jail. Id. ¶ 19. If a person pays the amount required for release in the felony case but is subject to detention for any other reason, such as a hold from another jurisdiction, that person will be eligible for release, subject to the other basis for detention. Id. ¶ 20. Typically, there is a set time period within which the entity asserting the hold must pick the individual up. That period is not triggered unless and until the person pays the amount required for release. Defendants will continue to detain a person who cannot pay. Id. ¶ 21.
Sometime after a person arrives at the JPC—and usually before the person is assigned to a housing unit—the person will be taken by Sheriff’s Office employees to a courtroom in the jail with other recent arrestees to appear before a Hearing Officer, who will determine probable cause for warrantless arrests and set conditions of release. Id. ¶ 22. If a person pays money bail after arriving at the JPC but prior to the probable cause hearing, she will be released and the probable cause determination in her case will be made at a subsequent court appearance. Id. ¶ 23.
B. Probable Cause and Bail Hearings The first post-arrest hearing inside the JPC is referred to locally by a variety of terms, including “magistration,” “Article 15.17 hearing,” “bail hearing,” and “probable cause hearing.” Id. ¶ 24. Defendants attempt to provide this hearing within 48 hours of arrest. Id. ¶ 26. The Public Defender’s Office represents felony arrestees at these hearings. Id. ¶ 27. By order of the judges, the PDO is appointed for the limited purpose of arguing bail and is not
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authorized to represent the person during the portion of the hearing in which probable cause is determined. Id. ¶ 28. When determining conditions of release at the magistration hearings:
 Hearing Officers routinely do not make findings as to whether a person can pay any particular amount of money before requiring secured money bail as a condition of release.
 Hearing Officers routinely do not make findings as to whether an order to pay secured bail will operate to detain the person because the person cannot pay it.
 Hearing Officers routinely do not make findings that detention is necessary to meet a compelling government interest or that less-restrictive conditions are inadequate to meet a compelling government interest.
 Hearing Officers do not apply any evidentiary standard to any factual finding. Id. ¶ 29.
When the docket begins, arrested individuals sit on benches in a courtroom inside the JPC. Id. ¶ 30. The Hearing Officer calls an individual’s name and reads the charge, and then asks the person whether he or she wishes to be represented by a public defender for purposes of the bail decision. Id. ¶ 31. A typical felony bail hearing proceeds as follows: An ADA, who appears by video, reads the allegations in the police probable cause statement. In cases involving warrantless arrests, the Hearing Officer decides whether there is probable cause. Next, the Hearing Officer considers whether to adjust the money bail amount pre-determined by the schedule, or, if no amount was set, whether to release the person and if so on what conditions. If the person arrested accepted the representation of the public defender’s office, the public defender will provide information about the person’s ties to the community and other life circumstances. Sometimes Hearing Officers grant personal bonds. However, routinely, the Hearing Officers order arrestees released but condition release on payment of a secured money bail amount without first determining the person’s ability to pay or making any findings. Id. ¶ 32. These financial conditions result in the pretrial detention of people who are too poor to pay them, but the Hearing Officer makes no findings concerning the availability of less-restrictive, alternative conditions, or the necessity of detaining the person. Id. ¶ 33. Hearing Officers believe that they are not
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permitted to impose non-monetary conditions of release in certain cases. Id. ¶ 34. Sheriff’s Office agents observe the hearings, id. ¶ 36, where Hearing Officers routinely
fail and refuse as a matter of policy to consider alternatives to secured financial conditions. If an individual is not brought to the initial hearing for medical reasons, which is a
frequent occurrence, the Hearing Officer will make a finding of probable cause and require financial conditions of pretrial release in that person’s absence. Id. ¶ 37. The County generally prohibits public defenders from representing people who are not present at the hearing. In these cases, the money bail amount is set without any argument on the arrestee’s behalf. Id. ¶ 38.
C. The Use of Personal Bonds Hearing Officers sometimes recommend arrestees for release on “personal bonds,” a term Defendants use to describe unsecured release without requiring an up-front payment prior to release, i.e., without a secured financial condition of release. Id. ¶ 39. Only about 18% of cases were released on personal bonds in 2018, and about 33% of cases were released in 2019.14 Defendants fail to provide the constitutionally required findings and procedural safeguards in all other cases resulting in pretrial detention. For decades, Hearing Officers adhered strictly to written and oral directives regarding the money-bail-setting process issued by the felony judges, who control their employment.15 Id. ¶ 40.
14 Data is not available to show the number of people who were released on personal bonds. Some people have multiple cases. 15 See e.g. Ex. G (State Commission on Judicial Conduct Documents) at 186 (HARRISCO_CourtOrder 1909) (Written instructions from 182nd District Court Judge to Hearing Officers) (“I don’t want any bonds lowered at [the magistration hearing]. Ok to raise it, but no lowering.”); id. at 187 (HARRISCO_CourtOrder 1910) (Written instructions from 185th District Court Judge to Hearing Officers) (“Please set bond for felon in poss. of a weapon. Habitual offenders should be held w/out bond.”); Ex. H (ODonnell, Dkt. 523-2) at 11 (Written instructions from District Court Judge Joan Huffman to Hearing Officers) (“No pre-trial bonds; no lowering of bonds.”); id. at 13, 17-18, 23 (State Commission on Judicial Conduct finds that Hearing Officers Hagstette, Licata and Wallace violated the law “by strictly following directives not to issue personal bonds to defendants per the instructions of the judges in whose court the underlying cases were assigned.” The Hearing Officers’ “conduct was motivated by direct instructions from individual judges who played a role in [their] continued employment.”)
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The Hearing Officers believed themselves to be bound by these rules and understood that the
judges could hire and fire them at will.16 The Hearing Officers’ contracts are reviewed annually
by a committee that includes several of the felony judges.17 For decades, Hearing Officers simply
reviewed the bail amount previously affixed to ensure that it conformed to the schedule and the
specific policy supplemental instructions from the felony judges.18 Id. ¶ 41.
These instructions included charts and emails instructing Hearing Officers about who
could be released on personal bonds and in what circumstances Hearing Officers could deviate
from the cash bail schedule (rarely, according to the instructions).19 Id. ¶ 42. For example, the
Ex. G at 35 (HARRISCO_CourtOrder 1758) (written testimony of Eric Hagstette: “The Hearing Officers serve many masters. The Hearing Officers exercise the discretion they can within the bounds set.”); id. at 30 (HARRISCO_CourtOrder 1753) (written testimony of Eric Hagstette: “Most of the District Court Judges also had specific rules to follow in consideration of bond. . . . The County Criminal Court at Law Judges historically had similar rules.”); see also id. at 29–37 (HARRISCO_CourtOrder 1752–60) (full written testimony of Eric Hagstette); id. at 19– 26 (HARRICO_CourtOrder 1762–69) (full written testimony of Jill Wallace); id. at 48–54 (HARRISCO_CourtOrder 1771–77) (full written testimony of Joseph Licata, III). 16 See Ex. H (ODonnell, Dkt. 523-2) at 11, 16, 21 (Hearing Officers Hagstette, Licata and Wallace stated that “a job description by the board of judges made clear the Hearing Officers are ‘at will employees,’ [and] that the Hearing Officers are the ‘delegates’ of the judges trying criminal cases.”); id. at 11 (Hearing Officer Hagstette testified that Hearing Officers could “be dismissed at any time by the same board that appoints us.”); id. at 11, 16, 21 (Email from retired hearing officer) (“You may never, never ever give a PR bond to a defendant in any of the District courts. This would probably get you fired.”); id. at 12 (Hearing Officer Hagstette testified that the hearing officers “didn’t write the policies, but we had to follow them.” Regarding the Hearing Officers making bond determinations on cases, he stated: “Could I do something? Probably by law, I could have. I don’t know if it would have been good for my career.”); id. at 13, 17-18, 23 (State Commission on Judicial Conduct finds that Hearing Officers Hagstette, Licata and Wallace violated the law “by strictly following directives not to issue personal bonds to defendants per the instructions of the judges in whose court the underlying cases were assigned.” The Hearing Officers’ “conduct was motivated by direct instructions from individual judges who played a role in [their] continued employment.”) 17 See Ex. H (ODonnell, Dkt. 523-2) at 71 (Declaration of Judge Paula Goodhart) (“A statutorily mandated 9-judge board appoints the Harris County Criminal Law Hearing Officers . . . [including] judges from courts that handle felony cases. . . Hearing Officers serve one-year terms and continue to serve until a successor is appointed. The Board can recommend the termination of Hearing Officers, however any such recommendation must be approved by [the] Commissioners [Court].”); Ex. G at 29 (HARRICO_CourtOrder 1762–69) (Written testimony of Hearing Officer Hagstette) “Hearing Officers are appointed by a nine member board made up of three judges of the district courts. . . Each Hearing Officer is appointed for a one year term that can be renewed, at the board's discretion, each year. The same board can terminate a Hearing Officer at any time.”). 18 Supra nn.15–16. 19 See Ex. G at 30, 40, 49 (HARRICO_CourtOrder 1753, 1763, 1772) (Written testimony of Hearing Officers Hagstette, Wallace and Licata) (“Until March 27, 2017, several of the District Court Judges did not permit Hearing Officers to grant personal bonds, instructing that personal bond applications be referred to the assigned trial court for consideration. Most of the District Court Judges also had specific rules to follow in consideration of bond. Included with this response are representative copies of charts outlining the specific instructions issued to the Hearing
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felony judges instructed Hearing Officers that they could never grant homeless individuals
personal bonds.20 Some judges instructed Hearing Officers never to set non-financial conditions
for any person who was assigned to their courtroom at all, or for particular categories of
individuals.21 Id. ¶ 43. Judges placed other policy limitations on Hearing Officers.22 Id. ¶ 44.
Although the felony judges purportedly rescinded these instructions in 2017 (after a
federal lawsuit was brought challenging similar practices in misdemeanor cases) with the
implementation of a new felony bail schedule, Hearing Officers continue to require secured
financial conditions of release without making findings concerning ability to pay, the necessity
of pretrial detention, or the adequacy of alternative conditions, and without application of the
clear-and-convincing-evidence standard or a statement of reasons concerning why a particular
financial condition or pretrial detention is necessary. Id. ¶ 45.
D. People Who Cannot Afford Money Bail Will Often Be Detained For Two to Four Weeks Prior to First Appearance
If an arrestee is unable to pay the secured bail amount initially set, she routinely must
wait two to four weeks, or longer, to be taken to court for a first appearance. See Ex. I (Felony
Court Docket Schedules) (showing that the judges’ “jail dockets”23 are scheduled only every
Officers.”); Ex. G at 186-211 (HARRISCO_CourtOrder 1909-1934) (Chart of written instructions from District Court Judges to Hearing Officers). 20 See, e.g., Ex. G at 189 (HARRISCO_CourtOrder 1912) (Written instructions from 185th District Court Judge to Hearing Officers authorizing personal bonds only for arrestees who are “not homeless.”); id. (Written instructions from 232nd District Court Judge to Hearing Officers authorizing personal bonds only for arrestees who have “no prior criminal history” and a “confirmed place to live and phone #.”); id. at 190 (HARRISCO_CourtOrder 1912) (Written instructions from 337th District Court Judge to Hearing Officers authorizing personal bonds only for arrestees who have a “confirm[ed] place to live”.) 21 See, e.g., Ex. G at 186-211 (HARRISCO_CourtOrder 1909-1934) (Chart of written instructions from District Court Judges to Hearing Officers) (Multiple Judges answering “No.” to the question “Can the hearing officers grant pre-trial bonds?”) 22 See, e.g., Ex. G at 188 (HARRISCO_CourtOrder 1911) (Written instructions from 177th District Court Judge to Hearing Officers authorizing personal bonds for “Full time students not charged with Burg Hab or 3(g).”) 23 The Felony Judges preside over “bond dockets” and “jail dockets.” The term “bond docket” refers to a docket of cases in which the person has been released and must appear for a pretrial proceeding. The term “jail docket” refers to a docket of people who are detained and will be brought to the courthouse from the jail for a pretrial proceeding.
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other week, though in practice, the judges’ dockets are so crowded that arrestees routinely wait until the second “jail docket” that occurs after their arrest); Ex. D ¶ 48.
Even then, there is typically no review of the money bail amount previously imposed, except that some judges revoke personal bonds or increase the monetary amount set by the magistrate and without notice or a formal hearing. Id. ¶ 49. Although an informal, off-the-record request for a reduction in the amount required may theoretically occur at first appearance, the felony judges do not provide for an adversarial bail hearing on the record at that time. Id. ¶ 50.
As a matter of routine practice, the felony judges do not conduct bail hearings at first appearance: they make no findings concerning ability to pay; they make no findings as to whether pretrial detention is necessary to serve any government interest; they do not allow arrestees to confront the evidence and arguments of the government or put on evidence and argument in support of pretrial release; and they do not provide other basic procedural safeguards, such as making findings by clear and convincing evidence, or providing any reasons concerning why a particular financial condition or pretrial detention is required. Id. ¶ 51. Detained individuals typically remain in lock-up outside of the courtroom and are not brought into the courtroom. Id. ¶ 52. The case is almost always then “reset,” meaning that another hearing is scheduled, typically weeks in the future. Id. ¶ 53. As a result, individuals who cannot pay remain in detention and are returned to the jail, usually without ever having been brought into the courtroom. Id. ¶ 54.
If a person wishes to have an evidentiary hearing concerning their pretrial detention, the person’s lawyer usually must file a motion and then schedule a court proceeding for a later date. Id. ¶ 55. A hearing on the motion will likely not occur for more than a week after the motion is filed—likely longer in light of the current public health crisis and the decreased number of open courtrooms. Id. ¶ 56; Ex. J (Court Operations Emergency Order).
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E. The System Affects Thousands of People Every Day On a typical day, about 90 people are arrested for felonies in Harris County.24 At any given moment, there are more than 500 people charged only with state jail felonies—the least serious class of felonies in the Texas legal system, consisting mostly of non-violent offenses or misdemeanors enhanced by prior misdemeanors, including possession of marijuana and lowlevel theft offenses—who are being detained in the Harris County Jail solely because they cannot afford money bail.25 In 2017, the most recent year for which data is available, about 55% of felony arrestees were still in jail when their case ended.26 In 2017 alone, there were more than 800 people who were detained at disposition because they could not pay a money bail of $2,000 or less.27
F. Effects of Detaining People Due to Inability to Pay Individuals detained pretrial have worse case outcomes.28 People detained at disposition

24 Harris County Pretrial Services, 2018 Annual Report (2018), at 6, https://pretrial.harriscountytx.gov/Library/2018%20Annual%20Report.pdf (showing 33,676 felony arrests in 2018).

25 Texas Commission on Jail Standards, Abbreviated Population Report for 1/1/2020, at 4, https://www.tcjs.state.tx.us/wp-content/uploads/2020/02/AbbreRptCurrent.pdf (showing that there are 773 pretrial arrestees charged with state jail felonies held in Harris County).

26 Harris County Pretrial Services, 2017 Annual Report (2017), at 16, https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf (showing in Table B.1 that roughly 45% of felony arrestees are released on some form of bond).

27 Id. at 16(showing in Table B.1 that over 800 felony arrestees with bail amounts from $501-$2000 were unable to post money bail; there were 5014 bonds under $2,000, and 4130 of those bonds were posted).

28 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016),

https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; Arpit Gupta, Christopher Hansman

and Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization, at 13 (finding a 12%

increase in the likelihood of conviction using the same data); Sarah R. Guidry, et al., A Blueprint for Criminal Justice

Policy

Solutions

in

Harris

County

(2015),

http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2015/ls_sclaid_summit_03_tcjc

_2015_harris_county_blueprint.authcheckdam.pdf at 13 (“[D]efendants who are not released pre-trial are more likely

to be incarcerated following a conviction, and they generally receive longer sentences upon conviction.”); Lise Olson,

Study: Inmates who can’t afford bond face tougher sentences, Houston Chron. (Sept. 15, 2013),

http://www.houstonchronicle.com/news/houston-texas/houston/article/Study-Inmates-who-can-t-afford-bond-face-

tougher-4817053.php (discussing Carlos Mathis, an African-American man, who was detained in jail for seven months

on minor drug and theft charges because he could not afford money bail, and whose charges were dismissed); Isami

Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and the Effects of Pretrial Services Programs

(Mar. 11, 2013),

http://www.pretrial.org/download/research/Racial%20Disparities%20at%20Pretrial%20and%20Sentencing%20and

%20the%20Effects%20of%20Pretrial%20Services%20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones,

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are more likely to be convicted, more likely to be sentenced to jail, less likely to be sentenced to probation, and given longer sentences than similarly situated people released pretrial.29 People
detained have a more difficult time preparing their defense, gathering evidence and witnesses,
and meeting their lawyers. Detained people are more likely to plead guilty, even if they are innocent.30 Harris County has led the country for years in exonerations—many of which resulted from wrongful convictions in drug cases involving people who pled guilty to get out of jail.31
Relying on access to cash creates racial disparities. Money bail is disproportionately imposed on non-white arrestees.32 Non-white arrestees disproportionately are unable to afford money bail.33 Regardless of the amount imposed, people of color are more likely to be detained at disposition than whites.34 One study found that even when criminal charges and criminal
histories are the same, black men receive money bail that is 35% higher on average, when
compared to all arrestees, while Hispanic men receive money bail that is 19% higher than the average for all arrestees.35 Moreover, money bail amounts for black arrestees are $7,000 higher
“Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013); Tina L. Freiburger, et. al, The Impact of Race on the Pretrial Decision, 35 Am. J. of Crim. Just. 76 (2010), http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf. 29 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017) . 30 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; see also Gupta, et. al, supra n. 28 at 13 (finding a 12% increase in the likelihood of conviction using the same data). 31 Alex Samuels, Study finds Harris County leads nation in exonerations, Texas Tribune (Mar. 7, 2017) https://www.texastribune.org/2017/03/07/report/. 32 Gupta, et. al, supra n. 28 at 4–5. 33 Steven Demuth, Racial and Ethnic Difference in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black, and White Felony Arrestees, 41 J. of Crim. 873, 897 (2003). 34 Id. 35 Jonah B. Gelbach and Shawn D. Bushway, Testing for Racial Discrimination in Bail Setting Using Nonparametric Estimation of a Parametric Model (Aug. 20, 2011).
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for violent crimes and $13,000 higher for drug crimes.36 Another study revealed that African-
American arrestees were 66% more likely than white arrestees to be jailed pretrial.37 African-
Americans and Latinos were twice as likely to receive bond amounts they could not pay.38
Unnecessary pretrial detention causes instability in employment,39 housing,40 and care for
dependent relatives.41 Children of incarcerated parents suffer enormous social, emotional,
educational, and economic harms.42 Approximately half of all people detained in the Harris
County Jail have a child.43 Each year, almost 93,000 children are separated from a parent in Harris
County Jail, which is 7% of all children in the County.44 These children “can experience multiple
difficulties after parental incarceration, including traumatic separation, loneliness, stigma,
confused explanations to children, unstable childcare arrangements, strained parenting, reduced
income, and home, school, and neighborhood moves.”45 “[R]igorous studies show[] that parental
36 Id. 37 Steven Demuth, Racial and Ethnic Difference in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black, and White Felony Arrestees, 41 J. of Crim. 873, 897 (2003). 38 Id. 39 Will Dobbie, Jacob Goldin & Crystal Yang, The Effects of Pretrial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, 108(2) AM. ECON. REV. 201, 204 (2018). 40 Mark Pogrebin, Mary Dodge & Paul Katsampes, The Collateral Costs of Short-Term Jail Incarceration: The LongTerm Social and Economic Disruptions, CORR. MGMT. Q., Fall 2001, at 64, 64-65. 41 Wendy Sawyer, Prison Policy Initiative, How does unaffordable money bail affect families? (2018) (One study “found that 56% of the detained [pretrial] defendants were parents. Alarmingly, 40.5% of those in this study said that pretrial detention would change — or already had changed — the living situation for a child in their custody.), https://www.prisonpolicy.org/blog/2018/08/15/pretrial/. 42 Nancy P. Correa et al., THE FORGOTTEN FAMILIES: A NEEDS ASSESSMENT ON CHILDREN WITH INCARCERATED PARENTS IN HARRIS COUNTY, TEXAS 8 (February 2019), https://www.texaschildrens.org/sites/default/files/uploads/documents/Children%20of%20Incarcerated%20Parents% 20Report%20Final.pdf (listing multiple negative impacts of parental incarceration). 43 Id. 44 Id. 45 Murray J, Farrington DP, Sekol I. Children’s antisocial behavior, mental health, drug use, and educational performance after parental incarceration: A systematic review and meta-analysis. Psychological Bulletin. 2012;138(2):175-210.
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incarceration is associated with higher risk for children's antisocial behavior.”46 Children of
detained individuals are significantly more likely to drop out of school, which creates a long-term cost to society of roughly $260,000 per child.47 Separation due to incarceration can have lifelong
consequences for child development, including increased attention difficulties and aggressive behavior.48 Even a temporary separation has an enormous negative impact on the health of
children later in life; in one study, separation for as short as a week within a child’s first 2 years of life was related to higher levels of child negativity and aggression.49 Many parents struggle to
restore the parent-child bond once it has been disrupted by a separation, with the attachment bond between parents and children threatened by fear and lack of safety.50
Financial conditions also harm those who are released, the vast majority of whom pay
non-refundable premiums to private corporations for release. In 2017, approximately 78% of Harris County felony arrestees who were released paid a company to get out of jail.51 In 2017, felony pretrial arrestees paid approximately $13.5 million dollars of non-refundable premiums.52
Overwhelmingly, these individuals come from the poorest zip codes in Harris County.
G. The Efficacy of Money Bail as Compared to Less-Restrictive Alternatives
Setting a secured money bail amount in an amount higher than a person can afford by
46 Id. 47 Shima Baradaran Baughman, Costs of Pretrial Detention, BOSTON UNIVERSITY LAW REVIEW, VOL. 97:1 (2017), 7. 48 Geller A, Cooper CE, Garfinkel I, Schwartz-Soicher O, Mincy RB. Beyond Absenteeism: Father Incarceration and Child Development. Demography. 2012;49(1):49-76. 49 Howard K, Martin A, Berlin LJ, Brooks-Gunn J. Early Mother-Child Separation, Parenting, and Child Well-Being in Early Head Start Families. Attach Hum Dev. 2011;13(1):5-26. doi:10.1080/14616734.2010. 488119 50 Wood LCN. Impact of punitive immigration policies, parent-child separation and child detention on the mental health and development of children. BMJ Paediatr Open. 2018;2(1). 51 Harris County Pretrial Services, 2017 Annual Report (2017), at 16-17, https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf (11,562 felony arrestees posted surety bonds and a total of 14,743 were released on any type of bond). 52 Id. at 17.
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definition defeats the theoretical purpose of money bail—to incentivize a person to return to court—and removes any legitimate interest in requiring a monetary payment as a condition of release. Studies show that just two days of pretrial detention increases the likelihood of future arrests and increases the future risk level of low-level offenders.53 The empirical evidence shows no relationship between requiring money bail as a condition of release and rates of appearance.54
Instead of relying on money, other jurisdictions release arrestees with assistance, such as court reminders or transportation vouchers, that promote court attendance and public safety without requiring detention. Other jurisdictions employ numerous strategies for assuring public safety and court appearance that do not result in pretrial detention. These strategies include: unsecured bonds (which do not require payment up front for release but instead allow immediate release upon a promise to pay the monetary amount if the person does not appear as required), reporting obligations, two-way phone and text-message reminders of court dates, rides to court for those without transportation or a stable address, flexible court appearances including evening and weekend court sessions for those with jobs they cannot miss, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, personal sureties, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other alternatives.
Jurisdictions all over the country have instituted simple alternatives to the unlawful system of jailing the poor and freeing the rich after arrest. They routinely using non-monetary conditions of release achieve high rates of court appearance and public safety. For decades, Washington, D.C. has run its pretrial system without the use of money bail. The District operates an “in or out” pretrial system in which decisions about release or detention are made without
53 Laura and John Arnold Foundation, Research Summary: Pretrial Criminal Justice Research (2013). 54 Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 5 (May 2, 2016), http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf (“We find no evidence that money bail increases the probability of appearance.”).
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regard to a defendant’s wealth. D.C. releases 75% of felony arrestees and 98% of misdemeanor arrestees pretrial.55 Overall, it has a low pretrial detention rate of 6%.56 In 2019, 88% of defendants made all scheduled court appearances.57 Only 1% of released defendants were arrested for violent crimes.58
In 2017, New Jersey overhauled its pretrial system, virtually eliminating the use of secured money bail. New Jersey currently has a pretrial detention rate of only 6.4% of all defendants.59 71% of all defendants are released on a summons. They are not booked into jail and are given a summons to appear in court.60 In addition to a low rate of pretrial detention, New Jersey has a high rate of court appearance: almost 90% of defendants appear for court appearances.61 Moreover, New Jersey’s pretrial population dropped by over 25% in the last two years62 while violent crime fell by more than 30%.63 Defendants are permitted by state (and federal) law to use these alternatives but routinely choose not to.
In July 2017, the Chief Judge in Cook County, Illinois, issued an order prohibiting judges from using money bail to detain, and requiring any secured financial condition to be based on a
55 Washington D.C. Pretrial Services Agency, FY 2019 Release Rates for Pretrial Defendants within Washington, DC, https://www.psa.gov/sites/default/files/2019%20Release%20Rates%20for%20DC%20Pretrial%20Defendants.pdf. 56 Id. 57 Washington D.C. Pretrial Services Agency, FY 2021 Congressional Budget at 12, https://www.psa.gov/sites/default/files/FY2021%20PSA%20Congressional%20Budget%20Justification_0.pdf. 58 Id. 59 New Jersey Judiciary, 2018 Report to the Governor and the Legislature at 8. available at https://njcourts.gov/courts/assets/criminal/2018cjrannual.pdf?c=dSE. 60 Id. at 5. 61 Id. 62 NJ Courts, Criminal Justice Reform Information Ctr., Criminal Justice Reform Statistics: Jan. 1 – Jun. 31, 2019, 6 (2009), https://njcourts.gov/courts/assets/criminal/cjrreport2018.pdf?cacheID=t9KI5Gk. 63 Star-Ledger Editorial Board, Has bail reform been a success? Check the crime numbers, then decide, Star-Ledger (Dec. 5, 2018), https://www.nj.com/opinion/2018/12/has_bail_reform_been_a_success_check_the_crime_num.html.
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finding on the record that the individual “has the present ability to pay” the sum.64 Since the order
took effect in September 2017, the daily jail population has decreased by approximately 1,650
people.65 Moreover, 83.2% of defendants made all of their court appearances,66 and very small
fraction (0.6%) of defendants were charged with a new violent offense while on pretrial release
and violent crime in Chicago fell by 8% after the order was put in place.67
Defendants have no basis for believing that people released on secured bail in Harris
County are more likely to return to court or are more likely to remain crime-free in the pretrial
period. Indeed, Defendants have not studied the question of the comparative efficacy of secured
bail versus less-restrictive alternatives. Empirical evidence proves that unsecured bond is at least
as effective at promoting appearance in court as secured money bail.68 Empirical evidence also
demonstrates that secured money bail does not have any positive benefit to public safety.69 In
Texas, a person cannot forfeit a secured money bail by committing a new crime.70Accordingly,
paying money bail cannot incentivize law-abiding behavior. And, in fact, short periods of pretrial
64 The Order is available at http://www.cookcountycourt.org/Manage/DivisionOrders/ViewDivisionOrder/tabid/298/ ArticleId/2562/GENERAL-ORDER-NO-18-8A-Procedures-for-Bail-Hearings-and-Pretrial-Release.aspx. 65 Circuit Court of Cook County, Bail Reform in Cook County: An Examination of General Order 18.8A and Bail in Felony Cases (May 2019), available at http://www.cookcountycourt.org/Portals/0/Statistics/Bail%20Reform/Bail%20Reform%20Report%20FINAL%20%20%20Published%2005.9.19.pdf (showing that the jail population decreased from 7,443 in September 2017 to 5,799 in December 2018). 66 Id. at 2. 67 Id. at 1-2. 68 Michael R. Jones, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release System, Pretrial Justice Institute (2013). 69 Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 768 (2017) (concluding, after reviewing hundreds of thousands of cases, that detention for even brief periods because of inability to pay money bail led to higher rates of conviction, longer sentences, and a greater likelihood of commission of new crimes in the future); Arpit Gupta et al., The Heavy Costs of High Bail: Evidence from Judge Randomization 21 (2016) (“Our results suggest that money bail has a negligible effect or, if anything, increases failures to appear.”); Christopher T. Lowenkamp et al., The Hidden Costs of Pretrial Detention 4 (2013) (“The longer low-risk defendants are detained, the more likely they are to have new criminal activity pending trial.”). 70 ODonnell, 251 F. Supp. 3d at 1009 (citing Tex. Code Crim. Pro. Art. 22.01–02; 22.13(5)).
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detention actually increase the likelihood of future crime.71 The current system is not only effective; it is also expensive and wasteful: Harris County spends $88 per day per person detained, as compared to $0.88 per day per person who is supervised in the community. Alternative tools save taxpayer expense while maintaining high public safety and court appearance rates.
V. Summary of the Argument “In our society liberty is the norm, and detention prior to trial . . . is the carefully limited
exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). But Harris County detains approximately 55 percent of all felony arrestees—tens of thousands of people every year—for the duration of their cases solely because they cannot pay money bail.72 This automatic detention of impoverished people is not an “exception” at all, let alone a “carefully limited” one.
Plaintiffs’ constitutional claims have both substantive and procedural aspects. See, e.g., Washington v. Harper, 494 U.S. 210, 220 (1990) (explaining the interaction between claims that share substantive and procedural aspects). Substantively, Plaintiffs’ claims flow from two lines of precedent. First, equal protection and due process forbid jailing a person solely because of her inability to make a payment. ODonnell v. Harris County, 892 F.3d 147, 161 (5th Cir. 2018); Bearden v. Georgia, 461 U.S. 600, 665 (1983); Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978); Frazier v. Jordan, 457 F.2d 726, 728 (5th Cir. 1972). Second, due process protects a “fundamental” right to pretrial liberty. United States v. Salerno, 481 U.S. 739, 750 (1987).
71 Laura and John Arnold Foundation, Research Summary: Pretrial Criminal Justice Research (2013); Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 768 (2017) (concluding, after reviewing hundreds of thousands of cases, that detention for even brief periods because of inability to pay money bail led to higher rates of conviction, longer sentences, and a greater likelihood of commission of new crimes in the future); Christopher T. Lowenkamp et al., The Hidden Costs of Pretrial Detention 4 (2013) (“The longer low-risk defendants are detained, the more likely they are to have new criminal activity pending trial.”). 72 Supra n. 26.
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The two substantive constitutional rights at issue—the right against wealth-based detention and the fundamental right to pretrial liberty—cannot be infringed unless the government demonstrates that wealth-based pretrial detention is necessary to serve a compelling interest.73 Thus, before requiring a person to make a monetary payment in exchange for release from detention, the government must make findings concerning the person’s ability to pay. If the person cannot pay the amount required, such that the condition of release will function as a de facto detention order, then the government must justify the order to pay unattainable bail in the same way that it justifies a transparent order of detention.
Procedurally, the Constitution requires the government to provide safeguards to protect against the erroneous deprivation of these substantive rights. Harper, 494 U.S. at 228; ODonnell, 892 F.3d at 157 (“‘The first question [in procedural-due-process analysis] asks whether there exists a liberty interest which has been interfered with by the State; the second examines whether the procedures attendant upon that deprivation were constitutionally sufficient.’”) (quoting Meza v. Livingston, 607 F.3d 392, 399 (5th Cir. 2010)). Here, the safeguards required include notice, an opportunity to be heard and to present and confront evidence at a hearing with counsel, and
73 The Fifth Circuit held that “heightened” scrutiny applies to policies infringing the right against wealth-based detention. ODonnell, 2018 WL 2465481, at *9. Strict scrutiny and intermediate scrutiny are both forms of “heightened” scrutiny. ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1138 (S.D. Tex. 2017) (citing Lauder, Inc. v. City of Houston, 751 F. Supp. 2d 920, 933 (S.D. Tex. 2010), aff'd., 670 F.3d 664 (5th Cir. 2012)). Both require the government to show that its policy is narrowly tailored to a compelling interest. Id. Under strict scrutiny, the policy must be necessary to achieve that interest. Id. Under intermediate scrutiny, the policy is constitutional only if it “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Id. (quoting Lauder, 751 F. Supp. 2d at 933).
Rainwater did not address whether strict or intermediate scrutiny applies in the context of wealth-based detention. But Frazier, which is binding, explicitly applied strict scrutiny, 457 F.2d at 728, consistent with Bearden’s later rejection of wealth-based detention because the government’s interest could “be served fully by alternative means,” 461 U.S. at 671-72. This Court need not resolve which form of heightened scrutiny applies if it finds that the practices flunk intermediate scrutiny, or if it concludes that Defendants’ policies infringe Plaintiffs’ fundamental right to pretrial liberty, because strict scrutiny unquestionably applies when a fundamental right is at issue.
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findings on the record by clear and convincing evidence explaining the basis for detention. Defendants evade the findings and safeguards required for pretrial detention.
VI. Argument A. Standard of Review
A preliminary injunction is warranted if the movant demonstrates: “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). Plaintiffs easily satisfies each of these requirements.
B. Plaintiffs are Likely to Succeed on the Merits This motion raises constitutional issues that are similar to the ones this Court confronted in ODonnell v. Harris County, challenging misdemeanor bail practices in Harris County. The Fifth Circuit did not, however, have occasion to resolve several of the substantive and procedural constitutional issues Plaintiffs raise in this case. Nonetheless, other federal courts have applied this Court’s and the Fifth Circuit’s reasoning in issuing orders enjoining the same equal protection and due process violations when those violations have been committed against people accused of felony offenses. See Schultz v. Alabama, 330 F. Supp. 3d 1344, 1376 (N.D. Ala. 2018) (granting preliminary injunction), appeal filed sub. nom. Hester v. Gentry, No. 18-13894 (11th Cir. Sept. 13, 2018); Caliste v. Cantrell, 329 F. Supp. 3d 296, 320 (E.D. La. 2018) (issuing declaratory judgment), aff’d on other grounds, 937 F.3d 525 (5th Cir. 2019).
1. The Constitution protects a right against wealth-based detention and a right to pretrial liberty
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The Equal Protection and Due Process Clauses protect a substantive right against wealthbased detention. Rainwater, 572 F.2d at 1057 (“The incarceration of those who cannot [pay money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.”); ODonnell, 892 F.3d at 161; Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. at 244; Bearden, 461 U.S. at 665; Frazier, 457 F.2d at 728 (holding that an order to pay a fine or serve time in jail violates equal protection and due process unless it is “necessary to promote a compelling governmental interest” (quotation and citation omitted)); see also Brief of Conference of Chief Justices as Amicus Curiae in Support of Neither Party at 35, ODonnell, 2017 WL 3536467, at *24 (5th Cir. Aug. 9, 2017) (“[A]ll the concerns that attend post-conviction deprivations based on indigence apply with even greater force where a defendant has not been convicted of a crime. . . . If a state may not imprison convicted indigent defendants solely ‘on account of their poverty,’ how can a state constitutionally detain presumably innocent persons for the same reason?”). In ODonnell, the Fifth Circuit held that Harris County’s practices—in which “poor arrestees . . . are incarcerated where similarly situated wealthy arrestees are not, solely because the indigent cannot afford to pay a secured bond”— creates a “basic injustice.” 892 F.3d at 162. The Court concluded that heightened scrutiny applies when the government infringes the right against wealth-based detention and that Harris County failed to justify its practices under that scrutiny. Id.
But ODonnell did not consider the second substantive constitutional right in this case: the “fundamental” federal right to pretrial liberty. See id. at 157 (“Here, our focus is the law of Texas.”); Salerno, 481 U.S. at 750 (recognizing the “importance and fundamental nature” of “the individual’s strong interest in liberty”); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause
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from arbitrary governmental action.”) (citing Youngberg v. Romeo, 457 U.S. 307, 316 (1982)); Zadvydas v. Davis, 533 U.S. 678, 690 (2001); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 780 (9th Cir. 2014) (en banc) (applying strict scrutiny to Arizona pretrial detention law because it infringed on the “fundamental” right to pretrial liberty); In re Humphrey, 19 Cal. App. 5th 1006, 1049 (Ct. App. 2018) (review pending) (recognizing the “fundamental constitutional right to pretrial liberty”); Brangan v. Commonwealth, 80 N.E.3d 949, 961 (Mass. 2017) (holding that the right to pretrial liberty is “fundamental”); Buffin v. City & Cty. of San Francisco, No. 15-CV-04959-YGR, 2018 WL 424362, at *6 (N.D. Cal. Jan. 16, 2018) (holding that pretrial detention “implicates plaintiffs’ fundamental right to liberty”). The Conference of Chief Justices recently affirmed this principle. Brief of Conference of Chief Justices at 38 (“[T]he right of an accused to freedom pending trial is inherent in the concept of a liberty interest protected by the due process clause of the Fourteenth Amendment.” (quoting Dodds v. Richardson, 614 F.3d 1185, 1192 (10th Cir. 2010))). Deprivation of this right requires a finding that pretrial detention of a presumptively innocent person is necessary to serve a compelling interest.
2. Defendants violate Equal Protection and Due Process by requiring unattainable financial conditions without making a finding that detention is necessary to serve a compelling government interest
Defendants impose unattainable financial conditions of release that function as detention orders without providing the substantive findings and procedural safeguards required by equal protection and due process to justify an order of detention. Plaintiffs are therefore likely to succeed on the merits of their claims. Schultz, 330 F. Supp. 3d at 1376; Caliste, 329 F. Supp. 3d at 320.
a. An unattainable financial condition is the functional equivalent of an order of pretrial detention
Applying Salerno, every appellate court to consider the question has held that an order requiring an unattainable financial condition of release is a de facto order for pretrial detention.
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ODonnell, 892 F.3d at 162 (holding that Defendants’ practices result in the “absolute deprivation of [indigent misdemeanor arrestees’] most basic liberty interests—freedom from incarceration”); see also, e.g., United States v. Leathers, 412 F.2d 169, 171 (D.C. Cir. 1969) (“[T]he setting of bond unreachable because of its amount would be tantamount to setting no conditions at all.”); United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991) (“[O]nce a court finds itself in this situation—insisting on terms in a “release” order that will cause the defendant to be detained pending trial—it must satisfy the procedural requirements for a valid detention order[.]”); State v. Brown, 338 P.3d 1276, 1292 (N.M. 2014) (“Intentionally setting bail so high as to be unattainable is simply a less honest method of unlawfully denying bail altogether.”); Brangan, 80 N.E.3d at 963 (unattainable money bail “is the functional equivalent of an order for pretrial detention, and the judge’s decision must be evaluated in light of the same due process requirements applicable to such a deprivation of liberty.”); Humphrey, 228 Cal. Rptr. 3d at 517. This Court in ODonnell reached the same conclusion, stating that when secured money bail is set “at unpayable amounts,” it operates “as [a] de facto pretrial detention order.” 251 F. Supp. 3d at 1150; id. at 1131, 1156, 1161 (holding that secured money bail set in an amount that an arrestee cannot afford is constitutionally equivalent to a detention order). Indeed, the court found that Harris County had a “policy and practice of imposing secured money bail as de facto orders of pretrial detention.” Id. at 1059-1060 aff’d as modified, 892 F.3d 147 (emphasis added).
b. Pretrial detention requires the government to demonstrate necessity, regardless of whether the detention results from a transparent order or a de facto one
Pursuant to either the Bearden-Frazier-Rainwater wealth-based detention cases, or the fundamental right to pretrial liberty articulated in Salerno, an unattainable financial condition of release is unconstitutional unless the government demonstrates that less-restrictive alternatives are
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inadequate and incapacitation is therefore necessary to serve a compelling government interest in court appearance or community safety.
Because a person’s “interest in liberty” is “fundamental,” the Supreme Court has held that it is a “‘general rule’ of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial.” Salerno, 481 U.S. at 750, 749. Like other constitutional rights, however, the right to pretrial liberty is not absolute: the government may deprive a person of her right to pretrial liberty if the government’s interest is sufficiently compelling and the deprivation is narrowly tailored—meaning that pretrial detention is necessary because alternatives are inadequate—to serve that interest. Salerno, 481 U.S. at 749, 751 (describing the government interest in preventing serious pretrial crime as “compelling” and the statute as “careful[ly] delineat[ing] . . . the circumstances under which detention will be permitted”); Reno v. Flores, 507 U.S. 292, 301-302 (1993) (citing Salerno as part of its “line of cases which interprets … ‘due process of law’ to … forbid[] the government to infringe certain fundamental’ liberty interests … unless the infringement is narrowly tailored to serve a compelling state interest.”); Foucha, 504 U.S. at 81 (explaining that the statutory scheme Salerno addressed was “narrowly focused on a particularly acute problem in which the government interests [were] overwhelming.”); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (holding that the government may not infringe “‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”); Zablocki v. Redhail, 434 U.S. 374, 388 (1978) (noting that when the government’s action infringes a fundamental right, “it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests”).
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Not surprisingly in light of Reno and Foucha, the en banc Ninth Circuit has squarely held that “Salerno applied heightened scrutiny.” Lopez-Valenzuela, 770 F.3d at 780-781; id. at 780 (holding that the government must demonstrate that its “infringement [of pretrial liberty] is narrowly tailored to serve a compelling state interest”); accord, e.g., Simpson v. Miller, 387 P.3d 1270, 1276-1277 (Ariz. 2017) (“heightened scrutiny” applies where, as in Salerno, the “fundamental” “right to be free from bodily restraint” is implicated), cert. denied sub nom. Arizona v. Martinez, 138 S. Ct. 146 (2017). Under these cases, Defendants (like the government in Salerno) must establish that de facto pretrial detention through unattainable conditions of release is “narrowly tailored to serve a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993); see also ODonnell, 251 F. Supp. 3d at 1156–57 (holding that government action infringing pretrial liberty must be the least restrictive means necessary to promote court appearance and community safety); Reem, 2017 WL 6765247, at *1 (“The due process clauses of the Fifth and Fourteenth Amendments bar pretrial detention unless detention is necessary to serve a compelling government interest.”); Humphrey, 19 Cal. App. 5th at 1028, 1037 (holding that a person may be detained only if “no less restrictive alternative will satisfy” the government’s interests because pretrial detention is permissible “only to the degree necessary to serve a compelling governmental interest”); Brangan, 80 N.E.3d at 962 (holding that pretrial detention is permissible if “such detention is demonstrably necessary” to meet a compelling interest).
Independently, government action that infringes the right against wealth-based detention must likewise be necessary to serve a compelling government interest. In Frazier, the Fifth Circuit invalidated a practice requiring an indigent person to either pay a fine or be jailed after conviction because the alternative jail term was not “necessary to promote a compelling governmental interest.” 457 F.2d at 728 (quotations omitted). Frazier explained that there were “far less onerous
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alternatives” that would satisfy the “state’s interest in collecting its fine revenue.” Id.; see id. at 729–30 (reviewing adequate alternatives available). Bearden, similarly required “careful inquiry” into the state’s asserted interests and “the existence of alternative means for effectuating” those interests. 461 U.S. at 666, 667; id. at 672 (“Only if the sentencing court determines that alternatives to imprisonment are not adequate in a particular situation . . . may the State imprison a probationer[.]”; see also Rainwater, 572 F.2d at 1057 (explaining that the same principles apply prior to trial and that the Constitution requires “meaningful consideration of . . . alternatives” to “incarceration of those who cannot” pay a financial condition of release, and a finding that secured money bail “is necessary to reasonably assure defendant’s presence at trial.” (emphasis added)). Accordingly, if the government’s interest in “appearance at trial could reasonably be assured by … alternate [conditions] of release, pretrial confinement for inability to post money bail” is unconstitutional. Id. at 1058; see also Buffin, 2018 WL 424362, at *8 (holding that “an examination of the Bearden-Tate-Williams line of cases persuades the Court that strict scrutiny applies to plaintiffs’ Due Process and Equal Protection claims.”); ODonnell, 251 F. Supp. 3d at 1140 (“[P]retrial detention of indigent defendants who cannot pay a financial condition of release is permissible only if the court finds, based on evidence and in a reasoned opinion, either that the defendant is not indigent and is refusing to pay in bad faith, or that no less restrictive alternative can reasonably meet the government’s compelling interest”); id. at 1145 (before requiring an unaffordable financial condition, a judicial officer must make a finding that wealth-based detention “is the only reasonable way to assure the arrestee’s appearance at hearings and law-abiding behavior before trial”); Brangan, 80 N.E.3d at 965 (holding that an order requiring an unattainable condition must explain why “the defendant’s risk of flight is so great that no alternative, less
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restrictive financial or nonfinancial conditions will suffice to assure his or her presence at future court proceedings”); Humphrey, 19 Cal. App. 5th at 1026 (same).74
The Fifth Circuit in ODonnell held that “heightened scrutiny” applies to Harris County’s wealth-based bail practices. ODonnell, 892 F.3d at 161; id. at 157 (affirming this Court’s equal protection holding because detention due to inability to pay requires “‘meaningful consideration of other possible alternatives’” (quoting Rainwater, 572 F.2d at 1057)); id. (a court must explain why a “‘particular financial requirement is a necessary part of the conditions for release’ when setting a bond that a detainee cannot pay” (quoting United States v. McConnell, 842 F.2d 105, 110 (5th Cir. 1988) (emphasis added)))). Regardless of the label, the cases are clear that there must be a finding that detention is necessary because less-restrictive alternatives are inadequate to meet the government’s interests in court appearance and public safety.75
Therefore, under either line of cases, Plaintiffs are entitled to a preliminary injunction on their claim that Defendants violate equal protection and due process by detaining them without the substantive finding of necessity that is required for a valid order of pretrial detention.
3. Defendants do not provide adequate safeguards prior to detention Procedural-due-process analysis “proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S.
74 Imposing money bail cannot be justified by purported concerns about community safety because “[m]oney bail . . . has no logical connection to protection of the public, as bail is not forfeited upon commission of additional crimes. Money bail will protect the public only as an incidental effect of the defendant being detained due to his or her inability to pay, and this effect will not consistently serve a protective purpose, as a wealthy defendant will be released despite his or her dangerousness while an indigent defendant who poses minimal risk of harm to others will be jailed.” Id.at 1029; ODonnell, 251 F. Supp. 3d at 1109–10. 75 Moreover, in Harris County, Defendants have no basis for their policy using a secured bail schedule to automatically determine conditions of release prior to any adversarial hearing because they have no basis for believing that secured bail is as effective, let alone more effective, than less-restrictive alternatives at reasonably assuring court appearance or preventing bodily harm to another person. Indeed, rigorous research and evidence shows that alternatives to secured bail are at least as effective.
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216, 219 (2011) (citing Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). Plaintiffs satisfy the first step of the procedural-due-process inquiry because, as explained above, Plaintiffs have been deprived of two substantive liberty interests under federal law: the right against wealthbased detention and the “fundamental” “interest in [pretrial] liberty.” Salerno, 481 U.S. at 750. The second step of the procedural-due-process analysis—determining the procedures required for a valid pretrial detention order—proceeds under the Mathews v. Eldridge three-part balancing test, pursuant to which a court must consider, for each procedure: (1) “the private interest” at issue, (2) “the risk of an erroneous deprivation” absent the additional safeguard, and (3) the state’s interest in not providing it. 424 U.S. 319, 335 (1976).
The balancing of the Mathews factors establishes that, before a person can be detained pretrial, the government must provide notice of the relevant critical issues; an inquiry into ability to pay if a financial condition is contemplated; an adversarial hearing at which the arrestee is represented by counsel and has an opportunity to be heard, to present evidence, and to confront evidence offered by the government; meaningful consideration of less restrictive alternatives; and, if the decision-maker issues a transparent or de facto order of detention, findings on the record by clear and convincing evidence that detention is necessary, and a statement of reasons, supported by evidence that meets minimum standards of reliability, explaining the decision.
a. When requiring financial conditions, the government must conduct an inquiry into ability to pay and make on-the-record findings concerning ability to pay
As a threshold matter, when the government contemplates requiring a secured financial condition of pretrial release, it must provide procedures adequate to determine whether the monetary condition will operate as a detention order. The Supreme Court, the Fifth Circuit, and this Court have held that if the government seeks to condition physical liberty on a payment, due
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process requires notice that financial information will be collected and of the nature and significance of the financial information; an inquiry into the person’s ability to pay; and findings on the record as to whether the person has the ability to pay. See Turner v. Rogers, 564 U.S. 431, 447 (2011) (applying the Mathews test and holding that, before the state may jail a person for not paying child support, the government must provide notice that ability to pay is a “critical issue,” an opportunity to be heard, and “an express finding by the court that the defendant has the ability to pay”); Bearden, 461 U.S. at 673 (holding that, before the state can revoke probation for nonpayment, it must determine whether the person could afford to pay such that the nonpayment was willful); United States v. Payan, 992 F.2d 1387, 1396 (5th Cir. 1993) (the “court must inquire into the reasons” the person did not pay and determine whether she could afford to pay and willfully refused to do so); ODonnell, 251 F. Supp. 3d at 1144–45 (concluding that Harris County’s automatic use of secured money bail, without an inquiry into ability to pay, presents an intolerably high risk of erroneous deprivation, and that Defendants failed to demonstrate an interest in not providing these safeguards); id. at 1161 (requiring an inquiry into ability to pay and notice to arrestees about the significance of the financial information they provide). If, after notice and inquiry, the government considers requiring a secured bail amount that the person cannot pay, then further safeguards are required before the government may detain the person.
b. When pretrial liberty is at stake, the government must provide additional safeguards to protect against an erroneous deprivation of Plaintiffs’ fundamental rights
The substantive rights to pretrial liberty and against wealth-based detention require rigorous process to ensure the accuracy of any finding that preventive pretrial detention is necessary and to ensure that detention of the presumptively innocent remains the “carefully limited exception.” Salerno, 481 U.S. at 755.
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Salerno upheld the procedural protections required by the Bail Reform Act and emphasized that an order of detention under the Act may be issued only after the provision of robust safeguards, including: a “full-blown adversary hearing,” id. at 750, “findings of fact” by “clear and convincing evidence,” and a “statement of reasons for a decision to detain,” id. at 752. Balancing the individual and government interests at stake, the Mathews test makes clear that due process requires safeguards similar to the provisions the Supreme Court emphasized when it upheld that law.76
i. The government must provide notice, an adversarial hearing within 48 hours of arrest, and findings on the record
The procedures due process required prior to the deprivation of any liberty interest are well established. Most of them apply even in the post-conviction context, where a person’s liberty interest is diminished. In Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), the Court explained what due process requires at a probation revocation hearing for a person whose liberty interest has been diminished by a conviction: (a) “notice” of the critical issues to be decided; (b) “disclosure” of the evidence presented by the government; (c) an “opportunity to be heard in person and to present witnesses and documentary evidence”; (d) “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)”; (e) a “neutral and detached” factfinder; and (f) findings and reasons on the record of “the evidence relied on.” See also Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (holding that “the minimum requirements of due process” require the same six procedural protections for parole revocation of a convicted and sentenced person); Turner, 564 U.S. at 447 (requiring “notice to the defendant that ‘ability to pay’ is a critical issue,” the opportunity to be heard, and findings on the
76 Salerno addressed the procedural protections required for preventively detaining someone charged with certain particularly serious felony offenses, for only in such cases could the balance of interests that might permit deprivation of an individual’s “fundamental” right tilt in the government’s favor. Id. at 747, 750. Plaintiffs have not raised a claim here that due process prohibits pretrial detention of people charged with less-serious felony offenses.
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record); see also, e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (“Parties whose rights are to be affected are entitled to be heard.”); Concrete Pipe & Prods. of Cal.. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 617 (1993) (“[D]ue process requires a ‘neutral and detached judge in the first instance.’” (quoting Ward v. Village of Monroeville¸409 U.S. 57, 61–62 (1972))); Wolff v. McDonnell, 418 U.S. 539, 564–65 (1974) (requiring a statement of reasons for revocation of good-time credits). Because a bail hearing implicates the fundamental right to bodily liberty prior to trial, each of these safeguards is required. In ODonnell, the Fifth Circuit made clear that these safeguards must be provided within 48 hours. 892 F.3d at 160, 163.
ii. The government must prove by clear and convincing evidence that detention is necessary
When the government seeks to infringe the fundamental right to bodily liberty prior to or absent a criminal conviction, the government also bears a heightened evidentiary burden. As the Supreme Court explained in its seminal procedural due process decision in Addington v. Texas, 441 U.S. 418 (1979), the deprivation of the fundamental right to bodily liberty requires a heightened standard of proof beyond a mere preponderance to ensure the accuracy of the decision to detain. Since Addington, the Supreme Court has never permitted application of a standard lower than “clear and convincing” evidence in any context in which bodily liberty is at stake.
In Addington, the Supreme Court held that, under the Due Process Clause, the standard of proof required before a person can be confined in state custody for mental illness based on the possibility of future dangerousness must be “equal to or greater than” the “clear and convincing” evidentiary standard. Id. at 433. Applying the Mathews balancing test, the Court first articulated the government’s interest: “to protect the community from the dangerous tendencies of some who are mentally ill.” Id. at 426. However, the Court explained: “Since the preponderance standard creates the risk of increasing the number of individuals erroneously committed, it is at least unclear
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to what extent, if any, the state’s interests are furthered by using a preponderance standard in such commitment proceedings.” Id. The Court then balanced the important private interests and concluded that “the individual’s interest in the outcome of a civil commitment proceeding is of such weight and gravity that due process requires the state to justify confinement by proof more substantial than a mere preponderance of the evidence.” Id. at 427.
In determining what the appropriate due process standard was, the Court explained that requiring proof “beyond a reasonable doubt” was too stringent, particularly because of the nonpunitive nature of commitment and because, “given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment.” Id. at 432. The Court explained that in other contexts, such as deportation and denaturalization, it had consistently required the intermediate “clear and convincing” standard of proof to protect against erroneous deprivations of important individual interests. Id. at 424. The “clear and convincing” standard enables the government to achieve its interest when it has a convincing basis but rigorously protects the fundamental individual rights at stake. See id.
The Court has reached the same conclusion in every other context in which a person’s bodily liberty is at stake. See Santosky v. Kramer, 455 U.S. 745, 756 (1982) (“This Court has mandated an intermediate standard of proof—‘clear and convincing evidence’—when the individual interests at stake in a state proceeding are both ‘particularly important’ and ‘more substantial than mere loss of money.”); Cruzan by Cruzan v. Dir., Missouri Dep't of Health, 497 U.S. 261, 282–83 (1990) (explaining that the Court has required the clear and convincing evidence standard in deportation proceedings, denaturalization proceedings, civil commitment proceedings, proceedings for the termination of parental rights, in cases involving allegations of civil fraud, and in a variety of other kinds of civil cases implicating important interests).
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In its next seminal case on the evidentiary standard required for deprivation of bodily liberty, the Court struck down Louisiana’s statute for ongoing confinement of those acquitted on the basis of insanity. Foucha, 504 U.S. at 82–83. The Court held that although “[t]he State may [] confine a mentally ill person if it shows by clear and convincing evidence that the individual is mentally ill and dangerous, [h]ere, the State has not carried that burden.” Id. at 80 (quotation and citation omitted). In reaching this holding, Foucha relied on Salerno, 481 U.S. at 749, explaining that the Court had upheld the federal statute’s preventive detention mechanism in part because it required findings of dangerousness by the “clear and convincing” standard. Foucha held: “Unlike the sharply focused scheme at issue in Salerno, the Louisiana scheme of confinement is not carefully limited. Under the state statute, Foucha is not now entitled to an adversary hearing at which the State must prove by clear and convincing evidence that he is demonstrably dangerous to the community.” 504 U.S. at 81 (emphasis added). Foucha concluded with a reminder of the importance of the evidentiary standard: “[F]reedom from physical restraint being a fundamental right,” detention must remain the “carefully limited exception” in our society. Id. at 86, 83.
Lower courts, interpreting Salerno, have consistently required clear and convincing evidence to justify detaining a person prior to trial. Lopez-Valenzuela stuck down the Arizona pretrial detention statute in part because the Arizona law, unlike the federal Bail Reform Act, did not require the government to prove by clear and convincing evidence that an individual arrestee’s detention was necessary. 770 F.3d at 784–85. As the Ninth Circuit explained, one of the features that Salerno relied on was that the Act required the government “to prove by ‘clear and convincing evidence’ that the individual presented ‘a demonstrable danger to the community’ and that ‘no conditions of release c[ould] reasonably assure the safety of the community.’” Id. at 785. Most recently, in Humphrey, the court held under the federal Constitution that “[i]f [a] court concludes
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that an amount of bail the defendant is unable to pay is required to ensure his or her future court appearances, it may impose that amount only upon a determination by clear and convincing evidence that no less restrictive alternative will satisfy that purpose.” 19 Cal. App. 5th at 1037.77
The intermediate standard of “clear and convincing” evidence should apply regardless of whether the government seeks to detain a person pretrial based on a purported risk of public safety or a purported risk of flight because the private right at stake is the same. And the Court has already held in Santosky, Addington, and Foucha that fundamental private interests require a heightened standard before the government can infringe them, because those interests are “particularly important” and “more substantial than mere loss of money.” Santosky, 455 U.S. at 756. There is no compelling reason that “the degree of confidence our society thinks [it] should have in the correctness of factual conclusions,” id. at 755, should be lower when the question is whether a person poses a risk of flight than when the question is whether the person poses a danger.
Analogous case law from the immigration context, where the liberty interest is considered more constrained than in the pretrial context, supports this conclusion. See Singh v. Holder, 638 F.3d 1196, 1203, 1204 (9th Cir. 2011) (requiring clear and convincing evidence regardless of whether the government seeks detention based on flight or dangerousness because “due process places a heightened burden of proof [where] the individual interests at stake . . . are both particularly important and more substantial than mere loss of money.”); Lora v. Shanahan, 804 F.3d 601 (2d Cir. 2015) (same), vacated and remanded on other grounds, 138 S. Ct. 1260 (2018).
Only one court appears to have addressed in depth whether the standard of proof the government must satisfy to detain someone due to a concern about flight risk is the same as the
77 Numerous other state courts have held this standard to apply. See, e.g., State v. Ingram, 165 A.3d 797, 803, 805 (N.J. 2017); State v. Butler, No. 2011–K–0879, 2011 WL 12678268 (La. App. 4th Cir. July 28, 2011), writ not considered, 75 So. 3d 442 (La. 2011); Wheeler v. State, 864 A.2d 1058, 1065 (Md. App. 2005); Brill v. Gurich, 965 P.2d 404, 409 (Okla. 1998).
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standard when the concern is community safety. In Kleinbart v. United States, 604 A.2d 861, 868 (D.C. 1992), the D.C. Court of Appeals held that the “clear and convincing” evidence standard should apply to determinations about whether to order pretrial detention based on flight risk. The court explained that “[a] defendant’s liberty interest is no less—and thus requires no less protection—when the risk of his or her flight, rather than danger, is the basis for justifying detention without right to bail.” Id. at 870. The court therefore held: “Although the federal Bail Reform Act could be construed—purely as a matter of statutory construction—to require only a preponderance standard in risk of flight cases . . . we believe that Salerno’s emphasis on the clear and convincing evidence standard to sustain the constitutionality of that statute as applied to danger necessarily carries over, as a requirement of due process, to risk of flight cases.” Id. This analysis has been adopted by the American Bar Association’s Criminal Justice Standards.78
In United States v. Motamedi, 767 F.2d 1403 (9th Cir. 1985), a pre-Salerno case, the court held that the government failed to prove by a “clear preponderance” of the evidence that the defendant was a flight risk and reversed an order of pretrial detention. In the process, the court held that the statutory standard for determining flight risk under the Bail Reform Act was a “clear preponderance of the evidence” as opposed to the “clear and convincing” standard later upheld in Salerno for dangerousness. Id. at 1406. In reversing the lower court’s detention order, the Ninth Circuit made “no attempt to analyze the constitutional ramifications of its decision.” Id. at 1412
78 ABA Standard 10-5.8 explains that the “clear and convincing” standard applies to decisions relating to dangerousness and risk of flight. Courts have long looked to the Standards for guidance when answering constitutional questions about the appropriate balance between individual rights and public safety in the field of criminal justice. See, e.g., Padilla v. Kentucky, 559 U.S. 356, 367 (2010); Strickland v. Washington, 466 U.S. 668, 688-89 (1984); United States v. Teague, 953 F.2d 1525, 1533 n.10 (11th Cir. 1992). Similarly, the Conference of Chief Justices has emphasized the safeguards upheld in Salerno and argued that misdemeanor arrestees detained due to inability to pay money bail are entitled to the same procedural safeguards afforded to arrestees who are detained pursuant to transparent orders of detention. See Brief of Conference of Chief Justices at 38.
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(Boochever, J., concurring and dissenting in part). Judge Boochever, however, addressed the
constitutional question, applying the Mathews balancing test. Id. at 1413–15. He explained:
[T]he consequences to the defendant from an erroneous pretrial detention are certain and grave. The potential harm to society, although also significant, is speculative, because pretrial detention is based on the possibility, rather than the certainty, that a particular defendant will fail to appear. Moreover, society’s interest in increasing the probability of detention is undercut by the fact that it has no interest in erroneously detaining a defendant who can give reasonable assurances that he will appear. I conclude therefore that the injury to the individual from an erroneous decision is greater than the potential harm to society, and that under Addington due process requires that society bear a greater portion of the risk of error: the government must prove the facts supporting a finding of flight risk by clear and convincing evidence.
Id. at 1415.
Given the importance of this legal question to pretrial justice in this country, the case law
on the proper standard of proof when determining flight risk is surprisingly thin, perhaps because
appellate courts have difficulty resolving pretrial detention issues before cases become moot.
Indeed, the Supreme Court has not ruled on a constitutional issue relating to pretrial detention
since Salerno in 1987. Although the issue should be uncontroversial in light of Addington and
Foucha, and after balancing the Mathews factors, counsel has been unable to find precedent from
any circuit addressing the question of whether, as a matter of due process, the “clear and convincing” standard applies to determinations of pretrial detention based on a risk of flight.79
Thus, although the constitutional issue of what ultimate standard of proof must apply at a
pretrial detention hearing appears to be one of first impression in this Court, the holdings and
reasoning in Addington, Foucha, Santosky, Salerno, Lopez-Valenzuela, Kleinbart, and Humphrey
demonstrate that the deprivation of the fundamental right to bodily liberty requires a heightened
79 Counsel has found a number of federal cases after Motamedi that likewise apply a “preponderance” standard to risk of flight determinations as a matter of statutory interpretation under the Bail Reform Act, but none of those cases raised, analyzed, or decided the constitutional issue.
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standard of proof whether the government is considering alternatives to mitigate a risk of flight or alternatives to mitigate a risk of danger to the community.80
As Judge Boochever explained, any interest the government might have in making a less reliable pretrial detention decision is less significant than minimizing pretrial detention and ensuring the integrity of convictions. At a hearing on this Motion, Plaintiffs will present overwhelming evidence of the negative effects of even short periods of pretrial detention, which can lead to job termination, lost housing, separation from children, lapses in medical and mental health care, and pressure to plead guilty. Both the individual and the government have a strong interest in avoiding these harms, in ensuring the accuracy of the pretrial detention determination, and in avoiding wrongful convictions and new crimes. Given the impossibility of predicting future behavior, courts have struck a middle ground and followed Addington, avoiding the stringent “beyond a reasonable doubt” standard. The “clear and convincing” standard strikes the correct balance, allowing the government to use detention in those “carefully limited” circumstances when there is clear evidence to support a finding that total incapacitation is necessary.81
c. Defendants do not provide the required procedural safeguards In Harris County, the procedural safeguards required to ensure the accuracy of their pretrial detention decisions are lacking. Pre-determined money bail amounts are imposed on arrestees prior to any legal proceeding before a judicial officer. Although a proceeding occurs in the jail after
80 Although the formal rules of evidence need not apply at detention hearings, the findings of clear and convincing evidence on which the government relies for the incapacitation of a presumptively innocent person must meet minimal standards of reliability. See, e.g., United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000) (“[W]hile the informality of bail hearings serves the demands of speed, the magistrate or district judge must also ensure the reliability of the evidence, by selectively insisting upon the production of the underlying evidence or evidentiary sources where their accuracy is in question.” (quotation omitted)); United States v. Accetturo, 783 F.2d 382, 389 (3d Cir. 1986); United States v. Acevedo-Ramos, 755 F.2d 203, 207-08 (1st Cir. 1985); Reem, 2018 WL 1258137, at *3. 81 Procedural due process also requires the government to provide counsel at bail hearings. The County is currently meeting this requirement. Accordingly, Plaintiffs are not suffering irreparable harm with respect to this procedural due process requirement and do not seek preliminary injunctive relief requiring counsel. However, Plaintiffs will seek a ruling on the merits of this issue and a permanent injunction requiring the County to provide lawyers at bail hearings.
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arrest for those who cannot afford to pay the bond amount set pursuant to the judges’ schedule, there is no notice of the critical issues to be decided at the hearing. There are no findings on the record concerning ability to pay, the availability or adequacy of alternative conditions of release, or the necessity of detention in light of alternatives. And there is no evidentiary standard, let alone the heightened evidentiary standard required by due process, to any findings.
d. Defendants have effective, constitutional alternatives to jailing people who cannot pay arbitrary monetary amounts
Harris County is free to choose among a variety of options without offending the Fourteenth Amendment, but Harris County’s wealth-based post-arrest detention scheme makes a mockery of the “carefully limited” circumstances, Salerno, 481 U.S. at 755, in which due process permits the pretrial detention of a presumptively innocent person. Because the Plaintiff class is, or will be, detained pretrial without the procedural safeguards and substantive finding of necessity due process requires, they are highly likely to prevail on the merits of their constitutional claim.
C. Plaintiffs Will Suffer Irreparable Harm Without a Preliminary Injunction The deprivation of constitutional rights alone is sufficient to establish irreparable harm. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); Michigan State A. Philip Randolph Inst. v. Johnson, 833 F.3d 656, 669 (6th Cir. 2016); Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996); Calvert v. Paniagua, No. 2:17CV2 HEA, 2018 WL 2121508, at *11 (E.D. Mo. May 8, 2018). On that basis, this element is satisfied. Class members face additional irreparable harm as a result of their imprisonment. Every additional night in jail causes harm to a person that cannot be later undone. See, e.g. United States v. Bogle, 855 F.2d 707, 710-11 (11th Cir. 1988) (“unnecessary deprivation of liberty clearly constitutes irreparable harm”); Matacua v. Frank, 308 F. Supp. 3d 1019, 1025 (D. Minn. 2018) (“loss of liberty . . . is perhaps the best example of irreparable harm”). Depriving persons of their
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fundamental right to pretrial liberty may cause psychological and economic harm and undermine
their ability to prepare a defense. As the Supreme Court eloquently explained, pretrial incarceration
has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility.
Barker v. Wingo, 407 U.S. 514, 532-33 (1972); see also Pugh, 572 F.2d at 1056-57; ODonnell II,
892 F.3d at 155, 162-63; Schultz, 330 F. Supp. 3d at 1375 (“[I]ndividuals who, by law, are
presumed innocent suffer irreparable injury when they are detained because they cannot afford to
pay secured bond and are deprived of constitutionally adequate procedures for examining potential
nonmonetary conditions of release.”). Here, class members suffer irreparable harms including:
Long-term economic instability and poverty due to class members’ inability to work while incarcerated and risk of losing jobs.
 Pretrial detention decreases tax revenue and depresses future earnings. Three to four years post-bail hearing, individuals initially released pretrial are 9.4 percent more likely to be formally employed, with these earnings $948 higher on average.82
 The probability of having any formal sector income over this time period increases 10.2 percent for individuals initially released pretrial, while the probability of filing a tax return (two years post-bail hearing) increases 10.2 percent.83 These effects not only affect individuals, but also have ripple effects through local economies.
 If a person detained pretrial loses employment, he or she often encounters reduced wages upon securing new employment. For men, serving time pretrial reduces hourly wages by approximately 11 percent, annual employment by nine weeks and annual earnings by 40 percent.84
82 Will Dobbie, Crystal Yang and Jacob Goldin, The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, AMERICAN ECONOMIC REVIEW, 23 (2018). 83 See id. 84 Shima Baradaran Baughman, Costs of Pretrial Detention, BOSTON UNIVERSITY LAW REVIEW, VOL. 97:1 (2017), at 5.
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 Approximately 23% of people facing pretrial incarceration lose their housing.85  Research also shows that when someone experiences incarceration of any form,
their odds of experiencing houselessness increase from 1 in 200 for the general population to 1 in 11 for individuals recently released from incarceration.86
Harm to families that are reliant on jailed class members for support.
 Approximately half of all people detained in the Harris County Jail have a child.87  Each year, almost 93,000 children have a parent in Harris County Jail, which is 7%
of all children in the county.88  “Children of prisoners can experience multiple difficulties after parental
incarceration, including traumatic separation, loneliness, stigma, confused explanations to children, unstable childcare arrangements, strained parenting, reduced income, and home, school, and neighborhood moves.”89  “[R]igorous studies show[] that parental incarceration is associated with higher risk for children's antisocial behavior.”90  Children of detained individuals are significantly more likely to drop out of school, which creates a long-term cost to society of roughly $260,000 per child.91  48% of families which have an incarcerated family member have difficulty meeting basic housing needs because of the loss of income due to the family member being incarcerated.92  Separation due to incarceration can have lifelong consequences for child development, including increased attention difficulties and aggressive behavior.93
85 Id. 86 Human Impact Partners and Free Hearts. February 2018. Keeping Kids and Parents Together: A Healthier Approach to Sentencing in Tennessee. Oakland, CA. 87 Nancy P. Correa et al., THE FORGOTTEN FAMILIES: A NEEDS ASSESSMENT ON CHILDREN WITH INCARCERATED PARENTS IN HARRIS COUNTY, TEXAS 14 (February 2019), https://www.texaschildrens.org/sites/default/files/uploads/documents/Children%20of%20Incarcerated%20Parents% 20Report%20Final.pdf 88 Id. 89 Murray J, Farrington DP, Sekol I. Children’s antisocial behavior, mental health, drug use, and educational performance after parental incarceration: A systematic review and meta-analysis. Psychological Bulletin. 2012;138(2):175-210. 90 Murray J, Farrington DP, Sekol I. Children’s antisocial behavior, mental health, drug use, and educational performance after parental incarceration: A systematic review and meta-analysis. Psychological Bulletin. 2012;138(2):175-210. 91 Shima Baradaran Baughman, Costs of Pretrial Detention, BOSTON UNIVERSITY LAW REVIEW, VOL. 97:1 (2017), 7. 92 deVuono-Powell S, Schweidler C, Walters A, Zohrabi A. Who Pays? The True Cost of Incarceration on Families (2015) Ella Baker Center, Forward Together, Research Action Design.. http://whopaysreport.org/. 93 Geller A, Cooper CE, Garfinkel I, Schwartz-Soicher O, Mincy RB. Beyond Absenteeism: Father Incarceration and Child Development. Demography. 2012;49(1):49-76.
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 Even a temporary separation has a negative impact on the health of children later in life — in one study, separation for as short as a week within a child’s first 2 years of life was related to higher levels of child negativity and aggression.94
 Many parents struggle to restore the parent-child bond once it has been disrupted by a separation, with the attachment bond between parents and children threatened by fear and lack of safety.95
Worse case outcomes and pressure to plead guilty because of the potential for prolonged unconstitutional pretrial detention.
 A study on Philadelphia found that initial pretrial release makes people 24.2% less likely to be found guilty.96
 A different study, looking at New York City, found that pretrial detention increases conviction likelihood by 13 percentage points.97
 Another study showed that assigning money bail causes a 12 percent rise in conviction likelihood.98
 Another study on Philadelphia found that pretrial detention leads to a 42% increase in the length of the sentence a defendant receives.99
 The increase in conviction stems largely, though not entirely, from the fact that pretrial detainees plead guilty more often – approximately 25 percent more often, according to one study.100 A study of Harris County, Texas, showed that releasing all misdemeanor defendants between 2008 and 2013 would have avoided 5,900 criminal convictions, primarily owing to fewer wrongful guilty pleas.101
94 Howard K, Martin A, Berlin LJ, Brooks-Gunn J. Early Mother-Child Separation, Parenting, and Child Well-Being in Early Head Start Families. Attach Hum Dev. 2011;13(1):5-26. doi:10.1080/14616734.2010. 488119 95 Wood LCN. Impact of punitive immigration policies, parent-child separation and child detention on the mental health and development of children. BMJ Paediatr Open. 2018;2(1). 96 Will Dobbie, Crystal Yang and Jacob Goldin, The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges, AMERICAN ECONOMIC REVIEW, 108 (2018). 97 Emily Leslie & Nolan G. Pope, The Unintended Impact of Pretrial Detention on Case Outcomes: Evidence from NYC Arraignments, Journal of Law and Economics, Vol. 60, 543 (2017). 98 Arpit Gupta, Christopher Hansman and Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization, Unpublished Working Paper, 3 (2016). 99 Megan T Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes, The Journal of Law, Economics, and Organization, Volume 34, Issue 4, November 2018, Pages 511–542 100 Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 711 (2017). See also Criminal Justice Policy Program, Moving Beyond Money: A Primer on Bail Reform, Criminal Justice Policy Program at Harvard Law School, 7 (October 2016). 101 Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 STAN. L. REV. 711, 711 (2017). See also Criminal Justice Policy Program, Moving Beyond Money: A Primer on Bail Reform, Criminal Justice Policy Program at Harvard Law School, 7 (October 2016).
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In addition to all the typical harms of unconstitutional pretrial detention, Plaintiffs face a
heightened risk of contracting a deadly virus. Ex. B ¶¶ 10, 14–22, 39. Most people (80%) will
develop a mild upper respiratory infection, but serious illness can occur in up to 16% of cases. Id.
¶¶ 23–24. Older people and those with underlying medical conditions, such as lung disease, heart
disease, or diabetes, are more likely to develop serious illness.102 Id. ¶ 24. The number of cases
and deaths from Covid-19 is increasing exponentially in the Houston area.103 This exponential
growth is straining the health care system, which is struggling to care for the current and imminent
influx of serious Covid-19 patients.104 An outbreak in the jail will spread rapidly and further strain
health care resources, resulting in a “catastrophic loss of life,”105 making it more likely that people
who would ordinarily recover from the virus will die.106 Dr. Chiao states, “[I]t is my professional
judgment that the Harris County Jail is dangerously under-equipped and ill-prepared to prevent
and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail
and prison staff, and the broader community.” Id. ¶ 29. Class members will suffer irreparable
injury unless this Court enjoins Defendants’ actions.
D. The Harm Plaintiffs Are Suffering Outweighs Any Potential Harm to Defendants Caused by a Preliminary Injunction
102 World Health Organization, Q&A on coronaviruses (COVID-19) (Mar. 9, 2020), https://www.who.int/newsroom/q-a-detail/q-a-coronaviruses. 103 Todd Ackerman & Dylan McGuiness, Coronavirus spread in Houston could burn out by mid-May under stay-athome order (Mar. 25, 2020), https://www.houstonchronicle.com/news/houston-texas/houston/article/harris-countystay-at-home-coronavirus-spread-15157648.php; Stacy Fernandez, Texas Gov. Greg Abbott says to expect ‘exponential’ increase in positive coronavirus cases (Mar. 16, 2020), https://www.texastribune.org/2020/03/16/texas-coronavirus-cases-will-increase-exponentially-gov-greg-abbott/. 104 Dylan Scott, The next coronavirus crisis will be a shortage of doctors and nurses (Mar. 26,2020), available at https://www.vox.com/2020/3/26/21192191/coronavirus-us-new-york-hospitals-doctors-nurses; Andrew Jacobs, ‘At War With No Ammo’: Doctors Say Shortage of Protective Gear Is Dire (Mar. 19, 2020), https://www.nytimes.com/2020/03/19/health/coronavirus-masks-shortage.html. 105 Ex. A. 106 Sarah Kliff, There Aren’t Enough Ventilators to Cope With the Coronavirus (Mar. 18, 2020), https://www.nytimes.com/2020/03/18/business/coronavirus-ventilator-shortage.html; Austin Frakt, Who Should Be Saved First? Experts Offer Ethical Guidance (Mar. 24, 2020), https://www.nytimes.com/2020/03/24/upshot/coronavirus-rationing-decisions-ethicists.html
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These harms considerably outweigh any potential harm to Defendants. The provision of constitutionally required process to pretrial detainees and substantive determinations regarding the necessity of their detention—the sole relief requested by Plaintiffs in this motion— causes no harm to Defendants. Further, Defendants will save the cost of unnecessarily detaining class members if this Court grants a preliminary injunction. As one federal judge explained, “unnecessary pretrial detention burdens States, localities, and taxpayers, and its use appears widespread: nationwide, about 60% of jail inmates are pretrial detainees, and the majority of those people are charged with nonviolent offenses.” Jones, 2015 WL 5387219, at *3. Class members are part of the unnecessary burden on Harris County, and ending their wealth-based detention is more likely to benefit Defendants than it is to cause them harm. Thus, the balance of harms weighs substantially in favor of the class members who suffer serious long-term injury from the imposition of unaffordable financial conditions without any finding of necessity, while providing no real benefit to Defendants. See, e.g., Daves, 341 F. Supp. 3d at 697 (finding balance of harms weighed in favor of enjoining use of secured money bail without the requisite substantive findings and procedural safeguards); Schultz, 330 F. Supp. 3d at 1375-76 (finding balance of harms weighed in favor of an injunction, in part, because “alternative pretrial detention policies are cost effective”).
E. A Preliminary Injunction Promotes the Public Interest “‘[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (citation omitted); Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012). Accordingly, the public interest would be served by issuance of a preliminary injunction requiring Defendants to provide class members with adequate procedures to vindicate their constitutional rights. At the same time, detaining indigent people solely because that cannot afford to pay financial conditions of release is expensive, draining
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public coffers of money that could be spent on other public needs. Jones, 2015 WL 5387219, at *3. Harris County spends approximately $2.3 million every week on pretrial detention.107 A study of Harris County found that if all misdemeanor defendants held on $500 money bond – the lowest amount of bail – between 2008-2013 had been released instead, the county would have released an additional 4,000 people and saved $20 million dollars in supervision costs.108
Moreover, there is no evidence that financial conditions of release (even for those who can afford to pay) are more effective than alternative measures for ensuring court appearance and public safety. ODonnell, 892 F.3d at 154 (finding “reams of empirical data” showing that “release on secured financial conditions does not assure better rates of appearance or law-abiding conduct before trial compared to release on unsecured bonds or nonfinancial conditions of supervision”); see also McNeil v. Cmty. Prob. Servs., LLC, 1:18-cv-33, 2019 WL 633012, at *14-15 (M.D. Tenn. Feb. 14, 2019) (finding no evidence that “that arrestees who are able to pay the secured bail amount are more likely to appear for their revocation hearing and less likely to commit crime”); Schultz, 330 F.Supp.3d at 1363 (“[T]he evidence demonstrates that secured bail is no more effective than other conditions to assure a criminal defendant’s appearance at court proceedings, and secured bail is not necessary to secure a criminal defendant’s appearance.”); Id. at 1364 (citing “prolonged pretrial detention is associated with a greater likelihood of rearrest upon release, meaning that pretrial detention may increase the risk of harm to the community.”).
These factors amply demonstrate that the public interest is undermined by Defendants’ current unconstitutional procedures, and would benefit from a system that grants class members the freedom they could enjoy were they wealthy enough to purchase it.
107 Ex. K (Harris County Felony Pretrial Detention Reports) (“Harris County taxpayers spent over $2.3 MILLION DOLLARS on illegal pretrial detention this week. That's close to twice the $1.3 million Harris County taxpayers spend every week on public health services, the public library, and pollution control COMBINED.”) 108 Heaton, Downstream Consequences, at 787.
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VII. The Court Should Exercise Its Discretion to Waive the Posting of Security
Federal Rule of Civil Procedure 65(c) normally requires the moving party to post security
to protect the other party from any financial harm likely to be caused by a temporary injunction if
that party is later found to have been wrongfully enjoined. Rule 65(c), however, vests the district
court with broad discretion to determine the amount of security required, or to waive the bond
requirement. City of Atlanta v. Metro. Atlanta Rapid Transit Auth., 636 F.2d 1084, 1094 (5th Cir.
1981); see also ODonnell, 251 F. Supp. 2d at 1159–60 (waiving the bond requirement). This Court
should waive the bond requirement because Plaintiffs are indigent, Wayne Chem. v. Columbus
Agency Serv. Corp., 567 F.2d 692, 701 (7th Cir. 1977) (requiring no bond for indigent person),
and this lawsuit is brought to enforce constitutional rights. City of Atlanta, 636 F.2d at 1094
(upholding district court’s decision to waive the bond requirement because “plaintiffs were
engaged in public-interest litigation, an area in which the courts have recognized an exception to the Rule 65 security requirement.”); ODonnell, 251 F. Supp. 2d at 1159–60.109 Moreover,
Defendants are unlikely to suffer any harm from an improperly issued injunction requiring them
to follow the Constitution, Steward v. West, 449 F.2d 324, 325 (5th Cir. 1971) (finding that no
injunction bond need be posted when “it is very unlikely that the defendant will suffer any harm”), and Plaintiffs are overwhelmingly likely to succeed on the merits.110
109 See also, e.g., Mitchell v. City of Montgomery, No. 14-CV-186, ECF No. 18 at *3 (M.D. Ala. May 1, 2014); Bass v. Richardson, 338 F. Supp. 478, 490 (S.D.N.Y. 1971) (“It is clear to us that indigents, suing individually or as class plaintiffs, ordinarily should not be required to post a bond under Rule 65(c).”); see also 11A Wright & Miller § 2954 (courts can waive the bond requirement in cases involving poor plaintiffs); Rodriguez v. Providence Cmty. Corr., Inc., 155 F. Supp. 3d 758, 761 (M.D. Tenn. 2015); Cooper v. City of Dothan, No. 1:15-CV-425-WKW, 2015 WL 10013003, (M.D. Ala. June 18, 2015). 110 Although this case, like ODonnell, is a prototypical situation for which the class action vehicle was created, and the certification motion was contemporaneously filed with the complaint, this Court need not rule on the certification motion or formally certify a class in order to issue preliminary injunctive relief. See, e.g., Newberg on Class Actions § 24:83 (4th ed. 2002) (“The absence of formal certification is no barrier to classwide preliminary injunctive relief.”); Moore’s Federal Practice § 23.50, at 23-396, 23-397 (2d ed.1990) (“Prior to the Court’s determination whether plaintiffs can maintain a class action, the Court should treat the action as a class suit.”); see also, e.g., Lee v. Orr, No. 13-CV-8719, 2013 WL 6490577, at *2 (N.D. Ill. Dec. 10, 2013) (“The court may conditionally certify the class or
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Conclusion This is a matter of life and death. The Court must act.

Date: March 27, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis alec@civilrightscorps.org Elizabeth Rossi elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Mimi Marziani Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 Meagan T. Harding Texas State Bar No. 24080179 Southern District No. 3365526 Texas Civil Rights Project 405 N Main St, Suite 716 Houston, TX 77002 Phone: 512-474-5073 ext 118 Fax: 832-554-9981 mimi@texascivilrightsproject.org meagan@texascivilrightsproject.org

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice pending) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100

otherwise order a broad preliminary injunction, without a formal class ruling, under its general equity powers. The lack of formal class certification does not create an obstacle to classwide preliminary injunctive relief when activities of the defendant are directed generally against a class of persons.”); N.Y. State Nat. Org. For Women v. Terry, 697 F. Supp. 1324, 1336 (S.D.N.Y. 1988) (holding that “the Court acted in the only reasonable manner it could under the circumstances, ruling on the continuation of [the] temporary restraining order and leaving the question of class certification for another day.”); Leisner v. N.Y. Tel. Co., 358 F. Supp. 359, 371 (S.D.N.Y. 1973) (“[R]elief as to the class is appropriate at this time even though when the preliminary injunction motion was heard, the class action had not yet been certified.”); Ill. League of Advocates for the Developmentally, Disabled v. Ill. Dep’t of Human Servs., No. 13-CV-1300, 2013 WL 3287145, at *4 (N.D. Ill. June 28, 2013) (“At this early stage in the proceedings, the class allegations in the Second Amended Complaint are sufficient to establish Plaintiffs’ standing to seek immediate injunctive relief on behalf of the proposed class. At a later stage, we may revisit whether that classwide representation is inappropriate, but until that time, we will preserve the status quo (within the limits set forth in the TRO) with respect to all potential class members.”); Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012) (“Simply put, there is nothing improper about a preliminary injunction preceding a ruling on class certification.”).
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Case 4:19-cv-00226 Document 32 Filed on 03/27/20 in TXSD Page 51 of 51 CERTIFICATE OF SERVICE
I certify that on March 27, 2020 a true and correct copy of this document properly was served on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas Procedures for Electronic Filing.
/s/ Elizabeth Rossi Elizabeth Rossi
51

 
 Case 4:19-cv-00226 Document 32-1 Filed on 03/27/20 in TXSD Page 1 of 7
Exhibit A Harris County Ph icia Le e

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Case 4:19-cv-00226 Document 32-1 Filed on 03/27/20 in TXSD Page 5 of 7
Harris Health System P.O. Box 66769, Houston, Texas 77266-6769
Hon. Herb Ritchie Harris County Civil Courthouse 201 Caroline, 11th Floor Houston, Texas 77002
Dear Hon. Judge Ritchie and the Criminal District Court Judges,
I strongly urge you to consider releasing defendants in the Harris County Jail who are charged with nonviolent offenses. For the reasons below, it is important to prioritize inmates who are over 60 years of age or have pre-existing conditions such as cancer, diabetes, asthma / chronic obstructive pulmonary disease, heart disease, or HIV.
The Harris County Jail and other large correctional facilities pose a real and immediate danger to the health of the community. An even limited outbreak of COVID-19 in the Harris County Jail has the potential to overwhelm our already overburdened hospital system. If this happened--and the likelihood is high--it could leave many vulnerable people in our community without access to care.
According to the Centers for Disease Control, older adults and people with serious chronic medical conditions like heart disease, diabetes, and lung disease are at higher risk of getting very sick from COVID-19. On average, the people housed in our prisons and jails are older and more likely to suffer from poor physical health and illness as compared with the general public, which means they are exactly the type of high-risk group that will fall very sick if they come into contact with COVID-19.
To make matters worse, the concept of social distancing is nearly impossible in a setting like the Harris County Jail, which had a population of around 8,500 inmates as of March 19, 2020. The ability to quarantine is similarly impossible with inmates getting booked in and out of the jail on a daily basis. Once they are brought into the jail, many are housed in dormitory settings of between 20 to 60 people. This leaves little space to social distance or quarantine effectively.
The question of whether there will be a COVID-19 case in the Harris County Jail is currently a matter of when. If we do not reduce the population in the Harris County Jail substantially, and in very short order, we risk creating a concentrated outbreak, which would not only be a tragedy in itself but also have the compounding effect of leaving fewer beds for other members of our community who may also need hospitalization during this time.
Sincerely,
Esmaeil Porsa, M.D., MBA, MPH, CCHP-A
harrishealth.org

Case 4:19-cv-00226 Document 32-1 Filed on 03/27/20 in TXSD Page 6 of 7
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Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 1 of 30
Exhibit B – Declaration of Dr. Elizabeth Y. Chiao

Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 2 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

Declaration of Dr. Chiao
I. Background and Qualifications
1. I am Dr. Elizabeth Chiao, Professor of Medicine, Division of Infectious Diseases and Health Services, Research, Baylor College of Medicine. I am board certified by the American Board of Internal Medicine (ABIM) in Medical Oncology and Infectious Diseases. I am licensed to practice medicine in the state of Texas, license number L8647. I earned my Doctor of Medicine from Cornell University Medical College, and Master Degree in Public Health from Yale University School of Medicine, Department of Epidemiology and Public Health. I completed my residency at the University of Utah, and completed Fellowships in Medical Oncology at Memorial Sloan Kettering, and in Infectious Diseases at Baylor College of Medicine.
2. I have worked for the past 14 years as Faculty in the Division of Infectious Diseases and Health Services Research at Baylor College of Medicine. My research interests focus on the epidemiology, prevention, treatment and outcomes of HIV-related comorbidities and Cancers, as well as health disparities for people living with HIV.
3. In the past 14 years I have received continuous funding by the National Institutes of Health (NIH) starting with an NCI funded K23 (K23 CA124318) in 2006. I subsequently received an NCI funded R01 (R01CA163103) entitled “The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors,” and a second R01 (R01CA206476) “(PQ 3) Identifying Novel Pharmacologic Risk factors for Common Non-AIDS Defining Cancers in Individuals with Well-controlled HIV Infection.” I am additionally a co-investigator on multiple national NIH funded projects. I also hold several leadership positions in the AIDS Malignancy Consortium (AMC): I am 1) the Baylor College of Medicine principal investigator for the AMC, 2) the co-chair of AMC 087: a phase 1 protocol of Cabozantinib for the treatment of advanced solid tumors in HIV-infected individuals (currently enrolling), and 3) the
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chair of the Solid Tumor Working Group in the AMC. Furthermore, I collaborate with U.S.-based and international researchers and I have been appointed to several national and international committees including the Board of Scientific Advisers subcommittee for HIV-related malignancies, scientific merit review committees for South Africa and the organizing committee for the International HIV Malignancy Conference. My clinical work as the clinical director of both the Anal Dysplasia and Medical Oncology clinics at the Thomas Street Health Center were recognized with a Baylor Clinician STAR award in 2017. Finally, I lead an active mentoring program where several mentees have successfully applied for and obtained career development awards and other various research funding. In summary, I am a clinician researcher whose goals are to improve survival and quality of life for people living with HIV (HIV), and individuals with virally mediated cancer by improving cancer prevention, screening and treatment outcomes.
4. I have written and published extensively on the topics of infectious diseases, and the epidemiology of people living with HIV (PLWH), including papers about PLWH involved in the criminal justice system. In particular, I have published in leading peer-reviewed journals on the health disparities and the ethical medical care for PLWH for people in detention; disparities in the outcomes of AIDS-related Kaposi Sarcoma; and how to improve screening for Human Papillomavirus-related cancers in PLWH to take just three examples.
5. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
6. I am donating my time reviewing materials and preparing this report. Any live testimony I provide will also be provided pro bono.
7. I have not testified as an expert at trial or by deposition in the past four years.
8. This declaration is substantially the same as a sworn declaration submitted by Dr. Jaimie Meyer, Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut, in federal court in New York. CITE. Dr. Meyer is board certified in Internal Medicine, Infectious Diseases and Addiction Medicine.
9. I have reviewed thoroughly Dr. Meyer’s report, and the sources cited in it. Based on my own independent training, expertise, and experience in epidemiology and infectious diseases, I fully agree with Dr. Meyer’s analysis of the dangers that the novel corona posed in New York City-area jails, and believe that they are applicable, as described below, to the Harris County jail.
II. Heightened Risk of Epidemics in Jails and Prisons
10. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to
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individuals who become infected. There are several reasons this is the case, as delineated further below.
11. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
12. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
13. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
14. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcoholbased sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
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15. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and illequipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
16. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
17. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of dropletborne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
18. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
19. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
20. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the
1 Active case finding for communicable diseases in prison, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
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care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
21. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public. Furthermore, rapid spread of infectious diseases among the inmates can often worsen the epidemic outside of the incarcerated population because staff are more likely to be infected and spread the disease to their families and the wider population.
22. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
23. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but recent data from China has demonstrated that almost 13% of transmission occurs from asymptomatic individuals before they start to show symptoms, and it is possible that transmission can occur for weeks after their symptoms resolve.5 In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the
2 Influenza Outbreaks at Two Correctional Facilities—Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David. M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-flu-widespread-in-prisons-and-jails-but-deathsare-few/. 4 This whole section draws from Broks J. Global Epidemiology and Prevention of COVID19, COVID-10 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-you-need-toknow-in-corrections. 5 Du Z, Xu X, Wu Y, Wang L, Cowling BJ, Ancel Meyers L. Serial interval of COVID-19 among publicly reported confirmed cases. Emerg Infect Dis. 2020 Jun [date cited]. https://doi.org/10.3201/eid2606.200357
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virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for over a year to the general public. Antiviral medications are currently in testing but not yet FDA-approved. People in prison and jail will likely have even less access to these novel health strategies as they become available.
24. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.6 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.7 Among those individuals, the risk of poor outcomes, included the need for mechanical intervention is over 20%. Death in COVID-19 infection is usually due to pneumonia, and sepsis, and would occur between approximately 1-4% of the popultion. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
25. The care of people who are infected with COVID-19 depends on how seriously they are ill.8 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID19 becomes more widespread in communities.
26. In order to prevent overwhelming the local health systems, aggressive containment and COVD-19 prevention is of utmost importance. To this end, certain states and jurisdictions, including Harris County have mandated COVID-19 prevention strategies, such as “shelter in place” or “stay at home”, which have gone beyond containment and mitigation. Jails and prisons already have difficulty with containment because it requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. However, even with these efforts, it is nearly impossible for
6 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/casesupdates/summary.html?CDC_AA_refVal=https%3A%2F%2Fwww.cdc.gov%2Fcoronavirus%2F2019ncov%2Fsummary.html. 7 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study, The Lancel (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext. 8 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2002), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-management-patients.html.
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jails and prisons to provide the atmosphere of “shelter in place” or “stay at home” social distancing, given the number of individuals that work in and are housed in these facilities in the current system. Decreasing the population will help the prison facilities to develop “isolation” strategies that can nearly mirror Harris County mandates.
27. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.9 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in place.10 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in the Harris County Jail
28. In preparing this report I have spoken with Dr. Marc Robinson, who has worked as a physician in the medical clinic in the jail and therefore has first-hand knowledge of the medical facilities and jail conditions in the Harris County Jail. Based on my conversation with Dr. Robinson, I understand that the medical facilities in the jail are rudimentary and are not equipped to care for anyone with an acute illness. The Harris County Jail cannot do anything other than administer oxygen, and supplies are limited. Thus, anyone whose symptoms are more severe than mild would be sent to the local hospital. This would cause significant strain on both the local hospital and jail/prison staff. Because people wait for administrative disposition, and are housed/ live in close quarters, and because of the number of people detained of the Harris County Jail, it is impossible for inmates to comply with local health mandates and CDC recommendations, including social distancing. Moreover, because hundreds of people cycle in and out of the jail every day, it is virtually impossible to create stable units of people isolating those infected with those who are uninfected, which is necessary to contain infection.
29. Based on my conversations with Ms. Sarah Wood, Policy Director for the Harris County Office of the Public Defender, and Dr. Robinson, my experience working on public health and Infectious Diseases, and my review of the relevant literature, it is my professional judgment that the Harris County Jail is dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
9 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases-70000-prisoners-ascoronavirus-cases-surge-idUSKBN20W1E5. 10 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-preparecoronavirus-federal-prisons-providing-significant/story?id=69433690.
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30. Above and beyond the inability to prevent the spread of COVID-19 and increased risk for severe illness and inability to care for inmates in jail and prisons, the delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
31. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
32. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
33. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
34. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
35. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID19.
36. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be illequipped to identify, monitor, and treat a COVID-19 epidemic.
37. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
38. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
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V. Conclusion and Recommendations 39. For the reasons above, it is my professional judgment that individuals placed in the Harris County Jail are at a significantly higher risk of infection with COVID-19 as compared to the population in the community, given the procedural and housing conditions in the facilities, and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death. 40. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for who both are housed and work within those facilities and for the community at large. 41. From a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in the Harris County Jail at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release, and that a careful evaluation of procedural and housing guidance is created for those who remain in the facilities during the “stay at home” mandate, and possibly until the epidemic is contained. 42. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune systems, cancer, and diabetes) or who are over the age of 60.11 They are in even greater danger in these facilities, including a meaningfully higher risk of death. 43. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. 44. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.
11 Report of the WHO-China Joint Mission of Coronavirus Disease 2019 (COVID-19) (Feb. 16-24 2020), available at https://www.who.int/docs/default-source/coronaviruse/who-china-joint-mission-on-covid-19-final-report.pdf.
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Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 11 of 30 I declare under penalty of perjury that the foregoing is true and correct to the best of my ability.

_______________________ Name

3/27/2020________ Date

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Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 12 of 30 EXHIBIT A
Curriculum Vitae
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Personal statement My research focuses on HIV clinical management, HIV co-morbidity research, HIV malignancy clinical management, and virally-mediated cancer research, with an emphasis on evaluating the epidemiology of HIVassociated cancers, cancer prevention and outcomes. My work involves both utilizing large databases and cohorts to improve cancer prevention strategies for HIV-infected individuals as well as clinical trial/clinical research elucidating the prevention and treatment of HIV-related cancers. My training in Epidemiology, HIV, Oncology, and Infectious Diseases make me uniquely qualified to conduct research in HIV-related and other viral malignancies. My group and I were the first to show the effect of cumulative measurements of combined antiretroviral therapy (cART) on multiple different HIV-associated cancers utilizing VA administrative databases. We have over 20 publications on HIV-associated malignancies focusing on elucidating the impact of HIV-related factors on the incidence of HIV-related malignancies in high impact journals such as JAMA, the Journal of Clinical Oncology, Clinical Infectious Diseases, and the Journal of Acquired Immune Deficiency Syndromes. In the past 12 years I have received continuous funding by the National Institutes of Health (NIH) starting with an NCI funded K23 (K23 CA124318) in 2006. I subsequently received an NCI funded R01 (R01CA163103) entitled The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors, and a second R01 (R01CA206476) (PQ 3) Identifying Novel Pharmacologic Risk factors for Common NonAIDS Defining Cancers in Individuals with Well-controlled HIV Infection. I am additionally a co-investigator on multiple national NIH funded projects. I also hold several leadership positions in the AIDS Malignancy Consortium (AMC): I am 1) the Baylor College of Medicine principal investigator for the AMC, 2) the co-chair of AMC 087: a phase 1 protocol of Cabozantinib for the treatment of advanced solid tumors in HIV-infected individuals (currently enrolling), and 3) the chair of the Solid Tumor Working Group in the AMC. Given my research productivity and expertise, I was recently selected to co-lead the Mechanisms of Cancer Evolution Scientific Working Group in the Dan L. Duncan Cancer Center. Furthermore, I collaborate with U.S.-based and international researchers and I have been appointed to several national and international committees including the Board of Scientific Advisers subcommittee for HIV-related malignancies, scientific merit review committees for South Africa and the organizing committee for the International HIV Malignancy Conference. My clinical work as the clinical director of both the Anal Dysplasia and Medical Oncology clinics at the Thomas Street Health Center were recognized with a Baylor Clinician STAR award in 2017. Finally, I lead an active mentoring program where several mentees have successfully applied for and obtained career development awards and other various research funding. In summary, I am a clinician researcher whose goals are to improve survival and quality of life for HIV-infected individuals, and individuals with virally mediated cancer by improving cancer prevention, screening and treatment outcomes.
I. GENERAL BIOGRAPHICAL INFORMATION
A. Personal 1. Name: Elizabeth Yu Chiao, MD, MPH 2. Date of Birth: 7/13/1969; citizenship: USA 3. Home Address: 416 Byrne St. Houston, TX 77009 4. Office Address: Houston VA Medical Center (152), 2002 Holcombe Blvd, Houston, TX 77030 5. Office Phone Number: 713-440-4485 6. Email: echiao@bcm.edu
B. Education: 1. Undergraduate Education: a. Cornell University, Ithaca, NY, School of Arts, (Biology and Society), May 1990
2. Medical Education or Graduate Education (with thesis/dissertation title, advisor): a. Yale University School of Medicine, New haven, CT, Department of Epidemiology and Public
Health, Master Degree in Public Health, December 1993, Graduated with Distinction, Thesis Title: Survival Analysis of Connecticut AIDS Cases reported through 1990 b. Cornell University Medical College, New York, NY, Doctor of Medicine, May 1998
3. Postgraduate Training: residency, fellowship (clinical or research), with source of support and advisor, if relevant):
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a. University of Utah, Salt Lake City, UT, Internal Medicine Department, Resident House staff, June 1998-2001
b. Postgraduate Training-Fellowship: Memorial Sloan Kettering Cancer Center, New York, NY, Department of Medicine, Medical Oncology Clinical Research Fellow, Advisor: Susan Krown, July 2002-2004
c. Postgraduate Training-Fellowship: Baylor College of Medicine, Houston, TX, Department of Medicine, Infectious Disease Fellow: July 2004-April 2005

C. Academic Appointments 1. Current Faculty position at BCM: a. Professor, Internal Medicine, Infectious Diseases, Health Services Research Section, Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 7/2018-present b. Associate Professor, Internal Medicine, Infectious Diseases, Health Services Research Section, Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 3/2014-7/2018 c. Assistant Professor, Internal Medicine, Infectious Diseases, Health Services Research Section Center for Innovation in Quality, Effectiveness, and Safety, Michael E. DeBakey VA Medical Center, Baylor College of Medicine, 1/2006-3/2014 d. Instructor, Internal Medicine, Infectious Diseases, 4/2005-1/2006

2. Previous faculty position at other institutions: a. University of Utah, Salt Lake City, UT, Instructor, Department of Medicine. Attending physician in
the HIV inpatient and outpatient services. Supervise and teach Internal Medicine house staff; 7/2001-7/2002

D. Other advanced training/experience: 1. Formal Sabbatical leave: a. None

2. Other specialized training following academic appointment: a. Trained high-resolution anoscopy (HRA). UCSF HRA training program 4/05

E. Other information: 1. Honors or Awards: titles, dates: a. Heather Belsey Faculty Award, University of Utah 2002 b. MPH with Distinction 1993 c. Martin Luther King Community Service Award, Yale Medical School (1992) d. Outstanding Reviewer Annals Internal Medicine 2007 e. Outstanding Reviewer Clinical Infectious Diseases Award 2008 f. NIH Loan Repayment Recipient 2007-2011 g. Baylor College of Medicine Star Clinician Award 2017 h. Co-Leader Mechanisms of Cancer Evolution, Dan L. Duncan NCI designated Cancer Center 2019

F. Board Certification:

1. Texas State License Number:

Physician: L8647 exp: 5/31/2021

2. New York State License Number:

Physicians and Surgeons: 224503-1

3. ABIM Board Certification

a.

Internal Medicine Boards:

Certified 08/2001 Exp: 8/2011

b.

Internal Medicine Subspecialty Oncology: Certified 11/2004 Exp: 11/2024

c.

Internal Medicine Subspecialty Inf Dis:

Certified 11/2006 Exp: 11/2026

4. Other non-academic positions: a. Board Member Voices Breaking Boundaries Non-Profit
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b. Board Member of Univerity of Houston s Friends of Women s, Gender and Sexuality Studies
II. RESEARCH INFORMATION
A. Research Support
Current Research Funding:
1. (PQ3) Identifying Novel Pharmacologic Risk factors for Common Non-AIDS Defining Cancers in Individuals with Well-controlled HIV Infection a. National Institute of Health b. Principal Investigator c. June 2016-March 2020 d. $1,968,930 e. 1R01 CA206476-01
2. The Effectiveness of High Resolution Microendoscopy (HRME) in High Grade Intraepithelial Lesions (HSIL) Diagnosis for People Living with HIV a. National Institute of Health b. Co-Principal Investigator c. November 2018-November 2023 d. $2,100,000 e. R01 CA232890
3. AIDS Cancer Specimen Resource a. National Institute of Health, NCI b. Co-Investigator c. September 2013- December 2018 d. $1,747,386 over 5 years e. NIH UM1CA181255 f. PI: M. McGrath
4. Texas NeuroAIDS Repository a. National Institute of Health, NIMH b. Co-Investigator (Baylor Principal Investigator) c. February 2018-February 2023 d. $650,000 over 5 years e. U24MH100930 f. PI: B. Gelman
5. Annual Anal Sampling using DNA Screening to Identify Men Who have Sex with Men at Increased Risk for Anal Cancer a. National Institute of Health, NCI b. Co-investigator c. Sep 2017 - Aug 2022 d. $380,613 e. R01CA215403-01A1 f. PI: A. Nyitray
6. AIDS Malignancy Clinical Trial Consortium a. National Institute of health, NCI b. Co-investigator (Baylor Principal Investigator) c. August 2015- August 2020 d. $ 453,000 e. UM1CA121974 f. PI: R. Mitsuyasu
7. Immunogenetic determinants of HPV-related head and neck cancer in Veterans a. MEDVAMC b. Co-Principal Investigator c. April 2018 - March 2020 d. $148,169
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e. VA 1 I01 BX004183-01A1 8. Determining the accuracy of self- and partner anal exams for detecting anal abnormalities
a. National Institutes of Health, NCI b. Co-investigator c. Sept 2018-Aug 2023 d. $ 1,100,173 e. R01CA232892-01 f. PI: A. Nyitray 9. Optimizing Age-Based Anal Cancer Screening Among People Living with HIV Using Decision Analytic Modeling a. National Institutes of Health, NCI b. Co-Investigator c. February 2019-February 2024 d. $200,000 e. 1R01CA232888-01A1 f. PI: A. Deshmukh 10. A Randomized Controlled Trial of Mail-Self Stamped HPV Testing to Increase Cervical Cancer Screening Participation Among Minority/Underserved Women in an Integrated Safety Net Healthcare System a. National Institutes of Health, NIMHD b. Co-Investigator c. April 2019- April 2024 d. $140,000 e. R01 MD013715-01 f. PI: J. Montealegre
Past Research Funding: 1. Pilot Study of Valganciclovir in Patients with Classic, non-HIV-associated Kaposi s Sarcoma
a. Roche Pharmaceuticals b. Fellow c. July 2004-July 2010 d. $47,000 e. Pharmaceutical Grant 2. The Epidemiology of HIV-related Anal Dysplasia a. Baylor Seed Fund Institutional Grant b. Principal Investigator c. July 2007-July 2008 d. $25,000 (project support only) 3. Risk of Monoclonal Gammopathy of Undetermined Significance (MGUS) and Subsequent Multiple Myeloma (MM) among African American and White Veterans in the United States a. Contract b. National Cancer Institute c. July 2007-July 2008 d. $50,000 (project support only) 4. HPV-related cancers in HIV infected veterans a. Pilot funds from HSR&D b. Baylor College of Medicine c. Principal Investigator d. January 2009-December 2009 e. $10,000 5. The Epidemiologic Effects of HAART on HIV-related Anal Cancer and Anal Dysplasia a. K23 Patient-Oriented Mentored Career Development Award b. National Institute of Cancer, NIH c. Principal Investigator d. July 2006-June 2011 e. $637,500 over 5 years (80% salary and project funds)
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6. NIH 1 K23 CA124318-06 K23 Patient-Oriented Mentored Career Development Award Supplement a. National Institute of Cancer, NIH b. Principal Investigator c. September 2009-August 2011 d. $100,000 over 2 years (project support only)
7. Behavioral Strategies to Accrue and Retain Diverse Underserved Populations in HIV Related Malignancy Clinical Trials a. Supplement to U10CA139519-01A1 b. Co-Investigator c. September 2011-September 2013 d. $80,000
8. AIDS Cancer Specimen Registry (ACSR) Pilot Funds a. Pilot Funds from the ACSR b. UCSF c. Principal Investigator d. September 2009- September 2013 e. $75,000 (project support only)
9. The Effect of HAART on the Epidemiology and Molecular Pathogenesis of HIV-related Hodgkin Lymphoma a. Pilot Funds from the AIDS Malignancy Consortium (AMC) b. Principal Investigator c. May 2011-June 2014 d. $65,000 e. NIH P30 CA125123
10. The Feasibility of Self/Partner-Assisted Digital Anal Exams for Cancer Screening a. National Cancer Institute b. Co-investigator c. September 2013- September 2016 d. $125,000 e. NIH R21 CA181901
11. The Effectiveness of Screening HIV-infected Women for Anal Cancer Precursors a. National Institutes of Health, NCI b. Principal Investigator c. September 2011- August 2016 d. $120,000 e. NIH 1 R01 CA163103 (S1)
12. Risk and Predictors of Esophageal and Esophagogastric Junction Adenocarcinomas in HIVInfected Individuals
a. National Institute of Health, NIAID b. Co-investigator c. June 2016-December 2018 d. $475,487 e. P30AI027767 13. Supplement for AMC 084: The Effectiveness of Screening HIV-Infected Women for Anal Cancer
Precursors a. National Institute of Health, NCI b. Co-investigator c. Sep 2017 - Aug 2019 d. $193,793 e. UM1CA121974
1. National Scientific Participation:
a. Journal Review editorial boards: a. Ad-hoc journal reviewer, Antiviral Therapy, June 2006-present b. Ad-hoc journal reviewer, Annals Internal Medicine, July 2007-present
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c. Ad-hoc journal reviewer, Clinical Infectious Disease, August 2007-present d. Ad-hoc journal reviewer, International Journal of Cancer, July 2011-present e. Ad-hoc journal reviewer, International Journal of Infectious Diseases, May 2013-present f. Ad-hoc journal reviewer, JAIDS, March 2006-present
b. Review panels: a. The Ontario HIV Network, grant review July 2006 b. Reviewer, Ad Hoc, American Re-investment and Renewal Acct (ARRA) AIDS Cancer Vaccines, NCI, NIH, August, 2009. Bethesda, MD c. Reviewer, Ad Hoc, D43 AIDS Malignancy Training Grants in Africa, NCI, NIH February, 2010. Bethesda, MD d. Reviewer, Ad Hoc, NCI: RFA CA 11-011 and 012 Research Answers to NCI s Provocative Questions , March 26-28, 2012 e. Reviewer, Ad Hoc, NCI: J subcommittee-Career Development Awards, March, 2013 f. Reviewer, Ad Hoc, NCI J subcommittee-Career Development Awards, July, 2013 g. Reviewer, Ad Hoc, NCI J subcommittee-Career Development Awards, November, 2013 h. Reviewer, Ad Hoc, NIAID, HIV and Aging Provocative Questions, November, 2013 i. Reviewer, Ad Hoc, NIAID, Special Emphasis Panel, January, 2014 j. Reviewer, Ad Hoc, NCI: Subcommittee - HIV and AIDS Malignancy September, 2017 k. Reviewer Ad Hoc, NIAID HIV and Aging Special Emphasis Panel, March 2018 l. Reviewer, NCI U54 Prevention of HPV-related Cancers in HIV-infected individuals: United States-Latin American-Caribbean Clinical Trials Network: Partnership Centers Special Emphasis Panel, April 2019
c. Professional societies: i. American Society of Clinical Oncology, 2004-current ii. Infectious Diseases Society of America, 2007-current
d. National Committees i. ACTG co-infections and malignancies subcommittee 2011-2014 ii. ACTG 5298, A Randomi ed, Double-Blinded, Placebo-Controlled, Phase 3 Trial of the Quadrivalent HPV Vaccine to Prevent Anal Human Papillomavirus Infection in HIV-Infected Men and Women iii. NCI Provocative Questions: AIDS Malignancy Committee March, 2014 iv. AMC Steering Committee, Member 2016-2018 v. Chair, AMC Non-AIDS Defining Cancer Committee (April 2017-present) vi. International Conference of HIV Malignancies (ICMH) meeting organizing committee (2017current)
vii. NCI Board of Scientific Advisers, HIV Malignancies, June 2017 viii. Scientific Steering Committee of University of Washington /Fred Hutchinson CFAR, March 2018 ix. 2018 Eurogin Program Committee, March 2018
x. External Advisory Board Weil/Cornell CFAR, February 2019
e. Invited lectures, presentations, research seminars: a. International i. Chiao, E. Head and Neck Cancers in U.S. Veterans Living in HIV, IAS Mexico City 7/23/2019 ii. Chiao, E. Screening HIV-infected Women for Anal Cancer Precursors, Eurogin, Salzburg, Austria 6/10-6/13/2016 iii. Chiao, E. Screening People Living with HIV for Anal Cancer, Eurogin, Lisbon, Portugal 12/3-12/15/2018
b. National 1) Chiao, E. Co-Chair: International Conference on HIV-related Malignancies, Outcome Disparities of HIV-associated Malignancies, Bethesda, MD, October 21-22, 2019
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2) Chiao, E. A Multi-Disciplinary Approach to Optimizing and Advancing Cancer Care for People Living with HIV, CFAR Seminar, University of Washington, Seattle WA July 11, 2019
3) Chiao, E. Co-Chair: International Conference on HIV-related Malignancies, Epidemiology of HIV-associated Malignancies, Bethesda, MD, October 22-24, 2017
4) Chiao, E. Co-Chair: Conference on Retroviruses and Opportunistic Infections (CROI): HPV-related malignancies, February 28-March 3, 2013, Atlanta, GA
5) Chiao, E. Chair person: AACR Annual Meeting, HIV Malignancies: Current Dilemmas and Future Directions, March 31-April 4, 2012, Chicago, IL.
6) Chiao, E. HIV- Related Anal Cancer and Cancer Precursors in the HAART Era, Association of Nurses in AIDS Care yearly meeting, September 26, 2008.
c. Local 1. Chiao, E. MD Anderson Cancer Center Institutional Grand Rounds: HIV and Maligncies, 5/18/2018 2. Chiao, E. Screening HIV-infected Individuals for Anal Cancer Precursors: What is the Evidence. Southern AIDS Education and Training Conference, 2/20/2018 3. Chiao, E. Viral and Molecular Oncogenesis Program meeting: "Evidence for screening HIV-infected women for anal cancer precursors , 5/18/2011, 5/15/2016. 4. Chiao, E. TSH-HCHD HIV Conference 2017: Anal Cancer and HIV, 4/30/2017. 5. Chiao, E. CFAR AIDS Research Forum: Human Papilloma Virus and Cancer in HIVpositive Patients, 8/18/17.
2. Publications
a. Full papers in Peer Review Journals: I. Published
1) Clark E, Royse KE, Dong Y, Chang E, Raychaudhury S, Kramer J, White DL, Chiao E. Stable Incidence and Poor Survival for HIV-Related Burkitt Lymphoma Among the U.S. Veteran Population During the Anti-Retroviral Era. J Acquir Immune Defic Syndr. 2020 Jan 27. doi: 10.1097/QAI.0000000000002303. [Epub ahead of print] PubMed PMID: 31977597.
2) Stier EA, Abbasi W, Agyemang AF, Valle Álvarez EA, Chiao EY, Deshmukh AA. Recurrence of Anal High-Grade Squamous Intraepithelial Lesions among Women Living with HIV. J Acquir Immune Defic Syndr. 2020 Jan 16. doi: 10.1097/QAI.0000000000002304. [Epub ahead of print] PubMed PMID: 31977596.
3) Nyitray AG, D Sou a G, Stier EA, Clifford G, Chiao EY. The Utility of Digital Anal Rectal Examinations in a Public Health Screening Program for Anal Cancer. J Low Genit Tract Dis. 2020 Jan 16. doi: 10.1097/LGT.0000000000000508. [Epub ahead of print] PubMed PMID: 31972661.
4) Sandulache VC, Wilde DC, Sturgis EM, Chiao EY, Sikora AG. A Hidden Epidemic of "Intermediate Risk" Oropharynx Cancer. Laryngoscope Investig Otolaryngol. 2019 Oct 17;4(6):617-623. doi: 10.1002/lio2.316. eCollection 2019 Dec. Review. PubMed PMID: 31890879; PubMed Central PMCID: PMC6929570.
5) Sandulache VC, Lei YL, Heasley LE, Chang M, Amos CI, Sturgis EM, Graboyes E, Chiao EY, Rogus-Pulia N, Lewis J, Madabhushi A, Frederick MJ, Sabichi A, Ittmann M, Yarbrough WG, Chung CH, Ferrarotto R, Mai W, Skinner HD, Duvvuri U, Gerngross P, Sikora AG. Innovations in risk-stratification and treatment of Veterans with oropharynx cancer; roadmap of the 2019 Field Based Meeting. Oral Oncol. 2019 Oct 21:104440. doi: 10.1016/j.oraloncology.2019.104440. [Epub ahead of print] PubMed PMID: 31648864.
6) White, DL; Oluyomi, A; Royse, K,; Dong, Y, Nguyen, H; Chang, E, Richardson, P; Jiao, L; Garcia, J.; Kramer, JR.; Thrift, A, Chiao, EY, Incidence of AIDS-related Kaposi Sarcoma in all 50 United States from 2000 to 2014. JAIDS. 2019 Aug 1;81(4):387-394. doi: 10.1097/QAI.0000000000002050. PMID: 31242141
7) Stier, A., Lensing,S., Darragh, M., Deshmukh, A., Einstein, M., Palefsky, J., Jay,N. BerryLawhorn, J.M., Wilkin, T., Wiley, D., Barroso, L., Cranston, R., Levine, R., Guiot, H., French, A., Citron, D., Rezaei, M.K., Goldstone, S., Chiao, E. Prevalence of and risk factors for anal high-
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grade squamous intraepithelial lesions in women living with HIV. Clin Infect Dis. 2019 Jul 11. pii: ciz408. doi: 10.1093/cid/ciz408. Epub ahead of print. PMID: 31292602 8) Kramer J, Hartman C, White DL, Royse K, Richardson P, Thirft A, Raychaudhury S, Desiderio R, Sanchez D, Chiao E. Validation of HIV cohort identification using automated clinical data in the Department of Veterans Affairs. HIV Medicine. 2019 May 26. doi: 10.1111/hiv.12757. Epub ahead of print. PMID: 31131549 9) El-Mallawany N, Kamiyango W, Villier J, Peckham-Gregory E, Scheurer M, McAtee C, Allen C, Kovarik C, Frank D, Eason A, Caro-Vegas C, Chiao E, Schutze G, Ozuah N, Mehta P, Kazembe P, Dittmer D. Kaposi Sarcoma Herpesvirus Inflammatory Cytokine Syndrome (KICS)-like Clinical Presentation in HIV-Infected Children in Malawi. Clin Infect Dis. 2019 Mar 22 pii: ciz250. doi: 10.1093/cid/ciz250. Epub ahead of print. PMID: 31102440. 10) Thrift AP, Kramer JR, Hartman CM, Royse K, Richardson P, Dong Y, Raychaudhury S, Desiderio, R, Sanchez D, Anandasabapathy S, White DL, Chiao EY. Risk and Predictors of Esophageal and Stomach Cancers in HIV-infected Veterans: A Matched Cohort Study. J Acquir Immune Defic Syndr. 2019 Mar 29. Epub ahead of print. PMID: 30939533 11) Harms A, Kansara S, Stach C, Richardson P, Chen G, Lai S, Sikora AG, Parke R, Donovan D, Chiao E, Skinner H, Sandulache VC. Swallowing Function in Survivors of Oropharyngeal Cancer Is Associated With Advanced T Classification. Ann Otol Rhinol Laryngol 2019 Mar 27:3489419839091. doi: 10.1177/0003489419839091. Epub ahead of print PMID:30913911 12) Fokom Domgue J, Messick C, Milbourne A, Guo M, Salcedo MP, Dahlstrom KR, Chiao EY, Deshmukh AA, Sturgis EM, Schmeler KM. Prevalence of high-grade anal dysplasia among women with high-grade lower genital tract dysplasia or cancer: Results of a pilot study. Gynecologic Oncology. 2019 Mar 1. Doi: 10.1016/j.ygyno. Epub ahead of print. PMID: 30827725 13) Kahn JA, Belzer M, Chi X, Lee J, Gaur AH, Mayer K, Martinez J, Futterman DC, Stier EA, Paul ME, Chiao EY, Reirden D, Goldstone SE, Ortiz Martinez AP, Cachay ER, Barroso LF, Da Costa M, Wilson CM, Palefsky JM; AIDS Malignancy Consortium and Adolescent Medicine Trials Network for HIV/AIDS Interventions. Pre-vaccination prevalence of anogenital and oral human papillomavirus in young HIV-infected men who have sex with men. Papillomavirus Res. 2019 Jan 15;7:52-61. doi: 10.1016/j.pvr.2019.01.002. Epub ahead of print. PMID: 30658128 14) Badr, H, Herbert, K, Chhabria, K, Sandulache, V, Bobby R, Chiao, E, Wagner, T. Couple-Based Self-Management for Head and Neck Cancer: Results of A Randomized Pilot Trial. Cancer. 2018 Dec 6. doi: 10.1002/cncr.31906. PMID: 30521075 15) Hicks, JT, Hwang, LY, Barnaiuk ,S, White, M, Chiao, EY, Onwuka, N, Ross, MW, Nyitray, AG. Factors associated with self-reported anal cancer screening history in men who have sex with men. Sex Health. 2018 Dec 6. Doi: 10.1071/SH18D39. PMID: 30517839 16) El-Mallawany,N, Villiera, J, Kamiyango, W, Peckham-Gregory, E, Scheurer, M, Allen,C, McAtee, C, Legarreta, A, Dittmer, D, Kovarik, C, Chiao, E, Martin,S, Ozuah,N, Mehta,P, Kazembe, P. Endemic Kaposi Sarcoma in HIV-Negative Children and Adolescents: An Evaluation of Overlapping and Distinct Clinical Features in Comparison with HIV-Related Disease. Infectious Agents and Cancer. Infect Agent Cancer.2018 Nov9; 13:33. doi:10.1186/s1307-018-0207-4. eCollection 2018. PMID: 30455728; PMCID: PMC6230225 17) Richardson P, Kansara S, Chen G, Sabichi A, Sikora A, Parke R, Donovan D, Chiao E, Sandulache V. Treatment Patterns in Veterans with Laryngeal and Oropharyngeal Cancer and Impact on Survival. Laryngoscope Investig Otolaryngol. 2018 Aug 9;3(4):275-282. doi: 10.1002/lio2.170. eCollection 2018 Aug. PMID: 30186958 ; PMCID: PMC6119785 18) Suk,R, Mahale,P, Sonawane, P, Sikora,A, Chhatwal, J, Schmeler, K, Sigel, K, Cantor, S, Chiao, E* , Deshmukh, A*. Trends in risks for second primary cancers associated with index Human Papillomavirus-Associated cancers. JAMA Network Open. 2018;1(5) e181999. doi:10.1001/jamanetworkopen.2018.1999. PMID: 30646145 ; PMCID: PMC6324459 19) Bender Ignacio R, Lin L, Rajdev L, Chiao E. Evolving Paradigms in HIV Malignancies: Review of Ongoing Clinical Trials. Jo nal of he Na ional Com ehen i e Cance Ne o k : JNCCN. 2018;16(8):1018-1026. doi:10.6004/jnccn.2018.7064. PMID: 30099376; PMCID: PMC6109631 20) Oseso LN, Chiao EY, Ignacio RAB. Evaluating Antiretroviral Therapy Ini tiation in HIV-Associated Malignancy: Is There Enough Evidence to Inform Clinical Guidelines? Send to J Natl Compr Canc Netw. 2018 Aug;16(8);927-932. doi: 10.6004/jnccn.2018.7057. PMID: 30099368 ; PMCID: PMC6207434
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21) Chang E, Sabichi AL, Kramer JR, Hartman C, Royse KE, White DL, Patel NR, Richardson P, Yellapragada SV, Garcia JM, Chiao EY. Nivolumab Treatment for Cancers in the HIV-infected Population. J Immunother. 2018 Jul 16. doi: 10.1097/CJI.0000000000000240. [Epub ahead of print] PMID: 30020193 ; PMCID: PMC6128753
22) Chang E, Mapakshi SR, Mbang P, El-Mallawany NK, Kramer JR, White DL, Chiao EY. The impact of protease inhibitors on HIV-associated Kaposi sarcoma incidence: a systematic review. J Acquir Immune Defic Syndr. 2018 Jul 6. doi: 10.1097/CJI.0000000000000240 [Epub ahead of print.] PMID: 29985803
23) Deshmukh AA, Shirvani SM, Likhacheva A, Chhatwal J, Chiao EY, Sonawane K. The Association Between Dietary Quality and Overall and Cancer-Specific Mortality Among Cancer Survivors, NHANES III. JNCI Cancer Spectr. 2018 Apr;2(2):pky022. doi: 10.1093/jncics/pky022. Epub 2018 Jun 5. PMID: 29905226 ; PMCID: PMC5989369
24) Thrift AP, Chiao EY. Are Non-HIV Malignancies Increased in the HIV-Infected Population? Curr Infect Dis Rep. 2018 May 26;20(8):22. doi: 10.1007/s11908-018-0626-9. Review. PMID: 29804238
25) Wilkin TJ, Chen H, Cespedes MS, Leon-Cruz JT, Godfrey C, Chiao EY, Bastow B, WebsterCyriaque J, Feng Q, Dragavon J, Coombs RW, Presti RM, Saah A, Cranston RD. A randomized, placebo-controlled trial of the quadrivalent HPV vaccine in HIV-infected adults age 27 or older: AIDS Clinical Trials Group protocol A5298. Clin Infect Dis. 2018 Apr 5. doi: 10.1093/cid/ciy274. [Epub ahead of print] PMID: 29659751 ; PMCID: PMC6186857
26) Cranston RD, Cespedes MS, Paczuski P, Yang M, Coombs RW, Dragavon J, Saah A, Godfrey C, Webster-Cyriaque JY, Chiao EY, Bastow B, Wilkin T; ACTG 5298 Study Team. High Baseline Anal Human Papillomavirus and Abnormal Anal Cytology in a Phase 3 Trial of the Quadrivalent Human Papillomavirus Vaccine in Human Immunodeficiency Virus-Infected Individuals Older Than 26 Years: ACTG 5298. Sex Transm Dis. 2018 Apr;45(4):266-271. doi: 10.1097/OLQ.0000000000000745. PMID: 29528986; PMCID: PMC5868482
27) Hwang JP, Ahmed S, Ariza-Heredia EJ, Duan Z, Zhao H, Schmeler KM, Ramondetta L, Parker SL, Suarez-Almazor ME, Ferrajoli A, Shih YT, Giordano SH, Chiao EY. Low rate of cervical cancer screening among women with hematologic malignancies after stem cell transplant. Biol Blood Marrow Transplant. 2018 May;24(5):1094-1098. doi: 10.1016/j.bbmt.2018.01.019. Epub 2018 Feb 9. PMID: 29378304
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46) Deshmukh AA, Zhao H, Franzini L, Lairson DR, Chiao EY, Swartz MD, Das P, Giordano SH, Cantor SB. Total Lifetime and Cancer-related Costs for Elderly Patients Diagnosed with Anal Cancer in the United States. Am J Clin Oncol. 2015 Oct 29. [Epub ahead of print] PMID:26523440 ; PMCID: PMC5592145;
47) Chiao E, Stier EA. Reply. Am J Obstet Gynecol. 2016 Mar;214(3):411-2. doi: 10.1016/j.ajog.2015.10.917. Epub 2015 Oct 30. PMID: 26522860
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in Research. Womens Health Issues. 2015 Nov-Dec;25(6) :720-6. doi:10.1016/j.whi.2015.06.008. Epub 2015 Aug 4. PMID:26253825; PMCID:PMC4641840 49) Hwang JP, Granwehr BP, Torres HA, Suarez-Almazor ME, Giordano TP, Barbo AG, Lin HY, Fish MJ, Chiao EY. HIV testing in patients with cancer at the initiation of therapy at a large US comprehensive cancer center. J Oncol Pract. 2015 Sep;11(5):384-90. doi: 10.1200/JOP.2015.005116. Epub 2015 Aug 4. PMID:26243649 ; PMCID:PMC4575402 50) Deshmukh AA, Chhatwal J, Chiao EY, Nyitray A, Das P, Cantor SB. Long-term outcomes of adding HPV vaccine to the anal intraepithelial neoplasia treatment regimen in HIV-positive men who have sex with men. Clin Infect Dis. 2015 Jul 29. pii: civ628. PMID:26223993; PMCID:PMC4614412 51) Robinson JO, Slashinski MJ, Chiao E, McGuire AL. It depends whose data are being shared; considerations for genomic data sharing policies. J Law Biosci. 2015 jul 21;2(3):697-704. doi: 10.1093/jlb/lsv030. eCollection 2015 Nov. PMID: 27774218 ; PMCID: PMC5034404; 52) Moscicki A, Darragh TM, Berry-Lawhorn JM, Roberts JM, Khan MJ, Boardman LA, Chiao E, Einstein MH, Goldstone SE, Jay N, Likes WM, Stier EA, Welton ML, Wiley DJ, Palefsky JM. Screening for Anal Cancer in Women. J Low Genit Tract Dis. 2015 Jul;19(3 Suppl 1):S26-41. doi:10.1097/LGT.0000000000000117. PMID:26103446; PMCID:PMC4479419 53) Stier EA, Sebring MC, Mendez AE, Ba FS, Trimble DD, Chiao EY. Prevalence of anal human papillomavirus infection and anal HPV-related disorders in women: a systematic review. Am J Obstet Gynecol. 2015 Sep;213(3):278-309. doi: 10.1016/j.ajog.2015.03.034. Epub 2015 Mar 19. PMID:25797230; PMCID:PMC4556545 54) Kowalkowski MA, Kramer JR, Richardson PR, Suteria I, Chiao EY. Use of boosted protease inhibitors reduces Kaposi sarcoma incidence among male veterans with HIV Infection. Clin Infect Dis. 2015 May 1;60(9):1405-14. doi:10.1093/cid/civ012.Epub 2015 Jan 13. PMID:25586682; PMCID:PMC4462659 55) Kim MH, Ahmed S, Hosseinipour MC, Giordano TP, Chiao EY, Yu X, Nguyen C,Chimbwandira F, Kazembe PN, Abrams EJ. Implementation and operational research: The impact of Option B+ on the antenatal PMTCT cascade in Lilongwe, Malawi. J Acquir Immune Defic Syndr. 2015 Apr 15;68(5):e77-83. doi:10.1097/QAI.0000000000000517. PMID:25585302; PMCID:PMC4359035 56) Ahmed S, Kim M, Dave A, Sabelli R, Kanjelo K, Preidis G, Giordano TP, Chiao EY, Hoessinipour M, Kazembe P, Chimbwandira F, Abrams E. Improved identification and enrollment into care of HIV-exposed and infected infants and children following a community health worker intervention in Lilongwe, Malawi. J Int AIDS Soc. 2015 Jan 7;18(1)19305. doi:10.7448/IAS.18.1.19305. eCollection 2015. PMID: 25571857; PMCID:PMC4287633 57) Kramer JR, Kowalkowski MA, Duan Z, Chiao EY. The Effect of HIV Viral Control on the Incidence of Hepatocellular Carcinoma in Veterans with Hepatitis C and HIV Coinfection. J Acquir Immune Defic Syndr. 2015 Apr 1;68(4):456-62. doi:10.1097/QAI.0000000000000494. PMID:25559606; PMCID:PMC4334674 58) Dailey Garnes NJ, D'Souza G, Chiao E. Number of Primary Care Visits Associated with Screening for Cervical Dysplasia among Women with HIV Infection in Harris County, Texas, United States of America. HIV Adv Res Dev. 2015;1(2). pii: 107. Epub 2015 Feb 16. PMID:27500276; PMCID:PMC4974513 59) Deshmukh AA, Chiao EY, Das P, Cantor SB. Clinical effectiveness and cost-effectiveness of quadrivalent human papillomavirus vaccination in HIV-negative men who have sex with men to prevent recurrent high-grade anal intraepithelial neoplasia. Vaccine. 2014 Nov;32(51):6941-6947 doi:10.1016/j.vaccine.2014.10.052. PMID:25444820; PMCID:PMC4254641 60) Zevallos JP, Hartman CM, Kramer JR, Strugis EM, Chiao EY. Increased Thyroid Cancer Incidence Corresponds to Increased Utilization of Thyroid Ultrasound and Fine Needle Aspiration: A Population-based Study in the Veterans Affairs Healthcare System. Cancer. 2014 Nov 6. doi: 10.1002/cncr.29122. PMID:25376872 61) Luu HN, Amirian ES, Chiao EY, Scheurer ME. Age patterns of Kaposi's sarcoma incidence in a cohort of HIV-infected men. Cancer Med. 2014 Aug 20. doi: 10.1002/cam4.312. PMID:25139791; PMCID:PMC4298390 62) Kowalkowski M, Day R, Du X, Chan W, Chiao E. Cumulative HIV Viremia and Non-AIDS-Defining Malignancies Among a Sample of HIV-Infected Male Veterans. J Acquir Immune Defic Syndr. 2014 Jul 30. PMID:25078536; PMCID:PMC4162758
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81) Chiao EY, Giordano, TP, Richardson, P, El-Serag, HB. Human immunodeficiency virusassociated squamous cell cancer of the anus: epidemiology and outcomes in the highly active antiretroviral therapy era. J Clin Oncol. 2008 Jan 20;26(3):474-9. PMID:18202423
82) Arora A, Chiao E, Tyring SK. AIDS malignancies. Cancer Treat Res. 2007;133:21-67. PMID:17672037
83) Giordano TP, Henderson L, Landgren O, Chiao EY, Kramer JR, El-Serag H, Engels EA. Risk of non-Hodgkin lymphoma and lymphoproliferative precursor diseases in US veterans with hepatitis C virus. JAMA. 2007 May 9;297(18):2010-7. PMID:17488966
84) Chiao EY, Giordano TP, Palefsky JM, Tyring S, El Serag H. Screening HIV-infected individuals for anal cancer precursor lesions: a systematic review. Clin Infect Dis. 2006 Jul 15;43(2):223-33. Review. PMID:16779751
85) Chiao EY, Krown SE, Stier EA, Schrag D. A population-based analysis of temporal trends in the incidence of squamous anal canal cancer in relation to the HIV epidemic. J Acquir Immune Defic Syndr. 2005 Dec 1;40(4):451-5. PMID:16280701
86) Fields KS, Petersen MJ, Chiao E, Tristani-Firouzi P. Case reports: treatment of nevirapineassociated dress syndrome with intravenous immune globulin (IVIG). J Drugs Dermatol. 2005 JulAug;4(4):510-3. PMID:16004028
87) Stier EA, Krown SE, Chi DS, Brown CL, Chiao EY, Lin O. Anal dysplasia in HIV-infected women with cervical and vulvar dysplasia. J Low Genit Tract Dis. 2004 Oct;8(4):272-5. PMID:15874871
88) Teruya-Feldstein J, Chiao E, Filippa DA, Lin O, Comenzo R, Coleman M, Portlock C, Noy A. CD20-negative large-cell lymphoma with plasmablastic features: a clinically heterogenous spectrum in both HIV-positive and -negative patients. Ann Oncol. 2004 Nov;15(11):1673-9. PMID:15520070
89) Chiao EY, Krown SE. Update on non-acquired immunodeficiency syndrome-defining malignancies. Curr Opin Oncol. 2003 Sep;15(5):389-97. PMID:12960522
90) Chiao EY, Ries KM, Sande MA. AIDS and the elderly. Clin Infect Dis. 1999 Apr;28(4):740-5. PMID:10825030
91) Chiao E, Hadler J. From the Centers for Disease Control. Early childhood vaccination levels. JAMA. 1992 Feb 5;267(5):628-9NB. As reported from: CDC. Early Childhood Vaccination Levels Among Urban Children in Connecticut 1990 and 1991. MMWR RR2; 40: 888-90.1991. PMID:1731124
II. In Press 1. Gutierrez AM, Hofstetter JD, Dishner E, Chiao EY, Rai D, McGuire AL. A right to privacy and confidentiality: Ethical medical care for patients in United States immigration detention. Journal of Law, Medicine, and Ethics; Spring 2020
2.Sandulache VC, Wilde DC, Sturgis, Chiao EY, Sikora AG. A Hidden Epidemic of Intermediate Risk Oropharynx Cancer. Laryngoscope Investigative Otolaryngology.
III. Submitted/Under Review
1. Suk R, Montealegre J, Nemutlu G, Nyitray A, Chhatwal J, Bauer C, Chiao E, Schmeler K, Sonawane K, Deshmukh A. Knowledge of Human Papillomavirus (HPV), HPV Vaccine, and HPV-associated Cancers: Sex Differences in the United States, HINTS-5. JAMA IM.
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Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 26 of 30
b. Abstracts given during last three years:
1) Elizabeth Chiao, MD, MPH, Dorothy J. Wiley PhD, Shelly Y Lensing, MS, Teresa Darragh, MD, Mark H Einstein, MD, Naomi Jay, PhD, J. Michael Berry Lawhorn, MD, Ashish A Deshmukh, PhD, Joel M Palefsky, MD, Timothy Wilkin, MD, Luis F Barroso, MD, Rebecca Levine, MD, Audrey L French, MD, Humberto Guiot MD, Ross D Cranston, MD, Elizabeth Stier, MD. Screening Tests for Anal High-Grade Squamous Intraepithelial Lesion Detection in Women Living with HIV. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
2) Eva Clark, Liang Chen,Yongquan Dong, Suchismita Raychaudhury, Jennifer Kramer, Donna White, Elizabeth Chiao. HIV+ Female Veterans Are At Increased Risk of Developing Genital Cancers. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
3) Eva Clark MD, Kathryn E. Royse, Yongquan Dong, Elaine Chang, Suchismita Raychaudhury, Jennifer Kramer, Donna White, Elizabeth Chiao. Burkitt Lymphoma in The ART Era: Stable Incidence, Poor Survival. Poster presented at 17th International Conference on Malignancies in HIV/AIDS (ICMH), Bethesda, MD, October 21-22, 2019.
4) Kathryn E. Royse, Jose M. Garcia, Donna L. White, Jennifer R. Kramer, Yongquan Dong, Suchismita Raychaudhury, Peter A. Richardson, Christine Hartman, Elizabeth Y. Chiao. Prostate adenocarcinoma incidence and risk factors in Veterans with well controlled HIV infection. In: Proceedings of the American Association for Cancer Research Annual Meeting 2019, March 29- Apr 3; Atlanta, GA. Philadelphia
5) Domgue JF, Messick C, Milbourne A, Guo M, Salcedo M, Chiao E, Dahlstrom K, Sturgis E, Schmeler K. Prevalence of anal dysplasia and cancer in women with lower genital tract dysplasia and cancer: Preliminary results of the PANDA Study. Accepted for presentation at the 17th Biennial Meeting of the International Gynecologic Cancer Society. Kyoto, Japan. September 14-16, 2018.
6) Mapakshi S, Kramer JR, Royse K, Chiao E, Garcia J, Kanwal F, El-Serag HB, Jiao L, White DL. Statins Use and Overall Survival in Pancreatic Cancer Patients: A Systematic Review and Metaanalysis. Accepted for presentation at the annual Digestive Disease Week 2018. Washington, DC. June 2-5, 2018.
7) Chang E, Thrift AP, White DL, Kramer J, Sabichi AL, Hartman C, Royse KE, Richardson P, Chiao EY. Nivolumab efficacy and safety in veterans with and without HIV infection. Accepted for presentation at the annual American Association for Cancer Research 2018. Chicago, Illinois. April 14-18, 2018.
8) Garcia JM, Kramer JR, Richardson PA, White D, Raychaudhury S, Chang E, Hartman C, Chiao EY. Effect of Diabetes, Metabolic factors and Medications on Risk of Lung Cancer among HIVInfected Veterans. Accepted for presentation at the annual Endocrine Society 2018. Chicago, Illinois. March 17-20, 2018.
9) Thrift AP, Royse KE, Richardson PA, Raychaudhury S, Desiderio R, White DL, Kramer JR, Chiao E. Risk of Non-AIDS-Defining Cancers among Veterans with well-controlled HIV Infection. Accepted for presentation at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, March 4-8, 2018.
10) Thrift AP, White DL, Nguyen HP, Royse KE, Kramer JR, Chiao EY. Trends in incidence of Kaposi Sarcoma among males in all 50 United States between 2000 and 2013. Accepted for presentation at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, March 4-8, 2018.
11) Mapakshi S, Mbang P, Kramer JR, White DL, Chiao EY. Impact of Protease Inhibitor Based Regimens on Incidence of HIV associated Kaposi Sarcoma: A Systematic Review of Literature.
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Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 27 of 30
Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
12) Thrift AP, Royse KE, Richardson PA, Raychaudhury S, Desiderio R, White DL, Kramer JR, Chiao EY. Risk Of Non-AIDS-Defining Cancers Among Veterans With Well-Controlled HIV Infection. Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
13) Chang E, Hartman C, Royse K, Kramer J, White D, Richardson P, Chiao EY. A Case Series of Nivolumab in Veterans with HIV Infection and Malignancy. Presented at the International Conference on Malignancies in HIV/AIDS. Bethesda, MD. October 23-24, 2017
14) Mapakshi SR, Kramer JR, Royse KE, Chiao E, Garcia JM, Kanwal F, El-Serag H, Jiao L, White D. Statins Use and Overall Survival in Pancreatic Cancer Patients: A Systematic Review and Meta-analysis. Presented at the annual Digestive Disease Week Meeting, Chicago, Illinois, May 6, 2017.
15) Biggerstaff K, Kramer J, Chiao E, Richardson P, Orengo-Nania S, Frankfort B, White D. Open Angle Glaucoma (OAG) and Uric Acid (UA) Levels in the Veteran Population. Presented at the 27th Annual Meeting of the American Glaucoma Society, Coronado, California. March 3, 2017.
16) Biggerstaff K, Frankfort B, Orengo-Nania S, Garcia J, Chiao E, Kramer J, White D. Diagnostic Algorithms to Identify Primary Open Angle Glaucoma in Veterans Affairs Administrative Databases. Poster presented at 2016 Michael E. DeBakey VA Medical Center Research Poster Day, Houston, Texas, October 26, 2016.
17) Biggerstaff K, Frankfort B, Orengo-Nania S, Garcia J, Chiao E, Kramer J, White D. Diagnostic Algorithms to Identify Primary Open Angle Glaucoma in Veterans Affairs Administrative Databases. Poster presented at 2016 Baylor Graduate Student Symposium, Houston, Texas, October 19, 2016.
18) Varier I, Chew E, Ramsey D, Sikora A, Chiao E. HEALTHCARE UTILIZATION IN HPV RELATED CANCERS. Presented at the AHNS 9th International Conference on Head and Neck Cancer, Seattle, WA, July 18, 2016.
19) Wilkin TJ, Chen H, Cespedes M, Paczuski P, Godfrey C, Chiao E, Luque A, Webster-Cyriaque JY, Bastow B, Cranston R. ACTG A5298: A Phase 3 Trial of the Quadrivalent HPV Vaccine in Older HIV+ Adults. CROI February 23, 2016.
20) Oliver N, Hartman CM, Kramer JR, Chiao EY. Statin Use and the Impact on Cirrhosis Progression in a HIV/HCV Co-infected Population. Poster Presented at the Conference on Retroviruses and Opportunistic Infections, Boston, MA, February 23, 2016.
21) Oliver N, Hartman CM, Kramer JR, Chiao EY. Metabolic Risk Factors Associated with HCC Development in an HIV/HCV Co-Infected Cohort. Poster Presented at the 15th Conference on Malignancies in AIDS and Other Acquired Immunodeficiencies, Bethesda, MD, October 26, 2015.
c. Books: a. complete books written: N/A b. books edited: N/A c. book chapters written 1) Chang E, Chiao EY. Oncologic Manifestations of HIV Infection. In The Sub-Specialty Care of HIV-Infected Patients. Nova Scientific Publications, 2018. 2) Oliver N, Chiao EY. Malignant Diseases in HIV. In AAHIVM Fundamentals of HIV Medicine. Oxford University Press. 2017 3) Chiao E. Malignant Diseases in HIV. In Looking for Daylight: Evidence in Medicine and Federal Policy on Comparative Effectiveness Research. Oxford University Press, 2016
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Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 28 of 30
4) Mbang P, Chiao E. Malignancies and Neoplasms. In AAHIMV Fundamentals of HIV Medicine. AAHIVM, 2012
5) Tarakaji M, Chiao E. Anal Canal Carcinoma. In Tumor Board Reviews, Guidelines and Case Reviews in Oncology, Demos Medical. 2012
6) Chiao. E. Epidemiology and Clinical Characteristics of Non-AIDS-Defining Malignancies in Molecular basis for therapy of AIDS defining cancers, Springer 2010
7) Chiao EY, Krown SE. Non-AIDS-Defining Cancers in HIV Infected Individuals. In, Viral and Immunological Malignancies. PA Volberding and J Palefsky, eds. American Cancer Society, Atlas of Clinical Oncology. 2006
8) Arora A, Chiao E, Tyring S. Treatment of AIDS-Associated Viral Oncogenesis. In AIDS Associated Viral Oncogenesis. Myers, C editor. Springer publishing, 2007.
d. Other works communicating research results to scientific colleagues: N/A e. Other works communicating research results to general public : N/A
III. TEACHING INFORMATION
A. Educational Leadership Roles 1. CSTP research mentor, 2. T32 research mentor, Infectious Disease T32, medical oncology T32
B. Didactic course work 1. Courses taught at current institution: a. Implicit Association Test (IAT) Best Intentions Workshop for the LACE course 2009-present b. Patient Safety Course Steering Committee, 2011-2012 c. Infectious Diseases Course: Viruses and Cancer 2012-2018 2. Courses taught at other institutions: N/A 3. Courses expected to be taught at BCM: Undergraduate Medical Education: Infectious Diseases Course
C. Curriculum development work None
D. Non-didactic teaching 1. Resident training: 80 hours 2. Clinical Fellow training: Ben Taub General Hospital 4 weeks per year 3. Graduate Student training: PhD Dissertation Committee: Mark Kowalkowski, PhD September, 2013, Ashish Deshmukh, UTSPH PhD 2014, Hsuan-Chen Liu PhD 2019 (expected) 4. Estimate of kinds of non-didactic teaching expected at BCM: Mentor for internal Medicine Residents and Fellows Research; Dan Haim Cohen 2007-2008, and Natalie Dailey 2009-2010, Virginia Jackson 2011-2012, Pamela Mbang 2015-2016, Nora Oliver, Elaine Chang 2017-2018, Eva Clark 2018-2021 5. Medical School Mentor 2009-2011 Medical Students: Erin Chew 2016-2018, Alison Kremer Yoder 2018-2019 6. Mentor Junior Faculty: Maria Kim, MD; Saeed Ahmed, MD; Jose Zevallos, MD- recipient VISN 16 Pilot; Aaron Thrift, PhD, Michael Scheurer, PhD, Vlad Sandluche, MD/PhD, Bich Dang, MD, Andrew Dinardo, MD (pediatrics), Lillie Lin, MD (MDACC), Ashish Deshmukh, MD (University of Florida), Rachel Bender Ignacio, MD (University of Washington), Alan Nyitray, PHD (University of Texas School of Public Health)
E. Lectures and Presentations: 1. International: a. Chiao, E. Panelist, Confronting the Challenges Relevant to HIV/AIDS Malignancies in SubSaharan Africa Symposium, Capetown, South Africa 7/31-8/2/2015
2. National:
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Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 29 of 30
a. Chiao, E. Human Immunodeficiency Virus and Cancer: A Multi-disciplinary Approach to Optimizing and Advancing Clinical Care. Boston University Infectious Diseases Grand Rounds, March 21, 2019
b. Chiao, E. HIV in the Southern United States. Symposium: An Interdisciplinary History of the Struggle Against HIV/AIDS. University of Utah Law school, October 2, 2015
c. HIV and the 50 plus population 2007. AETC. Cornell University Medical College, NY, NY. June 15, 2007
d. Oncology and HIV Disease 2005. Quarterly Roundtable Discussion. Moderated by Kristen Ries, University of Utah.
3. Regional: a. The Epidemiology and Outcomes of HPV-Associated Malignancies. Cancer Program Continuing Medical Education, Alexandria, VA, 8/8/13 b. HIV and the over 50 population 15th Annual Thomas Street HIV Conference. Houston Hyatt. December 16, 2006 c. HIV and the Elderly West Houston Medical Center. Sponsored by Texas-Oklahoma AIDS Education Training Center. April 8, 2005
4. Local: (See FAP Educational Portfolio for additional recurring lectures) a. Research in Progress: VA Research Symposium, Michael E. Debakey, January 2018 b. Research in Progress: Infectious Diseases Division, Baylor College of Medicine, May 2017 c. Citywide Infectious Diseases Conference, Baylor College of Medicine, March 2016 d. BCM Grand Rounds: Infectious Disease Update: HPV vaccine update , January 2012 e. BCM Grand Rounds: CPC: Lumps on the Head , January 2012 f. Research in Progress: Infectious Diseases Division, Baylor College of Medicine, February 2008 g. CPC Internal Medicine, Baylor College of Medicine March 2007 h. Update on AIDS-Related Maligancies VA and Thomas Street Clinical Noon Conferences. January, 2006 i. Anal Cancer and Anal Cancer Precursors among HIV-Infected Individuals. Quality Research in Progress Seminar Series. Houston Center for Quality Care and Utilization Services (HCQCUS). October 8, 2005
F. Visiting professorships: N/A
IV. MEDICAL AND SERVICE INFORMATION
A. Patient care responsibilities 1. Department-wide: N/A 2. Section or specialty: a. HIV/Infectious Disease Attending: Ben Taub General Hospital 1. 1.5 months per year, 2006-current b. HIV/Infectious Disease Clinic: Thomas Street Clinic 1. ½ day every other week, 2006-current c. Medical Oncology Clinic: Thomas Street Clinic 1. ½ day every other week, plus emergency weekly visits, 2006-current d. Anal Dysplasia Clinic: Thomas Street Clinic 1. ½ day every week, 2006-current e. Research Clinic (Med Onc and Anal Dysplasia) for AMC trials 1. ½ day every week 2008-current
B. Clinical Leadership or Business Development: N/A
C. Voluntary Health Organization Participation: N/A
V. SERVICE CONTRIBUTIONS
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Case 4:19-cv-00226 Document 32-2 Filed on 03/27/20 in TXSD Page 30 of 30 A. Administrative assignments
1. Department administration, committees, etc: 2. College, School or University administration, committees, etc
a. IRB member July 2006- July 2009, b. Baylor Department Medicine Research Committee, January 2018 B. National, Regional or Local Participation in Professional or Voluntary Organizations 1. Hurricane Harvey Hero September 2017
Last updated 12/30/2019
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Case 4:19-cv-00226 Document 32-3 Filed on 03/27/20 in TXSD Page 1 of 24
Exhibit C – Expert Declaration of Dr. Jaimie Meyer filed
in Velesaca v. Wolf

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1goef 23of 24
Declaration of Dr. Jaimie Meyer
Pursuant to 28 U.S.C.§ 1746, I hereby declare as follows:
I. Background and Qualifications
1. I am Dr. Jaimie Meyer, an Assistant Professor of Medicine at Yale School of Medicine and Assistant Clinical Professor of Nursing at Yale School of Nursing in New Haven, Connecticut. I am board certified in Internal Medicine, Infectious Diseases and Addiction Medicine. I completed my residency in Internal Medicine at NY Presbyterian Hospital at Columbia, New York, in 2008. I completed a fellowship in clinical Infectious Diseases at Yale School of Medicine in 2011 and a fellowship in Interdisciplinary HIV Prevention at the Center for Interdisciplinary Research on AIDS in 2012. I hold a Master of Science in Biostatistics and Epidemiology from Yale School of Public Health.
2. I have worked for over a decade on infectious diseases in the context of jails and prisons. From 2008-2016, I served as the Infectious Disease physician for York Correctional Institution in Niantic, Connecticut, which is the only state jail and prison for women in Connecticut. In that capacity, I was responsible for the management of HIV, Hepatitis C, tuberculosis, and other infectious diseases in the facility. Since then, I have maintained a dedicated HIV clinic in the community for patients returning home from prison and jail. For over a decade, I have been continuously funded by the NIH, industry, and foundations for clinical research on HIV prevention and treatment for people involved in the criminal justice system, including those incarcerated in closed settings (jails and prisons) and in the community under supervision (probation and parole). I have served as an expert consultant on infectious diseases and women’s health in jails and prisons for the UN Office on Drugs and Crimes, the Federal Bureau of Prisons, and others. I also served as an expert health witness for the US Commission on Civil Rights Special Briefing on Women in Prison.
3. I have written and published extensively on the topics of infectious diseases among people involved in the criminal justice system including book chapters and articles in leading peer-reviewed journals (including Lancet HIV, JAMA Internal Medicine, American Journal of Public Health, International Journal of Drug Policy) on issues of prevention, diagnosis, and management of HIV, Hepatitis C, and other infectious diseases among people involved in the criminal justice system.
4. My C.V. includes a full list of my honors, experience, and publications, and it is attached as Exhibit A.
5. I am being paid $1,000 for my time reviewing materials and preparing this report.
6. I have not testified as an expert at trial or by deposition in the past four years.
II. Heightened Risk of Epidemics in Jails and Prisons
1

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa2goef 233of 24
7. The risk posed by infectious diseases in jails and prisons is significantly higher than in the community, both in terms of risk of transmission, exposure, and harm to individuals who become infected. There are several reasons this is the case, as delineated further below.
8. Globally, outbreaks of contagious diseases are all too common in closed detention settings and are more common than in the community at large. Prisons and jails are not isolated from communities. Staff, visitors, contractors, and vendors pass between communities and facilities and can bring infectious diseases into facilities. Moreover, rapid turnover of jail and prison populations means that people often cycle between facilities and communities. People often need to be transported to and from facilities to attend court and move between facilities. Prison health is public health.
9. Reduced prevention opportunities: Congregate settings such as jails and prisons allow for rapid spread of infectious diseases that are transmitted person to person, especially those passed by droplets through coughing and sneezing. When people must share dining halls, bathrooms, showers, and other common areas, the opportunities for transmission are greater. When infectious diseases are transmitted from person to person by droplets, the best initial strategy is to practice social distancing. When jailed or imprisoned, people have much less of an opportunity to protect themselves by social distancing than they would in the community. Spaces within jails and prisons are often also poorly ventilated, which promotes highly efficient spread of diseases through droplets. Placing someone in such a setting therefore dramatically reduces their ability to protect themselves from being exposed to and acquiring infectious diseases.
10. Disciplinary segregation or solitary confinement is not an effective disease containment strategy. Beyond the known detrimental mental health effects of solitary confinement, isolation of people who are ill in solitary confinement results in decreased medical attention and increased risk of death. Isolation of people who are ill using solitary confinement also is an ineffective way to prevent transmission of the virus through droplets to others because, except in specialized negative pressure rooms (rarely in medical units if available at all), air continues to flow outward from rooms to the rest of the facility. Risk of exposure is thus increased to other people in prison and staff.
11. Reduced prevention opportunities: During an infectious disease outbreak, people can protect themselves by washing hands. Jails and prisons do not provide adequate opportunities to exercise necessary hygiene measures, such as frequent handwashing or use of alcohol-based sanitizers when handwashing is unavailable. Jails and prisons are often under-resourced and ill-equipped with sufficient hand soap and alcohol-based sanitizers for people detained in and working in these settings. High-touch surfaces (doorknobs, light switches, etc.) should also be cleaned and disinfected regularly with bleach to prevent virus spread, but this is often not done in jails and prisons because of a lack of cleaning supplies and lack of people available to perform necessary cleaning procedures.
12. Reduced prevention opportunities: During an infectious disease outbreak, a containment strategy requires people who are ill with symptoms to be isolated and that caregivers have
2

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access to personal protective equipment, including gloves, masks, gowns, and eye shields. Jails and prisons are often under-resourced and ill-equipped to provide sufficient personal protective equipment for people who are incarcerated and caregiving staff, increasing the risk for everyone in the facility of a widespread outbreak.
13. Increased susceptibility: People incarcerated in jails and prisons are more susceptible to acquiring and experiencing complications from infectious diseases than the population in the community.1 This is because people in jails and prisons are more likely than people in the community to have chronic underlying health conditions, including diabetes, heart disease, chronic lung disease, chronic liver disease, and lower immune systems from HIV.
14. Jails and prisons are often poorly equipped to diagnose and manage infectious disease outbreaks. Some jails and prisons lack onsite medical facilities or 24-hour medical care. The medical facilities at jails and prisons are almost never sufficiently equipped to handle large outbreaks of infectious diseases. To prevent transmission of droplet-borne infectious diseases, people who are infected and ill need to be isolated in specialized airborne negative pressure rooms. Most jails and prisons have few negative pressure rooms if any, and these may be already in use by people with other conditions (including tuberculosis or influenza). Resources will become exhausted rapidly and any beds available will soon be at capacity. This makes both containing the illness and caring for those who have become infected much more difficult.
15. Jails and prisons lack access to vital community resources to diagnose and manage infectious diseases. Jails and prisons do not have access to community health resources that can be crucial in identifying and managing widespread outbreaks of infectious diseases. This includes access to testing equipment, laboratories, and medications.
16. Jails and prisons often need to rely on outside facilities (hospitals, emergency departments) to provide intensive medical care given that the level of care they can provide in the facility itself is typically relatively limited. During an epidemic, this will not be possible, as those outside facilities will likely be at or over capacity themselves.
17. Health safety: As an outbreak spreads through jails, prisons, and communities, medical personnel become sick and do not show up to work. Absenteeism means that facilities can become dangerously understaffed with healthcare providers. This increases a number of risks and can dramatically reduce the level of care provided. As health systems inside facilities are taxed, people with chronic underlying physical and mental health conditions and serious medical needs may not be able to receive the care they need for these conditions. As supply chains become disrupted during a global pandemic, the availability of medicines and food may be limited.
18. Safety and security: As an outbreak spreads through jails, prisons, and communities, correctional officers and other security personnel become sick and do not show up to
1 Active case finding for communicable diseases in prisons, 391 The Lancet 2186 (2018), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(18)31251-0/fulltext.
3

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work. Absenteeism poses substantial safety and security risk to both the people inside the facilities and the public.
19. These risks have all been borne out during past epidemics of influenza in jails and prisons. For example, in 2012, the CDC reported an outbreak of influenza in 2 facilities in Maine, resulting in two inmate deaths.2 Subsequent CDC investigation of 995 inmates and 235 staff members across the 2 facilities discovered insufficient supplies of influenza vaccine and antiviral drugs for treatment of people who were ill and prophylaxis for people who were exposed. During the H1N1-strain flu outbreak in 2009 (known as the “swine flu”), jails and prisons experienced a disproportionately high number of cases.3 Even facilities on “quarantine” continued to accept new intakes, rendering the quarantine incomplete. These scenarios occurred in the “best case” of influenza, a viral infection for which there was an effective and available vaccine and antiviral medications, unlike COVID-19, for which there is currently neither.
III. Profile of COVID-19 as an Infectious Disease4
20. The novel coronavirus, officially known as SARS-CoV-2, causes a disease known as COVID-19. The virus is thought to pass from person to person primarily through respiratory droplets (by coughing or sneezing) but may also survive on inanimate surfaces. People seem to be most able to transmit the virus to others when they are sickest but it is possible that people can transmit the virus before they start to show symptoms or for weeks after their symptoms resolve. In China, where COVID-19 originated, the average infected person passed the virus on to 2-3 other people; transmission occurred at a distance of 3-6 feet. Not only is the virus very efficient at being transmitted through droplets, everyone is at risk of infection because our immune systems have never been exposed to or developed protective responses against this virus. A vaccine is currently in development but will likely not be able for another year to the general public. Antiviral medications are currently in testing but not yet FDA-approved, so only available for compassionate use from the manufacturer. People in prison and jail will likely have even less access to these novel health strategies as they become available.
2 Influenza Outbreaks at Two Correctional Facilities — Maine, March 2011, Centers for Disease Control and Prevention (2012), https://www.cdc.gov/mmwr/preview/mmwrhtml/mm6113a3.htm. 3 David M. Reutter, Swine Flu Widespread in Prisons and Jails, but Deaths are Few, Prison Legal News (Feb. 15, 2010), https://www.prisonlegalnews.org/news/2010/feb/15/swine-fluwidespread-in-prisons-and-jails-but-deaths-are-few/. 4 This whole section draws from Brooks J. Global Epidemiology and Prevention of COVID19, COVID-19 Symposium, Conference on Retroviruses and Opportunistic Infections (CROI), virtual (March 10, 2020); Coronavirus (COVID-19), Centers for Disease Control, https://www.cdc.gov/coronavirus/2019-ncov/index.html; Brent Gibson, COVID-19 (Coronavirus): What You Need to Know in Corrections, National Commission on Correctional Health Care (February 28, 2020), https://www.ncchc.org/blog/covid-19-coronavirus-what-youneed-to-know-in-corrections.
4

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21. Most people (80%) who become infected with COVID-19 will develop a mild upper respiratory infection but emerging data from China suggests serious illness occurs in up to 16% of cases, including death.5 Serious illness and death is most common among people with underlying chronic health conditions, like heart disease, lung disease, liver disease, and diabetes, and older age.6 Death in COVID-19 infection is usually due to pneumonia and sepsis. The emergence of COVID-19 during influenza season means that people are also at risk from serious illness and death due to influenza, especially when they have not received the influenza vaccine or the pneumonia vaccine.
22. The care of people who are infected with COVID-19 depends on how seriously they are ill.7 People with mild symptoms may not require hospitalization but may continue to be closely monitored at home. People with moderate symptoms may require hospitalization for supportive care, including intravenous fluids and supplemental oxygen. People with severe symptoms may require ventilation and intravenous antibiotics. Public health officials anticipate that hospital settings will likely be overwhelmed and beyond capacity to provide this type of intensive care as COVID-19 becomes more widespread in communities.
23. COVID-19 prevention strategies include containment and mitigation. Containment requires intensive hand washing practices, decontamination and aggressive cleaning of surfaces, and identifying and isolating people who are ill or who have had contact with people who are ill, including the use of personal protective equipment. Jails and prisons are totally under-resourced to meet the demand for any of these strategies. As infectious diseases spread in the community, public health demands mitigation strategies, which involves social distancing and closing other communal spaces (schools, workplaces, etc.) to protect those most vulnerable to disease. Jails and prisons are unable to adequately provide social distancing or meet mitigation recommendations as described above.
24. The time to act is now. Data from other settings demonstrate what happens when jails and prisons are unprepared for COVID-19. News outlets reported that Iran temporarily released 70,000 prisoners when COVID-19 started to sweep its facilities.8 To date, few state or federal prison systems have adequate (or any) pandemic preparedness plans in
5 Coronavirus Disease 2019 (COVID-19): Situation Summary, Centers for Disease Control and Prevention (March 14, 2020), https://www.cdc.gov/coronavirus/2019-ncov/summary.html. 6 Clinical course and risk factors for mortality of adult inpatients with COVID-19 in Wuhan, China: a retrospective cohort study. The Lancet (published online March 11, 2020), https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30566-3/fulltext 7 Coronavirus Disease 2019 (COVID-19): Interim Clinical Guidance for Management of Patients with Confirmed Coronavirus Disease, Centers for Disease Control and Prevention (March 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidancemanagement-patients.html. 8 Iran temporarily releases 70,000 prisoners as coronavirus cases surge, Reuters (March 9, 2020), https://www.reuters.com/article/us-health-coronavirus-iran/iran-temporarily-releases70000-prisoners-as-coronavirus-cases-surge-idUSKBN20W1E5.
5

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa6goef 273of 24
place.9 Systems are just beginning to screen and isolate people on entry and perhaps place visitor restrictions, but this is wholly inadequate when staff and vendors can still come to work sick and potentially transmit the virus to others.
IV. Risk of COVID-19 in ICE’s NYC-Area Detention Facilities
25. I have reviewed the following materials in making my assessment of the danger of COVID-19 in the Bergen, Essex, Hudson, and Orange County jails (“ICE’s NYC-area jails”): (1) a declaration by Marinda van Dalen, a Senior Attorney in the Health Justice Program at New York Lawyers for the Public Interest (NYLPI); (2) the report Detained and Denied: Healthcare Access in Immigration Detention, released by NYLPI in 2017; and (3) the report Ailing Justice: New Jersey, Inadequate Healthcare, Indifference, and Indefinite Confinement in Immigration Detention, released by Human Rights First in 2018.
26. Based on my review of these materials, my experience working on public health in jails and prisons, and my review of the relevant literature, it is my professional judgment that these facilities are dangerously under-equipped and ill-prepared to prevent and manage a COVID-19 outbreak, which would result in severe harm to detained individuals, jail and prison staff, and the broader community. The reasons for this conclusion are detailed as follows.
27. The delays in access to care that already exist in normal circumstances will only become worse during an outbreak, making it especially difficult for the facilities to contain any infections and to treat those who are infected.
28. Failure to provide individuals with continuation of the treatment they were receiving in the community, or even just interruption of treatment, for chronic underlying health conditions will result in increased risk of morbidity and mortality related to these chronic conditions.
29. Failure to provide individuals adequate medical care for their underlying chronic health conditions results in increased risk of COVID-19 infection and increased risk of infection-related morbidity and mortality if they do become infected.
30. People with underlying chronic mental health conditions need adequate access to treatment for these conditions throughout their period of detention. Failure to provide adequate mental health care, as may happen when health systems in jails and prisons are taxed by COVID-19 outbreaks, may result in poor health outcomes. Moreover, mental health conditions may be exacerbated by the stress of incarceration during the COVID-19 pandemic, including isolation and lack of visitation.
9 Luke Barr & Christina Carrega, State prisons prepare for coronavirus but federal prisons not providing significant guidance, sources say, ABC News (March 11, 2020), https://abcnews.go.com/US/state-prisons-prepare-coronavirus-federal-prisons-providingsignificant/story?id=69433690.
6

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa7goef 283of 24
31. Failure to keep accurate and sufficient medical records will make it more difficult for the facilities to identify vulnerable individuals in order to both monitor their health and protect them from infection. Inadequate screening and testing procedures in facilities increase the widespread COVID-19 transmission.
32. Language barriers will similarly prevent the effective identification of individuals who are particularly vulnerable or may have symptoms of COVID-19. Similarly, the failure to provide necessary aids to individuals who have auditory or visual disabilities could also limit the ability to identify and monitor symptoms of COVID-19.
33. The commonplace neglect of individuals with acute pain and serious health needs under ordinary circumstances is also strongly indicative that the facilities will be ill-equipped to identify, monitor, and treat a COVID-19 epidemic.
34. The failure of these facilities to adequately manage single individuals in need of emergency care is a strong sign that they will be seriously ill-equipped and underprepared when a number of people will need urgent care simultaneously, as would occur during a COVID-19 epidemic.
35. For individuals in these facilities, the experience of an epidemic and the lack of care while effectively trapped can itself be traumatizing, compounding the trauma of incarceration.
V. Conclusion and Recommendations
36. For the reasons above, it is my professional judgment that individuals placed in ICE’s NYC-area jails are at a significantly higher risk of infection with COVID-19 as compared to the population in the community and that they are at a significantly higher risk of harm if they do become infected. These harms include serious illness (pneumonia and sepsis) and even death.
37. Reducing the size of the population in jails and prisons can be crucially important to reducing the level of risk both for those within those facilities and for the community at large.
38. As such, from a public health perspective, it is my strong opinion that individuals who can safely and appropriately remain in the community not be placed in ICE’s NYC-area jails at this time. I am also strongly of the opinion that individuals who are already in those facilities should be evaluated for release.
39. This is more important still for individuals with preexisting conditions (e.g., heart disease, chronic lung disease, chronic liver disease, suppressed immune system, diabetes) or who are over the age of 60. They are in even greater danger in these facilities, including a meaningfully higher risk of death.
40. It is my professional opinion that these steps are both necessary and urgent. The horizon of risk for COVID-19 in these facilities is a matter of days, not weeks. Once a case of
7

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COVID-19 identified in a facility, it will likely be too late to prevent a widespread outbreak.
41. Health in jails and prisons is community health. Protecting the health of individuals who are detained in and work in these facilities is vital to protecting the health of the wider community.

I declare under penalty of perjury that the foregoing is true and correct.

March 1__5, 2020 New Haven, Connecticut

_______________________ Dr. Jaimie Meyer

8

CaseC4a:1se9-1c:v2-0-0c2v2-0618D0o3c-AumKHentD3o2c-3umFeinlet d42on F0i3le/2d70/230/1i6n/2T0XSPDagPea9goef1203of 24
      (;+,%,7$        

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g0eo1f 213of 24
Jaimie Meyer, MD, MS, FACP

CURRICULUM VITAE

Date of Revision: Name: School:

November 20, 2019 Jaimie Meyer, MD, MS, FACP Yale School of Medicine

Education:
BA, Dartmouth College Anthropology 2000 MD, University of Connecticut School of Medicine 2005 MS, Yale School of Public Health Biostatistics and Epidemiology 2014

Career/Academic Appointments:
2005 - 2008 Residency, Internal Medicine, NY Presbyterian Hospital at Columbia, New York, NY 2008 - 2011 Fellowship, Infectious Diseases, Yale University School of Medicine, New Haven, CT 2008 - 2012 Clinical Fellow, Infectious Diseases, Yale School of Medicine, New Haven, CT 2010 - 2012 Fellowship, Interdisciplinary HIV Prevention, Center for Interdisciplinary Research on
AIDS, New Haven, CT 2012 - 2014 Instructor, AIDS, Yale School of Medicine, New Haven, CT 2014 - present Assistant Professor, AIDS, Yale School of Medicine, New Haven, CT 2015 - 2018 Assistant Clinical Professor, Nursing, Yale School of Medicine, New Haven, CT

Board Certification:
AB of Internal Medicine, Internal Medicine, 08-2008, 01-2019 AB of Internal Medicine, Infectious Disease, 10-2010 AB of Preventive Medicine, Addiction Medicine, 01-2018

Professional Honors & Recognition:

International/National/Regional

2018

NIH Center for Scientific Review, Selected as Early Career Reviewer

2017

Doris Duke Charitable Foundation, Doris Duke Charitable Foundation Scholar

2016

American College of Physicians, Fellow

2016

NIH Health Disparities, Loan Repayment Award Competitive Renewal

2016

AAMC, Early Career Women Faculty Professional Development Seminar

2014

NIH Health Disparities, Loan Repayment Program Award

2014

NIDA, Women & Sex/Gender Differences Junior Investigator Travel Award

2014

International Women's/Children's Health & Gender Working Group, Travel Award

2014

Patterson Trust, Awards Program in Clinical Research

2013

Connecticut Infectious Disease Society, Thornton Award for Clinical Research

2011

Bristol Myers-Squibb, Virology Fellows Award

1

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g1eo1f 23of 24
Jaimie Meyer, MD, MS, FACP

2006 2005 2005 2000 2000

NY Columbia Presbyterian, John N. Loeb Intern Award A e ica Medica W e A cia i Medica S de Ci a i Connecticut State Medical Society, Medical Student Award Dartmouth College, Hannah Croasdale Senior Award Dartmouth College, Palaeopitus Senior Leadership Society Inductee

Yale University

2014

W e Fac F

P b ic V ice Th gh Leade hi P g a Fe

Grants/Clinical Trials History:

Current Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Center for Interdisciplinary Research on AIDS (CIRA) 2019-20 Pilot Project Awards O i i i g P EP P e ia i N -Clinical Settings: Development and Evaluation of a PrEP Decision Aid for Women Seeking Domestic Violence Services Tiara Willie Principal Investigator 2% $29,993.00
$29,993.00 7/11/2019 - 7/10/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

SAMHSA H79 TI080561 CHANGE: Comprehensive Housing and Addiction Management Network for Greater New Haven Principal Investigator 20% $389,054.00
$1,933,368.00 11/30/2018 - 11/29/2023

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project

Gilead Sciences, Inc. Investigator Sponsored Award, CO-US-276-D136 Delivering HIV Pre-Exposure Prophylaxis to Networks of Justice-Involved Women Principal Investigator 8% $81,151.00

2

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g2eo1f 233of 24
Jaimie Meyer, MD, MS, FACP

period: Project period:

$306,199.00 6/19/2018 - 1/31/2020

Agency: I.D.#: Title: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA R21 DA042702 Prisons, Drug Injection and the HIV Risk Environment Principal Investigator 22% $129,673.00
$358,276.00 8/1/2017 - 7/31/2020

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Doris Duke Charitable Foundation Clinical Scientist Development Award Developing and Testing the Effect of a Patient-Centered HIV Prevention Decision Aid on PrEP uptake for Women with Substance Use in Treatment Settings Principal Investigator 27% $149,959.00
$493,965.00 7/1/2017 - 6/30/2020

Past Grants Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIDA K23 DA033858 Evaluating and Improving HIV Outcomes in Community-based Women who Interface with the Criminal Justice System Principal Investigator 75% $149,509.00
$821,147.00 7/1/2012 - 11/30/2017

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year:

Robert Leet & Clara Guthrie Patterson Trust R12225, Award in Clinical Research Disentangling the Effect of Gender on HIV Treatment and Criminal Justice Outcomes Principal Investigator 10% $75,000.00

3

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g3eo1f 243of 24
Jaimie Meyer, MD, MS, FACP

Total costs for project

period:

$75,000.00

Project period:

1/31/2014 - 10/31/2015

Agency: I.D.#: Title:
Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

Bristol-Myers Squibb HIV Virology Fellowship Award Effect of newer antiretroviral regimens on HIV biological outcomes in HIVinfected prisoners: a 13 year retrospective evaluation Principal Investigator 10% $34,390.00
$34,390.00 12/1/2011 - 11/30/2012

Pending Grants Agency: I.D.#: Title:
P.I.: Role: Percent effort: Direct costs per year: Total costs for project period: Project period:

NIMH R01 MH121991 Identifying Modifiable Risk and Protective Processes at the Day-Level that Predict HIV Care Outcomes among Women Exposed to Partner Violence Sullivan, Tami Principal Investigator 30% $499,755.00
$4,148,823.00 1/1/2020 - 12/31/2024

Invited Speaking Engagements, Presentations, Symposia & Workshops Not Affiliated With Yale:
International/National 2019: CME Outfitters, Washington, DC. "A Grassroots Approach to Weed out HIV and HCV in Special
OUD Populations" 2019: US Commission on Ci i Righ Wa hi g DC A A a i f W e Hea h Pe a
Dignity and Sexual Abuse in the US Prison System" 2018: College of Problems on Drug Dependence, College of Problems on Drug Dependence, San
Diego, CA. "Research on Women who Use Drugs: Knowledge and Implementation Gaps and A Proposed Research Agenda" 2018: Clinical Care Options, Washington, DC. "Intersection of the HIV and Opioid Epidemics" 2016: Dartmouth Geisel School of Medicine, Hanover, NH. "Incarceration as Opportunity: Prisoner Health and Health Interventions" 2010: Rhode Island Chapter of the Association of Nurses in AIDS Care, Providence, RI. "HIV and Addiction"

4

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g4eo1f 253of 24
Jaimie Meyer, MD, MS, FACP

Regional 2018: Clinical Directors Network, New York, NY. "PrEP Awareness among Special Populations of
Women and People who Use Drugs" 2018: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "HIV prevention for
justice-involved women" 2017: Clinical Directors Network, New York, NY. "Optimizing the HIV Care Continuum for People who
use Drugs" 2016: Frank H. Netter School of Medicine, Quinnipiac University, Hamden, CT. "Topics in Infectious
Diseases" 2016: Connecticut Advanced Practice Registered Nurse Society, Wethersfield, CT. "Trends in HIV
Prevention: Integration of Biomedical and Behavioral Approaches"

Peer-Reviewed Presentations & Symposia Given at Meetings Not Affiliated With Yale:

International/National

2019: CPDD 81st Annual Scientific Meeting, CPDD, San Antonio, TX. "Punitive approaches to pregnant

women with opioid use disorder: Impact on health care utilization, outcomes and ethical

implications"

2019: 14th International Conference on HIV Treatment and Prevention Adherence, IAPAC Adherence,

Miami, FL. "Decision-Making about HIV Prevention among Women in Drug Treatment: Is PrEP

Contextually Relevant?"

2019: 2019 NIDA International Forum, NIDA, San Antonio, TX. "Diphenhydramine Injection in Kyrgyz

Prisons: A Qualitative Study Of A High-Risk Behavior With Implications For Harm Reduction"

2019:

h I e a i a W e a d Chi d e Hea h a d Ge de I W e G I W e

Group, San Antonio, TX. "Uniquely successful implementation of methadone treatment in a

e i in Kyrgyzstan"

2019: Harm Reduction International, Porto, Porto District, Portugal. "How does methadone treatment

a e O he bec i g-methadone-b d f K g a i

2019: APA Collaborative Perspectives on Addiction Annual Meeting, APA Collaborative Perspectives

on Addiction Annual Meeting, Providence, RI. "Impact of Trauma and Substance Abuse on HIV

P EP O c e a g W e i C i i a J ice S e S

i Pa e Vi e ce

Intersected with or Predictive of Substance Use and Health Problems among Wo e

2019: Society for Academic Emergency Medicine (SAEM), Worcester, MA. "Effects of a Multisite

Medical Home Intervention on Emergency Department Use among Unstably Housed People

with Human Immunodeficiency Virus"

2019: Conference on Retroviruses and Opportunistic Infections (CROI), IAS, Seattle, WA. "Released to

Die: Elevated Mortality in People with HIV after Incarceration"

2019: 12th Academic and Health Policy on Conference on Correctional Health, 12th Academic and

Health Policy on Conference on Correctional Health, Las Vegas, NV. "PrEP Eligibility and HIV Risk

Perception for Women across the Criminal Justice Continuum in Connecticut"

2019: Association for Justice-Involved Female Organizations (AJFO), Atlanta, GA. "Treatment of

W e S b a ce Use Disorders and HIV Prevention During and Following Incarceration"

5

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g5eo1f 263of 24
Jaimie Meyer, MD, MS, FACP

2018: 2018: 2018: 2018:
2018: 2018: 2018: 2017: 2017: 2017: 2017: 2017: 2017: 2016: 2015:

American Public Health Association (APHA) Annual Meeting, American Public Health Association (APHA) Annual Meeting, San Diego, CA. "New Haven Syringe Service Program: A model of integrated harm reduction and health care services" 12th National Harm Reduction Conference, 12th National Harm Reduction Conference, New Orleans, LA. "Service needs and access to care among participants in the New Haven Syringe Services Program" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "HIV risk perceptions and risk reduction strategies among prisoners in Kyrgyzstan: a qualitative study" 22nd International AIDS Conference, 22nd International AIDS Conference, Amsterdam, NH, Netherlands. "Methadone Maintenance Therapy Uptake, Retention, and Linkage for People who Inject Drugs Transitioning From Prison to the Community in Kyrgyzstan: Evaluation of a National Program" NIDA International Forum, NIDA, San Diego, CA. "HIV and Drug Use among Women in Prison in Azerbaijan, Kyrgyzstan and Ukraine" 2018 Conference on Retroviruses and Opportunistic Infections (CROI), CROI, Boston, MA. "From
i ga e dea h d S i a analysis of released prisoners with HIV" 11th Academic and Health Policy on Conference on Correctional Health, Academic Consortium on Criminal Justice Health, Houston, TX. "Assessing Concurrent Validity of Criminogenic and Health Risk Instruments among Women on Probation in Connecticut" IDWeek: Annual Meeting of Infectious Diseases Society of America, Infectious Diseases Society of America, San Diego, CA. "Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons (Oral presentation)" International AIDS Society (IAS) Meeting, International AIDS Society, Paris, Île-de-France, France. "Late breaker: Predictors of Linkage to and Retention in HIV Care Following Release from Connecticut, USA Jails and Prisons" NIDA International Forum, NIDA, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "Assessing Receptiveness to and Eligibility for PrEP in Criminal Justice-Involved Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Montreal, QC, Canada. "A Mixed Methods Evaluation of HIV Risk among Women with Opioid Dependence in Ukraine" Annual Meeting of the Society for Applied Anthropology, Society for Applied Anthropology, Santa Fe, NM. "Where rubbers meet the road: HIV risk reduction for women on probation (Oral presentation)" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Palm Springs, CA. "An Event-level Examination of Successful Condom Negotiation Strategies among College Women" CDC National HIV Prevention Conference, CDC, Atlanta, GA. "Beyond the Syndemic: Condom Negotiation and Use among Women Experiencing Partner Violence (Oral presentation)"

6

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g6eo1f 273of 24
Jaimie Meyer, MD, MS, FACP

2015: 2015: 2014: 2014: 2014: 2013: 2013: 2012: 2012: 2012: 2011:

International Harm Reduction Conference, International Harm Reduction, Kuala Lumpur, Federal Territory of Kuala Lumpur, Malaysia. "Evidence-Based Interventions to Enhance Assessment, Treatment, and Adherence in the Chronic Hepatitis C Care Continuum" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, Phoenix, AZ. "Violence, Substance Use, and Sexual Risk among College Women" International Women's and Children's Health and Gender Working Group, International Women's and Children's Health and Gender Working Group, San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" College on Problems in Drug Dependence (CPDD), College on Problems in Drug Dependence (CPDD), San Juan, San Juan, Puerto Rico. "Gender Differences in HIV and Criminal Justice Outcomes" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Boston, MA. "Longitudinal Treatment Outcomes in HIVInfected Prisoners and Influence of Re-Incarceration" HIV Intervention and Implementation Science Meeting, HIV Intervention and Implementation Science Meeting, Bethesda, MD. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Conference on Retroviruses and Opportunistic Infections (CROI), Conference on Retroviruses and Opportunistic Infections (CROI), Atlanta, GA. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Correlates of Retention in HIV Care after Release from Jail: Results from a Multi-site Study" IDWeek: Infectious Diseases Society of America Annual Meeting, Infectious Diseases Society of America, San Diego, CA. "Frequent Emergency Department Use among Released Prisoners with HIV: Characterization Including a Novel Multimorbidity Index" 5th Academic and Health Policy Conference on Correctional Health, 5th Academic and Health Policy Conference on Correctional Health, Atlanta, GA. "Effects of Intimate Partner Violence on HIV and Substance Abuse in Released Jail Detainees" IAPAC HIV Treatment and Adherence Conference, IAPAC, Miami, FL. "Adherence to HIV treatment and care among previously homeless jail detainees"

Regional 2019: Connecticut Infectious Disease Society, New Haven, CT. "Preliminary Findings from a Novel
PrEP Demonstration Project for Women Involved in Criminal Justice Systems and Members of their Risk Networks" 2017: Connecticut Public Health Association Annual Conference, Connecticut Public Health Association, Farmington, CT. "The New Haven syringe services program" 2014: Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Longitudinal Treatment Outcomes in HIV-Infected Prisoners and Influence of ReIncarceration"

7

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g7eo1f 283of 24
Jaimie Meyer, MD, MS, FACP

2013: 2011:

Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Women Released from Jail Experience Suboptimal HIV Treatment Outcomes Compared to Men: Results from a Multi-Center Study" Connecticut Infectious Disease Society Annual Meeting, Connecticut Infectious Disease Society, Orange, CT. "Emergency Department Use by Released Prisoners with HIV"

Professional Service:
Peer Review Groups/Grant Study Sections 2019 - present Reviewer, NIDA, NIH Reviewer: RFA-DA-19-025: HEAL Initiative: Justice Community
Opioid Innovation Network (JCOIN) Clinical Research Centers 2019 - present Reviewer, Yale DCFAR Pilot Projects 2018 - present Reviewer, Center for Interdisciplinary Research on AIDS (CIRA) 2015 - present Reviewer, University of Wisconsin-Milwaukee Research Growth Initiative

Advisory Boards

2017

Advisor, HIV Prevention and Treatment in Cis-Gendered Women, Gilead Sciences, Inc.

Journal Service
Editor/Associate Editor 2019 - present Associate Editor, Journal of the International Association of Providers of AIDS Care
(JIAPAC), Section Editor: Sex and Gender Issues

Reviewer 2019 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, JAIDS Reviewer, Addiction Sci and Clin Pract Reviewer, Addictive Behav Reports Reviewer, AIDS Care Reviewer, Social Science and Medicine Reviewer, SpringerPlus Reviewer, Substance Abuse Treatment Prevention and Policy Re ie e W e Hea h I e Reviewer, Yale Journal of Biology and Medicine Reviewer, AIMS Public Health Reviewer, American Journal on Addictions Reviewer, American Journal of Epidemiology Reviewer, American Journal of Public Health Reviewer, Annals Internal Medicine Reviewer, BMC Emergency Medicine Reviewer, BMC Infectious Diseases Reviewer, BMC Public Health Re ie e BMC W e Hea h

8

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g8eo1f 293of 24
Jaimie Meyer, MD, MS, FACP

2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present 2012 - present

Reviewer, Clinical Infectious Diseases Reviewer, Critical Public Health Reviewer, Drug and Alcohol Dependence Reviewer, Drug and Alcohol Review Reviewer, Epidemiologic Reviews Reviewer, Eurosurveillance Reviewer, Health and Justice (Springer Open) Reviewer, International Journal of Drug Policy Reviewer, International Journal of Prisoner Health Reviewer, International Journal of STDs and AIDS Re ie e I e a i a J a f W e Hea h Reviewer, JAMA Internal Medicine Reviewer, Journal of Family Violence Reviewer, Journal of General Internal Medicine Reviewer, Journal of Immigrant and Minority Health Reviewer, Journal of International AIDS Society Reviewer, Journal of Psychoactive Drugs Reviewer, Journal of Urban Health Re ie e J a f W e Hea h Reviewer, Open Forum Infectious Diseases Reviewer, PLoS ONE Reviewer, Public Health Reports

Professional Service for Professional Organizations AAMC Group on Women in Medicine and Science (GWIMS) 2016 - present Member, AAMC Group on Women in Medicine and Science (GWIMS)

American College of Physicians 2016 - present Fellow, American College of Physicians 2013 - 2016 Member, American College of Physicians

American Medical Association 2005 - present Member, American Medical Association

A e ica Medical W e A cia i 2011 - present Me be A e ica Medica W e A cia i

American Society of Addiction Medicine 2009 - present Member, American Society of Addiction Medicine

9

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa1g9eo2f 203of 24
Jaimie Meyer, MD, MS, FACP

Connecticut Infectious Disease Society 2011 - present Member, Connecticut Infectious Disease Society

Infectious Disease Society of America 2008 - present Member, Infectious Disease Society of America

I W e Ne k NIDA I e a i al P g a

2013 - present Me be I W e Ne

NIDA I e a i a P g a

New York State Medical Society 2005 - 2008 Member, New York State Medical Society

Yale University Service University Committees 2016 - 2018 C ci Me be Leade hi C ci W e Fac F

Medical School Committees 2015 - 2016 Committee Member, US Health and Justice Course, Yale School of Medicine 2014 - present Committee Member, Yale Internal Medicine Traditional Residency Intern Selection
Committee

Public Service 2019 - present 2017 - present 2013 - present 2012 - present 2009 - 2011 2002 1998 - 1999

Faculty Member, Yale University Program in Addiction Medicine Faculty Member, Arthur Liman Center for Public Interest Law, Yale Law School Mentor, Women in Medicine at Yale Mentoring Program Faculty Member, Yale Center for Interdisciplinary Research on AIDS Instructor, Preclinical Clerkship Tutor, Yale School of Medicine Fellow, Soros Open Society Institute Fellow, Costa Rican Humanitarian Foundation

Bibliography:
Peer-Reviewed Original Research 1. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Emergency department use by released prisoners
with HIV: an observational longitudinal study. PloS One 2012, 7:e42416. 2. Chen NE, Meyer JP, Bollinger R, Page KR. HIV testing behaviors among Latinos in Baltimore City.
Journal Of Immigrant And Minority Health / Center For Minority Public Health 2012, 14:540-51. 3. Chitsaz E, Meyer JP, Krishnan A, Springer SA, Marcus R, Zaller N, Jordan AO, Lincoln T, Flanigan TP,
Porterfield J, Altice FL. Contribution of substance use disorders on HIV treatment outcomes and antiretroviral medication adherence among HIV-infected persons entering jail. AIDS And Behavior 2013, 17 Suppl 2:S118-27.

10

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa2g0eo2f 213of 24
Jaimie Meyer, MD, MS, FACP
4. Chen NE, Meyer JP, Avery AK, Draine J, Flanigan TP, Lincoln T, Spaulding AC, Springer SA, Altice FL. Adherence to HIV treatment and care among previously homeless jail detainees. AIDS And Behavior 2013, 17:2654-66.
5. Althoff AL, Zelenev A, Meyer JP, Fu J, Brown SE, Vagenas P, Avery AK, Cruzado-Quiñones J, Spaulding AC, Altice FL. Correlates of retention in HIV care after release from jail: results from a multi-site study. AIDS And Behavior 2013, 17 Suppl 2:S156-70.
6. Williams CT, Kim S, Meyer J, Spaulding A, Teixeira P, Avery A, Moore K, Altice F, Murphy-Swallow D, Simon D, Wickersham J, Ouellet LJ. Gender differences in baseline health, needs at release, and predictors of care engagement among HIV-positive clients leaving jail. AIDS And Behavior 2013, 17 Suppl 2:S195-202.
7. Meyer JP, Wickersham JA, Fu JJ, Brown SE, Sullivan TP, Springer SA, Altice FL. Partner violence and health among HIV-infected jail detainees. International Journal Of Prisoner Health 2013, 9:124-41.
8. Meyer JP, Qiu J, Chen NE, Larkin GL, Altice FL. Frequent emergency department use among released prisoners with human immunodeficiency virus: characterization including a novel multimorbidity index. Academic Emergency Medicine : Official Journal Of The Society For Academic Emergency Medicine 2013, 20:79-88.
9. Meyer JP, Cepeda J, Springer SA, Wu J, Trestman RL, Altice FL. HIV in people reincarcerated in Connecticut prisons and jails: an observational cohort study. The Lancet. HIV 2014, 1:e77-e84.
10. Meyer JP, Zelenev A, Wickersham JA, Williams CT, Teixeira PA, Altice FL. Gender disparities in HIV treatment outcomes following release from jail: results from a multicenter study. American Journal Of Public Health 2014, 104:434-41.
11. Meyer JP, Cepeda J, Wu J, Trestman RL, Altice FL, Springer SA. Optimization of human immunodeficiency virus treatment during incarceration: viral suppression at the prison gate. JAMA Internal Medicine 2014, 174:721-9.
12. Meyer JP, Cepeda J, Taxman FS, Altice FL. Sex-Related Disparities in Criminal Justice and HIV Treatment Outcomes: A Retrospective Cohort Study of HIV-Infected Inmates. American Journal Of Public Health 2015, 105:1901-10.
13. Boyd AT, Song DL, Meyer JP, Altice FL. Emergency department use among HIV-infected released jail detainees. Journal Of Urban Health : Bulletin Of The New York Academy Of Medicine 2015, 92:10835.
14. Shrestha R, Karki P, Altice FL, Huedo-Medina TB, Meyer JP, Madden L, Copenhaver M. Correlates of willingness to initiate pre-exposure prophylaxis and anticipation of practicing safer drug- and sexrelated behaviors among high-risk drug users on methadone treatment. Drug And Alcohol Dependence 2017, 173:107-116.
15. Peasant C, Sullivan TP, Weiss NH, Martinez I, Meyer JP. Beyond the syndemic: condom negotiation and use among women experiencing partner violence. AIDS Care 2017, 29:516-523.
16. Wickersham JA, Gibson BA, Bazazi AR, Pillai V, Pedersen CJ, Meyer JP, El-Bassel N, Mayer KH, Kamarulzaman A, Altice FL. Prevalence of Human Immunodeficiency Virus and Sexually Transmitted Infections Among Cisgender and Transgender Women Sex Workers in Greater Kuala Lumpur, Malaysia: Results From a Respondent-Driven Sampling Study. Sexually Transmitted Diseases 2017, 44:663-670.
17. Hoff E, Marcus R, Bojko MJ, Makarenko I, Mazhnaya A, Altice FL, Meyer JP. The effects of opioidagonist treatments on HIV risk and social stability: A mixed methods study of women with opioid use disorder in Ukraine. Journal Of Substance Abuse Treatment 2017, 83:36-44.
11

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa2g1eo2f 23of 24
Jaimie Meyer, MD, MS, FACP
18. Rutledge R, Madden L, Ogbuagu O, Meyer JP. HIV Risk perception and eligibility for pre-exposure prophylaxis in women involved in the criminal justice system. AIDS Care 2018, 30:1282-1289.
19. Peasant C, Sullivan TP, Ritchwood TD, Parra GR, Weiss NH, Meyer JP, Murphy JG. Words can hurt: The effects of physical and psychological partner violence on condom negotiation and condom use among young women. Women & Health 2018, 58:483-497.
20. Loeliger KB, Altice FL, Desai MM, Ciarleglio MM, Gallagher C, Meyer JP. Predictors of linkage to HIV care and viral suppression after release from jails and prisons: a retrospective cohort study. The Lancet. HIV 2018, 5:e96-e106.
21. Odio CD, Carroll M, Glass S, Bauman A, Taxman FS, Meyer JP. Evaluating concurrent validity of criminal justice and clinical assessments among women on probation. Health & Justice 2018, 6:7.
22. Loeliger KB, Altice FL, Ciarleglio MM, Rich KM, Chandra DK, Gallagher C, Desai MM, Meyer JP. Allcause mortality among people with HIV released from an integrated system of jails and prisons in Connecticut, USA, 2007-14: a retrospective observational cohort study. The Lancet. HIV 2018, 5:e617-e628.
23. Loeliger KB, Meyer JP, Desai MM, Ciarleglio MM, Gallagher C, Altice FL. Retention in HIV care during the 3 years following release from incarceration: A cohort study. PLoS Medicine 2018, 15:e1002667.
24. Azbel L, Wegman MP, Polonsky M, Bachireddy C, Meyer J, Shumskaya N, Kurmanalieva A, Dvoryak S, Altice FL. Drug injection within prison in Kyrgyzstan: elevated HIV risk and implications for scaling up opioid agonist treatments. International Journal Of Prisoner Health 2018, 14:175-187.
25. Peasant C, Montanaro EA, Kershaw TS, Parra GR, Weiss NH, Meyer JP, Murphy JG, Ritchwood TD, Sullivan TP. An event-level examination of successful condom negotiation strategies among young women. Journal Of Health Psychology 2019, 24:898-908.
26. Ranjit YS, Azbel L, Krishnan A, Altice FL, Meyer JP. Evaluation of HIV risk and outcomes in a nationally representative sample of incarcerated women in Azerbaijan, Kyrgyzstan, and Ukraine. AIDS Care 2019, 31:793-797.
27. Rhodes T, Azbel L, Lancaster K, Meyer J. The becoming-methadone-body: on the onto-politics of health intervention translations. Sociology Of Health & Illness 2019, 41:1618-1636.
28. Olson B, Vincent W, Meyer JP, Kershaw T, Sikkema KJ, Heckman TG, Hansen NB. Depressive symptoms, physical symptoms, and health-related quality of life among older adults with HIV. Quality Of Life Research : An International Journal Of Quality Of Life Aspects Of Treatment, Care And Rehabilitation 2019.
Chapters, Books, and Reviews 29. Azar MM, Springer SA, Meyer JP, Altice FL. A systematic review of the impact of alcohol use
disorders on HIV treatment outcomes, adherence to antiretroviral therapy and health care utilization. Drug And Alcohol Dependence 2010, 112:178-93. 30. Meyer JP, Springer SA, Altice FL. Substance abuse, violence, and HIV in women: a literature review of the syndemic. Journal Of Women's Health (2002) 2011, 20:991-1006. 31. Meyer JP, Chen NE, Springer SA. HIV Treatment in the Criminal Justice System: Critical Knowledge and Intervention Gaps. AIDS Research And Treatment 2011, 2011:680617. 32. Springer SA, Spaulding AC, Meyer JP, Altice FL. Public health implications for adequate transitional care for HIV-infected prisoners: five essential components. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2011, 53:469-79.
12

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Jaimie Meyer, MD, MS, FACP
33. Chen NE, Meyer JP, Springer SA. Advances in the prevention of heterosexual transmission of HIV/AIDS among women in the United States. Infectious Disease Reports 2011, 3.
34. Meyer J, Altice F. HIV in Injection and Other Drug Users. Somesh Gupta, Bhushan Kumar, eds. Sexually Transmitted Infections 2nd ed. New Delhi, India: Elsevier, 2012: 1061-80. ISBN 978-81312-2809-8.
35. Meyer JP, Althoff AL, Altice FL. Optimizing care for HIV-infected people who use drugs: evidencebased approaches to overcoming healthcare disparities. Clinical Infectious Diseases : An Official Publication Of The Infectious Diseases Society Of America 2013, 57:1309-17.
36. Meyer J, Altice F. Chapter 47, Treatment of Addictions: Transition to the Community. Robert L. Trestman, Kenneth L. Appelbaum, Jeffrey L. Metzner, eds. Oxford Textbook of Correctional Psychiatry (Winner of the 2016 Guttmacher Award). Oxford University Press 2015. ISBN 9780199360574.
37. Meyer JP, Moghimi Y, Marcus R, Lim JK, Litwin AH, Altice FL. Evidence-based interventions to enhance assessment, treatment, and adherence in the chronic Hepatitis C care continuum. The International Journal On Drug Policy 2015, 26:922-35.
38. Mohareb A, Tiberio P, Mandimika C, Muthulingam D, Meyer J. Infectious Diseases in Underserved Populations. Onyema Ogbuagu, Gerald Friedland, Merceditas Villanueva, Marjorie Golden, eds. Current Diagnosis and Treatment- Infectious Diseases. McGraw-Hill Medical 2016.
39. Meyer JP, Womack JA, Gibson B. Beyond the Pap Smear: Gender-responsive HIV Care for Women. The Yale Journal Of Biology And Medicine 2016, 89:193-203.
40. Meyer JP, Muthulingam D, El-Bassel N, Altice FL. Leveraging the U.S. Criminal Justice System to Access Women for HIV Interventions. AIDS And Behavior 2017, 21:3527-3548.
41. Shrestha R, McCoy-Redd B, Meyer J. Pre-Exposure Prophylaxis (PrEP) for People Who Inject Drugs (PWID). Brianna Norton, Ed. The Opioid Epidemic and Infectious Diseases. Elsevier 2019.
42. Meyer JP, Isaacs K, El-Shahawy O, Burlew AK, Wechsberg W. Research on women with substance use disorders: Reviewing progress and developing a research and implementation roadmap. Drug And Alcohol Dependence 2019, 197:158-163.
Peer-Reviewed Educational Materials 43. The Fortune Society Reentry Education Project Detailing Kit. New York City Department of Health
and Mental Hygiene. October 2014 44. United Nations Office on Drugs and Crime. Vienna, Austria
Invited Editorials and Commentaries 45. Meyer JP. Capsule Commentary on Pyra et al., sexual minority status and violence among HIV
infected and at-risk women. Journal Of General Internal Medicine 2014, 29:1164. 46. Brinkley-Rubinstein L, Dauria E, Tolou-Shams M, Christopoulos K, Chan PA, Beckwith CG, Parker S,
Meyer J. The Path to Implementation of HIV Pre-exposure Prophylaxis for People Involved in Criminal Justice Systems. Current HIV/AIDS Reports 2018, 15:93-95. 47. Meyer JP. The Sustained Harmful Health Effects of Incarceration for Women Living with HIV. Journal Of Women's Health (2002) 2019, 28:1017-1018.
13

CaseC4a:s1e91-c:2v-00-0cv2-20618D03o-cAuKmHentD3o2c-u3meFnilte4d2onF0il3e/d270/32/016in/2T0XSPDagePa2g3eo2f 243of 24
Jaimie Meyer, MD, MS, FACP
Case Reports, Technical Notes, Letters 48. Paul J. Bullous pemphigoid in a patient with psoriasis and possible drug reaction: a case report.
Connecticut Medicine 2004, 68:611-5. 49. How J, Azar MM, Meyer JP. Are Nectarines to Blame? A Case Report and Literature Review of
Spontaneous Bacterial Peritonitis Due to Listeria monocytogenes. Connecticut Medicine 2015, 79:31-6. 50. Vazquez Guillamet LJ, Malinis MF, Meyer JP. Emerging role of Actinomyces meyeri in brain abscesses: A case report and literature review. IDCases 2017, 10:26-29. 51. Harada K, Heaton H, Chen J, Vazquez M, Meyer J. Zoster vaccine-associated primary varicella infection in an immunocompetent host. BMJ Case Reports 2017, 2017. 52. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Answer to December 2017 Photo Quiz. Journal Of Clinical Microbiology 2017, 55:3568. 53. Bernardo R, Streiter S, Tiberio P, Rodwin BA, Mohareb A, Ogbuagu O, Emu B, Meyer JP. Photo Quiz: Peripheral Blood Smear in a Ugandan Refugee. Journal Of Clinical Microbiology 2017, 55:33133314. Scholarship In Press 54. Hoff E, Adams Z, Dasgupta A, Goddard D, Sheth S, Meyer J. Reproductive Health Justice and Autonomy: A systematic review of pregnancy planning intentions, needs, and interventions among
e i ed i US c i i a ice e J W e Hea h
14

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 1 of 10
Exhibit D – Declaration of Sarah V. Wood

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 2 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

DECLARATION OF SARAH V. WOOD

1. My name is Sarah V. Wood.

2. I am an attorney, licensed to practice law in the state of Texas.

3. I e e a P lic Di ec f he Ha i C

P blic Defe de Office (PDO). I

have been licensed since 2005, having worked in private criminal trial and appellate

practice until joining PDO he i e ed i 2011. I e ed i he PDO A ella e

Division for over six years, litigating appeals and consulting on felony trials. I am

Board Certified in Criminal Appellate Law. In 2017, during the federal litigation

challe gi g he C

c i i al i de ea bail ac ice , the PDO was

finally permitted to provide representation at initial bail hearings and I focused on

developing policies and procedures for our newly formed Bail

Division as well as working inside the jail representing arrestees. I was appointed

Policy Director in early 2019 and have since focused on systemic policy reform in

coordination with other government agencies with an emphasis on bail and booking

center operations.

4. I am over the age of 18.

A. Arrest and the Initial Bail-Setting Process

5. For decades, Harris County has used a predetermined money bail schedule, promulgated

b he Ha i C Di ic C J dge ( he fel j dge ), de e i e fi a cial

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 3 of 10
conditions of pretrial release for felony arrestees in Harris County. 6. Some arrestees are required to remain in custody until a magistrate determines conditions
of release at a probable cause hearing. 7. For most felony arrestees, money bail is automatically set at the scheduled amount at the
time charges are filed. 8. Those who cannot pay the predetermined amount will be detained. 9. On March 20, in the midst of the global Covid-19 pandemic, the felony judges
promulgated an order requiring the release of certain people arrested for any of a list of 20 enumerated state jail felony offenses. 10. As of Wednesday, March 24, the order had apparently gone into effect, but not everyone eligible for release was being released. 11. As the order only applies to certain offenses, large categories of people are still subject to detention because they cannot afford money bail and without a constitutionally adequate hearing to determine ability to pay or whether detention is necessary. 12. About 75% of people arrested for felonies in Harris County are arrested by either Harris County or the Houston Police Department ( HPD ).1 13. Those people are taken directly after arrest to the Joint Processing Center ( JPC ) in downtown Houston. 14. People arrested by other agencies are sometimes taken to field a i bef e bei g transported to the JPC. 15. At the scene, officers call he Di ic A e Office ( DAO ) intake hotline to ask
1 Harris County Pretrial Services, 2017 Annual Report (2017), at 16, https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 4 of 10

the DAO whether they will accept charges. If the DAO declines charges, the person is

released.

16. If the DAO wants to accept the charge, the the officer submits a probable cause statement

and the DAO eventually files a complaint with the District Clerk who then creates a case

be a d a ig he ca e a ecific j dge c

.

17. Pretrial Services runs the pe

i f a i h gh a alg i h c ea e a i k

a e e c e a d a lie he fel j dge bail ched le b i g he cha ged

ffe e a d he e

i k c e ide if he ched led a

f e e i ed

by the felony judges for release.

18. Once this scheduled monetary amount is set, the arrestee can pay the secured money bail

amount and, absent another basis for detention such as a warrant from another jurisdiction

or an immigration detainer, the person will be released.

19. If a person arrested by an agency other than the Ha i C She iff Office or HPD

pays the amount required for release pursuant to the bail schedule before transport to the

JPC, the person may be released without being transported to or booked into the Harris

County Jail.

20. If a person pays the amount required for release in the felony case but is subject to

detention for any other reason, such as a hold from another jurisdiction, that person will

be eligible for release, subject to the other basis for detention.

21. Typically, there is a set time period within which the jurisdiction asserting the hold

must pick the individual up. The time period by which the holding jurisdiction must take

custody of the person does not begin to run until bail is posted on Harris County charges.

22. Sometime after a person arrives at the JPC and usually before the person is assigned to

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 5 of 10

a housing unit he e

ill be ake b She iff Office e l ee a c

i

the jail with other recent arrestees to appear before a Hearing Officer, who will determine

probable cause for warrantless arrests and set conditions of release.

23. If a person pays money bail after arriving at the JPC but prior to the probable cause

hearing, she will be released and the probable cause determination in her case is to be

made at a subsequent court appearance.

B. Probable Cause and Bail Hearings

24. The first post-arrest hearing before a judicial officer is referred to locally by a variety of

e , i cl di g agi a i , A icle 15.17 hea i g, bail hea i g, a d bable

cause hea i g.

25. Each of these terms refers to the initial hearing before a Criminal Law Hearing Officer,

which occurs inside the JPC.

26. Defendants attempt to provide arrestees with a probable cause and bail hearing within 48

hours of arrest.

27. The P blic Defe de Office e e e fel a e ee a he e bail hea i g .

28. By order of the judges, the PDO is appointed for the limited purpose of arguing bail and

is not authorized to represent the person during the portion of the hearing in which

probable cause is determined.

29. When determining conditions of release on felonies at the magistration hearings:

x Hearing Officers routinely do not make findings as to whether a person can pay any particular amount of money before requiring secured money bail as a condition of release.
x Hearing Officers routinely do not make findings as to whether an order to pay secured bail will operate to detain the person because the person cannot pay it.
x Hearing Officers routinely do not make findings that detention is necessary to meet a compelling government interest or that less-restrictive conditions are inadequate to meet a compelling government interest.

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 6 of 10

x Hearing Officers do not apply any evidentiary standard to any factual finding.

30. When the docket begins, arrested individuals sit on benches in a courtroom inside the JPC.

31. The Hea i g Office call a i di id al a e, determines probable cause, and asks the

person whether he or she wishes to be represented by a public defender for purposes of

the bail decision.

32. A typical felony bail hearing proceeds as follows:

x An ADA, who appears by video, reads the allegations in the la e f ce e ffice

probable cause statement.

x In cases involving warrantless arrests, the Hearing Officer decides whether there is

probable cause. x Next, the Hearing Officer considers whether to adjust the money bail amount pre-

determined by the schedule, or, if no amount was set, whether to release the person

and if so on what conditions. x If he e a e ed acce ed he e e e a i f he blic defe de ffice, he

blic defe de ill ide i f a i ab he e

ie he c

i ad

other life circumstances.

x Sometimes Hearing Officers grant personal bonds. x Routinely, the Hearing Officers condition release on payment of a secured money bail

a

i h fi de e i i g he e

abili

a or making any findings.

33. These financial conditions often result in the pretrial detention of people who are too poor

to pay them, but the Hearing Officer makes no findings concerning the availability of less-

restrictive, alternative conditions, or the necessity of detaining the person.

34. Hearing Officers believe that they are not permitted to impose non-monetary conditions

of release in certain cases.

35. Th gh he hea i g, he a e ee e ai i he JPC, e i ed b She iff Office

employees.

36. She iff Office e l ee a d age al b e ve the probable cause hearings.

37. If an individual is not brought to the probable cause hearing due to medical reasons, which

is a frequent occurrence, the Hearing Officer will make a finding of probable cause and

require financial conditions of pretrial relea e i ha e

absence.

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 7 of 10

38. The C

protocol generally prohibits assistant public defenders from

representing people on felonies who are not present at the hearing. In these cases, the

e bail a

i e i h a a g e he a e ee behalf.

C. The Use of Personal Bonds

39. Hea i g Office e i e ec e d a e ee f elea e e al b d , a e

Defendants use to describe unsecured release without requiring an up-front payment prior

to release, i.e., without a secured financial condition of release.

40. For decades, Hearing Officers adhered strictly to written and oral directives regarding the

money bail setting process issued by the felony judges, who control their employment.

41. For decades, Hearing Officers simply reviewed the bail amount previously affixed to

ensure that it conformed to the schedule and the specific instructions from the felony

judges.

42. These instructions included charts and emails instructing Hearing Officers about who

could be released on personal bonds and in what circumstances Hearing Officers could

deviate from the cash bail schedule (rarely, according to the instructions).

43. Some judges instructed Hearing Officers never to set non-financial conditions for any

person who was assigned to their courtroom at all, or for particular categories of

individuals.

44. Judges placed other policy limitations on Hearing Officers.

45. Although the felony judges purportedly rescinded these instructions in 2017 with the

i le e a i f a e fel bail ched le a d e a ded he Hea i g Office

authority to determine money bail amounts and other conditions of release, Hearing

Officers continue to require secured financial conditions of release without making

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 8 of 10
findings concerning ability to pay, the necessity of pretrial detention, or the adequacy of alternative conditions, and without application of the clear-and-convincing-evidence standard or a statement of reasons concerning why a particular financial condition or pretrial detention is necessary. D. Completion of Booking Process 46. In total, it often takes a minimum of 24 hours for a person to be fully booked into the jail, assigned to a housing unit, and made available for a visit by a lawyer or by family or friends. 47. At any point during the period of time after arrest and prior to first appearance before a felony judge, a person whose bail is set at a monetary amount can pay and be released. E. People Who Cannot Afford Money Bail Will Often Be Detained For Two to Four
Weeks Prior to First Appearance 48. Pursuant to Defendants c e practice, if an arrestee is unable to pay the secured bail
amount initially set, she often must wait two to four weeks, or longer, to be taken to court for a first appearance. 49. There is typically no review of the money bail amount previously imposed at that hearing, except that some judges routinely revoke personal bonds or increase the monetary amount set by the magistrate and without notice or a formal hearing. 50. Although an informal, off-the-record request for a reduction in the amount required may theoretically occur at first appearance, the felony judges do not provide for an adversarial bail hearing on the record at that time. 51. As a matter of routine practice, the felony judges do not conduct bail hearings at first appearance: they make no findings concerning ability to pay; they make no findings as to whether pretrial detention is necessary to serve any government interest; they do not allow

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 9 of 10

arrestees to confront the evidence and arguments of the government or put on evidence

and argument in support of pretrial release; and they do not provide other basic procedural

safeguards, such as making findings by any evidentiary standard or issuing any statement

of reasons concerning why a particular financial condition or pretrial detention is required.

52. Detained individuals typically remain in lock-up outside of the courtroom and are not

brought into the courtroom on this court date.

53. The ca e i al al a he e e , ea i g ha a he hea i g i ched led,

typically weeks in the future.

54. As a result, individuals who cannot pay money bail remain in detention after first

appearance and are returned to the Harris County Jail, often without ever having been

brought into the courtroom.

55. If a person wishes to have an evidentiary hearing concerning their pretrial detention and

whether less-restrictive conditions of release are available, he e

la e usually

must file a motion and then schedule a court proceeding for a later date.

56. A hearing on the motion will likely not occur for more than a week after the motion is

filed likely longer in light of the current public health crisis and the decreased number

of courtrooms open each day.

57. Thi hea i g ill be he a e ee fi

i

ee i e e d c e a

evidence.

58. If an arrestee agrees to plead guilty at this appearance, then the arrestee will be brought

out from the lock-up to plead guilty.

59. The felony judges routinely accept guilty pleas from individuals who are in jail solely

because they are too poor to pay money bail.

Case 4:19-cv-00226 Document 32-4 Filed on 03/27/20 in TXSD Page 10 of 10

I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability.

/s/Sarah V. Wood Sarah Wood Policy Director Ha i C P blic Defe de

Office

3/26/20 DATE

Case 4:19-cv-00226 Document 32-5 Filed on 03/27/20 in TXSD Page 1 of 3
Exhibit E – Felony Bond
Schedule

Case 4:19-cv-00226 Document 32-5 Filed on 03/27/20 in TXSD Page 2 of 3

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Case 4:19-cv-00226 Document 32-6 Filed on 03/27/20 in TXSD Page 1 of 3
Exhibit F – General Order
Bond Order

Case 4:19-cv-00226 Document 32-6 Filed on 03/27/20 in TXSD Page 2 of 3

Case 4:19-cv-00226 Document 32-6 Filed on 03/27/20 in TXSD Page 3 of 3

 
 Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 1 of 44

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

DWIGHT RUSSELL,

)

JOHNNIE PIERSON,

)

JOSEPH ORTUNO,

)

)

On behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

SHERIFF ED GONZALEZ,

)

)

Defendants.

)

____________________________________)

Case No. _______ (Class Action)

CLASS ACTION COMPLAINT

I. Introduction

1. This case is about Harris County’s jailing some of its poorest people, charged

with felonies, because they cannot afford to make a monetary payment.

2. Harris County previously used access to cash to make release-and-detention

decisions in the County’s misdemeanor bail system. In 2016, certain of undersigned counsel filed

a lawsuit against the County, the Sheriff, the misdemeanor judges (who were added later), and

the Hearing Officers. Following a nearly two-week evidentiary hearing in March 2017, the Court

struck down Harris County’s misdemeanor bail policies, finding that the policies violated Equal

Protection and Due Process, coerced guilty pleas, and disproportionately affected people of

color. The Court issued a preliminary injunction that led to the release of more than 13,000

people who otherwise would have been illegally detained.

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Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 2 of 44

3. In 2018, a slate of candidates ran for election to the misdemeanor courts on a platform acknowledging the devastating consequences of the County’s decades-long policy of detaining poor misdemeanor arrestees after arrest for days and weeks, and promising to work with the Plaintiffs’ counsel and other stakeholders to reform the system and end the misdemeanor lawsuit. All of the candidates won; all of the incumbent judges who had resisted the lawsuit were removed by the voters. On January 17, 2019, after the newly elected judges took office, all of the misdemeanor judges promulgated a new rule that will dramatically change the misdemeanor bail system. It was the result of intensive conversations with class counsel, the District Attorney, the Sheriff and his command staff, and the Public Defender. The rule requires the initial release decision in misdemeanor cases to be made on the basis of the offense charged. Most arrestees—approximately 85%—will automatically qualify for release on unsecured bonds (requiring a payment only if the person willfully misses court and the bond is subsequently forfeited). Only people arrested for a few select offenses will be required to appear before a judge within 48 hours, at which time they may also qualify for release on unsecured bonds or with other appropriate conditions tailored to a specific, identified risk. This rule will give effect to the Supreme Court’s requirement that detention prior to trial must be the “carefully limited exception,” and will reverse the years-long practice of detaining 40% of misdemeanor arrestees throughout the duration of their cases.
4. Reforms to Harris County’s misdemeanor pretrial detention system came after numerous county officials spoke out against the system’s unequal treatment of people who are poor. Sheriff Ed Gonzalez, though a necessary defendant in the misdemeanor case and in this one, has stated:
The County’s widespread detention of arrestees because they are too poor to pay arbitrary amounts of money is a waste of public resources and actually

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Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 3 of 44
undermines public safety . . . . I believe that the current operation of the money bail system, including the Sheriff’s active participation in that system, violates the United States Constitution . . . . A person’s access to money should not be a determining factor in whether he or she is jailed or released after arrest and pending trial.1
District Attorney Kim Ogg, who is not a defendant in either case but has been a strong voice for
reform of the County’s misdemeanor bail policies, has stated:
It is our position that bail reform is necessary and long overdue. Holding un-adjudicated misdemeanor offenders in the Harris County Jail solely because they lack the money or other means of posting bail is counterproductive to the goal of seeing that justice is done. We do not want to be complicit in a system that incentivizes presumptively innocent people to plead guilty merely to expedite their release from custody. We do not want to administer punishment before the defendant has been adjudicated. It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time. These secure beds and expensive resources should be prioritized for the truly dangerous offenders and “flight risks” who need to be separated from the community.2
5. For people charged with felonies, however, the practice of conditioning release on
access to money persists: arrestees charged with felonies are released from custody almost
immediately if they can make a predetermined payment of money to the County while arrestees
who are too poor to purchase their liberty remain in jail solely because of their poverty. As a
result of these policies and practices, more than half of the people arrested for felony offenses

1 Meagan Flynn, Incoming Sheriff Ed Gonzalez Declares Bail System Unconstitutional, Houston Press (Nov. 29, 2016), https://www.houstonpress.com/news/incoming-sheriff-ed-gonzalez-declares-bail-system-unconstitutional8984569; see also Michael Hardy, In Fight Over Bail’s Fairness, Sheriff Joins the Critics, New York Times (Mar. 9, 2017), https://www.nytimes.com/2017/03/09/us/houston-bail-reform-sheriff-gonzalez.html?module=inline (quoting Sheriff Gonzalez saying “When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately [B]lack and Hispanic, that’s not a rational system.”); Cameron Langford, Texas Sheriff Among Critics of His Own Bail System, Courthouse News (Mar. 9, 2017), https://www.courthousenews.com/texas-sheriff-among-critics-bail-system/ (quoting Sheriff Gonzalez’s testimony in federal court, in which he stated, “When we look at equal protection, in my opinion it should be equal protection for everyone, but statistically speaking it doesn’t bear that out. When I see that many of the people inside the jail, on any given day an average of 9,000, are just poor and can’t bond out, and I look at racial disparities, disproportionally communities of color, then that’s very concerning to me.”).
2 Position Statement of District Attorney Kim Ogg About Bail Bond Litigation Pending in the United States District Court, Case No. 4:16-cv-1414, ECF 206 (Mar. 3, 2017).

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Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 4 of 44
remain detained for the entire duration of their case until its disposition.3 Many of the lowest level arrestees are then released on the day of conviction.
6. The felony bail system in Harris County raises the same legal issues as the misdemeanor system, has the same devastating consequences for impoverished arrestees, is similarly coercive of guilty pleas, and is even more costly to the system, in part, because felony arrestees constitute approximately 77% of the jail population on any given day. The felony system demands analogous reforms: ending the use of the secured bail schedule to make the initial release decision and ensuring that anyone detained prior to trial is afforded the substantive findings and procedural protections the Constitution requires to protect against an erroneous deprivation of the right to bodily liberty—the most important right protected by the Constitution, other than the right to life itself.
7. Approximately twelve percent of the felony pretrial population in the Harris County Jail consists of people whose most serious charge is a “state jail” felony. State jail felonies are the least serious class of felony charges in the Texas criminal legal system. They consist mostly of non-violent offenses and, in many instances, they are simply misdemeanor offenses enhanced by prior misdemeanor convictions.
8. Almost 70% of all felony arrestees are charged with non-violent offenses.4 The most common charge for all felony arrestees is drug possession, which is the most serious charge for 26.8% of felony arrestees.5 Only 8.6% of all felony arrestees are released on an unsecured

3

Harris

County

Pretrial

Services,

2017

Annual

Report

16

(2017),

https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf (showing that non-violent felony arrests

account for 68.9% of all felony arrests).

4 Harris County Pretrial Services, supra note 3, at 21.

5 Id.

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Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 5 of 44

bond.6 Money bail is required as a condition of release for the overwhelming majority of felony arrestees, meaning that these arrestees are eligible for release, but will be released only if they can make an up-front monetary payment. Those who are too poor to pay must stay in jail cells.
9. This mass detention caused by arrestees’ inability to access money has devastating consequences for arrested individuals, for their families, and for the community. Pretrial detention of presumptively innocent individuals causes them to lose their jobs and shelter, interrupts vital medication cycles, worsens mental health conditions, makes people working to remain sober more likely to relapse, and separates parents and children. It exposes people to dangerous overcrowding, violence, and infectious disease at the jail. It coerces guilty pleas and results in longer sentences. In part because arrest and detention for any period of time destabilizes a person’s life, even a couple of days in pretrial detention makes a person more likely to commit crimes in the future. It also costs Harris County tens of millions of dollars every year—money that could be invested in systems that provide support to people suffering from addiction, housing instability, mental health issues, and poverty, instead of a system that research shows actually exacerbates those conditions.
10. Between 2009 and the present, 125 people died in the Harris County Jail awaiting trial,7 including a woman this month who committed suicide while being detained due to her inability to pay $3,000 money bail. She was granted a personal bond an hour after she was found hanging.8

6 Id. at 17.
7 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019.
8 Keri Blakinger, Harris County jail inmate dies by suicide days after misdemeanor arrest, Houston Chron. (Jan. 16, 2019) https://www.chron.com/news/houston-texas/article/Harris-County-jail-inmate-dies-by-suicide-days13538819.php?hchronfb&fbclid=IwAR00Vn77P8IM5CQ1jUjqPkLSPOrnGNBxOzFrNQjAR6SzMqYqFbK3EnSfa8&utm_campaign=CMS%20Sharing%20Tools %20(Desktop)&utm_source=share-by-email&utm_medium=email.

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Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 6 of 44
11. Named Plaintiffs Dwight Russell, Johnnie Pierson, and Joseph Ortuno are currently being detained in the Harris County Jail because they cannot afford the monetary payment required for their release. Mr. Russell is required to pay a $25,000 secured bail amount to be released. Mr. Pierson is required to pay $15,000 to be released. And Mr. Ortuno is required to pay $30,000 to be released. Because of their poverty, each of the Plaintiffs is confined to a Harris County jail cell. In none of their cases did a judicial officer make any finding concerning ability to pay, the availability of alternative non-financial conditions of release, or the need to detain them to serve any government interest. Moreover, none of the Plaintiffs was afforded the procedural safeguards required to ensure the accuracy of any decision to detain them pretrial.
12. On behalf of the many other arrestees subjected to Harris County’s unlawful and ongoing post-arrest wealth-based detention scheme, the Plaintiffs challenge in this action the use of secured money bail to detain only the most impoverished felony arrestees. Harris County’s wealth-based felony pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution.
13. By and through their attorneys and on behalf of themselves and all others similarly situated, Plaintiffs seek an injunction against Defendants’ wealth-based post-arrest policies and practices and a declaration that Defendants cannot employ a system of pretrial detention based solely on access to money by imposing and enforcing secured financial conditions of pretrial release without factual findings on the record, after adequate procedural safeguards to ensure the accuracy of the findings, either (1) that the person can afford to pay the amount required for release or (2) that, although the person cannot afford it and will be detained, pretrial detention is necessary because every less-restrictive alternative condition is inadequate to meet a specific, compelling government interest in court appearance or community safety.

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Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 7 of 44
II. Related Litigation 14. In accordance with Local Rule 5.2, Plaintiffs advise the Court of related litigation
that is currently pending: ODonnell v. Harris County, Case No. 4:16-cv-1414 (S.D. Tex. 2016), in the United States District Court for the Southern District of Texas, Houston Division. ODonnell raises the same legal claims and challenges materially identical bail policies and practices as applied to people arrested for misdemeanor offenses. This lawsuit is a companion case to ODonnell; the claims pled here could have been added to ODonnell itself by way of an amended Complaint.
III.Nature of the Action9 15. It is the policy and practice of Defendants to detain all felony arrestees who are
eligible for release unless they pay a monetary sum. The amount of money required is initially determined by a generic schedule and is subsequently set by Hearing Officers at arrestees’ probable cause hearings, during which the Hearing Officers fail to make the findings required by the Constitution, and the County fails to provide the procedural protections required to ensure the accuracy of any decision that results in a person’s pretrial detention. It is the policy and practice of the Harris County Sheriff to require these payments as a condition of release without a judicial officer having made a finding either that the person can afford to pay the amount or that detention is necessary to serve any government interest. This practice results in the systemic detention of those arrestees who are too poor to pay. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants’ post-arrest detention scheme based on access to money.
Jurisdiction and Venue

9 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.

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Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 8 of 44
16. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343.
17. Venue in this Court is proper pursuant to 28 U.S.C. § 1391. Parties
18. Dwight Russell is a 61-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subjected to Defendants’ wealth-based post-arrest detention practices.
19. Johnnie Pierson is a 51-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices.
20. Joseph Ortuno is an 18-year-old teenager who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices.
21. Defendant Harris County is a municipal corporation organized under the laws of the State of Texas. The County, through the judges who are its final policymakers for promulgating bail procedures, makes policy decisions about which arrestees are eligible for release on non-financial conditions. The County, through the judges, also makes policy decisions about the content of the findings that are required to justify pretrial detention and about the procedural safeguards to provide for arrestees, including: whether and when to provide adversarial hearings and counsel; whether to provide notice, an opportunity to be heard, and an opportunity to present and confront evidence; and whether to make findings on the record. The County’s policies and practices result in systemic wealth-based pretrial detention of Harris

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Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 9 of 44
County felony arrestees without the substantive findings or procedural safeguards required by the United States Constitution.
22. The Harris County Sheriff is the chief law enforcement officer for Harris County and operates the Harris County Jail, the forthcoming Joint Processing Center, and several other detention facilities. He is responsible under state law for enforcing pretrial bail orders and directives issued by judges or promulgated by local rule. State law also obligates the Sheriff to ensure the lawfulness of any order resulting in a person’s detention in the Harris County Jail and requires him to not enforce orders he knows to be illegal.
23. The Sheriff’s Office is itself responsible for about 19% of felony arrests within Harris County. The Sheriff’s Office also transports arrestees from field stations run by various other authorities with arresting power to the Harris County Jail, which houses all people to be detained pending prosecution within the Harris County courts. The Sheriff’s Office detains arrestees at the Harris County Jail and several other facilities. The officers and employees of the Sheriff’s Office are authorized by County policy to accept money bail, as determined by the money bail schedule or by a judicial officer, and release arrestees.

6324015V1/015183

Bonding office in the Joint Processing Center, which the County expects will open on February 1, 2019, subject to further delays.
9

Case 4:19-cv-00226 Document 1 Filed on 01/21/19 in TXSD Page 10 of 44
24. After arrest, Sheriff’s Office employees and agents bring arrestees detained because they cannot pay money bail to a room inside the jail for probable cause hearings and bail setting. Sheriff’s Office employees supervise and monitor the arrestees during the hearing. The Sheriff has knowledge that Hearing Officers require secured financial conditions of release without findings concerning a person’s ability to pay the amount set and without any findings concerning alternatives to pretrial detention.
25. The Sheriff, who operates the jail, is aware of who is in the jail and the basis for each person’s detention, including whether any person is eligible for pretrial release, and the amount of money bail any person is required to pay for immediate release. The Sheriff therefore has knowledge that the imposition of secured money bail results in systemic, wealth-based detention, and that there are thousands of people in the jail every night who would be released but for their inability to pay a money bail amount imposed without any finding that pretrial detention is necessary and without the basic procedural safeguards necessary to ensure the accuracy of such a finding.
26. The Sheriff’s Office, by policy and practice, detains arrestees too poor to afford the money bail amounts that are imposed without findings concerning ability to pay or the need for detention, and releases arrestees who pay their money bail.
27. The Sheriff is sued in his official capacity because he is the final policymaker for all law enforcement decisions in Harris County. To the extent the Sheriff is not a County policymaker for the conduct challenged in this Complaint, the Sheriff is sued in his official capacity as an enforcement actor for purposes of injunctive relief and can be enjoined in his

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capacity as an enforcement actor, regardless of whether he acts on behalf of the County or the State of Texas when he enforces bail directives.10
Factual Background A. The Named Plaintiffs Are Being Kept in Jail Because They Cannot Afford
the Money Bail Required for Their Release, Even Though the Government Has Not Made a Substantive Finding that Detention is Necessary 28. Dwight Russell is a 61-year-old man. Ex. 1 (Declaration of Dwight Russell) ¶ 1. 29. Mr. Russell was arrested on January 19, 2019 and taken into the custody of Harris County for allegedly driving while intoxicated, third offense. He was informed that, because of the Harris County bail schedule, he would be released immediately, but only if he paid a money bail amount of $25,000. He was told that he will be detained by Harris County if he does not pay. See Id. ¶¶ 3, 4. 30. Mr. Russell appeared while in custody at the jail at a probable cause hearing, and a Hearing Officer found probable cause for his arrest. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Id. ¶¶ 5, 6. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 31. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $25,000. Id. ¶ 4.

10 Defendant Ed Gonzalez is named separately from the County as a defendant in the event that the Court concludes that he acts on behalf of the State in any capacity, and thus is subject to prospective relief only in that capacity. If the Court, however, determines that he is a final policymaker for the County, naming him individually is redundant of a suit against the County.

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32. Mr. Russell struggles to meet the basic necessities of life. His only income is from food stamps. He is unemployed and has no savings. He lives with his sister, who provides him with financial support. Id. ¶ 7.
33. He cannot afford to purchase his release from jail. Id. ¶ 4. 34. Johnnie Pierson is a 51-year-old man. Ex. 2 (Declaration of Johnnie Pierson) ¶ 1. 35. Mr. Pierson was arrested on January 18, 2019, for possession of less than one gram of a Penalty Group 1 controlled substance, a state jail felony offense. He was taken to the Houston city jail and then to the Harris County jail. Id. ¶ 3. 36. At the jail, deputies took him to see a Hearing Officer, who told Mr. Pierson that he could be released, but only if he paid $15,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4. 37. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, lessrestrictive alternative conditions of release. Id. ¶ 7. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 38. Mr. Pierson struggles to meet the basic necessities of life. He survives on food stamps and works part-time on cars when he can. He does not have any other income. Id. ¶ 10. 39. He cannot afford to purchase his release from jail. Id. ¶ 13. 40. Joseph Ortuno is an 18-year-old teenager who is in high school. Ex. 3 (Declaration of Joseph Ortuno) ¶¶ 1, 6.

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41. He was arrested on January 17, 2019, for possession with intent to deliver a controlled substance. He was taken first to the Houston city jail and then to the Harris County jail. Id. ¶ 3.
42. At the jail, deputies took him to see a Hearing Officer, who told Mr. Ortuno that he could be released, but only if he paid $30,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4.
43. Pursuant to the policies and practices described in this Complaint, no findings were ever made concerning his ability to pay or the need to detain him in light of available, lessrestrictive alternative conditions of release. See Id. ¶ 5. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
44. Mr. Ortuno struggles to meet the basic necessities of life. When not in school, he makes money by helping his uncle with tile installation, but he cannot afford to purchase his release from jail. Id. ¶¶ 4, 7, 12.
B. Defendants’ Post-Arrest Practices Cause the Detention of Arrestees Who Cannot Pay a Money Bail Amount While Those Who Can Pay Are Released i. Arrest and the Initial Money Bail-Setting Process
45. Harris County uses a predetermined money bail schedule, promulgated through administrative order by the Harris County District Court Judges (“the felony judges”), to determine financial conditions of pretrial release for nearly all felony arrestees in Harris County. See Ex. 4 (Harris County District Court Felony Bond Schedule). The schedule requires arrestees charged with certain offenses to remain in custody until a magistrate determines conditions of release at a probable cause hearing. For all other arrestees, the schedule lists an amount of cash a person must pay to purchase her release. The cash amount is based on a combination of the type

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of offense and the “risk” level of the arrestee as determined by a risk assessment algorithm. The algorithm itself is a secret, and the County’s use of the assessment tool to determine the price of release is nonsensical and an improper use of the tool. First, there is no science showing that higher amounts of money mitigate higher risks of nonappearance or new criminal activity. Second, the tool is intended only to identify a risk absent interventions, such as text-message reminders or appropriate conditions like a stay-away order.
46. Harris County itself made 19% of felony arrests within the County in 2017. The City of Houston Police Department made 53.9% of felony arrests in 2017.11 There are roughly 100 additional agencies within Harris County that have the authority to make arrests.
47. When a person is arrested within Harris County, she will be taken to a “field station” run by the arresting authority. If she is arrested by Harris County, she will be taken either to a field station or directly to the jail. These field stations vary in size and their capacity to hold and process arrestees. Some include holding cells. In others, arrestees are made to sit shackled to a bench while initial post-arrest procedures are conducted.
48. When the newly constructed Joint Processing Center (“JPC”)—which Harris County spent $100 million to build—opens later this year, all people arrested by Harris County or the Houston Police Department will be taken directly to the JPC. This means that about 75% of arrestees will immediately be in the Sheriff’s physical custody upon arrest.
49. Once at a field station, if the person was arrested without a warrant, the arresting officer will determine whether the Harris County District Attorney’s Office wishes to pursue the charge by calling a hotline that is staffed 24 hours a day, 7 days a week by Harris County’s

11 Harris County Pretrial Services, supra note 3, at 8.

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assistant district attorneys. The arresting officer describes the allegations to the assistant district attorney (“ADA”) on duty, who makes an initial charging decision over the phone.
50. If the ADA on hotline duty does not wish to pursue charges, she tells the officer to release the individual.
51. If the ADA decides to pursue the charges, the arresting officer will type a summary of the facts giving rise to the arrest into the District Attorney’s Intake Management System.
52. The summary will be transmitted to the District Attorney’s (“DA”) intake division where an ADA will formally accept charges.
53. The District Clerk’s Office then files the case, creates a case number, and assigns the case to a courtroom. Pretrial Services runs the person’s information through an algorithm to create a “risk assessment” score and applies the felony judges’ schedule. The process from arrest to formal charges being filed and the cash amount required for release being set typically lasts about 6 to 8 hours.
54. Once the charging document is filed, a case number assigned, and a monetary amount set, the arrestee will be eligible to pay the secured money bail amount and be released. Up to this point, Harris County does not perform any inquiry into the arrestee’s ability to pay the money bail amount required by the felony judges’ schedule.
55. From the moment a secured bail amount is set in a felony case, the arrestee is eligible for release from Harris County custody if she can pay the amount required. If a person is subject to certain “hold” orders (e.g., an immigration detainer, probation hold, or process from another county), that person will be eligible for transfer to the jurisdiction where the hold is operative as soon as she pays. Typically, there is a set time period within which the other

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jurisdiction can come and pick up the arrestee. That time period does not begin ticking down unless and until the person pays the amount required by the judges’ schedule in Harris County.
56. Arrestees can pay the amount themselves, make a phone call to ask a friend or family member to pay the money on their behalf, or contact a commercial bonding agent to post bail. A person who can afford to pay will be released from the field station and will never be transported to the Harris County Jail.
57. The imposition of a financial condition of release is the moment of differential treatment: Defendants will release a person with financial resources almost immediately after money is paid, but Defendants will continue to detain a person who cannot afford to pay. This policy and practice results in systemic and automatic wealth-based detention.
58. Whether a person is arrested pursuant to a warrant or pursuant to a warrantless arrest, that person can pay the secured money bail amount predetermined by the schedule and be released immediately from the field station,12 prior to formal booking.13 If the individual is unable to pay, she will be transported to and booked into the jail.
59. The time it takes for an arrestee to be transported to the Harris County Jail varies depending on a variety of factors, including where the person was arrested.
60. Harris County is a large county, and individuals arrested within its borders can be taken initially to field stations as geographically close to the Harris County Jail as the Houston Police Station located a little over a mile from the jail, or as far away as, for example, the City of Lakeview, which is more than 30 miles away.
12 Individuals arrested by Harris County officers are generally taken directly to the Harris County Jail. However, as noted, Harris County itself is only one of roughly 100 agencies with arresting authority in the County, some of which are 60 to 90 minutes outside of Houston. 13 The vast majority of arrestees use a bail bond, obtained through a commercial bail bond company, to secure their release from jail. Typically, if accepted by a for-profit bail agent, an arrestee will have to pay the agent a nonrefundable fee of 10% of the value of the bond to be released.

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61. Sometime after a person arrives at the jail—and usually before she is assigned to a housing unit—she will be taken by Sheriff’s Office employees to a room in the jail with several dozen other new arrestees to appear before a Hearing Officer, who will determine probable cause. Many people every month must wait up to 48 hours for a probable cause hearing, though some have their hearings within 24 hours of arrest.
62. These policies have consistently, for years, resulted in the needless and devastating jailing of impoverished people accused of felony offenses. In 2017, up to 85% of felony arrestees were booked into the jail because they were unable to immediately pay for their release.14 Arrestees booked into the jail endure a lengthy, intrusive, and humiliating process that includes seizure of their property, bodily searches, personal questions about their physical health, and interviews requiring them to disclose private financial and mental health information. The inmate processing center is notoriously crowded with people who are in moments of extreme crisis, having just been arrested, separated from their children and families, and deprived of their freedom. Some are suffering from painful withdrawal symptoms or mental health episodes. Many are worried about missing shifts at their jobs or making rent payments. All are, at that moment, presumed innocent of all charges. The processing center is loud, dirty, and full of flies and noxious smells. The risk of suicide—elevated for all people detained in jails—is at its highest in the hours and days immediately following arrest. Similarly situated arrestees who were able to pay the predetermined money bail amount avoid the booking process altogether.

14 Harris County Pretrial Services, supra note 3, at 19.

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63. In 2017, approximately 55% of felony arrestees were still in jail when their case reached disposition.15 Many of these arrestees were detained solely due to their inability to afford the secured financial condition set for their release.16
ii. Probable Cause Hearings 64. The Harris County Sheriff’s Office, through its jail personnel, assembles recently arrested people nine times per day, every day of the week, for an appearance before one of the Harris County Hearing Officers. The Hearing Officer determines probable cause for the arrest, if it was warrantless, and imposes conditions of release. 65. These hearings are referred to locally as “magistrations,” “Article 15.17 hearings,” or “probable cause hearings.” 66. In March 2017, in the middle of the evidentiary hearing in the ODonnell case, challenging the County’s misdemeanor bail system, the County Commissioners voted to fund a pilot program allowing defense attorneys to appear on behalf of detained arrestees at these hearings beginning in July 2017.17 Assistant public defenders are currently authorized to represent most arrestees, though there are some exclusions.

15 Id. at 16.
16 Id. at 19 (showing in Table B.1 that roughly 45% of felony arrestees post money bail).
17 Harris County received $150,000 in May 2015 from the MacArthur Foundation to create a proposal for improvements to the criminal legal system. See Press Release, MacArthur Announces 20 Jurisdictions to Receive Funding to Reduce Jail Use (May 26, 2015), https://www.macfound.org/press/press-releases/macarthur-announces20-jurisdictions-receive-funding-reduce-jail-use/. Harris County subsequently convened a Criminal Justice Coordinating Council, which investigated ways to reduce incarceration. Among the most important reforms that participants recommended was to provide defense attorneys at the probable cause hearings. Early in January 2016, the Coordinating Counsel submitted its grant proposal to the MacArthur Foundation, seeking $4 million over two years to put its plans into effect. Without a public explanation and despite the availability for funding for lawyers to represent all arrestees, the final document included a proposal for counsel only to represent individuals who are mentally ill. Meagan Flynn, Bail Hearings: Where Prosecutors and Magistrates Ensure Defenseless People Stay In Jail (Jan. 11, 2016), http://www.houstonpress.com/news/bail-hearings-where-prosecutors-and-magistrates-ensuredefenseless-people-stay-in-jail-8058308. On April 13, 2016, Harris County was awarded a $2 million MacArthur grant to reform its criminal system, but that money was not allocated to funding public defenders at bail hearings, even for people with mental illnesses. See Harris County receives $2 million grant to reform criminal justice system, KPRC News (Apr. 13, 2106), http://www.click2houston.com/news/watch-live-harris-county-receives-2-

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67. At the probable cause hearing, Hearing Officers typically make no findings concerning ability to pay; they make no findings as to whether alternative conditions of release serve the government’s interests or whether pretrial detention is necessary to serve any government interest; they do not allow arrestees to confront the evidence and arguments of the government or put on evidence in support of pretrial release; and they do not provide other basic procedural safeguards, such as applying any evidentiary standard to any factual finding, let alone the clear-and-convincing-evidence standard, or issuing any statement of findings or reasons explaining why a particular financial condition or pretrial detention is required.
68. An ADA participates in the probable cause hearings via videolink by arguing for the Hearing Officer to make a finding of probable cause and often asking the Hearing Officer to impose money bail in an amount higher than the amount on the schedule or on the warrant. District Attorney Kim Ogg has an internal policy requiring motions for high bond on certain cases. She also has a policy of asking the Hearing Officer to detain using a “no bond” order every arrestee charged with an offense for which the Texas Constitution authorizes pretrial detention, regardless of the person’s individual case and circumstances and regardless of the availability of less-restrictive alternatives to detention.
69. When the docket begins, arrestees are seated on benches in a room at the jail. 70. The Hearing Officer calls an individual’s name and reads the charge. That individual gets up and stands in the middle of a red square on the floor of the room in the jail. An ADA then reads from the police report. The Hearing Officer decides whether there is probable cause, finding probable cause in almost every case. The Hearing Officer regularly sets

million-grant-to-reform-criminal-justice-system. That change came only in the midst of the evidentiary hearing on the ODonnell Plaintiffs’ motion for preliminary injunction.

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secured money bail and sometimes increases the money bail amount from the amount required by the bail schedule.
71. As a matter of routine practice, Hearing Officers do not make findings concerning an arrestee’s ability to pay the money bail amount that they impose, nor do they meaningfully consider alternative non-financial conditions of release for those who cannot afford to pay the bail amount set. They do not make findings concerning the necessity of pretrial detention or make findings that less-restrictive conditions are inadequate to meet a compelling government interest.
72. Hearing Officers rarely require alternative, non-monetary conditions of release and routinely state that they are not permitted to impose certain non-monetary conditions of release.
73. For decades, the Hearing Officers simply reviewed the bail amount previously affixed to ensure that it conformed to the bail schedule and the specific policy instructions from the felony judges about how to administer the predetermined schedule. These instructions included laminated charts and emails instructing Hearing Officers about who the Hearing Officers could and could not order released on personal bonds (i.e., unsecured bonds that do not require payment upfront) and in what circumstances they could deviate from the cash bail schedule (almost never, according to the instructions). Although the felony judges purportedly rescinded these instructions in 2017 with the implementation of the new felony bail schedule and expanded the Hearing Officers’ authority to determine money bail amounts and other conditions of release, the purported policy changes have not meaningfully changed actual practice. Specifically, the rule changes have failed to correct the core constitutional infirmity of the Harris County bail system: requiring secured financial conditions of release without findings

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concerning ability to pay, the necessity of pretrial detention, or the adequacy of alternative conditions, and without all of the safeguards required to ensure the accuracy of those findings, including application of the clear-and-convincing-evidence standard and a statement of reasons concerning why a particular financial condition or pretrial detention is required.
74. Throughout the hearing, the arrestees remain in the Harris County Jail, supervised by Sheriff’s Office employees. Sheriff’s Office employees and agents also observe the probable cause hearings and witness Defendant Hearing Officers routinely failing and refusing as a matter of policy to consider alternatives to secured financial conditions.
75. State law requires probable cause hearings to occur within 48 hours. Although the County strives to hold these probable cause hearings within 24 hours of arrest for people charged with felonies, the County’s online case records show that the hearings sometimes do not occur until up to 48 hours after arrest. At any point in the booking process, an arrestee can pay his or her predetermined money bail and be released.
76. If a person pays money bail prior to the probable cause hearing, she will be released and the probable cause determination in her case will be made at a subsequent court appearance.
77. If an individual is not brought to the probable cause hearing due to medical reasons, which is a frequent occurrence (approximately 5% to 10% of male arrestees are not brought to the probable cause hearing for medical reasons and approximately 25% of female arrestees are not brought to the probable cause hearing for medical reasons), the Hearing Officer will make a finding of probable cause and require financial conditions of pretrial release in that person’s absence. The County’s protocol prohibits assistant public defenders from representing

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people who are not present at the hearing. Therefore, in these cases, the money bail amount is set without any argument on the arrestee’s behalf.
iii. The Use of Personal Bonds 78. Hearing Officers sometimes recommend arrestees for release on “personal bonds,” a term Defendants use to describe release without requiring an up-front payment prior to release, i.e., without a secured financial condition of release. The felony bond schedule lists certain low-level offenses for which there is a presumption of personal bond. 79. Only about 8% of felony arrestees were released on personal bonds in 2017.18 80. Even when individuals are recommended for personal bonds, many will not be released immediately, and some will not be released at all. This is because some Hearing Officers require Pretrial Services to first “verify” a person’s references, meaning that the arrestee must provide Pretrial Services with contact information for friends or family members, and Pretrial Services must then contact those individuals and attempt to confirm certain information reported by the arrestee. Sometimes Pretrial Services is required to verify the information with multiple “references.” Among the information Pretrial Services seeks to confirm, as a matter of policy, is whether the person has a place to stay if she is released from the jail. If a person does not have an address to verify, then the verification process cannot be completed, and the person will not be released. According to these policies and practices, a person who is homeless will not be released on a personal bond, i.e., without payment of the scheduled amount of bail, because she has no address that can possibly be verified. Homeless defendants are therefore categorically ineligible for personal bonds due to the verification policy. Sometimes, references cannot be reached to verify information for days or a week. Sometimes they cannot be reached at all. In

18 Harris County Pretrial Services, supra note 3, at 17.

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those cases, the person will not be released on a personal bond and will be detained unless she can pay the money bail.
81. At any point in the verification process, the arrestee is permitted to pay the money set pursuant to the schedule and be released immediately.
82. For decades, in violation of state judicial conduct rules, there has been an entrenched culture among the Hearing Officers of abiding strictly by written and oral directives regarding the money bail–setting process issued by the felony judges, who control their employment. For example, the felony judges instructed Hearing Officers that they could never recommend homeless individuals for release on personal bonds, i.e., without secured financial conditions. Some judges told Hearing Officers never to issue non-financial conditions for any defendant who was assigned to their courtroom at all,19 or for individuals who previously received personal bonds in other cases.20 Other judges told Hearing Officers to consider unsecured financial conditions only for “students.”21 The Hearing Officers believed themselves to be bound by these rules and understood that the judges could hire and fire them at will. The Hearing Officers’ contracts are reviewed annually by a committee that includes several of the felony judges.
83. These explicit written instructions have purportedly been rescinded with implementation of the current schedule in 2017, and Hearing Officers have purportedly been given greater discretion to determine bond amounts. Although written rules prohibiting or

19 Gabrielle Banks, Harris County hearing officers sanctioned by state for not considering personal bonds, Houston Chron. (Feb. 23, 2018), https://www.chron.com/news/houston-texas/article/Trio-of-Harris-County-hearing-officerssanctioned-12494892.php
20 James Pinkerton & Laura Caruba, Tough bail policies punish the poor and the sick, critics say, Houston Chron. (Dec. 26, 2015), http://www.houstonchronicle.com/news/houston-texas/houston/article/Tough-bail-policies-punishthe-poor-and-the-sick-6721984.php?t=373b57d418&cmpid=email-premium.
21 Id.

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categorically limiting release have purportedly been formally rescinded, videos and data demonstrate that actual practices are virtually the same as they have been for many years.
iv. Assignment to a Housing Unit 84. People who are being processed through the Inmate Processing Center cannot be contacted by people outside the jail, including attorneys, with the exception of a brief interview with an assistant public defender shortly before the probable cause hearing. Most arrestees are not assigned to a housing unit until after their probable cause hearing and will remain inaccessible to their appointed attorney, who will represent them in their case, and everyone else outside the jail until the jail assigns the individual to a housing unit sometime after the probable cause and bail hearing. 85. It is only after being assigned to a housing unit that an arrestee can be contacted by anyone outside the jail and will be scheduled for a hearing in a Criminal District Court. 86. Typically, a lawyer is not appointed until the first appearance in court. First appearance cannot occur until booking is complete. The booking process can take days. 87. In total, it takes a minimum of 24 hours for an arrested person to be fully booked into the jail, assigned to a housing unit, and made available for a visit. Arrested persons who cannot pay generally will not have counsel appointed or be able to meet with counsel until after their first court appearance. Felony arrestees virtually never meet their lawyer before the first appearance. At any point during this period of time, a person can pay money bail and be released.
v. First Appearances 88. If, after the probable cause hearing, an arrestee is still unable to purchase her release from jail, general Harris County practice is that she will be taken to a District Court,

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usually within 24 to 48 hours of the probable cause hearing. However, many arrestees who have their probable cause hearings on Thursday or Friday will not see a District Judge until the following Monday at the earliest, and sometimes must wait until Tuesday.
89. Detained individuals are usually assigned a court-appointed attorney or public defender at the first appearance hearing, but there is typically no review of the money bail amount previously imposed. Although an informal off-the-record request for bail reduction may, in theory, be made at first appearance, it is not possible to have a bail hearing at that time.
90. Detained individuals typically remain in lock-up outside of the courtroom and are not brought into the courtroom on this court date. The case is almost always then “reset,” meaning that another hearing is scheduled, typically weeks in the future.
91. As a result, arrestees who cannot pay for their release remain in detention and are returned to jail cells, usually without ever having been brought into the courtroom.
92. As a matter of routine practice, the felony judges do not conduct bail hearings at first appearance: they make no findings concerning ability to pay; they make no findings as to whether pretrial detention is necessary to serve any government interest; they do not allow arrestees to confront the evidence and arguments of the government or put on evidence and argument in support of pretrial release; and they do not provide other basic procedural safeguards, such as making findings by any evidentiary standard, let alone by clear and convincing evidence, or issuing any statement of reasons concerning why a particular financial condition or pretrial detention is required.
93. Typically, if a person wishes to have an evidentiary hearing concerning the appropriateness of the secured bond amount set, the need to keep the person in a jail cell pending resolution of the case, and whether less-restrictive conditions of release are available, the

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person’s lawyer must file a motion and then have a court proceeding scheduled for a later date. A hearing on the motion will likely not occur for more than a week after the motion is filed. This hearing will be the arrestee’s first opportunity to present witnesses or documentary evidence and the first time that a judge will even conceivably make findings on the record regarding release conditions.
94. One of the purposes and effects of Harris County’s post-arrest detention is to coerce and process large numbers of guilty pleas prior to any person conducting any legal or factual investigation into the charges, let alone the complete and zealous investigation and defense required by professional standards and the Sixth Amendment to the United States Constitution. If an arrestee agrees to plead guilty at this first appearance, then the arrestee will be brought out from the lock-up to plead guilty.
95. The felony judges routinely accept guilty pleas from individuals who are in jail solely because they are too poor to pay money bail.
96. The felony judges—and every other actor in the County’s post-arrest system (as well as anyone who has observed probable cause hearings or first appearances)—know that many of the detained individuals who appear in front of them charged with felonies are being detained in jail solely because they are too poor to pay the money bail amount required as payment for release. The judges and Sheriff’s Office employees and agents have knowledge that, in thousands of people’s cases every day, there is no reason for a person’s detention other than the person’s inability to make a monetary payment.
97. In 2017, approximately 55% of felony arrestees were still in jail when their case reached disposition.22 Individuals detained pretrial are more likely to be sentenced to jail, are
22 Harris County Pretrial Services, supra note 3, at 16 (showing in Table B.1 that roughly 45% of felony arrestees post money bail).

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less likely to be sentenced to probation, and are given longer sentences than those received by individuals who were released pretrial. The conviction rates for people released at disposition are significantly lower than for similarly situated people who are detained at disposition.
C. The Harris County Jail 98. The Harris County Jail is the largest jail in Texas and the third largest jail in the United States, behind only Rikers in New York and the Los Angeles County Jail.23 The Harris County Jail books on average 120,000 individuals per year and 330 individuals per day.24 99. The vast majority of human beings in the Harris County Jail cells are not there because they have been convicted of a crime. Instead, most people—an average of 85% in September 2018—are being kept in jail cells prior to trial, despite the presumption of innocence. Many of these people are in jail solely because they cannot afford to pay money bail. If they could pay the money bail assigned to them, they could walk out of the doors of the jail at any time. 100. In September 2018, a typical month, the average daily population of the Harris County Jail was 9,803 individuals, 8,386 of whom were pretrial detainees. About 90% of these pretrial detainees—7,553 individuals—had been arrested for felony or state jail felony charges. 101. Over 10 years ago, the Department of Justice investigated the Harris County Jail and launched an era of federal oversight because of the serious and systemic violations of constitutional rights that pervaded the facility.25 The investigation led the County to form the Harris County Criminal Justice Coordinating Council in an effort to address the overcrowding in

23 Sarah R. Guidry, et al., A Blueprint for Criminal Justice Policy Solutions in Harris County 1 (2015), http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2015/ls_sclaid_summit_03_tcjc _2015_harris_county_blueprint.authcheckdam.pdf.
24 Id. at 9.
25 Id. at 2.

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the jail.26 Although there have been some decreases in the jail population in more recent years, Harris County consistently struggles to stay within its operating capacity. In fact, the jail’s persistent overcrowding, resulting largely from the thousands of people detained pretrial on felony charges, has led the Sheriff to refuse to accept new arrestees from arresting agencies like Houston Police Department (“HPD”), which in turn has meant that HPD arrestees are forced to languish in the City’s custody for days before being transferred to the County’s inmate processing center.27
102. In 2013, taxpayers spent almost $500,000 per day to operate the jail.28 103. Since 2009, 125 human beings have died while in pretrial custody in the Harris County Jail.29 104. In August 2018, arrestee Debora Lyons hanged herself in a common area of the Harris County Jail while detained on a felony theft charge with money bail set at $1,500.30 She had been arrested on July 21 for allegedly stealing clothes and an airbed totaling less than $2,500. The day after she died, former Judge Jim Wallace granted her a personal bond. 105. Three weeks earlier, Navy veteran Eldon Lee Harris had hanged himself while in solitary confinement.31

26 Id.
27 Undersigned counsel Civil Rights Corps sued the City of Houston for detaining people in violation of their Fourth Amendment right to a probable cause determination within 48 hours. Hernandez v. City of Houston, 4:16-cv-3577 (S.D. Tex. Dec. 5, 2016).
28 Guidry, supra note 23, at 13.
29 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019.
30 Keri Blakinger, Inmate who killed herself in Harris County jail had previously threatened suicide, Houston Chron. (Aug. 22, 2018), https://www.chron.com/news/houston-texas/article/Inmate-who-killed-herself-in-jail-hadpreviously-13172633.php.
31 Id.

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106. The Texas Commission on Jail Standards has found the Harris County Jail to be in noncompliance of state standards five times in the past two years.32 Three out of five of these compliance failures have been related to preventable deaths.
107. On January 17, 2019, two days after Tracy Whited committed suicide in the Harris County Jail, Texas state Senator John Whitmire sent a letter to County Judge Lina Hidalgo citing “unsanitary and unhealthy conditions” at the jail and proposing state oversight for the facility. He stated that conditions at the jail “jeopardize[] the safety and well-being of our fellow citizens who find themselves housed in the Harris County Jail.”33
108. According to the Harris County Sheriff’s Office, one-quarter of individuals in the Harris County Jail have been diagnosed with some form of mental illness.34
109. There is a documented history of inmate abuse by jail guards, deaths and suicides in the jail, inadequate training of jail staff, and lack of access to medications and medical services. For years, the County has been aware of these intolerable conditions, which exist largely because of the overcrowding resulting from the volume of pretrial felony detainees who cannot afford to pay money bail. It has failed to remedy them.35

32 Keri Blakinger, State finds Harris County jail out of compliance for 5th time in two years, Houston Chron. (Nov. 30, 2018), https://www.chron.com/news/houston-texas/article/State-finds-Harris-County-jail-out-of-compliance13435304.php.
33 Keri Blakinger, Houston senator raises possibility of state oversight for Harris County jail, Houston Chron. (Jan. 17, 2019), https://www.chron.com/news/houston-texas/article/Houston-senator-raises-possibility-of-state13542101.php.
34 Harris County Sheriff’s Office, Jail Mental Health Initiatives, http://www.harriscountycit.org/jail-mental-healthunit/ (last visited January 19, 2019).
35 Jailhouse Jeopardy: Uncovering abuses at Harris County’s jail, Houston Chron., (Oct. 3, 2015–Mar. 6, 2016), http://www.houstonchronicle.com/local/investigations/jailhouse-jeopardy/ (providing links to a series of articles written by several reporters).

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110. On a typical day, hundreds of new arrestees, presumed innocent, are arrested and booked into this jail.36 At any given moment, there are hundreds of people charged only with

state jail felonies—the least serious class of felony charges in the Texas criminal legal system,

consisting mostly of non-violent offenses or misdemeanor offenses enhanced by prior

misdemeanor convictions—who are being detained in the Harris County Jail solely because they cannot afford money bail.37

111. In 2017 alone, there were more than 500 people who were detained at disposition

because they were unable to pay a $2,000 money bail. Many of these individuals could have

walked out of the jail if they had been wealthy enough to pay the monetary amount required for

freedom. Only those individuals who are too poor to purchase their release are subjected to these

conditions and the health and safety risks of pretrial jailing.

D.

Defendants’ Wealth-Based Detention Practices Are Causing Plaintiffs to Be

Jailed Solely Due to Their Inability to Pay Bail

112. The named Plaintiffs are eligible for release and would not have to endure pretrial

incarceration if they paid the amount of money required by Defendants.

113. Arrestees are given a right to release pending trial, but Defendants’ wealth-based

detention system conditions their release on their ability to afford money bail, thus tying their

pretrial freedom to their wealth status.

114. As a matter of policy and practice, when a new arrestee is brought to the Harris

County Jail, county employees inform the arrestee that she will be released from jail immediately

36 Guidry, supra note 23, at 9 (stating that there are 330 bookings per day); Harris County Pretrial Services, supra note 3, at 16 (stating that, in 2017, 30,978 people were arrested on felony charges, which averages more than 80 arrests per day).
37 See, e.g., Guidry, supra note 233, at 15 (noting that, in 2013 alone, there were 3,120 misdemeanor arrestees who could not post the $500 money bail that Harris County demanded of them).

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if she pays the money bail amount. The arrestee is told that she will remain in jail if she is not able to make that payment.
115. The Harris County Sheriff’s Office collects arrestees’ money bail payments. It is the policy and practice of the Harris County Sheriff’s Office to release only those arrestees who pay their money bail amount.
116. In a typical week, the Sheriff’s Office releases hundreds of individuals who pay their money bail amount.
117. It is the policy and practice of the Sheriff’s Office to detain individuals who do not pay the money bail amount. Before an individual’s probable cause hearing, it is the policy and practice of the Sheriff’s Office to detain the individual based on a money bail amount set pursuant to a predetermined bail schedule. After a probable cause hearing, it is the policy and practice of the Sheriff’s Office to detain the individual based on a money bail amount imposed by a Hearing Officer.
118. If a person cannot pay money bail after her first court appearance before a District Judge, it is the policy and practice of the Sheriff’s Office to continue to detain that individual unless and until she makes a monetary payment.
119. Under Defendants’ wealth-based practices, those who have enough money to pay are released from the County jail. Some poorer arrestees eventually make arrangements with private bail bond companies, after spending hours, days, or weeks in jail.38 And many others who are poorer still are left to languish in jail until their case resolves.

38 Because of the common availability of commercial bail bonds, those who remain in the Harris County jail are typically those who cannot even afford to pay a third-party bonding agent. Typically, bonding agents require a nonrefundable premium of 10% of the bail amount, although a bonding agent is free to refuse to pay for the release of any arrestee for any reason or for no reason. Bonding agents also routinely accept lower premiums, or no premiums, and place the arrestee on a payment plan for the rest. In short, it is completely up to the bonding company whether to make a deal with a particular individual who cannot afford to pay the sum required for release. The Named Plaintiffs cannot afford such a bail.

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E. Defendants’ Use of Money Bail Is Not Narrowly Tailored—Nor Is It as Effective as Many Other Methods—in Securing Court Attendance or Public Safety 120. The empirical evidence shows that there is no relationship between requiring
money bail as a condition of release and defendants’ rates of appearance in court.39 121. While tying pretrial freedom (for those charged with felonies) to access to money
is the norm in Harris County, other jurisdictions throughout the country do not keep people in jail because of their poverty. Instead of relying on money, other jurisdictions release arrestees with pretrial supervision practices and procedures that can help increase court attendance and public safety without requiring detention.
122. Other jurisdictions employ numerous less restrictive strategies for assuring public safety and court appearance when the government determines, on the basis of evidence and argument, that there is a need to guard against a particular risk. These strategies include: unsecured or “signature” bonds (which do not require payment up front for release but instead allow immediate release upon a promise to pay the monetary amount if the person does not appear as required), reporting obligations, two-way phone and text message reminders of court dates, rides to court for those without transportation or a stable address, flexible court appearances including evening and weekend court sessions for those with jobs they cannot miss, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
123. Defendants are permitted by state (and federal) law to use these alternatives but, as a matter of routine practice and policy, choose not to for impoverished felony arrestees. The
39 Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 5 (May 2, 2016), http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf (“We find no evidence that money bail increases the probability of appearance.”).

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vast majority of Harris County arrestees are therefore processed and detained through Harris County’s money bail scheme rather than non-monetary supervision methods. As a matter of policy and practice, Defendants do not consider, or make findings concerning, less restrictive alternatives than detention based on money bail that a person cannot afford.
124. Jurisdictions routinely using non-monetary conditions of release achieve high rates of court appearances while ensuring public safety. In Washington, DC, where 94% of cases resulted in pretrial release without secured financial conditions in Fiscal Year 2017,40 88% of defendants released pretrial made all scheduled appearances throughout the life of their cases, with more than 86% of those released pretrial remaining arrest-free (and 99% remaining arrestfree for violent crimes).41
125. Empirical evidence proves that unsecured bond alone is at least as effective at reasonably assuring appearance in court as secured money bail.
126. Empirical evidence also demonstrates that secured money bail does not have any positive benefit to public safety. In fact, short periods of pretrial detention actually increase future crime. And in Texas, because a person cannot forfeit a secured money bail by committing a new crime, there is no rational relationship between a higher secured money bail and public safety, unless the higher bail is intended to accomplish pretrial detention—and even then, as noted, studies show that the resulting detention has a criminogenic effect on that person. Thus, even though the person may be incapacitated for the pretrial period, the destabilizing effects of

40 Pretrial Services Agency for the District of Columbia, FY 2017 Release Rates for Pretrial Defendants within

Washington,

DC

(2018),

https://www.psa.gov/sites/default/files/2017%20Release%

20Rates%20for%20DC%20Pretrial%20Defendants.pdf.

41 Pretrial Services Agency for the District of Columbia, Congressional Budget Justification and Performance Budget Request: Fiscal Year 2019 (2018), https://www.csosa.gov/wp-content/uploads/bsk-pdfmanager/2018/07/FY2019-PSA-CBJ-Performance-Budget-02122018-1.pdf.

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pretrial detention make it more likely she will commit new crimes during the pretrial period and after.
127. Detention due to inability to pay money bail increases the likelihood of conviction. A person who is detained pretrial is 13% more likely to be convicted and 21% more likely to plead guilty.42 Additionally, individuals detained pretrial are more likely to be given longer jail sentences.43 Overall, individuals who are detained—instead of released on money bail or on a personal bond—have worse case outcomes.44
128. Money bail is disproportionately imposed on non-white arrestees.45 In other words, even the rare personal bond in Harris County is disproportionately given to white arrestees.
129. Setting a secured money bail amount in an amount higher than a person can afford by definition defeats the purpose of money bail—to incentivize a person to return to court—and removes any legitimate (let alone compelling) state interest in the setting of a financial condition.

42 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; see also Gupta, et. al, supra note 39 at 3 (finding a 12% increase in the likelihood of conviction using the same data).

43 Stevenson, supra note 42 at 18; Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017).

44 Stevenson, supra note 42 at 18; Gupta, et. al, supra note 39 at 13 (finding a 12% increase in the likelihood of conviction using the same data); Guidry, supra note 23 at 13 (“[D]efendants who are not released pre-trial are more likely to be incarcerated following a conviction, and they generally receive longer sentences upon conviction.”).

45 Gupta, et. al, supra note 39 at 4–5; Lise Olson, Study: Inmates who can’t afford bond face tougher sentences,

Houston Chron. (Sept. 15, 2013), http://www.houstonchronicle.com/news/houston-texas/houston/article/Study-

Inmates-who-can-t-afford-bond-face-tougher-4817053.php (discussing Carlos Mathis, an African-American man,

who was detained in jail for seven months on minor drug and theft charges because he could not afford money bail,

and whose charges were dismissed); Isami Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing

and

the

Effects

of

Pretrial

Services

Programs

(Mar.

11,

2013),

http://www.pretrial.org/download/research/Racial%20Disparities%20at%20Pretrial%20and%20Sentencing%20and

%20the%20Effects%20of%20Pretrial%20Services%20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones,

“Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013);

Tina L. Freiburger, et. al, The Impact of Race on the Pretrial Decision, 35 Am. J. of Crim. Just. 76 (2010),

http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf.

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Nor is setting money bail without findings concerning ability to pay narrowly tailored to meet any other legitimate or compelling government interest.
130. Defendants’ use of money bail leads disproportionately to the detention of people of color. Regardless of the amount of money bail imposed, people of color are more likely to be detained at disposition than whites.46
131. Unnecessary pretrial detention causes instability in employment, housing, and care for dependent relatives. Studies show that those detained pretrial face worse outcomes at trial and sentencing than those released pretrial, even when charged with the same offenses. Detained defendants are more likely to plead guilty just to shorten their jail time, even if they are innocent. In fact, Harris County has led the country for years in exonerations—many of which resulted from wrongful convictions in drug cases involving people who pled guilty to get out of jail.47 People detained pretrial have a more difficult time preparing for their defense, gathering evidence and witnesses, and meeting with their lawyers. Studies also show that just two days of pretrial detention increases the likelihood of future arrests and increases the future risk level of low-level offenders.
132. Pretrial detention is more than ten times more expensive than effective pretrial supervision programs. Through non-monetary tools, pretrial supervision programs can save taxpayer expense while maintaining high public safety and court appearance rates.
Class Action Allegations 133. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common

46 Gupta, et. al, supra note 39 at 4–5
47 Alex Samuels, Study finds Harris County leads nation in exonerations, Texas Tribune (Mar. 7, 2017) https://www.texastribune.org/2017/03/07/report/.

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basis. 134. A class action is a superior means, and the only practicable means, by which the
named Plaintiffs and unknown Class members can challenge Defendants’ unlawful wealth-based post-arrest detention scheme.
135. 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.
136. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
137. The Plaintiffs propose a single Class seeking declaratory and injunctive relief. The Declaratory and Injunctive Class is defined as: All felony arrestees who are detained by Harris County, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on secured money bail because of indigence.
A. Numerosity—Fed. R. Civ. P. 23(a)(1) 138. In September 2018, the average daily population of felony and state jail felony arrestees being held pretrial was 7,553 individuals. Many of these people were held only because they could not afford to pay a money bail. Arrestees are detained in jail for varying lengths of time depending on how long it takes them to make the cash payment that is required for their release. 139. Some arrestees are able to pay immediately for their release. Others are forced to wait one or two days until they or family members can make the payment. Others will never be able to come up with any amount of money to pay for their release. 140. The number of current and future arrestees subject to this policy—if it is not enjoined—is well into the thousands.

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B. Commonality—Fed. R. Civ. P. 23(a)(2)
141. The relief sought is common to all members of the Class, and common questions
of law and fact exist as to all members of the Class. The named Plaintiffs seek relief concerning
whether Defendants’ policies, practices, and procedures violate the rights of the Class members
and relief mandating that Defendants change their policies, practices, and procedures so that the
constitutional rights of the Class members will be protected in the future.
142. Common legal and factual questions arise from one central scheme and set of
policies and practices: Defendants’ post-arrest wealth-based detention scheme. Defendants
operate this scheme openly and in materially the same manner every day. The material
components of the scheme do not vary from Class member to Class member, and the resolution
of these legal and factual issues will determine whether all of the members of the Class are
entitled to the constitutional relief that they seek.
Among the most important, but not the only, common questions of fact are:
• Whether Defendants have a policy and practice of using a predetermined schedule to determine the amount of money required to secure post-arrest release;
• Whether Defendants require that scheduled amount of money to be paid up front before releasing a person from the jail;
• Whether Defendants require arrestees who have had probable cause hearings to pay the secured money bail amount imposed by the Hearing Officer before releasing such people from the jail;
• Whether, when requiring a financial condition of release there is an inquiry into ability to pay;
• Whether, if a person cannot pay for release, there is any inquiry into and findings concerning availability of alternative conditions of release and a finding that pretrial detention is necessary;
• Whether, in requiring pretrial detention, there is an adversarial hearing with counsel and notice of the critical issues at stake, opportunity to be heard and to confront evidence, findings by clear and convincing evidence, and a statement of reasons orally or in writing concerning the need for pretrial detention; and
• What standard post-arrest procedures Defendants perform on felony arrestees, for example, whether Defendants use any other alternate procedures for promptly releasing people determined otherwise eligible for release but who are unable to afford a monetary payment.

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143. Among the most important common questions of law are:
• Whether requiring arrestees to pay money up front to secure release from postarrest detention without an inquiry into or findings concerning the arrestee’s present ability to pay the amount required, and without meaningful consideration of less restrictive alternative conditions of release, violates the Fourteenth Amendment’s Equal Protection and Due Process Clauses;
• Whether it is lawful to impose a secured financial condition of release that operates as a de facto order of pretrial detention because of a person’s inability to pay without complying with the substantial findings, legal standards, and procedural safeguards required for issuing and enforcing a transparent order of preventive detention; and
• What substantive findings and procedural safeguards are required as a matter of federal law prior to pretrial detention of a presumptively innocent person.
C. Typicality—Fed. R. Civ. P. 23(a)(3)
144. The named Plaintiffs’ claims are typical of the claims of the other members of the
Class, and they have the same interests in this case as all other Class members. Each Class
member is threatened with imminent and/or ongoing confinement in jail because she cannot
afford to pay a standardized cash bail amount. The answer to whether Defendants’ wealth-based
detention scheme is unconstitutional will determine the claims of the named Plaintiffs and every
other Class member.
145. If the named Plaintiffs succeed in the claim that Defendants’ policies and
practices concerning post-arrest detention violate their constitutional rights, that ruling will
likewise benefit every other member of the Class.
D. Adequacy—Fed. R. Civ. P. 23(a)(4)
146. The named Plaintiffs are adequate representatives of the Class because their
interest in the vindication of the legal claims that they raise is entirely aligned with the interests
of the other Class members, each of whom has the same basic constitutional claims. They are
members of the Class, and their interests do not conflict with those of the other Class members.

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147. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-freedom post-arrest detention system.
148. Plaintiffs are represented by attorneys from Civil Rights Corps, Susman Godfrey, and Texas Civil Rights Project who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are more fully set forth in the contemporaneously filed Motion for Class Certification.
149. The combined efforts of Class counsel have so far included extensive investigation into Harris County’s predetermined money bail practices over a period of years, including numerous interviews, most intensively in recent months, with witnesses, court employees, people detained in jail, families, judges, attorneys practicing in courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
150. Class counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipalities.
151. Counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ practices and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel have also developed relationships with many of the individuals and families victimized by unlawful wealth-based pretrial detention practices.

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The interests of the members of the Class will be fairly and adequately protected by the Plaintiffs and their attorneys.
E. Rule 23(b)(2) 152. Class action status is appropriate because Defendants, through the policies, practices, and procedures that make up their wealth-based post-arrest detention scheme, have acted in the same unconstitutional manner with respect to all Class members. Defendants apply and enforce a wealth-based system of pretrial justice: some arrestees can purchase their immediate release, while other arrestees must remain in jail solely because they cannot pay. 153. The Class therefore seeks declaratory and injunctive relief that will prevent Defendants from detaining arrestees who cannot afford cash payments. Because the putative Class challenges Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the Class, Rule 23(b)(2) is appropriate and necessary. 154. Injunctive relief compelling Defendants to comply with these constitutional rights will similarly protect each member of the Class from being subjected to Defendants’ unlawful policies and practices. A declaration and injunction stating that Defendants cannot detain arrestees solely due to their inability to make a monetary payment would provide relief to every Class member. It would ensure that pretrial detention based on lack of access to money does not occur without the substantive findings and procedural safeguards that the Constitution requires for that government detention. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.

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155. Plaintiffs seek the following relief. Claims for Relief
Count One: Defendants Violate Plaintiffs’ Equal Protection and Due Process Rights by Jailing Them Solely Because They Cannot Afford a Monetary Payment.
156. Plaintiffs incorporate by reference the allegations in paragraphs 1-155. 157. The Fourteenth Amendment’s Equal Protection and Due Process Clauses prohibit jailing a person solely because of her inability to make a monetary payment. Defendants violate Plaintiffs’ rights by enforcing against them a system of pretrial detention that keeps them in jail solely because they cannot afford to pay money bail amounts imposed without findings concerning their present ability to pay and without findings concerning the necessity of the detention in light of alternative conditions of release that could serve the government’s interests. Count Two: Defendants Violate Plaintiffs’ Substantive Due Process Right to Pretrial Liberty by Jailing Them Without a Finding That Pretrial Detention Is Necessary 158. Plaintiffs incorporate by reference the allegations in paragraphs 1-157. 159. The Fourteenth Amendment protects the fundamental interest in pretrial liberty that is infringed whenever a person is subject to a transparent or de facto order of pretrial detention. That interest in bodily liberty is not absolute, and it can be overcome, but only if the government first demonstrates that no alternative short of pretrial detention exists to mitigate an identifiable risk to the safety of the community or a risk of flight from prosecution, and that pretrial detention is therefore necessary to serve a specified, compelling interest in public safety or court appearance. Defendants violate Plaintiffs’ rights by jailing them prior to trial without making any finding that pretrial detention is necessary to serve the government’s interests. Count Three: Defendants Violate Plaintiffs’ Procedural Due Process Rights 160. Plaintiffs incorporate by reference the allegations in paragraphs 1-159.

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161. The Due Process Clause requires that, for a transparent or de facto order of
pretrial detention to be constitutionally valid, the government must provide rigorous procedural
safeguards to ensure the accuracy of the substantive finding that pretrial detention is necessary
because less-restrictive conditions are insufficient. The minimal safeguards required by the
Constitution include: an adversarial hearing, with counsel, at which the person has notice of the
critical issues to be decided at the hearing, an opportunity to be heard and to present and confront
evidence, and a statement of reasons on the record explaining the reasons for the finding that
pretrial detention is necessary. Defendants violate procedural due process by detaining plaintiffs
prior to trial without providing these safeguards to ensure the accuracy of any substantive
determination that pretrial detention is necessary.
Request for Relief
WHEREFORE, Plaintiffs and the other Class members request that this Court issue the
following relief:
a. A declaratory judgment that Defendants violate the Named Plaintiffs’ and Class members’ constitutional rights by operating a system of wealth-based detention that keeps them in jail solely because they cannot afford to pay secured money bail amounts required without findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of that finding;
b. An order and judgment permanently enjoining Defendants from operating and enforcing a system of post-arrest detention that keeps Named Plaintiffs and Class members in jail because they cannot pay a secured financial condition of release required without findings concerning ability to pay, without consideration of or findings concerning nonfinancial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
c. Any other order and judgment this Court deems necessary to permanently enjoin Defendants—whether acting on behalf of the State, the County, or some other government entity—from implementing and enforcing a system of wealth-based pretrial detention that keeps arrestees in jail solely because they cannot afford to pay a secured

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financial condition of release required without an inquiry into or findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that a particular release condition is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
d. An order certifying the class defined above; and
e. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.
Respectfully submitted,
s/ Neal S. Manne Neal S. Manne State Bar No.: 12937980 SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, TX 77002 Phone: (713) 651-9366 nmanne@susmangodfrey.com
Attorney-in-Charge for Plaintiffs
OF COUNSEL: Lexie G. White State Bar No.: 24048876 Joseph S. Grinstein State Bar No.: 24002188 Elizabeth Hadaway (Pro Hac Vice application forthcoming) State Bar No. 24109962 SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, TX 77002 Phone: (713) 651-9366 lwhite@susmangodfrey.com jgrinstein@susmangodfrey.com ehadaway@susmangodfrey.com
Alec Karakatsanis (Pro Hac Vice application forthcoming) D.C. Bar No. 999294 Elizabeth Rossi (Pro Hac Vice application forthcoming) D.C. Bar No. 1500502 CIVIL RIGHTS CORPS

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910 17th Street NW, Suite 200 Washington, DC 20006 Phone: (202) 599-0953 Fax: (202) 609-8030 alec@civilrightscorps.org elizabeth@civilrightscorps.org
/s/ Natalia M. Cornelio Natalia M. Cornelio Illinois State Bar No. 6289267 Southern District No. 1278866 TEXAS CIVIL RIGHTS PROJECT 405 N Main St, Suite 716 Houston, TX 77003 Phone: 832-767-3650 Fax: 832-554-9981 natalia@texascivilrightsproject.org

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 Case 4:19-cv-00226 Document 38 Filed on 03/29/20 in TXSD Page 1 of 3

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

DWIGHT RUSSELL, et al.,

Plaintiffs,

v. HARRIS COUNTY, TEXAS, et al.,

Civil Action No. 4:19-cv-226

Defendants.

OPPOSED MOTION TO INTERVENE BY THE STATE OF TEXAS, GREG ABBOTT, GOVERNOR OF TEXAS, AND
KEN PAXTON, ATTORNEY GENERAL OF TEXAS

The State of Texas, the Honorable Greg Abbott, Governor of Texas, and the Honorable Ken Paxton, Attorney General of Texas (“State Intervenors”), by and through the Attorney General of Texas, and pursuant to Federal Rule of Civil Procedure 24, move to intervene as defendants in the above-captioned action. In support of this Motion, the State Intervenors rely on the following contemporaneously filed documents:
1. Memorandum in Support of State Intervenors’ Motion to Intervene; 2. [Proposed] Order Granting State Intervenors’ Motion to Intervene; and 3. State Intervenors’ Notice of Opposition. For the reasons stated in this Motion and accompanying documents, State Intervenors respectfully request that the Court grant this Motion to Intervene.

State Intervenors’ Motion to Intervene

Page 1

Case 4:19-cv-00226 Document 38 Filed on 03/29/20 in TXSD Page 2 of 3
Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Attorney-in-Charge Special Litigation Counsel Texas Bar No. 24077727 Southern District No. 2964087 General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 adam.biggs@oag.texas.gov
COUNSEL FOR THE STATE OF TEXAS, THE GOVERNOR OF TEXAS, AND THE ATTORNEY GENERAL OF TEXAS

State Intervenors’ Motion to Intervene

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CERTIFICATE OF CONFERENCE
I hereby certify that, I conferred with counsel for Plaintiffs and Defendants, via email on March 29, 2020, regarding the substance of the foregoing instrument. However, due to the fast-moving nature of this litigation, understandably, no response has yet been received. The parties are assumed to be opposed.
/s/Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel
CERTIFICATE OF SERVICE
I, Adam Arthur Biggs, hereby certify that on this the 29th day of March, 2020, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS

State Intervenors’ Motion to Intervene

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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

DWIGHT RUSSELL, et al.,

Plaintiffs,

v. HARRIS COUNTY, TEXAS, et al.,

Civil Action No. 4:19-cv-226

Defendants.

MEMORANDUM IN SUPPORT OF OPPOSED MOTION TO INTERVENE BY THE STATE OF TEXAS, GREG ABBOTT, GOVERNOR OF TEXAS, AND
KEN PAXTON, ATTORNEY GENERAL OF TEXAS

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TABLE OF CONTENTS
INTRODUCTION .......................................................................................................... 2 ARGUMENT .................................................................................................................. 3 I. The Court Should Permit the State Intervenors to Intervene Under Civil Rule
24(a)(2)..................................................................................................................... 3 A. The State Intervenors have important interests that relate to the subject of
this action. ........................................................................................................ 3 B. Disposition of this action will impair the State Intervenors’ interests. ......... 6 C. The parties cannot show that they adequately represent the State
Intervenors’ interests. .................................................................................... 10 D. This request to intervene is timely. ............................................................... 12 II. Alternatively, the Court Should Permit the State Intervenors to Intervene Under Civil Rule 24(b)(1)(B)................................................................................. 12 CONCLUSION............................................................................................................. 14 CERTIFICATE OF SERVICE ..................................................................................... 16

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INTRODUCTION In ODonnell v. Harris County, 892 F.3d 147, 163-66 (5th Cir. 2018) (ODonnell I), the Fifth Circuit provided clear guidance about the procedures necessary to satisfy the Constitution in bail proceedings. When this Court provided substantive—not just procedural—relief on remand, the Fifth Circuit reversed, and instructed the Court to implement the relief the ODonnell I panel ordered. ODonnell v. Goodhart, 900 F.3d 220, 225-26, 228 (5th Cir. 2018) (ODonnell II). That decision “binds the district courts in this circuit.” ODonnell v. Salgado, 913 F.3d 479, 482 (5th Cir. 2019) (ODonnell III). Despite that, plaintiffs filed this suit and later sought emergency, substantive relief ordering the release of thousands of felony arrestees—exactly what the Fifth Circuit rejected. In response, the defendants here chose simply to raise the white flag: They “do not contest” any of the plaintiffs’ arguments, even though it portends further federal intrusion into the State’s criminal justice system and imperils the public safety as they now appear to seek the immediate release of those accused of serious felonies and their motion also potentially seeks the release of alleged murderers, rapists, and burglars. See, e.g., Gabrielle Banks, Harris County Judge Releases Murder Suspect After the Inmate Said He Feared Coronavirus in Jail, Houston Chron. (Mar. 23, 2020), https://bit.ly/2y8K7lx. The State of Texas, the Governor of Texas, and the Attorney General of Texas (“State Intervenors”) seek to intervene to defend the bail procedures that form the basis for plaintiffs’ confinement. Because the liberty interest at stake and the bail procedures at issue are creatures of state law, the State Intervenors have an interest in the outcome of this case. They also have an interest in protecting the public’s health and safety in the wake of the coronavirus pandemic. At the moment, these important interests are entirely unrepresented in this case. Mandatory intervention under Civil Rule 24(a)(2) is therefore appropriate. At the very least, the State Intervenors should be permitted to intervene under Civil Rule 24(b)(1)(B).

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This Court’s recent order only highlights the need for intervention here. On March 27, 2020, this Court ordered the Attorney General—a non-party—“to respond to the plaintiffs’ motion” requesting a temporary restraining order and preliminary injunction. This request for briefing by the Attorney General is certainly appropriate because the defensive position in this case is not being represented by the “defendants.” This Court has asked the Attorney General to supply what the defendants will not. Yet the Attorney General may not be bound by orders of this Court unless and until it makes him a party to the litigation. Cf. Smith v. Bayer Corp., 564 U.S. 299, 312 (2011). The Attorney General intends to substantively respond, but rather than briefing as invited amicus, he respectfully asks the Court to grant the motion to intervene in order to fully participate as a party and defend the merits.
ARGUMENT I. The Court Should Permit the State Intervenors to Intervene Under
Civil Rule 24(a)(2). Under the Federal Rules of Civil Procedure, a non-party must be allowed to intervene (1) when it has an interest relating to the subject of the action and (2) disposing of the action may practically “impair or impede” that interest, (3) unless the parties “adequately represent” that interest. Fed. R. Civ. P. 24(a)(2). The State Intervenors may intervene as of right in this matter because they satisfy all three requirements. A. The State Intervenors have important interests that relate to
the subject of this action. The Fifth Circuit has said before that courts may not define the requisite interest for intervention purposes “too narrowly.” Ford v. City of Huntsville, 242 F.3d 235, 240 (5th Cir. 2001). The State Intervenors have a “direct, substantial, legally protectable interest.” In re Lease Oil Antitrust Litig., 570 F.3d 244, 250 (5th Cir. 2009) (quotation omitted). And those interests are related to “the subject of the action”— requisite bail procedures designed to protect the public and ensure operation of the

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State’s criminal justice system. Fed. R. Civ. P. 24(a). An interest “ is sufficient if it is of the type that the law deems worthy of protection, even if the intervenor does not have an enforceable legal entitlement or would not have standing to pursue her own claim.” Wal–Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562, 566 (5th Cir. 2016) (quotation omitted).
Together the State of Texas, the Governor of Texas, and the Attorney General of Texas have an interest in the enforcement of state laws, the orderly operation of the State’s criminal justice system, the public’s safety from recidivism, and the public health in the face of a rapidly developing pandemic. Although the State Intervenors do not need Article III standing to intervene as defendants, Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1952 (2019), their interests at stake here would nevertheless suffice to meet Article III standing’s higher bar.
The State of Texas unquestionably has a parens patriae interest in the wellbeing of her citizens. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982) (“[A] State has a quasi-sovereign interest in the health and wellbeing—both physical and economic—of its residents in general.”); see also Massachusetts v. EPA, 549 U.S. 497, 520 & n.17 (2007) (noting States are entitled to “special solicitude in [Article III standing] analysis” because of their parens patriae status); Louisiana v. Texas, 176 U.S. 1, 19 (1900). That includes an interest in keeping the public safe from crime. See, e.g., Addington v. Texas, 441 U.S. 418, 426 (1979). It also includes an interest in keeping the public healthy in the face of disease. A State “has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Massachusetts, 197 U.S. 11, 27-28 (1905); cf. Sierra Club v. City of San Antonio, 115 F.3d 311, 315 (5th Cir. 1997).
The State of Texas also has a sovereign interest in the enforcement of its own laws. Alfred L. Snapp & Son, Inc., 458 U.S. at 601 (“the power to create and enforce a legal code” is one “easily identified” example of sovereign interest). As the Fifth

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Circuit put it, “[t]he state qua state has an important sovereign interest” in ensuring that its own statutory schemes are “properly enforced.” Sierra Club v. City of San Antonio, 115 F.3d 311, 315 (5th Cir. 1997). And like every sovereign, Texas has an interest in overseeing its own criminal justice system. See Kelly v. Robinson, 479 U.S. 36, 49 (1986) (noting “the States’ interest in administering their criminal justice systems free from federal interference”); cf. Gamble v. United States, 139 S. Ct. 1960, 1968 (2019). And Texas state law creates the liberty interest that forms the basis of this action. See ODonnell I, 892 F.3d at 153, 158 (citing Tex. Const. art. I, § 11 and Tex. Code Crim. Proc. art. 17.15).
The Governor of Texas and the Attorney General of Texas are both tasked with important responsibilities to further these interests. Chapter 418 of the Texas Government Code, for example, furnishes the Governor with sweeping authority to protect the public from disasters like the coronavirus pandemic, which presents an “imminent threat of widespread or severe damage, injury, or loss of life.” Tex. Gov’t Code § 418.004(1).
That authority includes the power to declare a state of disaster; id. § 418.014, to use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster;” id. at § 418.017(a); to control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area, id at § 418.018(c); and to suspend the operation of certain laws, id. § 418.016(a). See also Proclamation, Office of Tex. Governor (March 13, 2020). And the Attorney General “has general and constitutional authority to represent the state and its officials in all actions in which the state is interested,” like this one. Hundall v. UTEP, 2013 WL 12090655, at *3 (W.D. Tex. 2013) (citing Tex. Const. art. IV, § 22 and Tex. Gov’t Code §§ 402.021, 402.023).
In sum, the State Intervenors have important interests in the public safety and public health, the implementation of the State’s criminal justice system, and the

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enforcement of state laws. This suit, which seeks to further undermine entirely lawful bail practices with a view to setting loose potentially dangerous felony arrestees, implicates each of those interests. It also has state-wide implications, which further demonstrates why the State Intervenors should be permitted to intervene. Local officials, like the defendants, cannot represent the State’s interests because local governments are “not endowed with the same prerogatives in representing the interests of its residents as is the state in protecting the interests of its citizens, particularly where, as here, city and state level interests may be in conflict.” City of Safety Harbor v. Birchfield, 529 F.2d 1251, 1256 n.7 (5th Cir. 1976) (emphasis added).
B. Disposition of this action will impair the State Intervenors’ interests.
The State Intervenors must also show “that disposing of the action may as a practical matter impair or impede” their interests. Fed. R. Civ. P. 24(a)(2). That does not require a would-be intervenor to demonstrate that a judgment in the action would have binding effect on the would-be intervenor. All that matters is whether the judgment “may” have a “practical” impact on the would-be intervenor’s interest. See Atlantis Dev. Corp. v. United States, 379 F.2d 818, 828-29 (5th Cir. 1967). A decision awarding the relief plaintiffs seek here—a temporary restraining order or a preliminary injunction potentially releasing over 4,000 felons—will undoubtedly do that. The nominal defendants here have agreed to give plaintiffs everything they ask. Proposed Order 1. Acceding to that request will practically impair every interest detailed above.
Injunctive relief will imperil the State’s interest in public safety. The plaintiffs ask this Court to order the release of thousands of persons arrested on felony charges—including murder, rape, burglary, and domestic violence.1 And the
1 Plaintiffs’ Motion asks for the release of any person arrested for a felony offense without limit to the type of offense. Plaintiffs’ most recent proposed TRO summitted around midnight on March 28, 2020

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defendants, in an effort to signal their support for bail reform policies, do not oppose the plaintiffs’ request. A recent study conducted by a former federal judge, however, shows that the unsecured pretrial release of arrestees pursuant to bail-reform efforts in Chicago, Illinois, has already led to an increase in violent crime there. See Paul G. Cassell & Richard Fowles, Does Bail Reform Increase Crime? (Univ. of Utah Coll. of Law, Research Paper No. 349, Mar. 2, 2020) https://papers.ssrn.com/sol3/papers.cfm? abstract_id=3541091; Paul Cassell, Bail Reform in Chicago Appears to Have Increased Crime, Volokh Conspiracy (Feb. 19, 2020), https://bit.ly/3b3eRm9.2
Recent events in this State and elsewhere confirm what this new study suggests. Just last month, Jacques Dshawn Smith murdered two people one week after being having bail set in Dallas County, pursuant to a scheme similar to the one this Court has already ordered.3 This double homicide has drawn “additional attention to a larger trend in the bail system in Dallas County, which was the subject of very vocal frustration in the Dallas City Council’s Public Safety and Criminal Justice Committee.” Charity Nicholson, Dallas County Bail Reform Policies Scrutinized Following Increase in Homicides, The Texan (Feb. 26, 2020), https://perma.cc/A397-MUKW; cf. Katie Honan, NYPD Officials Say New Bail Law Is Leading to a Crime Increase, Wall St. J. (Mar. 5, 2020), https://on.wsj.com/2IWFai1.
The threat to public safety is particularly acute for victims of domestic violence. Plaintiffs that this Court orders released would be required to stay at home under existing shelter-in-place orders. That will expose domestic violence victims—a spouse, a child, an elderly relative—to further violence at the hands of the same

seems to imply they may have a smaller class of arrestees in mind. In an abundance of caution, the State Intervenors must assume that the Plaintiffs request sweeps broadly. 2 This “more recent scholarship,” Khan v. Normand, 683 F.3d 192, 195 (5th Cir. 2012) (per curiam), undercuts the research that the plaintiffs presented to this court in the ODonnell case. 3 Notably, the Plaintiffs’ lawyers in this case from Civil Rights Corp were also involved in the bail litigation that brought about the creation of Dallas county’s current permissive pre-trial release scheme.

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attacker. That tragic story is already playing out across the world. See Emma Graham Harrison et al., Lockdowns Around the World Bring Rise in Domestic Violence, Guardian (Mar. 28, 2020), https://bit.ly/2xsxyBs; Marissa J. Lang, Domestic Violence Will Increase During Coronavirus Quarantines and Stay-at-Home Orders, Experts Warn, Wash. Post (Mar. 27, 2020), https://wapo.st/2QRVOn4.
And it is not just violent offenders that pose a threat. Released fraudsters will be presented with new opportunities to prey on Texans, especially the elderly, during this pandemic. Zack Friedman, Beware These Coronavirus Scams, Forbes (Mar. 20, 2020), https://bit.ly/2xzJT6B. Likewise burglars, regarded incorrectly by some as nonviolent, and habitual drunk drivers, even those who have committed intoxication manslaughter, would be free to roam the streets under the Plaintiffs’ requested relief.4
If those practical effects for individual Texans were not enough, a decision here could likely impact the State Intervenors’ institutional and legal interests as well. See Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967) (noting “a state official directly concerned in effectuating the state policy has an ‘interest’ in a legal controversy involving the Comptroller which concerns the nature and protection of the state policy”). The State Intervenors believe, based on Plaintiffs’ filings and sworn statements made by high-ranking Harris County officials in other cases, that plaintiffs are currently confined pursuant to bail proceedings that faithfully implement Texas law. See ODonnell I, 892 F.3d at 153, 158.
If this Court releases over 4,000 felons on what amounts to a personal recognizance bond, that will violate Texas law: The Code of Criminal Procedure dictates that only the court before whom a defendant’s criminal case is pending may

4 It is worth pointing out that Plaintiffs not only seek the release of those currently in the jail, but also those that will be arrested during the life of the Court’s order. This is alarming because it is simply impossible to know exactly what kind of felons will be brought into the Harris County Jail and then promptly let go in the future.

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release on personal bond a defendant who is charged with various serious felonies. Tex. Code. Crim. Proc. art. 17.03. Plus, Texas law dictates that mandatory bond conditions must be imposed for certain crimes. See, e.g., id. art. 17.41 (listing mandatory conditions for those accused of sexual crimes involving a child victim); art. 17.441 (requiring the installation of a breathalyzer in the vehicle of habitual drunk drivers). It is unclear how this Court could possibly ensure that all mandatory conditions are put into place and ensure that the conditions are enforced.
The State Intervenors also believe the procedures that formed the basis for plaintiffs’ existing confinement fully complied with the U.S. Constitution and the terms of the Fifth Circuit’s model injunction. See ODonnell I, 892 F.3d at 164-66. Awarding yet further relief interferes with the operation of the State’s bail scheme in accordance with state law. Accord Smith v. Pangilinan, 651 F.2d 1320 (9th Cir. 1981); Avery v. Heckler, 584 F. Supp. 312 (D. Mass. 1984); Dixon v. Heckler, 589 F. Supp. 1512 (S.D.N.Y. 1984).
Moreover, any decision cutting against binding precedent might impact other cases where the State or its officials are parties. That interest alone suffices. Atlantis Dev. Corp., 379 F.2d at 828-29. An earlier decision by the Fifth Circuit is a perfect example. The ODonnell case produced several published decisions from the Fifth Circuit. See ODonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018) (ODonnell II); ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018) (ODonnell I). And the Fifth Circuit has already made it clear that an automatic release mandate, like the one Plaintiffs seek here, is improper because it “smuggles in a substantive remedy via a procedural harm.” ODonnell II, 900 F.3d at 228. As the Fifth Circuit put it, release simply “goes too far.” Id. Those decisions not only control in this case, but also in similar cases where state officials are participating as defendants. See, e.g., Daves v. Dallas County, 341 F. Supp. 3d 688, 691 (N.D. Tex. 2018) (citing ODonnell I and

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ODonnell II); Booth v. Galveston County, No. 3:18-CV-00104, 2019 U.S. Dist. LEXIS 133937, at *23-25 (S.D. Tex. Aug. 7, 2019) (same).
C. The parties cannot show that they adequately represent the State Intervenors’ interests.
The next question is whether the existing parties adequately represent the State Intervenors’ interests. Arguably, the burden of persuasion on that question belongs to the parties. See 7C Wright & Miller, Federal Practice & Procedure § 1909 (3d ed.). But even if the State Intervenors shoulder it, their burden is “not a substantial one.” Brumfield v. Dodd, 749 F.3d 339, 345 (5th Cir. 2014). Then-Judge Blackmun summarized three scenarios when inadequate representation obviously exists—namely, when the party sought to be replaced (1) may be colluding with the opposing party, (2) takes a position adverse to the would-be intervenor, or (3) fails to diligently pursue the would-be intervenor’s interests. Stadin v. Union Elec. Co., 309 F.2d 912, 919 (8th Cir. 1962). “ ‘The potential intervener need only show that the representation may be inadequate.’ ” John Doe No. 1 v. Glickman, 256 F.3d 371, 380 (5th Cir. 2001) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)) (emphasis added).
Here, there is no question that the defendants are inadequately representing the State Intervenors’ interests. In fact, they are sabotaging them. Rather than defending against plaintiffs’ claims, defendants have conceded defeat. As the plaintiffs’ proposed order explains:
Defendants do not contest the factual allegations in Plaintiffs’ Motion, that Plaintiffs are likely to succeed on the merits of their constitutional arguments, that relief is in the public interest, or that Plaintiffs are facing ongoing irreparable harm, including a heightened risk of serious illness or death if there is a widespread outbreak of Covid-19 in the Harris County Jail. Proposed Order 1. In other words, the “Defendants do not contest” anything—all while knowing that the Fifth Circuit held that the automatic release mandate Plaintiffs seek is improper. ODonnell II, 900 F.3d at 228. Accordingly, this case easily

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satisfies this prong under any of the classic bases for finding inadequate representation.
First, the defendants’ decision to give plaintiffs everything they want gives rise to the possibility of outright collusion between the plaintiffs and the defendants. Plaintiffs want release from jail—despite having been given bond hearings that fully complied with this Court’s decision on remand from the Fifth Circuit—because of fear that they will encounter the coronavirus in custody. Defendants have agreed to give them everything they asked for. This “situation emanate[s] from the collusion of the original parties.” Cuthill v. Ortman-Miller Mach. Co., 216 F.2d 336, 339 (7th Cir. 1954). At the very least, it raises an inference of collusion, which is itself sufficient to support intervention. See Park & Tilford v. Schulte, 160 F.2d 984, 988 (2d Cir. 1947) (permitting intervention to avoid “even the appearance of any concerted action”).
Second, the defendants have taken a position that is adverse to the State Intervenors’ interests. Rather than seeking to prevent felony arrestees from being released en masse, protect the public from further exposure to the coronavirus, maintain orderly operation of the State’s criminal justice system, and help preserve already scarce police resources, defendants have chosen to do the opposite. On countless occasions, this Court has recognized that taking a position so diametricallyopposed to the would-be intervenors’ interests results in inadequate representation. See, e.g., League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 435 (5th Cir. 2011); Ford v. City of Huntsville, 242 F.3d 235, 240-41 (5th Cir. 2001).
Finally, the defendants are failing to diligently pursue the State Intervenors’ interests. Even if the defendants have not colluded with the plaintiffs and even if they have not affirmatively taken an adverse position (by simply refusing to take any position at all), the defendants’ representation is still plainly inadequate. Where an existing party and the would-be intervenor have a unity of interests, representation is still be inadequate where the existing party fails to diligently pursue those

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interests. Int’l Mortg. & Inv. Corp. v. Von Clemm, 301 F.2d 857, 861 (2d Cir. 1962) (noting existing parties “have shown a conspicuous disinterest in asserting the rights of” the would-be intervenor); Pyle-Nat’l Co. v. Amos, 172 F.2d 425, 427 (7th Cir. 1949) (permitting intervention where plaintiffs “arranged a settlement with the defendants for exactly one-half of the sum contended by the suit to be due”). Here, the defendants have announced that they intend to do nothing on that score.
D. The request to intervene is timely. Finally, this motion to intervene is “timely.” Fed. R. Civ. P. 24(a). The Fifth Circuit has noted that Rule 24’s timeliness inquiry “is contextual; absolute measures of timeliness should be ignored.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). Plaintiffs filed this case on January 21, 2019, ECF No. 1, and it has barely progressed since then. Instead, the parties have repeatedly sought stays of this proceeding. The State Intervenors, therefore, seek intervention well “before discovery [has] progressed” and they do not “not seek to delay or reconsider phases of the litigation that ha[ve] already concluded.” Wal-Mart Stores, 834 F.3d at 565. Moreover, the State Intervenors have sought to intervene at the earliest possible moment. They may not have been able to intervene earlier—i.e., before the defendants abandoned their duty to defend against this action. See Jansen v. City of Cincinnati, 904 F.2d 336, 341 (6th Cir. 1990) (noting the intervenors “were not aware . . . that their interest was inadequately represented by the City until the City responded to the plaintiffs’ summary judgment motion”). II. Alternatively, the Court Should Permit the State Intervenors to Intervene Under Civil Rule 24(b)(1)(B). If the Court does not grant the State Intervenors intervention as of right— which it should—it should grant for permissive intervention because the State Intervenors’ position and this suit have a common question of law or fact. See Fed. R. Civ. P. 24(b)(1)(B) (“On timely motion, the court may permit anyone to intervene

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who . . . (B) has a claim or defense that share with the main action a common question of law or fact.”).
To obtain permissive intervention under Rule 24, the State Intervenors must demonstrate that: (1) the motion to intervene is timely; (2) its claim or defense has a question of law or fact in common with the existing action; and (3) intervention will not delay or prejudice adjudication of the existing parties’ rights. Id.; see United States v. LULAC, 793 F.2d 636, 644 (5th Cir. 1986) (“Although the court erred in granting intervention as of right, it might have granted permissive intervention under Rule 24(b) because the intervenors raise common questions of law and fact.”). The State Intervenors satisfy each of these factors.
First, as stated above, the State Intervenors’ motion is timely. See supra Part I.D. Second, because the State Intervenors have filed the motion before the due date for the responsive pleading this Court requested, see Mar. 27, 2020, Order at 1, granting the Motion will not cause any delay or prejudice to the existing parties’ rights to litigate the case. Third, the State Intervenors share common questions of law and fact with the main action. As stated above, this lawsuit is premised on state-created liberty interest and state-prescribed bail procedures. See ODonnell I, 892 F.3d at 153, 158. State judges utilize similar bail procedures across the State. See, e.g., Daves v. Dallas County, 341 F. Supp. 3d 688 (N.D. Tex. 2018). The plaintiffs’ lawsuit calls those procedures into question everywhere they are used. Only the State Intervenors will provide a state-wide perspective—and, at this point, only the State Intervenors will provide an adversarial presentation.
In considering whether to grant permissive intervention, the Court may also consider “(1) whether an intervenor is adequately represented by other parties; and (2) whether intervention is likely to contribute significantly to the development of the underlying factual issues.” Marketfare (St. Claude), L.L.C. v. United Fire & Cas. Co.,

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Nos. 06–7232, 06–7641, 06–7639, 06–7643, 06–7644, 2011 WL 3349821, at *2 (E.D. La. Aug. 3, 2011) (citing Clements, 884 F.2d at 189).
These factors provide additional support for granting permissive intervention in this case. As already discussed, the State Intervenors have a significant interest in protecting the public and overseeing the state criminal justice system. See supra Part I.A. These interests will not be adequately represented by defendants. See supra Part I.C. And the State Intervenors’ ability to address these interests will contribute significantly to the just and equitable resolution of the constitutional questions presented. As this Court’s order directing the Attorney General to respond acknowledges, Mar. 27, Order 1, the State Intervenors will raise additional legal issues that the party are unwilling to raise themselves.
Thus, even if the Court concludes that the State Intervenors are not entitled to intervene as of right, it should grant their request for permissive intervention.
CONCLUSION The Court should grant the State Intervenors’ motion to intervene as of right or, alternatively, to intervene permissively, and grant them all the same rights and responsibilities as a party to the lawsuit.

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Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Attorney-in-Charge Special Litigation Counsel Texas Bar No. 24077727 Southern District No. 2964087 General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667 adam.biggs@oag.texas.gov

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CERTIFICATE OF CONFERENCE
I hereby certify that, I conferred with counsel for Plaintiffs and Defendants, via email on March 29, 2020, regarding the substance of the foregoing instrument. However, due to the fast-moving nature of this litigation, understandably, no response has yet been received. The parties are assumed to be opposed.
/s/Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel
CERTIFICATE OF SERVICE
I, Adam Arthur Biggs, hereby certify that on this the 29th day of March, 2020, a true and correct copy of the foregoing document was transmitted using the CM/ECF system, which automatically sends notice and a copy of the filing to all counsel of record.
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS

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 Case 4:19-cv-00226 Document 32-8 Filed on 03/27/20 in TXSD Page 1 of 140
Exhibit H – ODonnell, Dkt. 523-3

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Susman Godfrey l.l.p.
a registered limited liability partnership SUITE 5100
1000 LOUISIANA STREET HOUSTON, TEXAS 77002-5096
(713) 651-9366 FAX (713) 654-6666 www.susmangodfrey.com
__________

Suite 1400 1900 Avenue of the Stars Los Angeles, California 90067-6029
(310) 789-3100 __________

Suite 3800 1201 Third Avenue Seattle, Washington 98101-3000 (206) 516-3880
__________

Neal S. Manne Direct Dial (713) 653-7827

32nd Floor 1301 Avenue of the Americas New York, New York 10019-6023
(212) 336-8330 __________
E-Mail NMANNE@susmangodfrey.com

January 17, 2018
The Honorable Lee H. Rosenthal United States Courthouse 515 Rusk Street, Room 11535 Houston, Texas 77002
Re: ODonnell et al. v. Harris County et al., No. 16-CV-01414
Dear Chief Judge Rosenthal:
Plaintiffs respectfully submit this letter requesting a pre-motion conference to address deeply troubling revelations from the Texas State Commission on Judicial Conduct (the “Commission”) concerning directives from County Court at Criminal Law Judges (“Judges”) to Hearing Officers’ Hagstette, Licata III, and Wallace that purportedly limited their discretion to grant personal bonds.
On January 10, 2018, the Commission publicly admonished the Hearing Officers for “strictly following directives not to issue personal bonds to defendants per the instructions of the judges in whose court the underlying cases were assigned.” Ex. 1 (emphasis added). The Commission concluded that the Hearing Officers’ “failed to comply with the law” and that their “conduct was motivated by direct instructions from individual judges who played a role” in their employment. Id. (emphasis added).
The Commission’s public admonition of the Hearing Officers is troubling, and it gives Plaintiffs’ cause for concern regarding Defendants’ compliance with their discovery obligations and Defendants’ possible misrepresentations to this Court and to Plaintiffs.
Throughout the course of discovery, Plaintiffs have sought to confirm whether Hearing Officers had ever received instructions limiting their discretion to grant personal bonds by seeking discovery on any instructions provided by Judges to Hearing Officers. For example, Plaintiffs requested Defendants produce:
Any bail schedules or other instructions, guidelines, or advisories that were in effect at the time the case was filed, whether written or oral, given by any of the County Courts at Law Judges to any of the Hearing Officers, regarding how to set
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bail and whether and when to grant, or recommend individuals for personal bonds . . .
Ex. 2 (Harris County, Texas, Sheriff Ron Hickman, and the Hearing Officers’ Objections and Responses to Plaintiffs’ First Request for Production of Documents No. 3).1
Defendants responded that they would produce non-privileged, responsive documents. Id. One year later, Plaintiffs filed a pre-motion conference letter in an attempt to resolve what appeared to be Defendants’ inadequate production and Defendants’ refusal to certify its document production pursuant to Fed. R. Civ. P. 26(g). Ex. 4. In response, Defendants’ counsel stated they had produced all responsive documents in Fall 2016 and that no additional responsive emails had been located. Ex. 5 (Oct. 20, 2017 letter from Phil Morgan). Alarmingly, the Commission’s findings of fact describe specific e-mails with instructions “from multiple District and County judges aiming to restrict the Hearing Officers’ authority to set certain bonds” that, to Plaintiffs’ knowledge, have never been produced.
In addition, Plaintiffs requested Defendants admit:
The Hearing Officers’ discretion to recommend arrestees for personal bonds is circumscribed by instructions from the County Court at Law Judges.
Ex. 6 (Harris County, Texas, Sheriff Ron Hickman, and the Hearing Officers’ Objections and Responses to Plaintiffs’ Requests for Admission No. 10).2
Defendants responded that this request was “vague” and thus they could neither admit nor deny. Ex. 6. Yet, there is nothing vague about the Commission’s findings of fact that describe testimony from the Hearing Officers that “until August 2016” several Judges did not permit Hearing Officers to grant personal bonds and that the Hearing Officers provided instructions
1 See also Ex. 2 (Harris County, Texas, Sheriff Ron Hickman, and the Hearing Officers’ Objections and Responses to Plaintiffs’ First Request for Production of Documents No. 4) (seeking any bail schedules or other instructions “that are currently in effect”); Ex. 3 (County Criminal Court at Law Judges’ Amended Objections and Responses to Plaintiff’s First Set of Requests for Production Nos. 3 - 5) (seeking “[a]ny bail schedules or other instructions, guidelines or advisories that have been in effect during the past two years, whether written or oral, given by any of the County Court at Law judges to any of the Hearing Officers, regarding how to set bail in misdemeanor or felony cases,” “a chart that summarized the Judges’ instructions to the Hearing Officers about how to set bail”; and “any bail schedules or other instructions . . . given by any of the County Courts at Law Judges to any of the Hearing Officers, regarding how to set bail and whether and when to grant, or recommend individuals, for personal bonds,” respectively). 2 See also Ex. 6 (Harris County, Texas, Sheriff Ron Hickman, and the Hearing Officers’ Objections and Responses to Plaintiffs’ Requests for Admission Nos. 6, 7, 8, 11) (seeking admission that “the County Court at Law Judges provide instructions, either oral or written, to the Hearing Officers about how to set bail”; “[t]he County Court at Law Judges tell the Hearing Officers which categories of arrestees . . . are eligible for release without secured financial conditions”; “[t]he Hearing Officers follow instructions from the County Court at Law Judges to deny personal bonds to certain groups of people . . .”; “[t]he Hearing Officers’ discretion to impose a higher or lower bail amount than what the bail schedule prescribes is circumscribed by instructions from the County Court at Law Judges”); Ex. 7 (County Criminal Court at Law Judges’ Objections and Responses to Plaintiff’s First Set of Requests for Admission No. 7) (seeking admission that “Defendant Judges provide instructions to the Hearing Officers setting out criteria and/or guidelines for granting or denying a personal bond”).
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from multiple Judges “aiming to restrict the Hearing Officers’ authority to set certain bonds.” Ex. 1.
Plaintiffs also served the following Interrogatory on November 11, 2016:
In the last two years, what guidance or instructions have the Defendant Judges given to Hearing Officers about arrestees’ eligibility for personal bonds?
Ex. 8 (County Criminal Court at Law Judges’ Amended Objections and Responses to Plaintiffs’ First Set of Interrogatories No. 3).3
As relevant, Defendants’ response stated the following only:
Subject to their objections, the County Criminal Court at Law Judges responded as follows: Three sources of law provide guidance to the Hearing Offices: (1) the Texas Code of Criminal Procedure art. 17.15; (2) the Roberson Order; and (3) the Local Rules of Court. The County Criminal Court at Law Judges sent a letter to the magistrate Hearing Officers on August 8, 2016 forwarding recent amendments to the Local Rules of Court and reminding the Hearing Officers that they have full discretion to set appropriate bail amounts according to the five Roberson factors, including ability to pay, and to issue personal bonds in appropriate circumstances. See Dkt. 80-4. On November 18, 2016, the County Criminal at Law Judges sent a letter to all attorneys practicing in the County Courts at Law, informing of them of additional changes to the pretrial procedures, including requiring the attorneys to raise bail at an arrestee’s initial appearance before a County Criminal Court at Law Judge. The County Criminal Court at Law Judges have not withheld any responsive information and are not withholding any information on the basis of privilege.
See Ex. 8 (County Criminal Court at Law Judges’ Amended Objections and Responses to Plaintiff’s First Set of Interrogatories).
Defendants’ response appears inadequate and misleading in light of the Commissions’ findings of fact that individual Judges provided Hearing Officers with instructions “aiming to restrict the Hearing Officers’ authority to set certain bonds.” Ex. 1. And the Commission’s findings appear to be based on documents provided to the Commission by Defendants themselves, as well as oral statements made by Defendants in their own defense as purported mitigation of their ethics violations. Pursuant to the Federal Rules, Defendants have an ongoing duty to supplement discovery in a “timely manner” if the party learns that its disclosure or response is “incomplete or incorrect.” See Fed. R. Civ. P. 26(e). Yet, Defendants have never supplemented their
3 See also Ex. 8 (County Criminal Court at Law Judges’ Amended Objections and Responses to Plaintiffs’ First Set of Interrogatories No. 2) (“In the last two years, what guidance or instructions have been given to Hearing Officers from the Defendant Judges about setting financial conditions of release?”); Ex. 9 (Harris County, Texas, Sheriff Ron Hickman, and the Hearing Officers’ Objections and Responses to Plaintiffs’ Interrogatories Nos. 5, 6) (requesting “guidance or instructions” regarding the bail-setting process and arrestees’ eligibility for personal bonds, respectively).
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discovery to inform the Plaintiffs that Judges, in whose court the underlying cases were assigned, had instructed Hearing Officers not to issue personal bonds.
Equally troubling, the Commissions’ revelations raise the question of whether any of the Defendants made misrepresentations to the Court. For example, the Commission quotes an email from Judge Diane Bull that states: “Please instruct the probable cause hearing officers to withhold their rulings on all pre-trial release applications for defendants.” Ex. 1. This quote, if accurate, appears to be inconsistent with Judge Diane Bull’s testimony in her sworn declaration: “The Criminal Law Hearing Officers are independent magistrates for the purpose of setting bail amounts and deciding whether to grant personal bonds in misdemeanor cases. I do not supervise them.” Ex. 10, at JUDGES000928.4 Likewise, on appeal, the Judges and Hearing Officers submitted declarations with similar testimony calling the Hearing Officers “independent” to the United States Court of Appeals for the Fifth Circuit and to the United States Supreme Court. Ex. 11 Each of the Hearing Officers submitted sworn declarations stating that they exercise “judicial discretion” to “set bail in an amount that I believe will ensure the accused’s return to court.” Ex. 12, at HARRISCO-ODONNELL007244 (Declaration of Joe Licata).5
In addition, the Commission’s revelations cast uncertainty over Defendants’ testimony during the preliminary injunction hearing. For example:
Q: Are there, as I understand it, some district courts who may have given instructions in the past to hearing officers? A: Yes. Q: Are there any similar written instructions to hearing officers today other than the email that Judge Jordan recently sent? A: No. Q: Are there any unwritten practices that you have been told to follow but they didn’t put it in writing? When I say “they,” for the record, the county court at law judges. A: Will you give me a timeframe for that? Q: We are talking about now, the last 16 months, the last 18 months. A: No.
Dkt. 275 at 115-116 (Testimony of Blanca Villagomez).
In addition, Judge Goodhart testified as follows, testifying explicitly on behalf of all of the Defendant Judges 1-15:
4 See also Ex. X, at JUDGES000913 (Declaration of Judge Paula Goodhart); JUDGES000916 (Declaration of Judge Bill Harmon); JUDGES000917 (Declaration of Judge Natalie Fleming); JUDGES000919 (Declaration of Judge John Clinton); JUDGES000920 (Declaration of Judge Margaret Stewart Harris); JUDGES000922 (Declaration of Judge Larry Standley); JUDGES000923 (Declaration of Judge Pam Derbyshire); JUDGES000924 (Declaration of Judge Jay Karahan); JUDGES000926 (Declaration of Judge Analia Wilkerson); JUDGES000927 (Declaration of Judge Dan Spjut); JUDGES000931 (Declaration of Judge Michael Fields); JUDGES000935 (Declaration of Judge Jean Spralding Hughes). 5 See also Ex. X, at HARRISCO-ODONNELL007239 (Declaration of Blanca Villagomez); HARRISCOODONNELL007242 (Declaration of Jill Wallace); HARRISCO-ODONNELL007246 (Declaration of Ron Nichols); HARRISCO-ODONNELL007240 (Declaration of Eric Hagstette).
4

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Q: Have you ever sent any email instructions or verbal instructions to the hearing officers about how to conduct their business? A: I have never sent them emails or verbally instructed them on how to conduct their business.
Dkt. 276 at 67 (Testimony of Paula Goodhart).
These are just a small number of the many more examples of similar potentially inconsistent, possibly misleading, and apparently false statements offered by Defendants and their attorneys throughout this case in numerous documents and oral statements. As this Court knows, Plaintiffs repeatedly pursued such information through documents and testimony (and Defendants themselves affirmatively offered argument and testimony on the issue) because of the significant relevance of the issue to numerous issues in dispute in this case, including to the merits and to questions of municipal liability.
On January 17, 2018, Plaintiffs requested that Defendants produce all documents, statements, or testimony of any type produced to the Commission, described by the Commission, or referenced by the Commission, whether orally or in writing. Ex. 13. In response, counsel for the Judges stated that they are “not aware” of any relevant information provided to the Commission, Ex. 14, and counsel for the Hearing Officers and Harris County stated that the only referenced letter was from 1995 and “was no longer in effect at the time of the lawsuit.” Ex. 13. This lawsuit, however, was filed in May 2016, and the Commission’s findings specifically stated that the Hearing Officers testified that “until August 2016, ‘the County Criminal Court at Law Judges historically” had rules that limited the Hearing Officers’ discretion to grant personal bonds. Moreover, if the 1995 letter was no longer in effect, it begs the question of how it was offered as mitigation by the Hearing Officers’ in proceedings concerning judicial conduct violations that occurred based on the videos and other evidence in the record in this case.
Plaintiffs do not raise these issues before the Court lightly. Nevertheless, Plaintiffs are gravely concerned by the Commission’s revelations and believe that this Court’s intervention is necessary and appropriate. Consequently, Plaintiffs invoke this Court’s procedure for filing a pre-motion conference letter, so that they may formally move the Court as follows:
x Compel production of all materials responsive to Plaintiffs’ Requests for Production, including all materials and testimony submitted to the Commission so that Plaintiffs can make an assessment of the seriousness of the apparent misrepresentations and discovery violations;
x Strike all incomplete or insufficient discovery responses and compel timely, corrected, and sworn discovery responses;
x Sanctions as deemed appropriate by the Court, including, but not limited to, reasonable costs, including attorneys’ fees, pursuant to the Court’s discretion.
Respectfully submitted,
5

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January 17, 2018 Page 6
/s/Neal S. Manne____ /s/Lexie G. White____ Neal S. Manne Texas State Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366
/s/Michael Gervais____ Michael Gervais mgervais@susmangodfrey.com (Admitted Pro Hac Vice) SUSMAN GODFREY L.L.P. 1301 Avenue of the Americas, 32nd Floor New York, New York 10019 Telephone: (212) 336-8330
/s/Susanne Pringle ____ Susanne Pringle Texas State Bar No. 24083686 springle@fairdefense.org Texas Fair Defense Project 314 E. Highland Mall Blvd, St. 108 Austin, Texas 78752 Telephone: (512) 637-5220
/s/Alec Karakatsanis____ /s/Elizabeth Rossi____ Alec George Karakatsanis alec@civilrightscorps.org (Admitted Pro Hac Vice) Elizabeth Rossi 6 elizabeth@civilrightscorps.org (Admitted Pro Hac Vice) Civil Rights Corps 910 17th Street NW, Suite 200
6 Admitted solely to practice law in Maryland; not admitted in the District of Columbia. Practice is limited pursuant to D.C. App. R. 49(c)(3).
6

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Washington, DC 20006 Telephone: (202) 681-2409 Attorneys for Plaintiffs
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VKDOOVLJQDQGUHWXUQWKH5HVSRQGHQW-XGJH6XUYH\LQGLFDWLQJFRPSOLDQFHZLWKWKLV2UGHU)DLOXUH

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PursLiam lo the aulhority contained in Article V. §i-a (8) of the Texas Constitution, it is ordered that the actions described above be made the subject of a PUBLIC ADMONITION WITH ORDKU or ADDITIONAL EDUCATION.

The Commission has taken this action with the intent of assisting Judge Magstette in his

continued judicial service, as well as in a continuing effort to protect public confidence in the

judicial system and to assist the state's judiciary in its efforts to embody the principles and values

set forth in the Texas Constitution and the Texas Code of Judicial Conduct.

d-JL

/0 Issued this the

day ok/i/tf/ .2018.

Justice Douglas S 1 ang. ChaU Slate Commission on Judicial Conduct

5

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The Commission has taken this action with the intent of assisting Judge Licata in his continued judicial service, as well as in a continuing effort to protect public confidence in the judicial system and to assist the stale's judiciary in its efforts to embod\ the principles and values set forth in the Texas Constitution and the i exas Code of Judicial Conduct.

Issued this the

7 dW L i f M A ,2018.

Justice Rfougkus S. Lantf, Chair Stale Cbmmission/HI/udicial Conduct

5

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The Commission has taken this action with the intent of assisting Judge Wallace in her continued judicial service, as well as in a continuing effort to protect public confidence in the judicial system and to assist the state's judiciary in its efforts to embody the principles and v alues set forth in the Texas Constitution and the Texas Code of Judicial Conduct.

jO Issued this the

das of

2018.

Justice Dou^Kis S. Lang. Chancy Stale Coiwnission on Judicial Conduct

5

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MARANDA LYNN ODONNELL, et al. Plaintiffs,
v. HARRIS COUNTY, TEXAS, ET AL.,
Defendants.

) ) ) ) ) Case No. 4:16-cv-01414 ) (Consolidated Class Action) ) The Honorable Lee H. Rosenthal ) U.S. District Judge ) )

HARRIS COUNTY, TEXAS, SHERIFF RON HICKMAN, AND THE HEARING OFFICERS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ FIRST REQUEST FOR PRODUCTION OF DOCUMENTS
TO: Plaintiffs Maranda ODonnell, Loetha McGruder, and Robert Ford, through their attorneys of record, Neal Manne and Lexie White, Susman Godfrey, 1000 Louisiana Street, Suite 5100, Houston, Texas 77002, Rebecca Bernhart, Susanne Pringle, Texas Fair Defense Project, 314 E. Highland Mall Blvd., Suite 180, Austin, Texas 78752, and Alec Karakatsanis, Elizabeth Rossi, 601 Pennsylvania Ave. NW, South Building, 9th Floor, Washington DC 20004.

Defendants Harris County, Texas, Sheriff Ron Hickman, and the Hearing Officers serve the following Objections and Responses to Plaintiffs’ First Request for Production of Documents.

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Respectfully Submitted,
GARDERE WYNNE SEWELL LLP
/s/ Katharine D. David Mike Stafford Federal I.D. No. 20898 Texas Bar No. 18996970 mstafford@gardere.com Katharine D. David Federal I.D. No. 577391 Texas Bar No. 24045749 kdavid@gardere.com Philip J. Morgan Federal I.D. No. 1708541 Texas Bar No. 24069008 pmorgan@gardere.com Ben Stephens Federal I.D. No. 2898153 Texas Bar No. 24098472 bstephens@gardere.com 2000 Wells Fargo Plaza 1000 Louisiana Street Houston, TX 77002-5011 Ph: 713-276-5500 – Fax: 713-276-5555
OFFICE OF THE HARRIS COUNTY ATTORNEY
s/ John Odam John Odam Assistant County Attorney Texas Bar No. 15192000 Federal I.D. No. 6944 john.odam@cao.hctx.net 1019 Congress, 15th Floor Houston, Texas 77002 Ph: 713-274-5101 – Fax: 713-755-8924 Counsel for Harris County, Texas, Sheriff Ron Hickman, Eric Stewart Hagstette, Joseph Licata III, Ronald Nicholas, Blanca Estela Villagomez, and Jill Wallace

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CERTIFICATE OF SERVICE I certify that on the 24th day of October, 2016, I electronically served the foregoing document on the following counsel of record:

Neal S. Manne Lexie G. White Susman Godfrey L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Email: nmanne@susmangodfrey.com Email: lwhite@susmangodfrey.com
Michael Gervais Susman Godfrey L.L.P. 1301 Avenue of the Americas, 32nd Floor New York, New York 10019 Email: mgervais@susmangodfrey.com
Rebecca Bernhardt Susanne Pringle Texas Fair Defense Project 314 E. Highland Mall Blvd., Suite 180 Austin, Texas 78752 Email: rbernhardt@fairdefense.org Email: springle@fairdefense.org
Alec Karakatsanis Elizabeth Rossi Civil Rights Corp. 916 G. Street NW, Suite 701 Washington, DC 20001 Email: alec@equaljusticeunderlaw.org Email: erossi@equaljusticeunderlaw.org
Plaintiffs’ counsel

John O’Neill John Keville Robert Green Sheryl Falk Winston Strawn LLP 1111 Louisiana Street, 25th Floor Houston, Texas 77002 joneill@winston.com jkeville@winston.com rlgreen@winston.com SFalk@winston.com
Counsel for the County Criminal Courts at Law Judges

/s/ Katharine D. David Katharine D. David

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Objections to Instructions and Definitions
Harris County, Sheriff Ron Hickman, and the Hearing Officers (collectively, “Defendants”) object to Plaintiffs’ instruction that Defendants specify which documents are being produced in response to each specific request. The Federal Rules of Civil Procedure do not contain such a requirement. Therefore, this instruction is burdensome and goes beyond what is required under the Federal Rules of Civil Procedure.
Defendants also object to the location for production. Defendants will make responsive documents available for viewing at the offices of Gardere Wynne Sewell LLP, 1000 Louisiana, Suite 2000, Houston, Texas 77002 on a date and time that is mutually agreeable to the parties.
Objections and Responses
Request for Production No. 1: Daily lists of people in Harris County custody, charged with misdemeanor offenses, who must satisfy financial conditions of release in order to be released and for whom there are no other holds preventing their release. Plaintiffs request these daily lists for each day from May 5 to the present.
Response: Defendants object to this request because Defendants do not maintain a list of people in Harris County custody “who must satisfy [a] financial condition[] of release in order to be released and for whom there are no holds.” Defendants further object to this request as misleading in that some people who are otherwise eligible for release, can make bail, yet choose not to. No report maintained by any Defendant can provide insight as to this subset of people. Finally, Defendants object on the grounds that this request is substantially overbroad. Plaintiffs seek tens of thousands of pages of documents about people who are not parties to this case and which could potentially reveal sensitive personal information.
Request for Production No. 2: Copies of any forms prepared by or in connection with Pretrial Services for all individuals for whom such forms exist or who were interviewed by pretrial services between May 5, 2016 and May 28, 2016, and in the month of August 2016.
Response: Defendants object to this request as overbroad. For example, this request is not limited to misdemeanor arrestees only. Subject to this objection and entry of a protective order, Defendants are prepared to produce responsive documents.
The County Criminal Court at Law Judges have asserted judicial privilege and work product privilege with respect to these documents. Defendants do not want to prejudice the Judges’ opportunity to assert these objections. Defendants, therefore, will not produce these documents at this time.

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Request for Production No. 3: Any bail schedules or other instructions, guidelines, or advisories that were in effect at the time the case was filed, whether written or oral, given by any of the County Courts at Law judges to any of the Hearing Officers, regarding how to set bail and whether and when to grant, or recommend individuals for personal bonds. If the instructions, guidelines, or advisories were not written, they should be reduced to writing.
Response: Defendants object that this request calls for Defendants to reduce to writing oral instructions, guidelines, or advisories. Defendants’ only obligation under the Federal Rules of Civil Procedure is to produce documents as they are kept in the ordinary course of business. Defendants also object to this request as overbroad in that it is not limited to “instructions, guidelines, or advisories” about misdemeanor arrestees. Defendants further object to this request as vague in that “regarding how to set bail” is undefined and subject to multiple interpretations. Subject to these objections, Defendants will produce nonprivileged, responsive documents.
Request for Production No. 4: Any bail schedules or other instructions that are currently in effect, whether written or oral, given by any of the County Court at Law judges to any of the Hearing Officers, regarding how to set bail and whether and when to grant, or recommend individuals for, personal bonds. If the instructions, guidelines, or advisories are not written, they should be reduced to writing.
Response: Defendants object that this request calls for Defendants to reduce to writing oral instructions, guidelines, or advisories. Defendants’ only obligation under the Federal Rules of Civil Procedure is to produce documents as they are kept in the ordinary course of business. Defendants also object to this request as overbroad in that it is not limited to “instructions, guidelines, or advisories” about misdemeanor arrestees. Defendants further object to this request as vague in that “regarding how to set bail” is undefined and subject to multiple interpretations. Subject to these objections, Defendants will produce nonprivileged, responsive documents.
Request for Production No. 5: Videos of all probable cause hearings that took place in August 2016.
Response: Defendants object to this request as overbroad in that it is not limited to misdemeanor arrestees only. Subject to this objection, Defendants will produce responsive videos. The Hearing Officers see both misdemeanor and felony arrestees at each court session, so both felony and misdemeanor arrestees are contained on the videos. Because it would be unduly burdensome to spend the time and money to edit out the felony arrestees, Defendants will produce all videos, including felony arrestees. Defendants are not waiving their objection that such videos are irrelevant.
Request for Production No. 6: Any documents, information, or other evidence supporting your contention that any named defendant(s) in fact inquire into ability to pay before setting a financial condition of release.
Response: Defendants object to the extent Plaintiffs are improperly attempting to use a request for production as an interrogatory. To the extent Plaintiffs seek to inquire about Defendants’ contentions, such an inquiry is not suited to a request for production.

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Request for Production No. 7: Any documents, information, or other evidence upon which you intend to rely at the hearing on plaintiffs’ Motion for Preliminary Injunction.
Response: Defendants object to this request as premature. The hearing on Plaintiffs’ motion for preliminary injunction is not scheduled until December 15, 2016. Defendants will produce the requested documents at a mutually agreeable time before the hearing.
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MARANDA LYNN ODONNELL, et al. Plaintiffs,
v. HARRIS COUNTY, TEXAS, ET AL.,
Defendants.

) ) ) ) ) Case No. 4:16-cv-01414 ) (Consolidated Class Action) ) The Honorable Lee H. Rosenthal ) U.S. District Judge ) )

HARRIS COUNTY, TEXAS, SHERIFF RON HICKMAN, AND THE HEARING OFFICERS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ REQUESTS FOR ADMISSION
TO: Plaintiffs Maranda ODonnell, Loetha McGruder, and Robert Ford, through their attorneys of record, Neal Manne and Lexie White, Susman Godfrey, 1000 Louisiana Street, Suite 5100, Houston, Texas 77002, Rebecca Bernhart, Susanne Pringle, Texas Fair Defense Project, 314 E. Highland Mall Blvd., Suit 180, Austin, Texas 78752, and Alec Karakatsanis, Elizabeth Rossi, 601 Pennsylvania Ave. NW, South Building, 9th Floor, Washington DC 20004.

Defendants Harris County, Texas, Sheriff Ron Hickman, and the Hearing Officers serve the following Objections and Responses to Plaintiffs’ First Requests for Admission to County Defendants.

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Request for Admission No. 4: The Hearing Officers routinely do not know whether an arrestee has the present ability to satisfy any financial conditions of release.
Answer: This request is vague in that “routinely” is undefined, subjective, and without precise meaning. Likewise, the term “present ability” to satisfy any financial conditions of release is vague because “present ability” is undefined and subject to multiple interpretations. It is unclear whether “present ability” means that the arrestee has the cash on hand to satisfy the condition, generally has the means to acquire sufficient funds, has connections (e.g., family or friends) to acquire the funds, could secure a surety bond, or something else. Because of these ambiguities, the Hearing Officers cannot not admit or deny.
Request for Admission No. 5: The Hearing Officers routinely set financial conditions of release in amounts they know arrestees do not have the present ability to pay.
Answer: This request is vague in that “routinely” is undefined, subjective, and without precise meaning. Likewise, the term “present ability” to pay is vague because “present ability” is undefined and subject to multiple interpretations. It is unclear whether “present ability” means that the arrestee has the cash on hand to satisfy the condition, generally has the means to acquire sufficient funds, has connections (e.g., family or friends) to acquire the funds, could secure a surety bond, or something else. Because of these ambiguities, the Hearing Officers cannot not admit or deny.
Request for Admission No. 6: The County Court at Law Judges provide instructions, either oral or written, to the Hearing Officers about how to set bail.
Answer: Admit.
Request for Admission No. 7: The County Court at Law Judges tell the Hearing Officers which categories of arrestees (e.g., students, first-time offenders, people charged with non-violent offenses, etc. . . . .) are eligible for release without secured financial conditions.
Answer: Admit in part; the County Criminal Court at Law Judges have recently amended the Rules of Court to include categories of offenses for which there should be a presumption in favor of a personal bond. This could be construed as an instruction on who is eligible for release without secured financial conditions. However, to the extent that Plaintiffs ascribe a different meaning to the phrase “categories of arrestees,” such as students, the homeless, etc., this term is vague, and, as such, the Hearing Officers cannot admit or deny.
5

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Request for Admission No. 8: The Hearing Officers follow instructions from the County Court at Law Judges to deny personal bonds to certain groups of people, e.g., the homeless or people who recently moved the Houston area.
Answer: Defendants cannot admit or deny because this request is vague in that “categories of arrestees” is undefined and subject to multiple interpretations. In addition, this request fails to specify the categories to which Plaintiffs refer, as Plaintiffs appear to leave the term “categories of arrestees” open-ended.
Request for Admission No. 9: The Hearing Officers do not recommend arrestees for personal bonds on the basis of the arrestees’ inability to satisfy a financial condition of release.
Answer: Deny. An accused’s “inability to satisfy a financial condition of release” is not the sole criterion by which eligibility for a personal bond is determined. Depending on the circumstances of the individual case, it may, however, be a factor.
Request for Admission No. 10: The Hearing Officers’ discretion to recommend arrestees for personal bonds is circumscribed by instructions from the County Court at Law Judges.
Answer: Defendants cannot admit or deny because this request is vague in that “circumscribed” is undefined, subjective, and subject to multiple interpretations.
Request for Admission No. 11: The Hearing Officers’ discretion to impose a higher or lower bail amount than what the bail schedule prescribes is circumscribed by instructions from the County Court at Law Judges.
Answer: Defendants cannot admit or deny because this request is vague in that “circumscribed” is undefined, subjective, and subject to multiple interpretations.
Request for Admission No. 12: It is the Defendants’ contention that, consistent with the Constitution, a judicial officer who sets bail can consider a person’s ability to pay and then set an amount of money without determining whether the person has the present ability to pay it.
Answer: Defendants object in that Plaintiffs have served requests for admissions on three separate Defendants, yet for this request, lump all Defendants together. Plaintiffs failure to separate this request by Defendant renders its unanswerable. Defendants also object to this request as calling for a legal conclusion. Defendants further object that this request is tied to no facts, but, instead, is requesting an admission based on generic, hypothetical facts. For instance, Maranda ODonnell reported a monthly income to pretrial services that indicated she could afford her bond. Defendants also object that the term “present ability to pay” is undefined. It is unclear whether Plaintiffs mean that a person must have cash on hand, the ability to secure money within some period, the ability to qualify for a surety bond, or something else.
6

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MARANDA LYNN ODONNELL, et al. Plaintiffs,
v. HARRIS COUNTY, TEXAS, ET AL.,
Defendants.

) ) ) ) ) Case No. 4:16-cv-01414 ) (Consolidated Class Action) ) The Honorable Lee H. Rosenthal ) U.S. District Judge ) )

HARRIS COUNTY, TEXAS, SHERIFF RON HICKMAN, AND THE HEARING OFFICERS’ OBJECTIONS AND RESPONSES TO PLAINTIFFS’ INTERROGATORIES
TO: Plaintiffs Maranda ODonnell, Loetha McGruder, and Robert Ford, through their attorneys of record, Neal Manne and Lexie White, Susman Godfrey, 1000 Louisiana Street, Suite 5100, Houston, Texas 77002, Rebecca Bernhart, Susanne Pringle, Texas Fair Defense Project, 314 E. Highland Mall Blvd., Suit 180, Austin, Texas 78752, and Alec Karakatsanis, Elizabeth Rossi, 601 Pennsylvania Ave. NW, South Building, 9th Floor, Washington DC 20004.

Defendants Harris County, Texas, Sheriff Ron Hickman, and the Hearing Officers serve the following Objections and Responses to Plaintiffs’ First Set of Interrogatories to County Defendants.

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Interrogatory No. 3: What percent of misdemeanor arrestees in 2015 were released on personal bonds in Harris County, and how was that number calculated? What percent of misdemeanor arrestees to date in 2016 were released on personal bonds in Harris County, and how was that number calculated?
Answer: Defendants object to this request to the extent that it mischaracterizes the process and leads to a distorted and warped picture of the criminal justice system in Harris County. Those who post bail before appearing before a Hearing Officer are never recommended for a personal bond. Plaintiffs, however, consistently appear to overlook this fact, and, as such, present skewed statistics on the criminal justice system as a whole. It is necessary to consider what percent of those who do not post bail, as opposed all misdemeanor arrestees, are recommended for a personal bond. Moreover, in light of the information provided above regarding the number of personal bonds recommended to those who appear before a Hearing Officer, the actual number of people released on personal bonds is irrelevant.
Interrogatory No. 4: What percent of felony arrestees in 2015 were released on personal bonds in Harris County, and how was that number calculated? What percent of felony arrestees to date in 2016 were released on personal bonds in Harris County, and how was that number calculated?
Answer: Defendants object to this request as seeking information that is irrelevant to is lawsuit. This lawsuit only concerns misdemeanor arrestees. Information regarding felony arrestees is irrelevant, and, not likely to lead to the discovery of admissible evidence.
Interrogatory No. 5: What guidance or instructions have the Defendant Judges provided to the Hearing Officers at any point in the previous two years continuing to the present regarding the bail-setting process? In addition to any and all other responsive information, address whether the Defendant Judges provided instructions or guidance regarding the types of cases in which the Hearing Officers were permitted or prohibited from recommending an arrestee for release without financial conditions. Describe the specific guidance, advisories, or instructions that were given and the time periods that each was in effect.
Answer: Defendants object to this request as duplicative of previous discovery requests, and, therefore, is harassing. Subject to this objection, Defendants produced the relevant documents. The County Court at Law Judges provided a letter that could constitute an instruction, as well as the Rules of Court and various amendments thereto.

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Interrogatory No. 6: At any point during the previous two years continuing to the present, did the Defendant Judges give the Hearing Officers guidance or instructions regarding arrestees’ eligibility for personal bonds? Describe the specific guidance, advisories, and instructions given, and state the time periods that each was in effect. In addition to providing any and all other responsive information, address in particular whether any Judge, and which Judge(s), told the Hearing Officers that personal bonds may not be given to individuals who are homeless, individuals with certain criminal histories (and what criminal histories barred someone from release on a personal bond), individuals who recently moved to the Houston area, or individuals who had previously been given a personal bond. Explain whether, following the filing of the lawsuit, that guidance has changed, and if so, how it has changed.
Answer: Defendants object to this request as duplicative of previous discovery requests, and, therefore, is harassing. Subject to this objection, other than the two recently sent letters and Rules of Court, the County Criminal Court at Law Judges have not provided any specific instructions. Plaintiffs’ insistence that a blanket instruction to not give homeless people personal bonds is also inaccurate. The Hearing Officers, in considering all five factors under 17.15, as well as using common sense, generally find that a homeless person is ineligible for a personal bond in that if such a person lacks a sufficient connection to Houston or lacks a reasonable means of being contacted in the event that they fail to appear in court, judicial experience leads to the reasonable conclusion that such a person is ineligible for a personal bond.
Interrogatory No. 7: How many people died in jail while in pretrial custody in 2015? How many people died in jail while in pretrial custody to date in 2016? How many pretrial detainees were hospitalized for any reason in 2015? How many pretrial detainees were hospitalized for any reason to date in 2016? How many pretrial detainees attempted suicide in 2015? How many pretrial detainees attempted suicide in 2016? How many pretrial detainees committed suicide in 2015? How many pretrial detainees committed suicide to date in 2016?
Answer: Defendants object to this request as overbroad, as it is not limited to misdemeanor detainees. This case is only about misdemeanor cases; felony cases are irrelevant to this lawsuit. Defendants further object to this request as overbroad, unduly burdensome, and seeking irrelevant information, in that the number of people who died in jail, were hospitalized, attempted suicide, or committed suicide is utterly irrelevant to Plaintiffs’ claims about how bail is set in Harris County. No relationship exists between the number of people who died in jail and the constitutional issues or factual issues Plaintiffs raised. Defendants further object that the term hospitalized is vague, overbroad, and deliberately misleading. Detainees can be hospitalized for a number of reasons. Plaintiffs’ request attempts to give the appearance a causal link exists between being in jail and being hospitalized. Subject to these objections, 16 people died in custody in 2015, and 15 to date in 2016. These statistics do not reflect the difference between pretrial detainees whose highest charge is a misdemeanor or felony, pretrial detainee versus post-conviction detainee, or whether these people were being held for another jurisdiction. However, because this is the only way the statistics are maintained, Defendants are producing a total number.

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee7710ooff114309
E(X;H+I,B%I,T7 10

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee7721ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE PAULA GOODHART
1. My name is Paula Goodhart. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law No. 1, a position that I have held since March 2010. I also currently serve as the Presiding Judge of all the County Criminal Courts at Law. I was a criminal defense attorney from 2007 to 2010 and practiced in Harris, Fort Bend, Galveston, and Walker Counties. Prior to that time, I was an Assistant District Attorney in Harris County for approximately 14 years.
3. A statutorily mandated 9-judge board appoints the Harris County Criminal Law Hearing Officers, with the consent and approval of the Harris County Commissioners Court, to perform duties that include those listed in Article 15.17 of the Texas Code of Criminal Procedure. Three of the board members are County Criminal Court at Law judges. The others are judges from courts that handle felony cases and Class C misdemeanor cases. Hearing Officers serve one-year terms and continue to serve until a successor is appointed. The Board can recommend the termination of Hearing Officers, however any such recommendation must be approved by Commissioners.
4. I am currently one of the three County Criminal Court at Law representatives on the 9-judge panel mentioned above. The panel recently convened to hire two new Hearing Officers that Commissioners Court approved. The panel does not, however, supervise the Hearing Officers.
5. Consistent with judicial independence, I do not provide any special instrnctions to any Criminal Law Hearing Officer regarding how to set a bail amount or whether to grant a personal bond. Prior to this lawsuit being filed, I had not heard any concerns that one or more Hearing Officers feared losing their job. I am only aware of one Hearing Officer that has ever been terminated by the panel. Frank Aguilar was terminated about seven years ago during a criminal investigation

JUDGES 000913

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee7732ooff114309
unrelated to his performance as a Hearing Officer. Apart from Frank Aguilar, I am not aware of any previous Hearing Officer ever being replaced except by their own request.
6. On August 8, 2016, the other County Criminal Court at Law Judges and I signed a letter to the Hearing Officers expressing our view that they are independent Texas magistrates for the purpose of setting bail amounts or approving personal bonds in misdemeanor cases.
7. On November 18, 2016, the County Criminal Courts at Law sent a letter to all attorneys appearing in our courts. This letter informed attorneys that the County Criminal Court at Law Judges modified our procedures to require each defendant still in custody after their Article 15 .1 7 proceeding to address bail with the judge at the first appearance, absent a voluntary and affirmative waiver by the defendant. The letter requested the attorneys provide each judge with any additional information relevant to the defendant's bail amount, bail conditions, and suitability for personal bond at the first setting and thereafter, if necessary.
8. On February 9, 2017, the County Criminal Court at Law Judges, sitting en bane, amended Local Rules of Court 4.1.1, 4.3, 24.9.1 and 24.9.2 to codify the change of procedures detailed in our November 18, 2016 letter.
9. Newly amended Rule 4.3, replaces the initial anaignment setting replaced with a "bail review hearing" setting for any an-estee booked into the Hanis County Jail. This mandatory review hearing shall occur the business day following the booking date, and will occur absent a waiver by the defendant and defense counsel.
10. These bail hearings codified by Rule 4.3 occur daily and routinely in my court.
11. During the automatic bail hearing, if not waived, I review the infmmation provided by Han-is County Pretrial Services and the attorneys, both the prosecution and the defense. I then review the bail amount previously set, whether a personal bond is appropriate and conditions of bond. I will modify any of these determinations if good cause is shown under the circumstances. I understand that the power to require bail cannot be used as an instrument of oppression and am aware of the factors listed under Article 17.15 of the Texas Code of Criminal Procedure, the Roberson Order, and Local Rule of Court 4.2.3.1 related to setting bail. These factors include: (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature of the offense for which probable cause has been found and the circumstances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I follow these laws and consider all of these factors. I also consider whether an individual is eligible for a personal bond.
12. If an attorney requests a bail hearing subsequent to the automatic bail hearing date, they are given the opportunity to have the matter considered on the same day as the request. Prior to the implementation of the automatic bail hearing, this was the standard practice in Hanis County Criminal Court at Law #1.
JUDGES 000914

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee7743ooff114309
I certify under the penalty of perjury that the foregoing is true and correct.
JUDGES 000915

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee7754ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-O 1414 (Consolidated Class Action) The Honorable Lee H. Rosenthal. U.S. District Judge

DECLARATION OF JUDGE BILL HARMON
1. My name is Bill Harmon. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law 2, a position that I have held since January 1, 2007.
3. I do not supervise the Criminal Law Hearing Officers. They are independent magistrates in this regard and follow the same laws that I do when setting bail and determining whether to approve personal bonds.
4. I am aware of my obligations under Texas Code of Criminal Procedure Article 17.15, the Roberson Order, and Local Rule 4.2.3 .1 to consider five factors when reviewing bail. These factors include (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature of the offense for which probable cause has been found and the circumstances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I'm also aware that the power to require bail cannot be used as an instrument of oppression.
5. Every time a defendant in jail has a court setting, if requested by him or his attorney, I will review the defendant's bail amount, bail conditions and suitability for personal bond. When reviewing bail, I follow the law.

I certif : der

that the foregoing is true and correct.

-Judge Bill

:J-
Date

l-ZD1

7

JUDGES 000916

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee7765ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-O 1414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE NATALIE FLEMING
1. My name is Natalie Fleming. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law No. 3, a position that I have held since March of 2010. Beginning in 1988, I was a prosecutor for five years. I then served as a visiting judge in Harris County throughout the then-15 Harris County Criminal Courts at Law. I also voluntarily serve as one of five S.O.B.E.R. Court Judges.
3. I am one of the three County Criminal Court at Law Judges on the 9-judge board that, with the approval of Commissioners Court, can appoint new Criminal Law Hearing Officers. The board does not supervise the Hearing Officers. It can simply appoint or terminate them with Commissioners Court approval.
4. The Criminal Law Hearing Officers are independent magistrates with the power to set bail amounts and approve personal bonds in misdemeanor cases as they see fit.
5. I am aware of my obligations under the Texas Code of Criminal Procedure, the Roberson Order, and Local Rule 4.2.3.1 to consider all five factors. These factors include: (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature of the offense for which probable cause has been found and the circumstances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I am also aware that the power to require bail cannot be used as a means to oppress.
6. During bail hearings in my court I follow the law and consider the factors set out in Roberson. I also consider whether a personal bond is appropriate, given the circumstances.

JUDGES 000917

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee7776ooff114309
I certify under the penalty of perjury that the foregoing is true and correct. Date
JUDGES 000918

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee7787ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN l)ISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

V.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE JOHN CLINTON
1. My name is John Clinton. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law Number 4, a position I have held since January 1, 2011. I am a retired Houston police officer, and spent 30 years with the department. I went to law school while still at HPD.
3. The Criminal Law Hearing Officers are independent magistrates for the purpose of setting bail amounts and deciding whether to grant personal bonds in misdemeanor cases. In this regard, they are governed by the Code of Criminal Procedure, just as I am.
4. I am aware of my obligations under the Texas Code of Criminal Procedure, the Roberson Order, and Local Rule 4:2.3.1 to consider all five factors when setting bail. These factors include: (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature and circumstances of the offense for which probable cause has been found, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety ofthe victim and community; and (5) the employment history, residency, family affiliations, prior criminal record; previous court appearance performance, and any outstanding bonds. I am also aware that the power to require bail cannot be used oppressively.
5. During bail hearings held routinely in Court 4, often during the first setting, I follow the law and consider all five of these factors. I also consider whether a personal bond is appropriate, given the circumstances.

Date/ I JUDGES 000919

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee7798ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

V.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE MARGARET STEWART HARRIS
1. My name is Margaret Stewart Harris. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law No. 5, a position that I have held since January 1, 2003.
3. I am a member of the 9-judge board that appoints Harris County Criminal Law Hearing Officers with the approval of Commissioners Court. The board also has the power to terminate Hearing Officers with the approval of Commissioners Court. Neither the board nor I give the Hearing Officers instructions on how to set a bail amount or whether to approve a personal bond in misdemeanor cases.
4. On August 8, 2016, I signed a letter addressed to the Harris County Criminal Law Hearing Officers. This letter informed them of an amendment to Local Rule of Court 12, which stated personal bonds are favored in the County Criminal Courts at Law for twelve common, nonviolent misdemeanor offenses. The letter also reminded the Hearing Officers that they have full judicial discretion to determine bail amounts and grant personal bonds in cases they deemed appropriate, and that they were required to use the factors listed in Texas Code of Criminal Procedure Article 17.15 (reproduced in our Local Rules) and the Roberson Order when setting bail and making personal bond determinations.
5. The purpose of the August 8, 2016, letter was to affirm to the Hearing Officers that we, the County Criminal Court Judges, consider the Hearing Officers to be independent judicial magistrates who have their own judicial discretion to set bail and grant personal bonds, and to dispel any notion or allegation to the contrary. We also reminded them of the statutory obligation to consider all five factors required by Roberson when determining bail or granting a personal bond.

JUDGES 000920

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8709ooff114309
6. On November 18, 2016, the County Criminal Courts at Law sent a letter to all attorneys appearing in our courts. This letter informed attorneys that the County Criminal Court at Law Judges modified our procedures to require each defendant still in custody after their Article 15.17 proceeding to address bail with the judge at the first appearance, absent a voluntary and affirmative waiver by the defendant. The letter requested the attorneys provide each judge with any additional information relevant to the defendant's bail amount, bail conditions, and suitability for personal bond at the first setting and thereafter, if necessary.
7. These bail hearings occur daily and routinely in my court.
8. On February 9, 2017, the County Criminal Court at Law Judges, sitting en bane, amended Local Rule of Court 4.3. The amended Rule 4.3 replaces the initial arraignment setting with "bail review hearing" (encoded as "BLHG") setting for any arrestee that is booked into the Harris County Jail. This rule change codified the change of procedures detailed in our November 18, 2016 letter.
9. At this bail hearing setting, attorneys review the State's file and their client's criminal history. After discussing these with their client, along with other discussion, the defendant and his/her attorney decide whether to have a bail hearing immediately, reset for a hearing at a later time, or waive the hearing completely. Before a hearing will be waived, both the attorney and the client must sign a waiver. During hearings, I accept the defense counsel's proffer of evidence in the event that counsel does not want to present witness testimony or other evidence, review conditions of release, the bail amount previously set, and whether a personal bond is appropriate. I modify any of these determinations if I feel good cause exists to do so under the circumstances. I also consider all five factors listed in Article 17.15 of the Texas Code of Criminal Procedure, recreated in the Roberson Order, and Local Rule of Court 4.2.3.1. These factors include (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature of the offense for which probable cause has been found and the circumstances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I welcome defense attorneys to provide any additional relevant information for my consideration at both the initial and subsequent settings. I also consider the bail schedule and non-financial alternatives to bail, including personal bonds, as mandated by Roberson.
I certify under the penalty of perjury that the foregoing is true and correct.
Date
JUDGES 000921

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8810ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE LARRY STANDLEY

1. My name is Larry Standley. I am over eighteen years of age, have personal knowledge ofthe facts set forth herein, and am competent to make this declaration.

2. I am currently the Presiding Judge for Harris County Criminal Court at Law 6, a position that I have held since January l, 1999.

3. I do not supervise the Criminal Law Hearing Officers. They are independent magistrates and are governed by Texas statutes when setting bail and deciding whether to approve a personal bond in misdemeanor cases.

4. I am aware of my obligation to consider the Roberson factors, Texas Code of Criminal Procedure Article 17.15, and Local Rule ofCourt 4.2.3.1 when setting bail. The five Roberson factors include
(1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature ofthe offense for which probable cause has been found and the circumstances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I also know that the power to require bail cannot be used as a tool to oppress someone.

5. During bail hearings held routinely in my court, I follow the law. I also consider whether a

personal bond is

given the ·

tances ofthe case.

I certify

r ttie·(enalty of pe ·
,#

t the foregoing is true and correct.

JUDGES 000922

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8821ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE PAM DERBYSHIRE
1. My name is Pam Derbyshire. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law No. 7. I've held this position since January 1, 1999.
3. I do not supervise the Criminal Law Hearing Officers. They are independent magistrates and are governed by Texas statutes when setting bail and deciding whether to approve a personal bond in misdemeanor cases.
4. I am aware of my obligation to consider the five Roberson factors, Texas Code of Criminal Procedure Article 17.15, and Local Rule of Court 4.2.3.1. The five Roberson factors include (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature of the offense for which probable cause has been found and the circumstances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I am also aware that the power to require bail cannot be used in such a manner as to make it an instrument of oppression.
5. I follow the law during bail hearings held in County Criminal Court No. 7. I also consider whether good cause exists to grant a personal bond, given all the circumstances in the case.
I certify under the penalty of perjury that the foregoing is true and correct.
Date 3 ,/-/"}

JUDGES 000923

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8832ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE JAY KARAHAN
1. My name is Jay Karahan. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law No. 8, a position that I have held since January 1, 2003. Prior to taking the bench I was a state prosecutor, federal prosecutor, and criminal defense attorney. I have been board certified in criminal law (by the Texas Board of Legal Specialization) since 1988.
3. I do not supervise the Harris County Criminal Law Hearing Officers. They are independent Texas magistrates for purposes of setting bail amounts and deciding whether to approve personal bonds in misdemeanor cases. In that regard, they are governed by the Code of Criminal Procedure just as lam.
4. On August 8, 2016, a letter was sent to the Harris County Criminal Law Hearing Officers. This letter informed them of an amendment to Local Rule of Court 12, which stated that the County Criminal Courts at Law judges favored personal bonds for twelve, nonviolent misdemeanor offenses. The letter also reminded the Hearing Officers that they have full judicial discretion to determine bail amounts and grant personal bonds in cases they deemed appropriate, and that Texas Code of Criminal Procedure Article 17.15 and the Roberson Order govern the factors to consider when setting bail (also discussed in our Local Rules).
5. On November 18, 2016, the County Criminal Courts at Law sent a letter to all attorneys appearing in our courts. This letter informed attorneys that the County Criminal Court at Law Judges modified our procedures to require each defendant still in custody after their Article 15.17 proceeding to address bail with the judge at the first appearance, absent a voluntary and affirmative waiver by the defendant. The letter asked attorneys to provide each judge with any additional

JUDGES 000924

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8843ooff114309
infonnation relevant to the defendant's bail amount, bail conditions, and suitability for personal bond at the first setting and thereafter, if necessary. 6. Following the November 18th letter, technical staff worked to reprogram the relevant computer systems to accommodate the newly-coded bail hearing setting. The programming was successful and on February 9, 2017, the County Criminal Court at Law Judges, sitting en bane, amended Local Rules of Court 4.1.1, 4.3, 24.9.1 and 24.9.2 to codify the procedural change detailed in our November 18, 2016 letter. 7. Newly amended Rule 4.3 authorizes a "bail review hearing" setting for any arrestee booked into the Harris County Jail to occur at their first setting before the judge with dispositive jurisdiction over the case-which is also the judge with authority to appoint counsel for the defendant. This review hearing occurs on the business day following the booking date, regardless of whether the arrestee was released from custody after booking, and occurs unless waived by the defendant and defense counsel. 8. During the bail review hearing, I review conditions of release, the bail amount previously set, and whether a personal bond is appropriate. I will modify any of these determinations if I feel good cause exists to do so under the circumstances. 9. I understand under Article 17.15 of the Texas Code of Civil Procedure, the Roberson Order, and Local Rule of Court 4.2.3 set forth factors to consider when setting a bail amount. Those factors include: ( 1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature of the offense for which probable cause has been found and the circumstances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I am also aware that the power to require bail cannot be used as an instrument of oppression. 10. I follow the law when setting or reviewing bail. I also consider granting personal bonds where appropriate.
I cert' y under he penalty of perjury that the foregoing is true and correct.
YYlwA II 2.0lf
Date
JUDGES 000925

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8854ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-O1414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE ANALIA WILKERSON
1. My name is Analia Wilkerson. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law No. 9, a position that I have held since January 1, 1995. Before that, from 1988 to 1995, I practiced criminal defense law in Harris County.
3. I do not supervise the Harris County Criminal Law Hearing Officers. They set bail amounts and decide whether to approve personal bonds in their own discretion, subject to the Texas Code of Criminal Procedure.
4. I know under the Texas Code of Criminal Procedure, the Roberson Order, and Local Rule 4.2.3.1, I have to consider all five factors when setting bail. These factors include: (I) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature and circumstances of the offense for which probable cause has been found, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I am aware that the power to require bail cannot be used as an instrument of oppression.
5. Bail hearings are held routinely in my court, unless waived. In the bail hearings, I follow the law and consider all five of these factors. I also consider whether a personal bond is appropriate, given the circumstances.
I certify under the penalty of perjury that the foregoing is true and correct.

Judge Analia Wilkerson

3/01/t;
Date

JUDGES 000926

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8865ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-O 1414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE DAN SPJUT
1. My name is Dan Spjut. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law No. 10, a position I have held since January 1, 2015.
3. The Criminal Law Hearing Officers are independent magistrates for the purpose of setting bail amounts and deciding whether to grant personal bonds in misdemeanor cases. They are governed by the Code of Criminal Procedure just like I am.
4. I am aware of my obligations under the Texas Code of Criminal Procedure, the Roberson Order, and Local Rule 4.2.3.l to consider certain factors when setting bail. The factors include: (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature and circumstances of the offense for which probable cause has been found, including aggravating and mitigating factors ; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I am also aware that the power to require bail cannot be used oppressively.
5. I follow the law during bail hearings held routinely in my court. I also consider whether a personal bond is appropriate given the circumstances.
perjury that the foregoing is true and correct.

JUDGES 000927

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8876ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DMSION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE DIANE BULL
1. My name is Diane Bull. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law Number 11, a position that I have held since January 1, 1995. Prior to taking the bench I was a prosecutor for 5 years and a criminal defense attorney for 5 years.
3. The Criminal Law Hearing Officers are independent magistrates for the purpose of setting bail amounts and deciding whether to grant personal bonds in misdemeanor cases. I do not supervise them.
4. I am aware of the bail factors listed in Texas Code of Criminal Procedure Article 17.15, Local Rule of Court 4.2.3.1, and the Roberson order. The factors include (1) bail shall be·sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature of the offense for which probable cause has been found and the circmp.stances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I'm also· aware that the power to require bail cannot be used as an instrument of oppression.
5. I routinely hold bail hearings in Court 11 unless they are waived. I follow the law and also consider whether a personal bond is appropriate.
e penalty of perjury that the foregoing is true and correct.
Date I /

JUDGES 000928

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8887ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. · )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case,No. 16-cY-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE ROBIN BROWN
1. My name is Robin Brown. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law No. 12, a position that I have held since January 1, 1995. I have taught on the topic ofDWI specialty courts and evidence based sentencing practices for the Texas Center for the Judiciary, the Texas Association for Drug Court Professionals, and the Texas Association ofCounties. I also voluntarily preside over one of the five Harris County DWI S. O.B.E.R. Courts, and have done so since 2008. Prior to my election, I was an assistant district attorney in the Harris County District Attorney's Office trial bureau for eleven years, six of which were as a district court chief. After leaving the District Attorney's Office, I had a very active practice as a criminal defense attorney, giving me invaluable experience from both sides of the bar.
3. I know the factors set forth in Roberson, the Texas Code of Criminal Procedure, and the Local Rules of Court very well. I am cognizant of, and adhere to, these sources of law when setting or reviewing bail. The Criminal Law Hearing Officers are independent magistrates for the purpose ofsetting bail amounts and deciding whether to grant personal bonds in misdemeanor cases. They are governed by the Code of Criminal Procedure just like I am.
4. Unless waived, bail hearings are held routinely in my court. I follow the law and consider all five of the Roberson factors. I also consider whether a personal bond is appropriate, given the circumstances of the instant case.
I certify under the penalty of perjury that the foregoing is true and correct.

JUDGES 000929

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee8898ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-O 1414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. DistrictJudge

DECLARATION OF JUDGE DON SMYTH
1. My name is Don Smyth. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law Number 13, a position I have held since November 12, 2010. Prior to taking the bench I was an Assistant District Attorney at the Harris County District Attorney's Office for over 33 years. In that capacity I tried numerous cases at the misdemeanor and felony level and supervised many attorneys in the office's trial and public integrity sections.
3. I am aware of my obligations under the Texas Code of Criminal Procedure, the Roberson Order, and Local Rule 4.2.3.l to consider all five factors when setting bail. These factors include: (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature of the offense for which probable cause has been found and the . circumstances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I am also aware that the power to require bail cannot be used oppressively. The Criminal Law Hearing Officers are independent magistrates in this regard and are controlled by the same laws that I am. I do not supervise them.
4. I routinely consider all of these factors when hearing bail matters in Court 13. I also consider whether a personal bond is appropriate in light of the circumstances of that particular case.
of perjury that the foregoing is true and correct.

JUDGES 000930

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9809ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-O 1414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE MICHAEL FIELDS
1. My name is Michael Fields. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I have been the Presiding Judge for Harris County Criminal Court at Law No. 14 since January 1, 1999. Before taking the bench, I was a prosecutor with the District Attorney's Office in Harris County, an Assistant Attorney General for the State of Texas, and a criminal defense lawyer.
3. The Criminal Law Hearing Officers are independent Texas magistrates when setting bail amounts and determining whether to approve personal bonds in misdemeanor cases. In doing so they are governed by the same Code of Criminal Procedure that applies to me. I joined my colleagues in signing a letter to the Hearing Officers in August, 2016, affirming that fact. I also recently sent the Hearing Officers an email encouraging personal bonds, in their discretion, and citing a particular statute applicable to any magistrate approving a personal bond (attached as Exhibit 1).
4. The five Roberson factors include: (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature and circumstances of the offense for which probable cause has been found, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I am aware of my obligation to consider these five Roberson factors, which I know are also contained within Texas Code of Criminal Procedure Article 17.15 and Local Rule of Court 4.2.3..1. I am also aware that the power to require bail cannot be used as an instrument of oppression.
5. During bail hearings held routinely in my court, I follow the law and consider all five of these factors. I also consider whether a personal bond is appropriate, given the circumstances.

JUDGES 000931

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9910ooff114309

erjury that the foregoing is true and correct.

Judge MichaclFields

DatJ /

JUDGES 000932

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9921ooff114309 Exhibitt 1 JUDGES 000933

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9932ooff114309

From: Sent: To: Subject:

Nicholas, Ronald (CCL) < Ronald_Nicholas@ccl.hctx.net> Monday, February 13, 2017 11:48 AM Villagomez, Blanca (CCL) FW: Pre-trial release bonds

From: Fields, Judge Mike (CCL) Sent: Thursday, February 09, 2017 2:11 PM To: Villagomez, Blanca (CCL); Nicholas, Ronald (CCL); Hagstette, Eric (CCL); Wallace, Jill (CCL); Licata, Joe (CCL) Subject: Pre-trial release bonds
Judges,
Thanks for all of the work you do for us. This email is a follow up. I appreciate that you have been working hard to ensure that every defendant who is a sound candidate for pre trial release is granted one in Court fourteen. Please feel free to re-double those efforts and grant pre-trial release as often as possible. One thing I ask is that you review 17.03(c) which reads as follows:
"(c) When setting a personal bond under this chapter, on reasonable belief by the investigating or arresting law enforcement agent or magistrate of the presence of a controlled substance in the defendant's body or on the finding of drug or alcohol abuse related to the offense for which the defendant is charged, the court or a magistrate shall require as a condition of personal bond that the defendant submit to testing for alcohol or a controlled substance in the defendant's body and participate in an alcohol or drug abuse treatment or education program if such a condition will serve to reasonably assure the appearance of the defendant for trial."
Thanks!
Michael R. Fields
Spelling errors provided for free by SpellCheck.

HARRISCO-ODONNELL 006870 JUDGES 000934

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9943ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

)

MARANDA LYNN ODONNELL, et al. )

)

Plaintiffs,

)

)

V.

)

)

HARRIS COUNTY, TEXAS, et al.

)

)

)

Defendants.

)

)

Case No. 16-cv-01414 (Consolidated Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

DECLARATION OF JUDGE JEAN SPRADLING HUGHES
1. My name is Jean Spradling Hughes. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law No. 15, a position that I have held since November 1, 1995. I have worked in the criminal justice system for over 45 years in courts, corrections, and law enforcement.
3. The Criminal Law Hearing Officers are independent Texas magistrates when setting bail amounts and deciding whether to approve personal bonds in misdemeanor cases. I do not supervise them.
4. I am aware of my obligation to consider the Roberson factors, Texas Code of Criminal Procedure Article 17.15, and Local Rule of Court 4.2.3.l when setting bail. The factors include: (1) bail shall be sufficiently high to give reasonable assurance that the defendant will appear in court; (2) the nature of the offense for which probable cause has been found and the circumstances, including aggravating and mitigating factors; (3) the ability to make bail is to be regarded; (4) the future safety of the victim and community; and (5) the employment history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds. I am also aware that the power to require bail cannot be used as an instrument of oppression.
5. I follow the law during bail hearings held routinely in my court. I also consider whether a personal bond is appropriate, given the totality of circumstances in any given case and defendant.
alty of perjury that the foregoing is true and correct.

JUDGES 000935

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9954ooff114309
E(X;H+I,B%I,T7 11

Case: 17-20333 Document: 00513991027 Page: 995 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9965ooff114309
   
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App.989

Case: 17-20333 Document: 00513991027 Page: 996 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9976ooff114309
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARANDA LYNN ODONNELL, et al., Plaintiffs-Appellees,
vs.
HARRIS COUNTY, TEXAS, et al..
Defendants.

No. 17-20333

DECLARATION OF JUDGE ROBIN BROWN
1. My name is Robin Brown. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law 12, a position that I have held since January 1, 1995. I have taught on the topic of DWI Courts for the Texas Center for the Judiciary, the Texas Association for Drug Court Professionals, and the Texas Association for County Judges. I also voluntarily preside over one of the five Harris County DWI Sober Courts, and have done so since 2008. Prior to my election, I was an assistant district attorney with the Harris County District Attorney's Office for 11 years, six of which were as a district court chief. After leaving the District Attorney's Office, I had a very active practice as a criminal defense attorney, giving me invaluable experience from both
sides of the bar.
3. Required implementation of the district court's Order of Preliminary Injunction, will cause irreparable harm to Harris County and its citizens and cause great disruption.
4. I am concerned about the consequences of the district court's Order, particularly that the Order usurps and reallocates Judicial discretion and authority, violates state

App.990

Case: 17-20333 Document: 00513991027 Page: 997 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9987ooff114309
law, nullifies implementation of the Laura and John Arnold Public Safety Assessment ("PSA") and other reform efforts, and endangers public safety.
5. The district court's Order strips the County Criminal Court at Law Judges and the Hearing Officers of our judicial discretion to set bail by requiring that all misdemeanor defendants not subject to formal holds, pending findings of mental incompetency, or charged with certain family-violence misdemeanors, be given a bail they can afford or be released on a personal bond within 24 hours of arrest. The amount an arrestee can "afford" is self-reported in an unsubstantiated affidavit of financial condition that the County has no opportunity to verify or dispute. This requirement misconstrues the Texas Constitution, art. I § 11, which provides that prisoners be bailable by "sufficient sureties," as well as Texas Code of Criminal Procedure art. 17.15, which mandates that judges and magistrates must consider five factors when setting bail, not simply the ability to make bail. The factors ensure that a judge can set bail based on the totality of circumstances in the case, a concept embraced by Texas statutes and an entire body of Eighth Amendment law directed to the specific issue in this case. Texas's constitutional and statutory framework do not support the Order's requirement that affordability govern all other factors by imposing a constitutional cap on otherwise reasonable bail
amounts.
6. Perhaps most illustrative of the harmful nature of the district court's Order is the fact that any arrestee who commits a crime while out on a required personal bond and/or fails to appear for court and/or violates one or more previous bond conditions will, after being arrested again, be released within 24 hours. Although a judge could impose additional and harsher nonfinancial conditions of release, the additional conditions can be violated and the defendant subjected to the same release mechanisms without further consequences or assurances. Whereas the article 17.15 factors allow for a proper bail analysis, the district court's Order undermines the integrity of the judiciary, impedes efficient court functioning, and endangers the public in immeasurable ways.
7. The Order also restricts the County Criminal Court at Law Judges in our rulemaking abilities. Part of our forthcoming July 1, 2017, implementation of the PSA tool includes changing the judges' bail schedule to withhold bail until magistration before a hearing officer for high-risk arrestees and those charged with certain dangerous offenses—preventing a high-risk arrestee's release on a cash or surety bond without assessment by a magistrate for bond conditions. The law supports this rule change and it is in keeping with best practices. The Order of Preliminary Injunction, however, requires the sheriff to release high-risk arrestees
App.991

Case: 17-20333 Document: 00513991027 Page: 998 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee9998ooff114309
on a personal bond in the amount of bail set at DA intake, if an arrestee does not appear before a magistrate within 24 hours. The Order therefore does not allow implementation of the existing bail reforms set to occur on July 1st.
8. Additionally, and even absent the planned reforms discussed above, by requiring that all misdemeanor arrestees who claim they cannot pay bail be released within 24 hours of arrest, the Order severely restricts our ability to impose conditions of release on appropriate defendants before expiration of the allotted time. This includes those conditions of release that are statutorily mandated, for example ignition interlock devices for DWI 2nd offenders. Indeed, a Texas statute currently allows 48 hours for such a review (24 hours applying only to a probable cause
determination, which is non-adversarial and can be done outside the arrestee's
presence if necessary). Texas Code Grim. Pro. 15.17. Without imposition of these conditions, public safety will be placed at risk.
9. The district court's Order also imbues the Sheriff with extra-statutory judicial authority to convert judicial bail orders to unsecured personal bonds and to release arrestees on personal bonds. Although Texas law allows for a peace officer to set bail when a magistrate has not set it (generally reserved to situations where a magistrate is unavailable), and allows a peace officer to take and release an arrestee upon a surety or cash bond, Texas statutes only allow a magistrate to release an arrestee other than through a surety or cash bond through the cite-and-release provisions applying to a limited number of enumerated offenses in article 14.06. This constitutes irreparable harm as it allocates duties the public expects to be performed by elected judges to members of the Sheriffs Office.
10.In my opinion, the district court's Order creates a new constitutional right to affordable bail. Such a watershed ruling should undergo appellate review prior to its application.
11.For at least these reasons, requiring implementation of the district court's Order will cause great harm to Harris County and the public.
I certify under the penalty of perjury that the foregoing is true and correct.

Judge^obin Brown

App.992

Case: 17-20333 Document: 00513991027 Page: 999 Date Filed: 05/12/2017 Case 4:169-cv-010421246 Document 5323-8-2 FFileileddoinn0T3X/2S7D/2o0nin10T/X29S/D18 PPaaggee19090 of 13490
   
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App.993

Case: 17-20333 Document: 00513991027 Page: 1000 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee110010ooff114309
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARANDA LYNN ODONNELL, et al., Plaintiffs-Appellees,
vs.
HARRIS COUNTY, TEXAS, et al..
Defendants.

No. 17-20333

DECLARATION OF JUDGE NATALIE FLEMING
1. My name is Natalie Fleming. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law 3, a position that I have held since March of 2010. Beginning in 1998, I was a prosecutor for five years. I then served as a visiting judge in Harris County throughout the then-15 Harris County Criminal Courts at Law. I also voluntarily serve as one of five Sober Court Judges.
3. Required implementation of the district court's Order of Preliminary Injunction, will cause irreparable harm to Harris County and its citizens and cause great disruption.
4. I am concerned about the consequences of the district court's Order, particularly that the Order usurps and reallocates judicial discretion and authority, violates state law, nullifies implementation of the Laura and John Arnold Public Safety Assessment ("PSA") and other reform efforts, and endangers public safety.
5. The district court's Order strips the County Criminal Court at Law Judges and the Hearing Officers of our judicial discretion to set bail by requiring that all misdemeanor defendants not subject to formal holds, pending findings of mental
App.994

Case: 17-20333 Document: 00513991027 Page: 1001 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee110021ooff114309
incompetency, or charged with certain family-violence misdemeanors, be given a bail they can afford or be released on a personal bond within 24 hours of arrest. The amount an arrestee can "afford" is self-reported in an unsubstantiated affidavit of financial condition that the County has no opportunity to verify or dispute. This requirement misconstrues the Texas Constitution, art. I § 11, which provides that prisoners be bailable by "sufficient sureties," as well as Texas Code of Criminal Procedure art. 17.15, which mandates that judges and magistrates must consider five factors when setting bail, not simply the ability to make bail. The factors ensure that a judge can set bail based on the totality of circumstances in the case, a concept embraced by Texas statutes and an entire body of Eighth Amendment law directed to the specific issue in this case. Texas's constitutional and statutory framework do not support the Order's requirement that affordability govern all other factors by imposing a constitutional cap on otherwise reasonable bail
amounts.
6. Perhaps most illustrative of the harmful nature of the district court's Order is the fact that any arrestee who commits a crime while out on a required personal bond and/or fails to appear for court and/or violates one or more previous bond conditions will, after being arrested again, be released within 24 hours. Although a judge could impose additional and harsher nonfinancial conditions of release, the additional conditions can be violated and the defendant subjected to the same release mechanisms without further consequences or assurances. Whereas the article 17.15 factors allow for a proper bail analysis, the district court's Order undermines the integrity of the judiciary, impedes efficient court functioning, and endangers the public in immeasurable ways.
7. The Order also restricts the County Criminal Court at Law Judges in our rulemaking abilities. Part of our forthcoming July 1, 2017, implementation of the PSA tool includes changing the judges' bail schedule to withhold bail until magistration before a hearing officer for high-risk arrestees and those charged with certain dangerous offenses—^preventing a high-risk arrestee's release on a cash or surety bond without assessment by a magistrate for bond conditions. The law supports this rule change and it is in keeping with best practices. The Order of Preliminary Injunction, however, requires the sheriff to release high-risk arrestees on a personal bond in the amount of bail set at DA intake, if an arrestee does not appear before a magistrate within 24 hours. The Order therefore does not allow implementation of the existing bail reforms set to occur on July 1st.
8. Additionally, and even absent the planned reforms discussed above, by requiring that all misdemeanor arrestees who claim they cannot pay bail be released within
App.995

Case: 17-20333 Document: 00513991027 Page: 1002 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee110032ooff114309
24 hours of arrest, the Order severely restricts our ability to impose conditions of release on appropriate defendants before expiration of the allotted time. This includes those conditions of release that are statutorily mandated, for example ignition interlock devices for DWI 2nd offenders. Indeed, a Texas statute currently allows 48 hours for such a review (24 hours applying only to a probable cause determination, which is non-adversarial and can be done outside the arrestee's presence if necessary). TEXAS CODE Grim. Pro. 15.17. Without imposition of these conditions, public safety will be placed at risk.
9. The district court's Order also imbues the Sheriff with extra-statutory judicial
authority to convert judicial bail orders to unsecured personal bonds and to release arrestees on personal bonds. Although Texas law allows for a peace officer to set bail when a magistrate has not set it (generally reserved to situations where a magistrate is unavailable), and allows a peace officer to take and release an arrestee upon a surety or cash bond, Texas statutes only allow a magistrate to release an arrestee other than through a surety or cash bond through the cite-and-release provisions applying to a limited number of enumerated offenses in article 14.06. This constitutes irreparable harm as it allocates duties the public expects to be performed by elected judges to members of the Sheriff s Office.
10.In my opinion, the district court's Order creates a new constitutional right to affordable bail. Such a watershed ruling should undergo appellate review prior to
its application.
11.For at least these reasons, requiring implementation of the district court's Order will cause great harm to Harris County and the public.

I certify under the penalty of perjury that the foregoing is true and correct.

Judge Natalie Fleming

\

&l H[fl
Date

App.996

Case: 17-20333 Document: 00513991027 Page: 1003 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee110043ooff114309
   
(;+,%,7
App.997

Case: 17-20333 Document: 00513991027 Page: 1004 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee110054ooff114309
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARANDA LYNN ODONNELL, et al, Plaintiffs-Appellees,
vs.
HARRIS COUNTY, TEXAS, et al..
Defendants.

No. 17-20333

DECLARATION OF JUDGE JEAN SPRADLING HUGHES
1. My name is Jean Spradling Hughes. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law 15, a position that I have held since November 1, 1995. I have worked in the criminal justice system for over 45 years in courts, corrections, and law enforcement.
3. Required implementation of the district court's Order of Preliminary Injunction, will cause irreparable harm to Harris County and its citizens and cause great
disruption.
4. I am concerned about the consequences of the district court's Order, particularly that the Order usurps and reallocates judicial discretion and authority, violates state law, nullifies implementation of the Laura and John Arnold Public Safety Assessment ("PSA") and other reform efforts, and endangers public safety.
5. The district court's Order strips the County Criminal Court at Law Judges and the Hearing Officers of our judicial discretion to set bail by requiring that all misdemeanor defendants not subject to formal holds, pending findings of mental incompetency, or charged with certain family-violence misdemeanors, be given a bail they can afford or be released on a personal bond within 24 hours of arrest.
App.998

Case: 17-20333 Document: 00513991027 Page: 1005 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee110065ooff114309
The amount an arrestee can "afford" is self-reported in an unsubstantiated affidavit of financial condition that the County has no opportunity to verify or dispute. This requirement misconstrues the Texas Constitution, art. I § 11, which provides that prisoners be bailable by "sufficient sureties," as well as Texas Code of Criminal Procedure art. 17.15, which mandates that judges and magistrates must consider five factors when setting bail, not simply the ability to make bail. The factors ensure that a judge can set bail based on the totality of circumstances in the case, a concept embraced by Texas statutes and an entire body of Eighth Amendment law directed to the specific issue in this case. Texas's constitutional and statutory framework does not support the Order's requirement that affordability govern all other factors by imposing a constitutional cap on otherwise reasonable bail
amounts.
6. Perhaps most illustrative of the harmful nature of the district court's Order is the fact that any arrestee who commits a crime while out on a required personal bond and/or fails to appear for court and/or violates one or more previous bond conditions will, after being arrested again, be released within 24 hours. Although a judge could impose additional and harsher nonfinancial conditions of release, the additional conditions can be violated and the defendant subjected to the same release mechanisms without further consequences or assurances. Whereas the article 17.15 factors allow for a proper bail analysis, the district court's Order undermines the integrity of the judiciary, impedes efficient court functioning, and endangers the public in immeasurable ways.
7. The Order also restricts the County Criminal Court at Law Judges in our rulemaking abilities. Part of our forthcoming July 1, 2017, implementation of the PSA tool includes changing the judges' bail schedule to withhold bail until magistration before a hearing officer for high-risk arrestees and those charged with certain dangerous offenses—^preventing a high-risk arrestee's release on a cash or surety bond without assessment by a magistrate for bond conditions. The law supports this rule change and it is in keeping with best practices. The Order of Preliminary Injunction, however, requires the sheriff to release high-risk arrestees
on a personal bond in the amount of bail set at DA intake, if an arrestee does not appear before a magistrate within 24 hours. The Order therefore does not allow implementation of the existing bail reforms set to occur on July 1st.
8. Additionally, and even absent the planned reforms discussed above, by requiring that all misdemeanor arrestees who claim they cannot pay bail be released within 24 hours of arrest, the Order severely restricts our ability to impose conditions of release on appropriate defendants before expiration of the allotted time. This
App.999

Case: 17-20333 Document: 00513991027 Page: 1006 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee110076ooff114309
includes those conditions of release that are statutorily mandated, for example ignition interlock devices for DWI 2nd offenders. Indeed, a Texas statute currently allows 48 hours for such a review (24 hours applying only to a probable cause
determination, which is non-adversarial and can be done outside the arrestee's
presence if necessary). Texas Code Grim. Pro. 15.17. Without imposition of these conditions, public safety will be placed at risk.
9. The district court's Order also imbues the Sheriff with extra-statutory judicial authority to convert judicial bail orders to unsecured personal bonds and to release arrestees on personal bonds. Although Texas law allows for a peace officer to set bail when a magistrate has not set it (generally reserved to situations where a
magistrate is unavailable), and allows a peace officer to take and release an arrestee upon a surety or cash bond, Texas statutes only allow a magistrate to release an arrestee other than through a surety or cash bond through the cite-and-release provisions applying to a limited number of enumerated offenses in article 14.06.
This constitutes irreparable harm as it allocates duties the public expects to be
performed by elected judges to members of the Sheriffs Office.
10.In my opinion, the district court's Order creates a new constitutional right to affordable bail. Such a watershed ruling should undergo appellate review prior to
its application.
11.For at least these reasons, requiring implementation of the district court's Order will cause great harm to Harris County and the public.
I certifyiyjderthe penalty of perjury that the foregoing is true and correct.

pradling Hughes

Date

App.1000

Case: 17-20333 Document: 00513991027 Page: 1007 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee110087ooff114309
   
(;+,%,7
App.1001

Case: 17-20333 Document: 00513991027 Page: 1008 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee110098ooff114309
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARANDA LYNN ODONNELL, et al., Plaintiffs-Appellees,
vs.
HARRIS COUNTY, TEXAS, et al..
Defendants.

No. 17-20333

DECLARATION OF JUDGE JAY KARAHAN
1. My name is Jay Karahan. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law 8, a position that I have held since January 1, 2003.
3. Required implementation of the district court's Order of Preliminary Injunction, will cause irreparable harm to Harris County and its citizens and cause great disruption.
4. I am concerned about the consequences of the district court's Order, particularly that the Order usurps and reallocates judicial discretion and authority, violates state law, nullifies implementation of the Laura and John Arnold Public Safety Assessment ("PSA") and other reform efforts, and endangers public safety.
5. The district court's Order strips the County Criminal Court at Law Judges and the Hearing Officers of our judicial discretion to set bail by requiring that all misdemeanor defendants not subject to formal holds, pending findings of mental incompetency, or charged with certain family-violence misdemeanors, be given a bail they can afford or be released on a personal bond within 24 hours of arrest. The amount an arrestee can "afford" is self-reported in an unsubstantiated affidavit
App.1002

Case: 17-20333 Document: 00513991027 Page: 1009 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111009ooff114309
of financial condition that the County has no opportunity to verify or dispute. This requirement misconstrues the Texas Constitution, art. I § 11, which provides that prisoners be bailable by "sufficient sureties," as well as Texas Code of Criminal Procedure art. 17.15, which mandates that judges and magistrates must consider five factors when setting bail, not simply the ability to make bail. The factors ensure that a judge can set bail based on the totality of circumstances in the case, a concept embraced by Texas statutes and an entire body of Eighth Amendment law directed to the specific issue in this case. Texas's constitutional and statutory framework do not support the Order's requirement that affordability govern all other factors by imposing a constitutional cap on otherwise reasonable bail
amounts.
6. Perhaps most illustrative of the harmful nature of the district court's Order is the fact that any arrestee who commits a crime while out on a required personal bond and/or fails to appear for court and/or violates one or more previous bond conditions will, after being arrested again, be released within 24 hours. Although a judge could impose additional and harsher nonfmancial conditions of release, the additional conditions can be violated and the defendant subjected to the same release mechanisms without further consequences or assurances. Whereas the article 17.15 factors allow for a proper bail analysis, the district court's Order undermines the integrity of the judiciary, impedes efficient court functioning, and endangers the public in immeasurable ways.
7. The Order also restricts the County Criminal Court at Law Judges in our rulemaking abilities. Part of our forthcoming July 1, 2017, implementation of the PSA tool includes changing the judges' bail schedule to withhold bail until magistration before a hearing officer for high-risk arrestees and those charged with certain dangerous offenses—^preventing a high-risk arrestee's release on a cash or surety bond without assessment by a magistrate for bond conditions. The law supports this rule change and it is in keeping with best practices. The Order of Preliminary Injunction, however, requires the sheriff to release high-risk arrestees on a personal bond in the amount of bail set at DA intake, if an arrestee does not appear before a magistrate within 24 hours. The Order therefore does not allow implementation of the existing bail reforms set to occur on July 1st.
8. Additionally, and even absent the planned reforms discussed above, by requiring that all misdemeanor arrestees who claim they cannot pay bail be released within 24 hours of arrest, the Order severely restricts our ability to impose conditions of release on appropriate defendants before expiration of the allotted time. This includes those conditions of release that are statutorily mandated, for example
App.1003

Case: 17-20333 Document: 00513991027 Page: 1010 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111110ooff114309
ignition interlock devices for DWI 2nd offenders. Indeed, a Texas statute currently allows 48 hours for such a review (24 hours applying only to a probable cause
determination, which is non-adversarial and can be done outside the arrestee's
presence if necessary). Texas Code Grim. Pro. 15.17. Without imposition of these conditions, public safety will be placed at risk. 9. The district court's Order also imbues the Sheriff with extra-statutory judicial authority to convert judicial bail orders to unsecured personal bonds and to release arrestees on personal bonds. Although Texas law allows for a peace officer to set bail when a magistrate has not set it (generally reserved to situations where a magistrate is unavailable), and allows a peace officer to take and release an arrestee upon a surety or cash bond, Texas statutes only allow a magistrate to release an arrestee other than through a surety or cash bond through the cite-and-release provisions applying to a limited number of enumerated offenses in article 14.06. This constitutes irreparable harm as it allocates duties the public expects to be performed by elected judges to members of the Sheriffs Office. 10.In my opinion, the district court's Order creates a new constitutional right to affordable bail. Such a watershed ruling should undergo appellate review prior to its application. 11.For at least these reasons, requiring implementation of the district court's Order will cause great harm to Harris County and the public.
1 certi^LUlider the penalty of perjury that the foregoing is true and correct.
App.1004

Case: 17-20333 Document: 00513991027 Page: 1011 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111121ooff114309
   
(;+,%,7
App.1005

Case: 17-20333 Document: 00513991027 Page: 1012 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111132ooff114309
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARANDA LYNN ODONNELL, et al., Plaintiffs-Appellees,
vs.
HARRIS COUNTY, TEXAS, et al..
Defendants.

No. 17-20333

DECLARATION OF JUDGE DON SMYTH
1. My name is Don Smyth. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law 13, a position that I have held since January 1, 2011.
3. Required implementation of the district court's Order of Preliminary Injunction, will cause irreparable harm to Harris County and its citizens and cause great disruption.
4. I am concerned about the consequences of the district court's Order, particularly that the Order usurps and reallocates judicial discretion and authority, violates state law, nullifies implementation of the Laura and John Arnold Public Safety Assessment ("PSA") and other reform efforts, and endangers public safety.
5. The district court's Order strips the County Criminal Court at Law Judges and the Hearing Officers of our judicial discretion to set bail by requiring that all misdemeanor defendants not subject to formal holds, pending findings of mental incompetency, or charged with certain family-violence misdemeanors, be given a bail they can afford or be released on a personal bond within 24 hours of arrest. The amount an arrestee can "afford" is self-reported in an unsubstantiated affidavit
App.1006

Case: 17-20333 Document: 00513991027 Page: 1013 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111143ooff114309
of financial condition that the County has no opportunity to verify or dispute. This requirement misconstrues the Texas Constitution, art. I § 11, which provides that prisoners be bailable by "sufficient sureties," as well as Texas Code of Criminal Procedure art. 17.15, which mandates that judges and magistrates must consider five factors when setting bail, not simply the ability to make bail. The factors ensure that a judge can set bail based on the totality of circumstances in the case, a concept embraced by Texas statutes and an entire body of Eighth Amendment law directed to the specific issue in this case. Texas's constitutional and statutory framework do not support the Order's requirement that affordability govern all other factors by imposing a constitutional cap on otherwise reasonable bail
amounts.
6. Perhaps most illustrative of the harmful nature of the district court's Order is the fact that any arrestee who commits a crime while out on a required personal bond and/or fails to appear for court and/or violates one or more previous bond conditions will, after being arrested again, be released within 24 hours. Although a judge could impose additional and harsher nonfmancial conditions of release, the additional conditions can be violated and the defendant subjected to the same release mechanisms without further consequences or assurances. Whereas the article 17.15 factors allow for a proper bail analysis, the district court's Order undermines the integrity of the judiciary, impedes efficient court functioning, and endangers the public in immeasurable ways.
7. The Order also restricts the County Criminal Court at Law Judges in our rulemaking abilities. Part of our forthcoming July 1, 2017, implementation of the PSA tool includes changing the judges' bail schedule to withhold bail until magistration before a hearing officer for high-risk arrestees and those charged with certain dangerous offenses—^preventing a high-risk arrestee's release on a cash or surety bond without assessment by a magistrate for bond conditions. The law supports this rule change and it is in keeping with best practices. The Order of Preliminary Injunction, however, requires the sheriff to release high-risk arrestees on a personal bond in the amount of bail set at DA intake, if an arrestee does not appear before a magistrate within 24 hours. The Order therefore does not allow implementation of the existing bail reforms set to occur on July 1st.
8. Additionally, and even absent the planned reforms discussed above, by requiring that all misdemeanor arrestees who claim they cannot pay bail be released within 24 hours of arrest, the Order severely restricts our ability to impose conditions of release on appropriate defendants before expiration of the allotted time. This includes those conditions of release that are statutorily mandated, for example
App.1007

Case: 17-20333 Document: 00513991027 Page: 1014 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111154ooff114309
ignition interlock devices for DWI 2nd offenders. Indeed, a Texas statute currently
allows 48 hours for such a review (24 hours applying only to a probable cause determination, which is non-adversarial and can be done outside the arrestee's presence if necessary). Texas Code Grim. Pro. 15.17. Without imposition of these conditions, public safety will be placed at risk.
9. The district court's Order also imbues the Sheriff with extra-statutory judicial authority to convert judicial bail orders to unsecured personal bonds and to release arrestees on personal bonds. Although Texas law allows for a peace officer to set bail when a magistrate has not set it (generally reserved to situations where a magistrate is unavailable), and allows a peace officer to take and release an arrestee upon a surety or cash bond, Texas statutes only allow a magistrate to release an arrestee other than through a surety or cash bond through the cite-and-release provisions applying to a limited number of enumerated offenses in article 14.06. This constitutes irreparable harm as it allocates duties the public expects to be performed by elected judges to members of the Sheriffs Office.
10.In my opinion, the district court's Order creates a new constitutional right to affordable bail. Such a watershed ruling should undergo appellate review prior to its application.
11.For at least these reasons, requiring implementation of the district court's Order will cause great harm to Harris County and the public.

1 certify under the penalty of perjury that the foregoing is true and correct.

A-
Judge Don Smyth

//. zocj
Date

App.1008

Case: 17-20333 Document: 00513991027 Page: 1015 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111165ooff114309
   
(;+,%,7
App.1009

Case: 17-20333 Document: 00513991027 Page: 1016 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111176ooff114309
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARANDA LYNN ODONNELL, et al.,
Plaintiffs-Appellees,
vs.
HARRIS COUNTY, TEXAS, et al..
Defendants.

No. 17-20333

DECLARATION OF JUDGE DAN SPJUT
1. My name is Dan Spjut. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law 10, a position that I have held since January I, 2015.
3. Required implementation of the district court's Order of Preliminary Injunction, will cause irreparable harm to Harris County and its citizens and cause great disruption.
4. I am concerned about the consequences of the district court's Order, particularly that the Order usurps and reallocates judicial discretion and authority, violates state law, nullifies implementation of the Laura and John Arnold Public Safety Assessment ("PSA") and other reform efforts, and endangers public safety.
5. The district court's Order strips the County Criminal Court at Law Judges and the Hearing Officers of our judicial discretion to set bail by requiring that all misdemeanor defendants not subject to formal holds, pending findings of mental incompetency, or charged with certain family-violence misdemeanors, be given a bail they can afford or be released on a personal bond within 24 hours of arrest. The amount an arrestee can "afford" is self-reported in an unsubstantiated affidavit
App.1010

Case: 17-20333 Document: 00513991027 Page: 1017 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111187ooff114309
of financial condition that the County has no opportunity to verify or dispute. This requirement misconstrues the Texas Constitution, art. I § 11, which provides that prisoners be bailable by "sufficient sureties," as well as Texas Code of Criminal Procedure art. 17.15, which mandates that judges and magistrates must consider five factors when setting bail, not simply the ability to make bail. The factors ensure that a judge can set bail based on the totality of circumstances in the case, a concept embraced by Texas statutes and an entire body of Eighth Amendment law directed to the specific issue in this case. Texas's constitutional and statutory framework do not support the Order's requirement that affordability govern all other factors by imposing a constitutional cap on otherwise reasonable bail
amounts.
6. Perhaps most illustrative of the harmful nature of the district court's Order is the fact that any arrestee who commits a crime while out on a required personal bond and/or fails to appear for court and/or violates one or more previous bond conditions will, after being arrested again, be released within 24 hours. Although a judge could impose additional and harsher nonfmancial conditions of release, the additional conditions can be violated and the defendant subjected to the same release mechanisms without further consequences or assurances. Whereas the article 17.15 factors allow for a proper bail analysis, the district court's Order undermines the integrity of the judiciary, impedes efficient court functioning, and endangers the public in immeasurable ways.
7. The Order also restricts the County Criminal Court at Law Judges in our rulemaking abilities. Part of our forthcoming July 1, 2017, implementation of the PSA tool includes changing the judges' bail schedule to withhold bail until magistration before a hearing officer for high-risk arrestees and those charged with certain dangerous offenses—^preventing a high-risk arrestee's release on a cash or surety bond without assessment by a magistrate for bond conditions. The law supports this rule change and it is in keeping with best practices. The Order of Preliminary Injunction, however, requires the sheriff to release high-risk arrestees on a personal bond in the amount of bail set at DA intake, if an arrestee does not appear before a magistrate within 24 hours. The Order therefore does not allow implementation of the existing bail reforms set to occur on July 1st.
8. Additionally, and even absent the planned reforms discussed above, by requiring that all misdemeanor arrestees who claim they cannot pay bail be released within 24 hours of arrest, the Order severely restricts our ability to impose conditions of release on appropriate defendants before expiration of the allotted time. This includes those conditions of release that are statutorily mandated, for example
App.1011

Case: 17-20333 Document: 00513991027 Page: 1018 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee111198ooff114309
ignition interlock devices for DWI 2nd offenders. Indeed, a Texas statute currently allows 48 hours for such a review (24 hours applying only to a probable cause
determination, which is non-adversarial and can be done outside the arrestee's
presence if necessary). Texas Code Grim. Pro. 15.17. Without imposition of these conditions, public safety will be placed at risk.
9. The district court's Order also imbues the Sheriff with extra-statutory judicial authority to convert judicial bail orders to unsecured personal bonds and to release arrestees on personal bonds. Although Texas law allows for a peace officer to set bail when a magistrate has not set it (generally reserved to situations where a magistrate is unavailable), and allows a peace officer to take and release an arrestee upon a surety or cash bond, Texas statutes only allow a magistrate to release an arrestee other than through a surety or cash bond through the cite-and-release provisions applying to a limited number of enumerated offenses in article 14.06. This constitutes irreparable harm as it allocates duties the public expects to be performed by elected judges to members of the Sheriffs Office.
10.In my opinion, the district court's Order creates a new constitutional right to affordable bail. Such a watershed ruling should undergo appellate review prior to its application.
11.For at least these reasons, requiring implementation of the district court's Order will cause great harm to Harris County and the public.

1certify under the benaltyyof perjury that the foregoing is true and correct.

Judge DarfSn^ut/ f "

r-//- P
Date

App.1012

Case: 17-20333 Document: 00513991027 Page: 1019 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112109ooff114309
   
(;+,%,7
App.1013

Case: 17-20333 Document: 00513991027 Page: 1020 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112210ooff114309
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARANDA LYNN ODONNELL, et al, Plaintiffs-Appellees,
vs.
HARRIS COUNTY, TEXAS, et al..
Defendants.

No. 17-20333

DECLARATION OF JUDGE LARRY STANDLEY
1. My name is Larry Standley. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law 6, a position that I have held since January 1, 1999.
3. Required implementation of the district court's Order of Preliminary Injunction, will cause irreparable harm to Harris County and its citizens and cause great disruption.
4. I am concerned about the consequences of the district court's Order, particularly that the Order usurps and reallocates judicial discretion and authority, violates state law, nullifies implementation of the Laura and John Arnold Public Safety Assessment ("PSA") and other reform efforts, and endangers public safety.
5. The district court's Order strips the County Criminal Court at Law Judges and the Hearing Officers of our judicial discretion to set bail by requiring that all misdemeanor defendants not subject to formal holds, pending findings of mental incompetency, or charged with certain family-violence misdemeanors, be given a bail they can afford or be released on a personal bond within 24 hours of arrest. The amount an arrestee can "afford" is self-reported in an unsubstantiated affidavit
App.1014

Case: 17-20333 Document: 00513991027 Page: 1021 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112221ooff114309
of financial condition that the County has no opportunity to verify or dispute. This requirement misconstrues the Texas Constitution, art. I § 11, which provides that prisoners be bailable by "sufficient sureties," as well as Texas Code of Criminal Procedure art. 17.15, which mandates that judges and magistrates must consider five factors when setting bail, not simply the ability to make bail. The factors ensure that a judge can set bail based on the totality of circumstances in the case, a concept embraced by Texas statutes and an entire body of Eighth Amendment law directed to the specific issue in this case. Texas's constitutional and statutory framework do not support the Order's requirement that affordability govern all other factors by imposing a constitutional cap on otherwise reasonable bail
amounts.
6. Perhaps most illustrative of the harmful nature of the district court's Order is the fact that any arrestee who commits a crime while out on a required personal bond and/or fails to appear for court and/or violates one or more previous bond conditions will, after being arrested again, be released within 24 hours. Although a judge could impose additional and harsher nonfinancial conditions of release, the additional conditions can be violated and the defendant subjected to the same release mechanisms without further consequences or assurances. Whereas the article 17.15 factors allow for a proper bail analysis, the district court's Order undermines the integrity of the judiciary, impedes efficient court functioning, and endangers the public in immeasurable ways.
7. The Order also restricts the County Criminal Court at Law Judges in our rulemaking abilities. Part of our forthcoming July 1, 2017, implementation of the PSA tool includes changing the judges' bail schedule to withhold bail until magistration before a hearing officer for high-risk arrestees and those charged with certain dangerous offenses—^preventing a high-risk arrestee's release on a cash or surety bond without assessment by a magistrate for bond conditions. The law supports this rule change and it is in keeping with best practices. The Order of Preliminary Injunction, however, requires the sheriff to release high-risk arrestees on a personal bond in the amount of bail set at DA intake, if an arrestee does not appear before a magistrate within 24 hours. The Order therefore does not allow implementation of the existing bail reforms set to occur on July 1st.
8. Additionally, and even absent the planned reforms discussed above, by requiring that all misdemeanor arrestees who claim they cannot pay bail be released within 24 hours of arrest, the Order severely restricts our ability to impose conditions of release on appropriate defendants before expiration of the allotted time. This includes those conditions of release that are statutorily mandated, for example
App.1015

Case: 17-20333 Document: 00513991027 Page: 1022 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112232ooff114309
ignition interlock devices for DWI 2nd offenders. Indeed, a Texas statute currently allows 48 hours for such a review (24 hours applying only to a probable cause
determination, which is non-adversarial and can be done outside the arrestee's
presence if necessary). Texas Code Grim. Pro. 15.17. Without imposition of these conditions, public safety will be placed at risk.
9. The district court's Order also imbues the Sheriff with extra-statutory judicial authority to convert judicial bail orders to unsecured personal bonds and to release arrestees on personal bonds. Although Texas law allows for a peace officer to set bail when a magistrate has not set it (generally reserved to situations where a magistrate is unavailable), and allows a peace officer to take and release an arrestee upon a surety or cash bond, Texas statutes only allow a magistrate to release an arrestee other than through a surety or cash bond through the cite-and-release provisions applying to a limited number of enumerated offenses in article 14.06. This constitutes irreparable harm as it allocates duties the public expects to be performed by elected judges to members of the Sheriffs Office.
10.In my opinion, the district court's Order creates a new constitutional right to affordable bail. Such a watershed ruling should undergo appellate review prior to its application.
11.For at least these reasons, requiring implementation of the district court's Order will cause great harm to Harris County and the public.

1 certi^

"perji^ythat the foregoing is true and correct

JudgeTLarry Standle

App.1016

Case: 17-20333 Document: 00513991027 Page: 1023 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112243ooff114309
   
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App.1017

Case: 17-20333 Document: 00513991027 Page: 1024 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112254ooff114309
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARANDA LYNN ODONNELL, et al.,
Plaintiffs-Appellees,
vs.
HARRIS COUNTY, TEXAS, et al..
Defendants.

No. 17-20333

DECLARATION OF JUDGE DIANE BULL
1. My name is Diane Bull. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am currently the Presiding Judge for Harris County Criminal Court at Law 11, a position that I have held since January 1, 1995.
3. Required implementation of the district court's Order of Preliminary Injunction, will cause irreparable harm to Harris County and its citizens and cause great disruption.
4. I am concerned about the consequences of the district court's Order, particularly that the Order usurps and reallocates judicial discretion and authority, violates state law, nullifies implementation of the Laura and John Arnold Public Safety Assessment ("PSA") and other reform efforts, and endangers public safety.
5. The district court's Order strips the County Criminal Court at Law Judges and the Hearing Officers of our judicial discretion to set bail by requiring that all misdemeanor defendants not subject to formal holds, pending findings of mental incompetency, or charged with certain family-violence misdemeanors, be given a bail they can afford or be released on a personal bond within 24 hours of arrest. The amount an arrestee can "afford" is self-reported in an unsubstantiated affidavit
App.1018

Case: 17-20333 Document: 00513991027 Page: 1025 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112265ooff114309
of financial condition that the County has no opportunity to verify or dispute. This requirement misconstrues the Texas Constitution, art. I § 11, which provides that prisoners be bailable by "sufficient sureties," as well as Texas Code of Criminal Procedure art. 17.15, which mandates that judges and magistrates must consider five factors when setting bail, not simply the ability to make bail. The factors ensure that a judge can set bail based on the totality of circumstances in the case, a concept embraced by Texas statutes and an entire body of Eighth Amendment law directed to the specific issue in this case. Texas's constitutional and statutory framework do not support the Order's requirement that affordability govern all other factors by imposing a constitutional cap on otherwise reasonable bail
amounts.
6. Perhaps most illustrative of the harmful nature of the district court's Order is the fact that any arrestee who commits a crime while out on a required personal bond and/or fails to appear for court and/or violates one or more previous bond conditions will, after being arrested again, be released within 24 hours. Although a judge could impose additional and harsher nonfinancial conditions of release, the additional conditions can be violated and the defendant subjected to the same release mechanisms without further consequences or assurances. Whereas the article 17.15 factors allow for a proper bail analysis, the district court's Order undermines the integrity of the judiciary, impedes efficient court functioning, and endangers the public in immeasurable ways.
7. The Order also restricts the County Criminal Court at Law Judges in our rulemaking abilities. Part of our forthcoming July 1, 2017, implementation of the PSA tool includes changing the judges' bail schedule to withhold bail until magistration before a hearing officer for high-risk arrestees and those charged with certain dangerous offenses—^preventing a high-risk arrestee's release on a cash or surety bond without assessment by a magistrate for bond conditions. The law supports this rule change and it is in keeping with best practices. The Order of Preliminary Injunction, however, requires the sheriff to release high-risk arrestees on a personal bond in the amount of bail set at DA intake, if an arrestee does not appear before a magistrate within 24 hours. The Order therefore does not allow implementation of the existing bail reforms set to occur on July 1st.
8. Additionally, and even absent the planned reforms discussed above, by requiring that all misdemeanor arrestees who claim they cannot pay bail be released within 24 hours of arrest, the Order severely restricts our ability to impose conditions of release on appropriate defendants before expiration of the allotted time. This includes those conditions of release that are statutorily mandated, for example
App.1019

Case: 17-20333 Document: 00513991027 Page: 1026 Date Filed: 05/12/2017 CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112276ooff114309
ignition interlock devices for DWI 2nd offenders. Indeed, a Texas statute currently allows 48 hours for such a review (24 hours applying only to a probable cause
determination, which is non-adversarial and can be done outside the arrestee's presence if necessary). Texas Code Grim. Pro. 15.17. Without imposition of these conditions, public safety will be placed at risk.
9. The district court's Order also imbues the Sheriff with extra-statutory judicial authority to convert judicial bail orders to unsecured personal bonds and to release arrestees on personal bonds. Although Texas law allows for a peace officer to set bail when a magistrate has not set it (generally reserved to situations where a magistrate is unavailable), and allows a peace officer to take and release an arrestee upon a surety or cash bond, Texas statutes only allow a magistrate to release an arrestee other than through a surety or cash bond through the cite-and-release provisions applying to a limited number of enumerated offenses in article 14.06. This constitutes irreparable harm as it allocates duties the public expects to be performed by elected judges to members of the Sheriffs Office.
10.In my opinion, the district court's Order creates a new constitutional right to affordable bail. Such a watershed ruling should undergo appellate review prior to its application.
11.For at least these reasons, requiring implementation of the district court's Order will cause great harm to Harris County and the public.
I certify under the penalty of perjury that the foregoing is true and correct.

Judge DianeB^ill

Date

App.1020

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112287ooff114309
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CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee112298ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MARANDA LYNN ODONNELL, et al. Plaintiffs,
v HARRIS COUNTY, TEXAS, ET AL.,
Defendants

)
)
)
) ) Case No. 4:16-cv-01414
) (Consolidated Class Action) ) The Honorable Lee H. Rosenthal ) U.S. District Judge
)

DECLARATION OF BLANCA VILLAGOMEZ
1. My name is Blanca Villagomez. I am over eighteen years of age, have personal
knowledge of the facts set forth herein, and am competent to make this declaration.
2. I am a Harris County Criminal Law Hearing Offrcer.
3. In determining eligibility for a personal bond and in setting bail, I consider all the
information available to me, including information that Pretrial Services provides and the facts of the alleged offense. Depending on the cooperation of the accused and other facts, the
information provided by Pretrial Services may include a risk assessment, personal information about the accused, financial information, and the defendants' criminal history.
4. Specifrcally, in determining eligibility for a personal bond, I consider applicable Texas
law on personal bonds, the Harris County Criminal Court atLaw Judges' Rules of Court, which offer some guidance on issuing personal bonds, specific instructions regarding personal bonds
from County Criminal Court at Law Judge No. 16 for cases assigned to that court, and information gathered by Pretrial Services, the completeness of which is dependent on the
accused's cooperation and other factors as discussed above.
5. In setting bail, I regard all the information available to me, including information from
Pretrial Services, the completeness of which is dependent on the accused's cooperation and other
factors, and balancç all factors for setting bail as set forth in Article 17.15 of the Texas Code of
Criminal Procedure. Using my judicial discretion, I set bail in an amount that I believe will
ensure the accused's return to court.
I certify under the penalty of perjury that the foregoing is true and correct.

Blanca Villagomez

0
Date

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CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee113209ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MARANDA LYNN ODONNELL, et al. Plaintiffs,
V
HARRIS COT]NTY, TEXAS, ET AL.,
Defendants

)
)
)
) ) Case No. 4:16-cv-01414 ) (Consolidated Class Action) ) The Honorable Lee H. Rosenthal ) U.S. District Judge
)
)

DECLARATION OF E,RIC HAGSTF],TTE
l. My name is Eric Hagstette. I am over eighteen years of age, have personal knowledge of
the facts set forth herein, and am competent to make this declaration.
2. I amaHarris County Criminal Law Hearing Officer.
3. In determining eligibility for a personal bond and in setting bail, I consider all the
information available to me, including information that Pretrial Services provides and the facts of
the alleged offense. Depending on the cooperation of the accused and other facts, the
information provided by Pretrial Services may include a risk assessment, personal information about the accused, financial information, and the defendants' criminal history.
4. Specifically, in determining eligibility for a personal bond, I consider applicable Texas
law on personal bonds, the Harris County Criminal Court atLaw Judges' Rules of Court, which offer some guidance on issuing personal bonds, specific instructions regarding personal bonds
from County Criminal Court at Law Judge No. 16 for cases assigned to that court, and information gathered by Pretrial Sêrvices, the completeness of which is dependent on the
accused's cooperation and other factors as discussed above.
5. In setting bail, I regard all the information available to me, including information from
Pretrial Services, the completeness of which is dependent on the accused's cooperation and other
factors, and balance all factors for setting bail as set forth in Article 17.15 of the Texas Code of
Criminal Procedure. Using my judicial discretion, I set bail in an amount that I believe will
ensure the accused's return to court.
6. I have reviewed three of the four videos identified by Plaintiffs' expert Dr. Steven Demuth in which I participated (the October 7 video was unavailable to me). These select
samples are not representative of the day-to-day hearings. These are exceptions to the usual course of hearings. Nevertheless, I have two observations. First, personal bonds are not granted

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CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee113310ooff114309
as a matter of right. Common sense dictates that every person who appears before me wants a
personal bond. I examine the information available to me about the accused and make a
determination, using my experience and judicial discretion, whether the person is a good candidate for a personal bond. Specifically, as to Mr. Watson, I lowered his bond, evidencing my use of judicial discretion. Second, I do ask those accused to respond with "yes" or "no."
Due to the nature of the video link, and, at times, inadequate audio, it can be diffrcult to hear or undèrstand the accused. Background noise, such as coughing and moving and throat clearing can make a response hard to understand. A clear "yes" or o'no" is imperative so that I ensure we are communicating effectively. Furthermore, these are serious proceedings. I believe a level of
decorum and respect is necessary and should be expected. I treat every person who appears before me with the utmost respect; I expect the same in return. Moreover, if one person is
allowed to disrespect the court, then those watching could possibly believe that they too can do
the same, and, in my experience, this often happens. If an accused does not answer with a 'oyes"
or "no," I instruct them to answer in this way. If the accused persists, as a rule, I will then
instruct all persons present, including the accused, that I require a "yes" or "no" and I explain
why (as set out above). If an accused refuses to follow what I consider to be a reasonable
judicial instruction, I believe it may show an unwillingness to abide by other judicial instructions
later on.
7. In the situations in which an accused wishes to speak, I am very careful to ascertain
whether the accused wishes to ask a question or talk about the case. If it is a question, I will try
to answer it. If the accused wishes to talk about the case, I remind the accused that they do not
need to do so, and that anything said can be used against the accused that day and later on. I remind the accused that the proceeding is being recorded, that what is said is said without an attorney present for advice, and that the accused is speaking not just to me, but also to the prosecutor. Over and over again, in these situations, I have heard an accused make statements
that ar e incriminatory.
I certify under the penalty of perjury that the foregoing is true and correct.

Eric

Date

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CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee113321ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

MARANDA LYNN ODONNELL, et al. Plaintiffs,
v HARRIS COLINTY, TEXAS, ET AL.,
Defendants.

)
)
)
) ) Case No. 4:16-cv-01414 ) (Consolidated Class Action) ) The Honorable Lee H. Rosenthal ) U.S. District Judge
)
)

DECLARATION OF JILL WALLACE
.I My name is Jill Wallace. I am over eighteen years of age, have personal knowledge of the
facts set forth herein, and am competent to make this declaration.
2. I am a Harris County Criminal Law Hearing Officer
3. In determining eligibility for a personal bond and in setting bail, I consider all the
information available to me, including information that Pretrial Services provides and the facts of
the alleged offense. Depending on the cooperation of the accused and other facts, the
information provided by Pretrial Services may include a risk assessment, personal information about the accused, and financial information.
4. Specifically, in determining eligibility for a personal bond, I consider applicable Texas
law on personal bonds, the Harris County Criminal Court atLaw Judges' Rules of Court, which offers some guidance on issuing personal bonds, specific instructions regarding personal bonds
from County Criminal Court at Law Judge No. 16 for cases assigned to that court, and information gathered by Pretrial Services, the completeness of which is dependent on the
accused's cooperation and other factors as discussed above.
5, In setting bail, I regard all the information available to me, including information from
Pretrial Services, the completeness of which is dependent on the accused's cooperation and other factors, and balance all factors for setting bail as set forth in Article 17.15 of the Texas Code of
Criminal Procedure. Using my judicial discretion, I set bail in an amount that I believe will
ensure the accused's return to court and takes into consideration the other factors set out in Article 17.15 of the Texas Code of Criminal Procedure.

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I certify under the penalty of perjury that the foregoing is true and correct.

V urø,'"L
Jill /allace

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Date

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CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee113343ooff114309

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTzuCT OF TEXAS
HOUSTON DIVISION

MARANDA LYNN ODONNELL, et al. Plaintiffs,
V
HARRIS COT]NTY, TEXAS, ET AL.,
Defendants.

)
)
)
) ) Case No. 4:16-cv-01414 ) (Consolidated Class Action) ) The Honorable Lee H. Rosenthal ) U.S. District Judge
)

DECLARATION OF' RON NICHOLAS
1. My name is Ron Nicholas. I am over eighteen years of age, have personal knowledge of
the facts set forth herein, and am competent to make this declaration.
2. I am a Harris County Criminal Law Hearing Officer
3. In determining eligibility for a personal bond and in setting bail, I consider all the
information available to me, including information that Pretrial Services provides and the facts of the alleged offense. Depending on the cooperation of the accused and other facts, the
information provided by Pretrial Services may include a risk assessment, personal information about the accused, financial information, and the defendants' criminal history.
4. Specifically, in determining eligibility for a personal bond, I consider applicable Texas
law on personal bonds, the Harris County Criminal Court atLaw Judges' Rules of Court, which offer some guidance on issuing personal bonds, specific instructions regarding personal bonds
from County Criminal Court at Law Judge No. 16 for cases assigned to that court, and information gathered by Pretrial Services, the completeness of which is dependent on the
accused's cooperation and other factors as discussed above.
5. In setting bail, I regard all the information available to me, including information from
Pretrial Services, the completeness of which is dependent on the accused's cooperation and other
factors, and balance all factors for setting bail as set forth in Article 17.15 of the Texas Code of
Criminal Procedure. Using my judicial discretion, I set bail in an amount that I believe will
ensure the accused's return to court.
I certify under the penalty of perjury that the foregoing is true and correct.

ilrr,,4 C¿'la"^t

Ron Nicholas

L

ô

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Date

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From: To:
Cc: Subject: Date: Attachments:

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Michael,

The scope of the Commission’s inquiry was far broader than the issues in this lawsuit or Plaintiff’s discovery requests, including instructions from District Court judges. The only discovery request that comes to mind is request number three in Plaintiff’s first set of requests for production. Plaintiffs specifically asked for instructions “in effect at the time the case was filed.” While the Commission referenced a letter from a misdemeanor judge, the letter was from 1995. This letter was no longer in effect at the time of the lawsuit, thus, that document is not responsive. We stand by our discovery responses to date.

Please let me know if you have any questions or wish to discuss.

Sincerely,

Phil

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Counsel,
On January 10, 2018, Hearing Officers Hagstette, Licatta III, and Wallace were publicly admonished by the Texas State Commission on Judicial Conduct for failing to comply with the law “by strictly following directives not to issue personal bonds to defendants per the instructions of the judges in whose court the underlying cases were assigned.” See CJC No. 17-0350-AJ; CJC No. 0351-AJ; CJC No. 17-0352-AJ. The Commission describes and references testimony from the Hearing Officers and describes and references e-mails and documents that are responsive to Plaintiffs’ discovery requests, but that have never been produced to the Plaintiffs.
Please confirm by 12 pm CST tomorrow whether the Defendants consent to produce by Friday, January 19, all documents, statements, or testimony of any type produced to the Commission, described by the Commission, or referenced by the Commission, whether orally or in writing.
Best,
Michael Gervais Susman Godfrey LLP 1301 Avenue of the Americas, Floor 32 New York NY 10019 212-729-2015 (Office) 203-887-5632 (Cell)

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee113387ooff114309
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From: To:
Cc: Subject: Date:

)DON6KHU\O$ 0LFKDHO*HUYDLV*UHHQ5RE(OL]DEHWK+ROW#FDRKFW[QHWSPRUJDQ#JDUGHUHFRP%UXFH3RZHUV#FDRKFW[QHW 0HOLVVD6SLQNV#FDRKFW[QHWNGDYLG#JDUGHUHFRPPVWDIIRUG#JDUGHUHFRPEVWHSKHQV#JDUGHUHFRP6WRQH &RULPIRJOHU#IEIRJFRP-5+DUULV#FDRKFW[QHW5REHUW6RDUG#FDRKFW[QHWDOODQYDQIOHHW#JPDLOFRP 9LFWRULD-LPHQH]#FDRKFW[QHW 1HDO60DQQH/H[LH:KLWH$OHF.DUDNDWVDQLV(OL]DEHWK5RVVL6XVDQQH3ULQJOH3UHPDO'KDULD 5(2'RQQHOOHWDOY+DUULV&RXQW\HWDO&9 :HGQHVGD\-DQXDU\30

Michael, Judges 1-13, 15 were not a part of the Texas State Commission on Judicial Conduct’s investigation of Hearing Officers Hagstette, Licatta III, and Wallace. The Judges were not asked to furnish any information to the Commission and are not aware of the documents, statements or testimony that were provided to the Commission, described by the Commission, or referenced by the Commission.
Many thanks, Sheryl

Sheryl A. Falk
Partner :LQVWRQ 6WUDZQ//3 7 ' ) ZLQVWRQFRP

From: Michael Gervais [mailto:MGervais@susmangodfrey.com] Sent: Wednesday, January 17, 2018 1:28 PM To: Green, Rob <RLGreen@winston.com>; Elizabeth.Holt@cao.hctx.net; pmorgan@gardere.com; Bruce.Powers@cao.hctx.net; Melissa.Spinks@cao.hctx.net; kdavid@gardere.com; mstafford@gardere.com; bstephens@gardere.com; Falk, Sheryl A. <SFalk@winston.com>; Stone, Cori <CStone@winston.com>; mfogler@fbfog.com; JR.Harris@cao.hctx.net; Robert.Soard@cao.hctx.net; allanvanfleet@gmail.com; Victoria.Jimenez@cao.hctx.net Cc: Neal S. Manne <NMANNE@SusmanGodfrey.com>; Lexie White <lwhite@susmangodfrey.com>; Alec Karakatsanis <alec@civilrightscorps.org>; Elizabeth Rossi <elizabeth@civilrightscorps.org>; Susanne Pringle <springle@fairdefense.org>; Premal Dharia <premal@civilrightscorps.org> Subject: ODonnell et al. v. Harris County et al., 16-CV-01414
Counsel,
On January 10, 2018, Hearing Officers Hagstette, Licatta III, and Wallace were publicly admonished by the Texas State Commission on Judicial Conduct for failing to comply with the law “by strictly following directives not to issue personal bonds to defendants per the instructions of the judges in whose court the underlying cases were assigned.” See CJC No. 17-0350-AJ; CJC No. 0351-AJ; CJC No. 17-0352-AJ. The Commission describes and references testimony from the Hearing Officers and describes and references e-mails and

CCaassee44:1:169--ccvv--0010421246 DDooccuummeenntt53223--82 FFilieleddoin T0X3/S2D7/2o0n i1n0T/2X9S/1D8 PPaaggee114309ooff114309
documents that are responsive to Plaintiffs’ discovery requests, but that have never been produced to the Plaintiffs. Please confirm by 12 pm CST tomorrow whether the Defendants consent to produce by Friday, January 19, all documents, statements, or testimony of any type produced to the Commission, described by the Commission, or referenced by the Commission, whether orally or in writing. Best,
Michael Gervais Susman Godfrey LLP 1301 Avenue of the Americas, Floor 32 New York NY 10019 212-729-2015 (Office) 203-887-5632 (Cell)
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Case 4:19-cv-00226 Document 32-9 Filed on 03/27/20 in TXSD Page 1 of 3
Exhibit I – Felony Court Docket Schedule

Case 4:19-cv-00226 Document 32-9 Filed on 03/27/20 in TXSD Page 2 of 3

JAIL DOCKET SCHEDULE IN THE CRIMINAL JUSTICE CENTER - GROUP A

Docket

Courtroom Contact

Start

Court

Judge

Location Number

Time

Mon Tues Wed Thurs

Fri

176th Judge Nikita V. Harmon

14-4 832-927-8130 8:30 AM X

X

X

X

X

177th Judge Robert Johnson

14-3 832-927-8142 9:30 AM X

X

X

X

X

178th Judge Kelli Johnson

14-1 832-927-8124 9:00 AM X

X

X

X

X

179th Judge Randy Roll

15-3 832-927-8154 9:00 AM X

X

X

X

X

183rd Judge Chuck Silverman

15-2 832-927-8148 9:00 AM X

X

X

X

208th Judge Greg Glass

15-1 832-927-8160 9:00 AM X

X

X

X

X

209th Judge Brian Warren

15-4 832-927-8166 9:00 AM X

X

X

X

X

248th Judge Hilary Unger

17-2 832-927-8112 9:00 AM X

X

X

X

X

262nd Judge Lori Chambers Gray

17-3 832-927-8118 8:30 AM X

X

X

X

X

263rd Judge Amy Martin

14-2 832-927-8136 8:30 AM X

X

X

X

X

351st/

9999 Judge George Powell*

17-4 832-927-8106 8:30 AM

X

X

X

X

RIC/9996 Judge Brock Thomas (JAIL)

20-1 832-927-4300 9:00 AM X

X

X

X

X

RIC/9996 Judge Brock Thomas (BOND) 20-1 832-927-4300 10:00 AM X

X

X

X

X

9997 FMHC

20-1 832-927-4350 3:00 PM X

X

Competency

9997 Restoration/NGRI

20-2 832-927-4350 9:00 AM

X

X

9999 STAR Court

20-2 832-927-4320 2:00 PM X

X

X

X

IA/9998 Felony Impact Docket #1

16-4 832-927-8180 9:00 AM X

X

X

X

X

IB/9994 Felony Impact Docket #2

16-3 832-927-8174 9:00 AM X

X

X

X

X

IA/9998 Capital Impact Docket

16-1 832-927-8142 9:00 AM X

X

X

X

X

*Veteran's Court meets on the 1st and 3rd Wednesday of each month and follows Judge George Powell's location assignment for that week

2020

Criminal District Court Master Calendar Plan: Group A

Highlighted weeks are jail docket weeks. Non-highlighted weeks are bond docket weeks.

January

February

March

S MTWT F S

S MTWT F S

S MTWT F S

1234

1

1234567

5 6 7 8 9 10 11

2345678

8 9 10 11 12 13 14

12 13 14 15 16 17 18

9 10 11 12 13 14 15

15 16 17 18 19 20 21

19 20 21 22 23 24 25

16 17 18 19 20 21 22

22 23 24 25 26 27 28

26 27 28 29 30 31

23 24 25 26 27 28 29

29 30 31

April

May

June

S MTWT F S

S MTWT F S

S MTWT F S

1234

12

123456

5 6 7 8 9 10 11

3456789

7 8 9 10 11 12 13

12 13 14 15 16 17 18

10 11 12 13 14 15 16

14 15 16 17 18 19 20

19 20 21 22 23 24 25

17 18 19 20 21 22 23

21 22 23 24 25 26 27

26 27 28 29 30

24 25 26 27 28 29 30

28 29 30

31

Group A: 176th, 177th, 178th, 179th, 183rd, 208th, 209th, 248th, 262nd, 263rd, 351st.
Group A and Group B alternate weeks in the Criminal Justice Center for jail dockets and in the Civil Justice Center and Juvenile Justice Center for Bond Dockets. RIC Docket/Specialty Courts bond and jail dockets are consolidated and held in the Criminal Justice Center each week.

Dates highlighted in red are County Holidays.

Eff. 02.10.20

Case 4:19-cv-00226 Document 32-9 Filed on 03/27/20 in TXSD Page 3 of 3

JAIL DOCKET SCHEDULE IN THE CRIMINAL JUSTICE CENTER - GROUP B

Docket

Courtroom Contact

Start

Court

Judge

Location Number Time

Mon Tues Wed Thurs Fri

174th Judge Hazel B. Jones

17-2 832-927-8112 9:00 AM X

X

X

X

X

180th Judge DaSean Jones

15-1 832-927-8160 9:00 AM X

X

X

X

X

182nd Judge Danilo Lacayo

17-4 832-927-8106 8:30 AM X

X

X

X

X

184th Judge Abigail Anastasio

14-2 832-927-8136 8:30 AM X

X

X

X

X

185th Judge Jason Luong

14-1 832-927-8124 8:30 AM X

X

X

X

X

228th Judge Frank Aguilar

15-3 832-927-8136 8:30 AM X

X

X

X

X

230th Judge Chris Morton

14-3 832-927-8142 9:00 AM X

X

X

X

X

232nd Judge Josh Hill

14-4 832-927-8130 9:00 AM X

X

X

X

X

337th Judge Herb Ritchie

15-2 832-927-8148 9:00 AM X

X

X

X

X

338th Judge Ramona Franklin

17-3 832-927-8118 9:00 AM X

X

X

X

X

339th Judge Jesse F. McClure III

15-4 832-927-8166 9:00 AM X

X

X

X

X

RIC/9996 Judge Brock Thomas (JAIL)

20-1 832-927-4300 9:00 AM X

X

X

X

X

RIC/9996 Judge Brock Thomas (BOND) 20-1 832-927-4300 10:00 AM X

X

X

X

X

9997 FMHC

20-1 832-927-4350 3:00 PM X

X

Competency

CR/9997 Restoration/NGRI

20-2 832-927-4350 9:00 AM

X

X

9999 STAR Court

20-2 832-927-4320 2:00 PM X

X

X

X

IA/9998 Felony Impact Docket #1

16-4 832-927-8180 9:00 AM X

X

X

X

X

IB/9994 Felony Impact Docket #2 IA/9998 Capital Impact Docket

16-3 832-927-8174 9:00 AM X

X

X

X

X

16-1 832-927-8142 9:00 AM X

X

X

X

X

2020

Criminal District Court Master Calendar Plan: Group B

Highlighted weeks are jail docket weeks. Non-highlighted weeks are bond docket weeks.

January

February

March

S MTWT F S

S MTWT F S

S MTWT F S

1234

1

1234567

5 6 7 8 9 10 11 12 13 14 15 16 17 18

2345678 9 10 11 12 13 14 15

8 9 10 11 12 13 14 15 16 17 18 19 20 21

19 20 21 22 23 24 25 26 27 28 29 30 31

16 17 18 19 20 21 22 23 24 25 26 27 28 29

22 23 24 25 26 27 28 29 30 31

April

May

June

S MTWT F S

S MTWT F S

S MTWT F S

1234

12

123456

5 6 7 8 9 10 11

3456789

7 8 9 10 11 12 13

12 13 14 15 16 17 18

10 11 12 13 14 15 16

14 15 16 17 18 19 20

19 20 21 22 23 24 25

17 18 19 20 21 22 23

21 22 23 24 25 26 27

26 27 28 29 30

24 25 26 27 28 29 30

28 29 30

31
Group B: 174th, 180th, 182nd, 184th, 185th, 228th, 230th, 232nd, 337th, 338th, 339th.
Group A and Group B alternate weeks in the Criminal Justice Center for jail dockets and in the Civil Justice Center and Juvenile Justice Center for Bond Dockets. RIC Docket/Specialty Courts bond and jail dockets are consolidated and held in the Criminal Justice Center each week.
Exceptions are highlighted and noted in the Docket Schedule. Dates highlighted in red are County Holidays.

Eff. 02.10.20

Case 4:19-cv-00226 Document 32-10 Filed on 03/27/20 in TXSD Page 1 of 3
Exhibit J – Court Operations Emergency Order

Case 4:19-cv-00226 Document 32-10 Filed on 03/27/20 in TXSD Page 2 of 3
Revised Order
Effective Tuesday March 24, 2020, the Office of the County Engineer orders the following regulations that are necessary for public health, safety and welfare. Harris County will continue to monitor the compliance and effectiveness of these regulations and consider whether court operations must be further reduced to minimize the threat to public safety from COVID-19. All Courts:
• To reduce unnecessary risk to the public, in-person gatherings will only be permitted when necessary to accomplish essential court functions.
• All courts operating within county buildings are required to limit all gatherings to a maximum of ten people with the exception of grand juries and mandated Chapter 81 jury trials, mental health trials or as determined constitutionally necessary by a Judge.
• The maximum occupancy of all courtrooms is limited to ten people with the exception of grand juries and mandated Chapter 81 jury trials, mental health trials or as determined constitutionally necessary by a Judge.
• The maximum occupancy of all other spaces is limited to that which can ensure the comfortable social distancing of at least six feet between all persons, and at no time more than ten people.
• All courts will enforce procedures to ensure the comfortable social distancing of at least six feet between all persons at all times.
Elevators: • The maximum occupancy of all elevators is limited to no more than one person or one pre-existing family or social unit, unless posted to greater capacity.
Harris County Criminal Courts at Law: • No more than four County Criminal Courtrooms are permitted to operate on any given day within the Criminal Justice Center. • Courtroom Locations in CJC on the 9th and gth Floor: CCCL #1, CCCL #3 , CCCL#5, & CCCL#6.
Harris County Criminal District Courts: • No more than eight District Courtrooms will be permitted to operate on any given day within the Criminal Justice Center (CJC) and one District Courtroom in the Civil Courthouse. • Courtroom Locations in CJC on the 14th and 15th Floor: 14-1, 14-2, 14-3, & 14-4; 15-1, 15-2, 15-3, & 15-4. • Courtroom Location in the Civil Courthouse, 11th Floor: 157th District Court.
3.23.20

Case 4:19-cv-00226 Document 32-10 Filed on 03/27/20 in TXSD Page 3 of 3
Revised Order
Harris County Civil District Courts: • No more than six District Courtrooms will be permitted to operate on any given day within the Harris County Civil Courthouse. • Courtroom locations in the Civil Courthouse: 8Qth District Court - gth Floor, 129th District Court -- 1Qth Floor, 152nd District Court -11th Floor, 155th District Court -12th Floor, 215th District Court -13th Floor, & 333rd District Court -14th Floor.
Harris County Family District Courts • No more than three Family Courtrooms will be permitted to operate on any given day within the Harris County Civil Courthouse • Courtroom Locations in the Civil Courthouse: 31Qth District Court- 15th Floor & 312th District Court - 15th Floor. • Courtroom location in the Juvenile Justice Center: 28Qth District Court _7th Floor
Harris County Probate Courts • No more than four Probate Courtrooms will be permitted to operate on any given day within the Harris County Civil Courthouse.
Harris County Civil Courts at Law: • No more than one Civil Court at Law Courtroom will be permitted to operate on any given day within the Harris County Civil Courthouse. • Courtroom Location in the Civil Courthouse: County Civil Court at Law 2 - 5th Floor.
Harris County Juvenile Courts: • No more than one Juvenile Courtroom will be permitted to operate on any given day within the Juvenile Justice Center in the 314th District Court, 5th floor. • No more than one Detention Hearing Courtroom will be permitted to operate on any given day within the Juvenile Justice Center on the 1st floor. • No more than one public viewing area by video will be permitted to operate on any given day within the Juvenile Justice Center at the Juvenile Probation Training Room on the 1st Floor.
Harris County Family Law Center • All IV-D matters will conducted via virtual courtroom .
Approved By:
3.23.20

Case 4:19-cv-00226 Document 32-11 Filed on 03/27/20 in TXSD Page 1 of 4
Exhibit K – Harris County Felony
Pretrial Detention Reports

HACRaRseIS4:1C9-OcvU-0N02T26Y DFoEcuLmOenNt 3Y2-P11REFTileRd IoAn 0L3/D27E/2T0EinNTXTSIDONPaRgeE2PoOf 4RT brought to you by the texas criminal justice coalition and the texas organzing project

EVERY NIGHT THOUSANDS OF PEOPLE ARE LOCKED IN A CAGE AT THE HARRIS COUNTY JAIL BECAUSE THEY CAN'T AFFORD MONEY BAIL, EVEN THOUGH IT IS ILLEGAL TO JAIL PEOPLE SOLELY BECAUSE THEY ARE POOR. THIS REPORT USES JAIL POPULATION DATA
PROVIDED BY HARRIS COUNTY TO COMPARE THE PRETRIAL DETENTION NUMBERS OF HARRIS COUNTY'S FELONY JUDGES.

district courts by highest pretrial detention population
DECEMBER 29, 2019 - JANUARY 4, 2020

#1: JUDGE GEORGE POWELL #2: JUDGE RAMONA FRANKLIN #3: JUDGE JESSE MCCLURE

258 PEOPLE DETAINED PER NIGHT BASED ON INABILITY TO PAY

255
PEOPLE DETAINED PER NIGHT BASED
ON INABILITY TO PAY

250
PEOPLE DETAINED PER NIGHT BASED
ON INABILITY TO PAY

351ST DISTRICT COURT

rank 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

court 174th 185th 337th 183rd 184th 179th 262nd 263rd 208th 176th 182nd 230th 232nd 248th 178th 177th 209th 228th 180th

338TH DISTRICT COURT

339TH DISTRICT COURT

judge HAZEL JONES JASON LUONG HERB RITCHIE CHUCK SILVERMAN ABIGAIL ANASTASIO RANDY ROLL LORI CHAMBERS GRAY AMY MARTIN GREG GLASS NIKITA HARMON DANILO LACAYO CHRIS MORTON JOSH HILL HILLARY UNGER KELLI JOHNSON ROBERT JOHNSON BRIAN WARREN FRANK AGUILAR DASEAN JONES

daily average number of people detained pretrial 249 234 222 215 215 213 207 205 198 195 195 192 188 185 182 178 163 154 148

Harris County taxpayers spent over $2.3 MILLION DOLLARS on illegal pretrial detention this
week. That's close to twice the $1.3 million Harris County taxpayers spend every week on public
health services, the public library, and pollution control COMBINED.

HACRaRseIS4:1C9-OcvU-0N02T26Y DFoEcuLmOenNt 3Y2-P11REFTileRd IoAn 0L3/D27E/2T0EinNTXTSIDONPaRgeE3PoOf 4RT brought to you by the texas criminal justice coalition and the texas organzing project

ON AN AVERAGE NIGHT LAST WEEK, 4,470 PEOPLE WERE LOCKED IN A CAGE AT THE HARRIS COUNTY JAIL BECAUSE THEY COULDN'T AFFORD
MONEY BAIL, EVEN THOUGH IT IS ILLEGAL TO JAIL PEOPLE SOLELY BECAUSE THEY ARE POOR. THIS REPORT USES JAIL POPULATION DATA PROVIDED BY HARRIS COUNTY TO COMPARE THE PRETRIAL DETENTION NUMBERS OF HARRIS COUNTY'S FELONY JUDGES.
district courts by highest pretrial detention population
FEBRUARY 9, 2020 - FEBRUARY 15 2020

#1: JUDGE GEORGE POWELL
261
PEOPLE DETAINED PER NIGHT BASED
ON INABILITY TO PAY

#2: JUDGE HAZEL JONES

#3: JUDGE JESSE MCCLURE

252
PEOPLE DETAINED PER NIGHT BASED
ON INABILITY TO PAY

245
PEOPLE DETAINED PER NIGHT BASED
ON INABILITY TO PAY

351ST DISTRICT COURT

174TH DISTRICT COURT

339TH DISTRICT COURT

rank 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

court 338th 185th 183rd 182nd 337th 179th 262nd 176th 208th 263rd 230th 248th 232nd 177th 178th 184th 209th 228th 180th

judge RAMONA FRANKLIN JASON LUONG CHUCK SILVERMAN DANILO LACAYO HERB RITCHIE RANDY ROLL LORI CHAMBERS GRAY NIKITA HARMON GREG GLASS AMY MARTIN CHRIS MORTON HILLARY UNGER JOSH HILL ROBERT JOHNSON KELLI JOHNSON ABIGAIL ANASTASIO BRIAN WARREN FRANK AGUILAR DASEAN JONES

daily average number of people detained pretrial 241 240 238 220 217 212 208 205 203 201 186 186 179 175 173 169 162 152 145

Harris County taxpayers spent over $2.3 MILLION on illegal pretrial detention this week. That's close to
twice the $1.3 million Harris County taxpayers spend every week on public health services, the public
library, and pollution control COMBINED.

HACRaRseIS4:1C9-OcvU-0N02T26Y DFoEcuLmOenNt 3Y2-P11REFTileRd IoAn 0L3/D27E/2T0EinNTXTSIDONPaRgeE4PoOf 4RT brought to you by the texas criminal justice coalition and the texas organzing project

ON AN AVERAGE NIGHT LAST WEEK, 4,391 PEOPLE WERE LOCKED IN A CAGE AT THE HARRIS COUNTY JAIL BECAUSE THEY COULDN'T AFFORD
MONEY BAIL, EVEN THOUGH IT IS ILLEGAL TO JAIL PEOPLE SOLELY BECAUSE THEY ARE POOR. THIS REPORT USES JAIL POPULATION DATA PROVIDED BY HARRIS COUNTY TO COMPARE THE PRETRIAL DETENTION NUMBERS OF HARRIS COUNTY'S FELONY JUDGES.
district courts by highest pretrial detention population
MARCH 8, 2020 - MARCH 14, 2020

#1: JUDGE GEORGE POWELL
256
PEOPLE DETAINED PER NIGHT BASED
ON INABILITY TO PAY

#2: JUDGE JASON LUONG
247
PEOPLE DETAINED PER NIGHT BASED
ON INABILITY TO PAY

#3: JUDGE HAZEL JONES
246
PEOPLE DETAINED PER NIGHT BASED
ON INABILITY TO PAY

351ST DISTRICT COURT

185TH DISTRICT COURT

174TH DISTRICT COURT

rank 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22.

court 183rd 338th 339th 179th 182nd 208th 337th 262nd 263rd 178th 176th 248th 230th 177th 232nd 209th 184th 180th 228th

judge CHUCK SILVERMAN RAMONA FRANKLIN JESSE MCCLURE RANDY ROLL DANILO LACAYO GREG GLASS HERB RITCHIE LORI CHAMBERS GRAY AMY MARTIN KELLI JOHNSON NIKITA HARMON HILARY UNGER CHRIS MORTON ROBERT JOHNSON JOSH HILL BRIAN WARREN ABIGAIL ANASTASIO DASEAN JONES FRANK AGUILAR

daily average number of people detained pretrial 242 222 222 218 215 212 212 209 200 192 190 180 172 167 166 161 158 156 148

Harris County taxpayers spent over $2.3 MILLION on illegal pretrial detention this week. That's close to
twice the $1.3 million Harris County taxpayers spend every week on public health services, the public
library, and pollution control COMBINED.

*THE COUNTY DID NOT PROVIDE DATA FOR MARCH 12, 2020. CALCULATIONS INVOLVING THE AMOUNT OF MONEY SPENT ON PRETRIAL DETENTION INCLUDE PROJECTED COSTS FOR MARCH 12.

Case 4:19-cv-00226 Document 32-12 Filed on 03/27/20 in TXSD Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TE AS, HOUSTON DI ISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

PROPOSED ORDER

Defendants do not contest the factual allegations in Plaintiffs Motion, that Plaintiffs are

likely to succeed on the merits of their constitutional arguments, that relief is in the public interest,

or that Plaintiffs are facing ongoing irreparable harm, including a heightened risk of serious illness

or death if there is a widespread outbreak of Covid-19 in the Harris County Jail. Accordingly, the

Court finds and concludes that there is (1) a substantial likelihood of success on the merits, (2) a

substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury

if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4)

that the grant of an injunction will not disserve the public interest. Jan e . Alg ire, 647 F.3d

585, 595 (5th Cir. 2011); B r m . Landre h, 566 F.3d 442, 445 (5th Cir. 2009). Because all four

factors weigh in Plaintiffs favor, the Court grants the temporary emergency relief sought.

The Parties are hereby ORDERED to confer and submit either an agreed proposed

temporary restraining order or, if not agreed, a redlined version showing the disputed provisions,

no later than 24 hours from the entry of this Order. Any agreed proposed temporary order must

prohibit Defendants from enforcing conditions of pretrial release that result in pretrial detention of

any person arrested for a felony offense who is in Harris County custody 48 hours after arrest

Case 4:19-cv-00226 Document 32-12 Filed on 03/27/20 in TXSD Page 2 of 2
unless a constitutionally adequate bail proceeding has been conducted for that person. A
constitutional bail proceeding, absent knowing, intelligent and voluntary waiver, consists of the
following substantive and procedural safeguards:
x Notice of the critical issues relevant to the decision; x An inquiry into ability to pay if a financial condition is contemplated; x An adversarial hearing at which the arrestee is represented by counsel and has an
opportunity to be heard, to present evidence, and to confront evidence offered by the government; x Meaningful consideration of less restrictive alternatives to pretrial detention; and, x If the decision-maker issues a transparent or de facto order of detention, findings on the record by clear and convincing evidence that detention is necessary because no other alternatives short of detention are sufficient to reasonably serve the government s interest in either court appearance or public safety, and a statement of reasons explaining the decision and the evidence relied on.
Ordered this ___ day of _______________, 2020.
__________________________________ Hon. Lee H. Rosenthal District Judge

 
 Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 1 of 212
Exhibit G ± State Commission on Judicial Conduct
Documents

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 2 of 212

C-1

SCJC 00001

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C-1

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State Commission on Judicial Conduct

Officers
Valerie E. Ertz, Chair
Douglas S. Lang, Vice-Chair Ricky A. Raven, Secretary
Members Patti H. Johnson Martha M. Hernandez
Diane D. Threadgill
Demetrius K. Bivins
Orlinda L. Naranjo
David M. Russell David M. Patronella David C. Hall
Catherine N. Wylie Tramer J. Woytek

Z&^&S.
'" '
December 2, 2016

Executive Director
Seana Willing
CONFIDENTIAL

Senator John Whitmire Larance Coleman Texas State Senate District 15 PO Box 12068 Austin TX 78711

Re: CJC Nos. 17-0350-AJ; 17-0351 -AJ; 17-0352-AJ

Dear Senator Whitmire and Mr. Coleman:

We have received your complaints against various Texas judges. All complaints receive a thorough review and investigation relevant to the allegations, and are presented to the Commission. After its consideration, the Commission may dismiss a complaint, impose sanctions against a judge, or take other appropriate action. The Commission's actions are governed by Article V, Section 1-a of the Texas Constitution and Chapter 33 of the Texas Government Code.
Please be advised that our proceedings are confidential. We are prohibited by Section 33.033(c) of the Texas Government Code from identifying by name the judge against whom you have filed a complaint. In order to assist us with our investigation, please reference the above-listed CJC case numbers in all future correspondence. Additionally, if you intend to submit additional documents for our consideration, please send photocopies.
For your additional assistance, we have enclosed an information sheet that will explain more completely the process involved in investigating allegations ofjudicial misconduct.
We will inform you in writing of the Commission's action on your complaint.
If you have any questions or need additional information, please contact our office. When calling, please mention the above-listed CJC case numbers so as to expedite your phone call.

SW/cp
Enclosure
PO Box 12265 Austin TX 78711-2265

Executive Director

wwSwC.scjJe.Cstate.0tx.0go0v 07

HARRISCO_CourtOrder 0(0511723)4063-5533 Toll-Free (877)228-5750

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 9 of 212

State Commission on Judicial Conduct

Officers Valerie E. Ertz, Chair
Douglas S. Lang, Vice-Chair Ricky A. Raven, Secretary
Members Patti H. Johnson Martha M. Hernandez
Diane D. Threadgill
Demetrius K. Bivins
Orlinda L. Naranjo
David M. Russell David M. Patronella David C. Hall
Catherine N. Wylie Tramer J. Woytek

^^ ,^^ /W^®^
A ~ ""
December 2, 2016

Executive Director Seana Willing
CONFIDENTIAL

Senator John Whitmire Larance Coleman Texas State Senate District 15 PO Box 12068 Austin TX 78711

Re: CJC Nos. 17-0350-AJ; 17-0351 -AJ; 17-0352-AJ

Dear Senator Whitmire and Mr. Coleman:

We have received your complaints against various Texas judges. All complaints receive a thorough review and investigation relevant to the allegations, and are presented to the Commission. After its consideration, the Commission may dismiss a complaint, impose sanctions against a judge, or take other appropriate action. The Commission's actions are governed by Article V, Section 1-a of the Texas Constitution and Chapter 33 of the Texas Government Code.
Please be advised that our proceedings are confidential. We are prohibited by Section 33.033(c) of the Texas Government Code from identifying by name the judge against whom you have filed a complaint. In order to assist us with our investigation, please reference the above-listed CJC case numbers in all future correspondence. Additionally, if you intend to submit additional documents for our consideration, please send photocopies.
For your additional assistance, we have enclosed an information sheet that will explain more completely the process involved in investigating allegations ofjudicial misconduct.
We will inform you in writing of the Commission's action on your complaint.
If you have any questions or need additional information, please contact our office. When calling, please mention the above-listed CJC case numbers so as to expedite your phone call.

SW/cp
Enclosure
POBox 12265 Austin TX 78711-2265

Executive Director

wwSwC.scjJc.Cstate.0tx.0go0v 08

HARRISCO_CourtOrder 0(0511723)4163-5533 Toil-Free (877) 228-5750

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 10 of 212

State Commission on Judicial Conduct

°fficers
Valerie E. Ertz, Chair
Douglas S. Lang, Vice-Chair Ricky A. Raven, Secretary
Members Patti H. Johnson Martha M. Hernandez
Diane D. Threadgill
Demetrius K. Bivins
Orlinda L. Naranjo
David M. Russell David M. Patronella David C. Hall
Catherine N. Wylie Tramer J. Woytek

/%^^&\ ' ~"
December 2, 2016

Executive Director
Seana Willing
CONFIDENTIAL

Senator John Whitmire Larance Coleman Texas State Senate District 15 PO Box 12068 Austin TX 78711

Re: CJC Nos. 17-0350-AJ; 17-0351-AJ; 17-0352-AJ

Dear Senator Whitmire and Mr. Coleman:

We have received your complaints against various Texas judges. All complaints receive a thorough review and investigation relevant to the allegations, and are presented to the Commission. After its consideration, the Commission may dismiss a complaint, impose sanctions against a judge, or take other appropriate action. The Commission's actions are governed by Article V, Section 1-a of the Texas Constitution and Chapter 33 of the Texas Government Code.
Please be advised that our proceedings are confidential. We are prohibited by Section 33.033(c) of the Texas Government Code from identifying by name the judge against whom you have filed a complaint. In order to assist us with our investigation, please reference the above-listed CJC case numbers in all future correspondence. Additionally, if you intend to submit additional documents for our consideration, please send photocopies.
For your additional assistance, we have enclosed an information sheet that will explain more completely the process involved in investigating allegations ofjudicial misconduct.
We will inform you in writing of the Commission's action on your complaint.
If you have any questions or need additional information, please contact our office. When calling, please mention the above-listed CJC case numbers so as to expedite your phone call.

SW/cp
Enclosure
POBox 12265 Austin TX 78711-2265

Executive Director

wwSw.CscjcJ.sCtate.0tx.0gov009

HARRISCO_CourtOrder 0(0511723)4263-5533 Toll-Free (877)228-5750

CaCsaese4:41:91-6c-vc-v0-002124614 DoDcoucmumenetn3t22-070 FFilieleddoinn 0T3X/S27D/2o0n in03T/0X1S/1D7 PPaaggee111 ooff2212

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DMSION

MARANDA LYNN O'DONNELL, et al., Plaintiffs,

Case No. 4:16-cv-01414 (Consolidated Class Action)

vs.
HARRIS COUNTY, TEXAS, et al., Defendants.

The Honorable Lee H. Rosenthal U.S. District Judge

SECOND DECLARATION OF ALEXANDER BUNIN

1. My name is Alexander Bunin. I am over eighteen years of age, have personal knowledge of the facts set forth herein, and am competent to make this declaration.

2. I am the Chief Public Defender for Harris County, Texas. This supplements my previous declaration ofFebruary 20, 2017.

3. The Harris County Public Defender's Office (PDQ) represents approximately 4% of misdemeanor arrestees (2,749of64,245 in 2016). PDQ misdemeanor clients are those who are determined by an algorithm to be severely mentally ill or intellectually disabled.

4. I am a member ofthe Criminal Justice Coordinating Council and I was personally involved in applying for both the MacArthur Foundation Safety and Justice Grant and the Arnold Foundation Public Safety Assessment tool.

5. I have watched videos of Article 15.17 hearings, but I do not regularly attend these hearings in person. In my opinion, it is unwise for defendants to speak at those hearings because what they say will be used against them in later proceedings. I have been told by current and fonner prosecutors that this is true.

6. I believe that a "meaningful bail hearing" includes representation for the defendant and that both the prosecutor and defense attorney should have access to all available infonnation (including, for example, the infonnation gathered by Pretrial Services).

7. Except for the largest cities, and a few states, most jurisdictions in the United States do not provide representation at the initial bail hearing. The only county in Texas which does provide such representation for defendants is El Paso County. Bexar County has a pilot program to provide representation at bail hearings to a small segment ofmentally ill defendants.
-------... 8. Harris County Commissioners Court recently approved a program to provide defense

HARRISCO_CourtOrder 001733

SCJC 000010

DX23
d.·1,:;;. ru..n1 A14

CaCsaese4:41:91-6c-vc-v0-002124614DoDcoucmuemnetn3t22-070 FFileileddoinn 0T3X/S27D/2o0nin03T/0X1S/D17 PPaaggee122 ooff 2212
representation at the bail setting portion ofthe Article 15.17 hearings. This program will put Harris County on the cutting edge ofthe movement towards providing defense attorneys at initial bail hearings. This program will be wholly funded by Harris County.
9. Hearing officers should consider the five factors outlined by U.S. District Judge James DeAnda in the 1987 settlement order in Roberson v. Richardson. Ability to pay should be considered if the court will require money bail as a condition ofrelease. The Judges retain discretion in individual cases but the new bail schedule should tie release conditions to risk.
10. I do not believe there is a legal impediment to the use of money as a condition of release, as long as the criminal hearing officer considers the defendant's ability to pay. That an arrestee has not made bail is not complete proofthat they did not have the ability to pay at the time of the initial bail hearing. I believe that it is the defense attorney's, and the court's, responsibilities to readdress bail issues in the court ofjurisdiction ifit appears the defendant remains detained for inability to pay money.
11 . I believe that it is not realistic for an arrestee to hire a private attorney to represent them at the initial bail setting as it is extremely difficult for that attorney to get to the hearing in time for the initial bail consideration, and historically that has rarely occurred.
12. I support the work being done by the Criminal Justice Coordinating Council with the Arnold Foundation's consultant, Marie VanNostrand. I believe this tool wilJ result in more releases on non-monetary conditions, which 1prefer to monetary conditions.
13. Public Defenders routinely rely upon the information gathered by Pretrial Services It is helpful in the investigation of their cases and to assesses whether to seek reconsideration of their bail.
I certify under the penalty of perjury that the foregoing is true and correct.
Alexand'& Bunin

Page 2 of 2
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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 13 of 212

Defendants Under HCPS Supervision, January 2015 to December 2017

7,000

6,000
The count of defendants under supervision increased by 165% between January 2015 and December 2017.
5,000

4,000

3,000
2,193 2,000

2,091

2,2 35

2,4 5 9

4,349

4,26 !1

4 ,242

4,168

3,965

3, 509 3, 27 7 3,0 07

5,97l 5,821
5,344

1,000

0
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.....N...................

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0
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Source: Harris County Pretrial Services, Defe ndant Monitoring Division Created 12/01/ 2017

SCJC 000012

HARRISCO_CourtOrder 001735

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 14 of 212
CHARLEY A. DAVIDSON 8418 WINNINGHAM LANE HOUSTON, TEXAS 77055

November 30, 20 17
,/
Re: Complaint Against Eric Stewart Hagstette
To Whom It May Concern:
I am writing this letter on behalf of Eric Stewart Hagstette. I am aware that ethics complaints have been made against him and certain other Harris County magistrate judges.
I have known Eric for approximately 50 years. We met each other in high school. Although we didn't travel in the same circles, we knew each other and had numerous friends in common. Even back in high school, Eric was considered by his peers to be a person of high integrity and character. We didn't talk in terms of a person being " ethical" when we were teenagers but, if we had, Eric would have been characterized as an extremely ethical person. He didn't cut corners, he did things "the right way," and when he told you something, you could count on it; you didn't have to check its accuracy. I also came to appreciate that Eric is not a judgmental person. He will listen to someone or their position on a subject and evaluate its worth regardless of their background or situation. He may not agree with you, but he will disagree with you for the right reasons.
Eric and I both went to the U niversity of Texas, both for undergraduate and law school, in the 1970s. When I would see Eric, he would be the same as he had been in high school - smart, dependable, ofhigh character and just a good guy everyone would trust and wanted to hang around.
Eric and I both worked at the Harris County District Attorney's Office after law school. Although we never worked in the same court together, it was a relatively small office back then and you knew all the other prosecutors and you knew about all the other prosecutors. Eric was highly regarded in the courthouse, both by fellow prosecutors and defense attorneys but also judges and court staff as well. Eric was considered to be very balanced and fair as a prosecutor and I never heard anyone say anything negative about his ethics or handling of a case during the years we were at the Office together. Clearly, he was highly regarded by management at the DA's Office as evidenced by the fact that Johnny Holmes made Eric the Chief of the Major Fraud Division within the Special Crimes Bureau, one of the most prestigious positions within the Office. Frequently, when one prosecutor is rewarded with a particular promotion, there will be carping and backstabbing by those who didn't get the position. With Eric, there was none. No one questioned his abilities, his character, or his leadership skills. How could you get upset with a person like that getting a position you wanted?

Page 1of2

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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 15 of 212
Perhaps most illustrative of my feelings for Eric, both in terms of his legal abilities as well as his character and ethics, is what happened in 1992. That year, Eric, Rusty Hardin, Brad Beers, and I (all former prosecutors who had worked together), started a law firm together, Hardin, Beers, Hagstette & Davidson. Not only did the four of us tie our fortunes and futures to each other, we made Eric the Managing Partner. He not only had a good head for business and what it would take to run a fledgling law firm, he was a man of character and integrity, whom you wouldn't mind handling the money and making the tough decisions. Our firm dissolved a number of years later, as many law firms do, and we all went on our separate career paths. Even after we separated, I have kept up with Eric and his career as a Magistrate Judge and we remain social friends. I have spoken to judges and other magistrate judges about Eric and, to a person, they regard him highly. I have talked to lawyers who have appeared at the hearings he conducts and, not surprisingly, they are very complimentary of how he handles himself. Has he ever gotten upset at a particular individual, either by something they said or an attitude they had? I'm sure he has; show me the person who hasn't. But, throughout, has he tried to do what he thought was the right thing given all the circumstances? I would be stunned if it were otherwise.
Simply, if I had to pick one person for my (now adult) children to model themselves after, in terms of friendship, intelligence, hard work, character and ethics, and responsibility, it would be Eric Hagstette. He is that solid of a person.
Sincerely,
Charley A.
CAD/ssb

Page 2 of 2

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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 16 of 212

December 5, 2017
RE: Complaint against Harris County Hearing Officer Eric Hagstette
To Whom It May Concern:
I am writing this letter on behalf of Eric Hagstette, a Hearing Officer for the County of Harris. It is my understanding that ethics complaints have been filed against him and other Harris County Hearing Officers.
I have known Eric for over 30 years. I met him through my husband, Charley Davidson. Eric and Charley went to high school together and have remained friends throughout the years. We try to get together with Eric on a social basis almost monthly.
Eric had been with the Harris County District Attorney' s Office before I joined the Office as an Assistant District Attorney in 1986. Eric returned to the District Attorney's the same year that I started. He was made the Division Chief of Major Fraud in Special Crimes. I was junior to Eric in the office, so I had few professional dealings with him. However, he had a very good reputation amongst the prosecutors. Everyone thought he was extremely fair, balanced and professional.
In 1992, Eric left the office. He, Charley, Brad Beers and Rusty Hardin formed the law firm of Hardin, Beers, Hagstette and Davidson. I saw Eric quite often during that time when I would go to their offices. Eric always seemed to work very hard, but he would take time out to visit with me, see how I was doing, and ask about our young children.
In 1996, the firm decided to split up. It was sometime after that when Eric was interviewed for the position of Hearing Officer in Harris County. The role of a Hearing Officer is to listen to the facts of a case as presented by an Assistant District Attorney and determine if there exists probable cause for the case to go to trial. After hearing the facts and deciding whether there is probable cause, the Hearing Officer would then set bonds and conditions. By the time Eric was made a Hearing Officer, I was no longer working probable cause court, therefore, I never had the opportunity to go in front of him professionally. However, many of my colleagues did. The only complaint that I ever heard from my colleagues about Eric was that he was so fair and balanced that he would often find no probable cause on cases to the dismay of the Assistant District Attorneys. To me, that says a lot about Eric's integrity. He bad essentially been a career prosecutor but could also see the forest through the trees and do the right thing on cases instead of just being a rubber stamp for the prosecution.

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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 17 of 212
To this day, I still socialize with Eric. He is always a true gentleman. Obviously, to say otherwise, the complainant clearly does not know Eric. I would be totally shocked to hear that Eric did something deliberately unprofessional without good cause. That is just not in his nature. He is such a good man and I am honored to be considered his friend. Sincerely,
Luci A. Davidson

SCJC 000016

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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 18 of 212

RUSTY HARDIN fJ ASSOCIAT!S, LlP ATTORNEYS AT LAW

5 Houston Center 1401 McKinney Street, Suite 2250
Houston, TX 77010-4035
p; 713.652.9000
www.rustyhord in.com

AFFIDAVIT OF RUSTY HARDIN

STATE OF TEXAS

§

§

COUNTY OF HARRIS

§

Before me the undersigned Notary Public, on this day personally appeared Rusty Hardin, known to me to be the person whose name is subscribed to the foregoing instrument and having been duly sworn, on his oath did depose and say as follows:

1. "My name is Rusty Hardin. I am over 18 years of age. I have never been convicted of a felony or a crime of moral turpitude. I am competent to make this affidavit. The facts stated in this affidavit are based upon my personal knowledge and are true and correct.

2. I am an attorney licensed to practice law in Texas since 1975. I have known Judge Eric Hagstette since 1977 when we served together as assistant district attorneys in Harris County. I consider Judge Hagstette to be one of the most ethical lawyers I have ever known . He has always been an attorney sensitive to the rights of others.

3. I served as an assistant district attorney from 1975 to 1990, and during that time I had many opportun ities to observe Judge Hagstette exercise his discretion in numerous circumstances that called for sensitivity and good judgment as he dealt with a whole range of criminal cases from sexual assault to capital murder. For several of the latter years of our service I was Judge Hagstette's immediate supervisor. I was always struck by the ethical and compassionate way he dealt with the rights of both victims and defendants. He was a credit both to the legal profession and to the cause of public service.

4. I felt so strongly about the many adm irable qualities of Judge Hagstette that I convinced him to leave the Harris County District Attorney's Office in February of 1991 and join me as a partner in the four-lawyer firm of Hardin, Beers, Hagstette, and Davidson. We practiced primarily criminal defense law together for five years, and, during daily interaction on _a panoply of cases, I remained extremely impressed by the principled and fair way he handled all matters. When I left the firm to form Rusty Hardin and Associates in 1996, Judge Hagstette continued to office with me as he ran his own independent practice until he was appointed to his present position as magistrate judge. Not once throughout all of these years have I ever seen any instance of unethical behavior or insensitivity to the rights of others. Indeed, of all the

SCJC 000017

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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 19 of 212
lawyers I have ever known, Eric Hagstette is probably the kindest, most gentle, and most decent human being I have had the opportunity to observe. Those traits have characterized the way he has lived his life, practiced law, and served as a magistrate. 5. I respectfully ask the Committee on Judicial Conduct to consider Judge Hagstette's demeanor and the tapestry of his personal accomplishments in assessing the validity and appropriate outcome of the complaint before you. I sincerely hope your decision does not leave a stain on a man whose entire career has been a credit to the profession."
V_-z--
SUBSCRIBED AND SWORN TO before me on this 5th to certify which, witness my hand and official seal.

Page 2 of2
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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 20 of 212

ADM!N!STRATIVE OFFICES

OF THE

:DiSTRJCT COURTS

C-aill.IlNAL CASES ffl HAruus COUNTY

HARRIS COUNTY CRIMINAL COURTS AT LAW

HARRIS COUNTY JUSTICES OF THE PEACE

lfari"IOfficer Sutth c-mitttt
HoL Debbie Maatootb Strlcldla
lM'" no.tn.-t Cri""i-1 <:....rt
Hoa. Mark Alki-• l'raicUlla, _ . Couty cn.iul Coart at Law tl3
'"-""·1'•"'·---
?nsWhla Jlldte Justice ef the Pt8tt PreciKt 4 Platt l

August 9, 2005
Eric Hagstette 1401 McKinney #2250 Houston, TX 77010
Re: Interview for Criminal Hearing Officer Position
Dear Eric .Hagstette:
Thank you for your application for the position ofHarris County Criminal Hearing Officer {hearing officer). You have been selected to interview with a panel ofjudges on August 18, 2005 at 2:00 p.m. Interviews will be held in the administrative offices of the courts on the seventh floor of the Harris County Criminal Justice Center. Interviews will not be rescheduled under any circumstances.
Before you proceed to the next step in the interview process, you should be aware ofcertain practical issues and considerations associated with the criminal hearing officer's position.
l. Hearing officers work 10-hour shifts.
2. Hearing officers must be available at all times during their iliift and may not leave the premises for any reason, including meals. In other words, hearing officers must remain in chambers or the courtroom for the entire shift.
3. New hearing officers are required to work nights and weekends.
4. Hearing officers are responsible for providing for their own continuing legal education and must maintain the requisite number ofCLE hours set by the State Bar.
5. Hearing officers may not accept referral fees and are not permitted to practice law or perform weddings.
6. Hearing officers must have the experience and ability to review arrest warrants, search warrants, emergency mental health warrants for probable cause.
7. Hearing officers must be able to effectively admonish juvenile and adult defendants.

lltl FRANKLIN • 7TH FLOOR • HOUSTON, TEXAS 77002
SCJC 000019

HARRISCO_CourtOrder 001742

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 21 of 212

As a 1udicial officer. a

on1cer' s acrion.:. 0 11 anc

the bench a.-re subiect to me I ex2S Loae o: .....:

Conduct. Under the Code. iudic1al omcera mus: 41-:-

circumsuect concerning many aspects of their private life.

mcrnding but not limneo to. personal ousmess aftaJ.rS.

financial dealituzs. and interactions with third parties

concerning matters that ID1ght have a neganve nnpact on lm::

iudiciarv.

me Y. rt Ll'-cil1Dg o£iicer ;; CUilUUl.:l off OenCll sDOWU never C8Sl uuuoc as to ilie individual's fitness to bold the position.

10. Hearing officers are the delegates of the trying criminal cases in Harris County. As representatives ofthe courts, hearing officers shall scrupulously follow the l11w.

11. Hearin2 officers are at-will employees.

This information is in no way meant to discourage you, but to

ensure that before you go any further in the application process, you are

aware ofthe commitment the nosition re<1uires. The oosition ofHarris

Countv Criminal

Officer is unique in Texas law and wields

important duties and responsibilities. While rewarding, the time constraints

ofthe iob mav have unanticipated repercussions on an office holder's

pcrsc:cl :md fumBy life. !fyou feel you m2Y Ill)1 be !!:ble 1l) nIB.ke the

necessary adjustments, please contact the committee immediately.

lo oetter acquamt you wim me posmon ano ne1p you prepare ror your intervtew, a copy ofthe statutes governing Harris County Criminal Hearing Officers and the Texas Code ofJudicial Conduct are enclosed.

The committee looks forward to seeing you in the near future.

Judge Tom Chair, Search Committee

rn:n FRANKLIN * TTH FLOOR * HOUSTON, TEXAS 77002
SCJC 000020

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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 22 of 212

ROBERT PELTON LAWYER
4001 N. Shepherd Drive, Ste. 200 Houston, TX 77018
(713) 524-8471 1-888-834-3696 Facsimile

December 1, 2017

Eric Vinson Executive Director State Commission on Judicial Conduct 300 West 15Th Street Austin, Texas 78701

Dear Mr. Vinson:
I am writing to you on behalf of Joseph Licata. I have known Judge Licata for
over 30 years. We are colleagues and personal friends. We have worked on cases together and we have been together socially. At all times Mr. Licata has been a gentleman and very professional in all his legal dealings with accused citizens. I have seen Mr. Licata go above and beyond the call of duty to help unfortunate citizens who have found themselves in the legal jungle.
I am aware of the accusations against Mr. Licata and have read articles and personally reviewed the tapes that generated this complaint.
I am the Founder and Chairman of the Texas Criminal Defense Lawyers Association Ethics Committee and a past president of the Harris County Criminal Lawyers Association.
In my 42 years as a lawyer I can rate Mr. Licata as one of the most honorable, professional, kind and compassionate people I have ever known. Dealing with confused, scared individuals takes great patience and I believe Mr. Licata was doing the best to explain to this lady and others how the system works.

Sincere ly,

RP/sb

Robert Pelton

SCJC 000021

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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 23 of 212

ROBERT A. SCARDINO ALI R. FAZt:L ANTHONY SCARDINO

SCARDINO & FAZEL
ATTORNEYS AT LAW 4801 WOODWAY DRIVE, SU1Te: 16!5-E
HOUSTON, TEXAS 77056 7 '3/229-9292
713/229·9931 FAX

ROBERT.SFLAWTX.COM Al..l.SFl.AWTX.COM ANTHONY9Sl'l.AWTX.COM

December 6, 2017
Eric Vinson Executive Director State Commission on Judicial Conduct 300 West 15th Street Austin, Texas 78701
Re: Joseph Licata
Dear Mr. Vinson,
My name is Robert Scardino. I have lived in Houston, Texas all of my life. I am 74 years old and have practiced law since 1972. I am licensed in Texas and Federal courts. I am married and practice with my son, Anthony Scardino. I have no criminal history.

I have known Joe Licata for over twenty years. Our relationship is mostly professional in that we both practice criminal law primarily and I would see him in the courthouse and in courts weekly. I often had the pleasure of discussing various legal and social issues with Joe and with other lawyers over the years therefore I know his reputation in this legal community and it is excellent.

I was appointed to represent a defendant charged with Capital Murder several years ago and Joe was appointed as my second chair. I found his work ethic to be very good and he was greatly responsible for making a record that caused the case to be reversed.

www.SCAROI NOFAZEl...COM
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Since Joe has sat as a Magistrate judge I have heard nothing negative regarding his performance.
I have not experienced any behavior nor have I heard of any that would indicate he harbors any bias or prejudice and any incident otherwise would not be consistent with the man I know or his
reputation. I am available to testify in the event it is required. Sincerely,
Robert A. Scardino RAS:bbs

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MARSHALL TAHERI LA'V GROUP

THE GAl.LERIA, l'OST OFFICE BOX 460001

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The Honorable Eric Vinson Executive Director State Commission on Judicial Conduct 300 West 15th Street Austin, Texas 78701

Re: Judge Joseph Licata III

Dear Mr. Vinson:

I am writing this letter in support ofmy colleague and dear friend, Judge Joseph Licata III, Harris County Criminal Law Hearing Officer, who I have known since 1988.

Judge Licata and I share the same law school alma mater where J also taught for more than thirty (30) years. Also, during the late l980's, he shared my law office suite and I saw him on a daily basis. He is a gentleman and attorney with great integrity and pride.

I have viewed the videos posted online that are the subject of the Honorable Commissioner's review. I am confident that these short hearings are not representative of Judge Joseph Licata Ill's typical demeanor orjudicial temperament. In the many years that J have known him, he has always exemplified patience, dignity, and courteous behavior. Judge Joseph Licata 1Il is a true professional.

If you require any additional information, then please do not hesitate to call me at 713.871.0000.
'
Happy Holidays!

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TELEF'HON E (713) !526·9!57!5

ATTORNEY AT LAW 3714 AUDUBON PLACE HOUSTON, TEXAS 77006

FAX (713) !524·2672

November 30, 2017

To whom it may concern,

I am a lawyer and have been practicing law for forty (40) years. I have also sat as a .
visiting misdemeanor judge for brief periods in the 1990's.

I have known Jill Wallace for thirty (30) years as a colleague and a friend. We have worked on numerous cases together and I have consulted with her on legal issues.

To be frank, Jill Wallace is not only an excellent lawyer and judge, she is a moral compass. When myselfor other colleagues have legal or personal questions regrading ethics, Jill Wallace is the person to consult. She is honest, forthright, and fair. She is one of those rare people who knows what is morally and legally right. She has the core values that we all aspire to practice in all circumstances.

I trust her judgment in every respect. Msr .

:h.11:i;· fought to

the

constitutional rights of citizens accused of crimes and has upheld the principles ofthe state

at all phases of her career and life.

Sincerely,

DAG/rb

DEBORAH A. GOTTLIEB

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KURT GUMBERGER
ATTOR.""IBY ATL.\W 1118 Mn.FORD
Hm;sroN, T£XAS 77006 71s,-240-0404

It is a privilege and an honor for me to provide a reference letter for Jill \'\"al1ace.

I have known Ms. '\·'lal1ace since 1982 when ,i\.-e were in law scbool together. Wallace
comes from a family of lm·vyers, each of whom having earned the utmost respect in the legal community: her brother a respected lawyer/mediator, and her father a former
Senator, Judge 011 the Court of Appeals, Justice of the Texas Supreme Court and Texas
Railroad Commissioner.

Since i988 I have practiced criminal defense work in Harris

Texas, and in 2001

Judge Mike Anderson hired me as staff attorney for the 262.nd Judicial District CoUit of

Harris County1 Texas. Since his retirement I have worked for his successor) Judge Denise Bradley. My duties include representing indigent defendants who are currently

on probation and those who are charged "''ith new offenses, and generally addressing

legal problems ,of indig.ent defendants appearing in court. For many years Ms. 'Wallace

volunteered her time and expertise in assisting me in defending indigent clients accused

of criminal offenses. She received no remuneration for her services, and through her

assistance, dedication and unwavering devotion to the practice of law, we managed to

protect the liberty of, and exonerate, quite a few defendants by obtaining more than a

few "Not Guilty" verdicts for our clients.

During the past 30 years I have frequently requested her counsel and have relied upon her judgment on legal, as well as personal matte.rs. She bas a.1ways exhibited an ance and passion for the law, and even more impo11antly1 for justice, which is abundantly clear to those who have watched her zealously defend her clients. During the years Ms. 'Wallace was in private practice she devoted her time to the assistance of the poor, vulnerable and oppressed. For many years she as served as attorney ad ]item to juveniles. representing the interests of children drawn into the legal system when their par-
ents abused or 'neglected them. She championed and defended the mistreated with a
passion rarely seen and she vigorously represented her clients, standing up for them when on one else would. Her character and morals are unimpeachable and I \\'till always be proud to ca11 her a colleague and friend.

If more information is reql1ested, specific or general,. I would be more than happy to assist

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JAMES P. WALLACE, JR., P.C.
ATTORNEYAT LAW & MEDIATOR
213A W. 8TH STREET GEORGETOWN, TEXAS 78626
(5 12) 930-4848 FAX: (5 12) 863-938 1
E-mail jwallace@gtlawco.com
December 6, 2017
Eric Vinson Executive Director State Commission on Judicial Conduct 300 West 15th Street Austin , Texas 78701
Dear Mr. Vinson :
I write to you on behalf of Jill Wallace Buchanan. I am Jill ' s brother and I have known Jill all of her life . Even as a child Jill was , and as a lawyer and Magistrate continues to be, the one of the most dedicated , direct and honest people I know . She genui nely cares about the people she comes in contact with . Jill has routi nely exhibited t hes e characteristics i n her professional work as well as her personal life . Although s he no longer has a private practice , I still value her professional advice .
I have viewed the videos posted online and that are t he subject of the commission ' s review . I feel confident that these short hearings a r e not representative of Jill ' s typical demeanor or judicial temperament . In al l t h e years I h ave known Jill I have only known her to be patient , dignified , compassi onate and courteous . Jill has always been compl etely professional in her endeavors .
Thank you for the opportunity to share my insight about Jill with you . If you need anything more from me please do n ot hes i tate to contact me .

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State Commission on Judicial Conduct

Honorable Eric Hagstette
l20l Franklin 7th Floor
Houston, TX77002
Re: CJC No. l7-0350-AJ
Dear Judge Hagstette:
As you are aware, the State Commission on Judicial Conduct exercises jurisdiction over
allegations of judicial misconduct. Article V, Section l-a, Paragraph (7) of the Texas Constitution
provides that: "The Commission shall keep itself informed as fully as may be of circumstances relating to the misconduct or disability of particular persons holding an office named in Paragraph A of Subsection (6) of this Section, receive complaints or reports, formal or informal, from any source in this behalf, and make such preliminary investigations as it may determine." Enclosed herewith, please find a copy of a complaint filed by Senator John Whitmire of Austin, Texas (marked as Exhibit C-1). In addition, please find enclosed a CD with a copy of related video recordings (marked as Exhibit CJC-1).
As you know, our inquiries at this point are confidential, and it has been our experience that the majority of complaints can be resolved on the basis of information received from the judge. In order for us to complete the investigation into this matter, we ask that you respond to the questions contained in item QJ-l, attached hereto.
If you need more space, please feel free to attach additional pages. After responding to the questions, please feel free to submit any comments, explanations, or justifications you believe
appropriate. Additionally, please personally sign, date and veriff your answers before a notary public. In making this request, the Commission makes no prejudgment that you have done anything
improper, and we look forward to resolving this matter as expeditiously as possible. We appreciate your helping us to carry out our responsibilities and request your written responses by March 21,2017.
If you have any questions or if we may be of assistance to you, please do not hesitate to contact
this office.
Sincerely,
Kelly Gier Commission Counsel

KG/ Enclosures: Complaint (C-1), Videos (CJC-1) and QJ-1

P O Box 12265 Austin TX 78711-2265

SCJC 000028 wvw. scjc.state.tx.us

HARRISCO_CourtOrder 001751 (512) 463-5s33
000243 Toll-free (87 7 ) 228 -57 50

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 30 of 212

QJ-1 CJC No. 17-0350-AJ LETTER OF INQUIRY: HONOruNLE ERIC HAGSTETTE
Brief background of Hearing Officer Position:
The position of Harris County Criminal Law Hearing Officer is created and governed by Chapter 54 of the Government Code. See Tnx. Gov'T CooB A¡w. $$ 54.851-61. Hearing Officers have limited, concurrent jurisdiction with the District Courts and County Criminal Courts at Law, and concurrent criminal jurisdiction with the Justice Courts.
Hearing Officers are appointed by a nine member board made up of three judges of the district courts of Harris County trying criminal cases, three judges of the County Criminal Courts at Law, and three Justices of the Peace in accordance with $ 54.852 of the Government Code. Each Hearing Officer is appointed for a one year term that can be renewed, at the board's discretion, each year. The same board can terminate a Hearing Officer at any time.
In Harris County, one of the seven Hearing Officers (untilthe end of 2016,there were only five Hearing Officers) is on duty at all times, including holidays, weekends, and during severe weather events. I am unaware of any time, since the first Hearing Officers were appointed, that there was not a Hearing Officer
on duty.
The primary responsibilify of Hearing Officers is to conduct the first hearing after a criminal defendant is
arrested and, at that hearing, to determine whether probable cause exists. Every single hearing is videotaped, but "Probable Cause Court" is not a court of record. If probable cause is found, the Hearing Officer is charged with setting bail and determining eligibility for a personal bond. A personal bond is a
bond without any up front financial conditions to release and is subject to supervision by the Pre-Trial Services agency. At this hearing, we also ask whether the defendant would like a court-appointed lawyer. If the defendant responds affirmatively, we pass this information along to the court of record. The court is assigned before we see the defendant.
This first hearing, commonly referred to as a probable cause, PC, or 15.17 hearing, is conducted via videolink or video teleconferencing, with the defendants typically in a courtroom at the jail and the
Hearing Officer, clerk, pretrial services officer, and Assistant District Attorney in the Criminal Justice Center. Harris County is currently developing a program to provide a public defender at these hearings, with that program set to begin on July 1,2017. Hamis County will be the first large county in Texas to provide a public defender at this stage.
1. Please provide the dates of your judicial services.
October 2005 until the present.
2. Who appointed you to the associate judge position?
The position of Hanis County Criminal Law Hearing Officer is not the same as that of an associate judge. The associate judge position is created and governed by Chapter 544 of the Government Code. The position of Hanis County Criminal Law Hearing Officer, which is my position, is created and governed by Chapter 54 of the Government Code. See Tnx. Gov'T CooB A¡lN. $$ 54.851-61.

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I was appointed to the Hearing Officer position by the nine member board described above, My contract has been renewed each year since 2005 for a one year term. The Board meets annually to consider Hearing Offrcer reappointments. Upon reappointment, Hearing Officers take a new oath of office.

J

Please describe the factors you consider when setting a bond for a suspect charged with an

offense, whether misdemeanor or felony. Please provide any documentation that guides your
decision making, including in your response any guidelines or limitations placed on your

discretion by the Court to whom each defendant is assigned.

In reviewing and setting bond, I consider the factors set out in article 17.15 of the Code of Criminal
Procedure, all available facts and information, and the accused's demeanor. To assist me, Pretrial Services
usually prepares a report that includes the results of a risk assessment and an interview with the
defendant, assuming the defendant consented to the interview and was available (i.e., not in the hospital,
etc,). Pretrial Services also attaches to the report the results of a criminal history search. During the probable cause hearing, I review the information provided by Pretrial Services. In addition, an Assistant
District Attorney reads the factual allegations of the case, which I also consider.

In light of allof the factual information available and Texas law, I also regard any rules, preferences, and
policies of the assigned trial courtjudge to whom the case is assigned (cases are assigned cause numbers
and courts before the probable cause hearing, so I know which judge will get each case). My previous experience as both a prosecutor and a defense attorney also helps inform my decisions. I have spent
much of my career working in criminal law and, where appropriate, I draw on this experience.

4

Have you ever been given a directive by any judge (County Court at Law or District Judge) that

restricts your discretion in any way as a magistrate? If so, please describe the restrictions placed

upon you by each such judge, and the time period the described restrictions were in place. If you

have documents reflecting this directive, including emails, memos, letters, and the like, please

provide the Commission with all documents responsive to this request received from a judge in

the last two years.

Until March 27, 2017, several of the District Court Judges did not permit Hearing Officers to grant personal bonds, instructing that personal bond applications be referred to the assigned trial court for consideration. Most of the District Court Judges also had specific rules to follow in consideration of bond.
Included with this response are representative copies of charts outlining the specific instructions issued to
the Hearing Officers. These individual rules were removed effective March 27,2017 .

The County Criminal Court at Law Judges historically had similar rules. These rules were passed to the
Hearing Officers through the years through email, written notes, and word of mouth. For example, when a new Hearing Officer would start, they were informed of the various practices and preferences of each
County Criminal Court at Law Judge. The County Criminal Court at Law Judges' preferences were never
formalized in the same way as the District Court Judges, and, in the last few years, there was some lack of clarity as to what rules were still in place and which ones were no longer effective. In an August 2016 letter, the County Criminal Court at Law Judges clarified that the Hearing Officers are to exercise full
discretion, guided only by Texas law and the Local Rules. I understood this letter to mean that all
previous instructions were no longer in effect.

It is my understanding that part of the Commission's inquiry relates to the exercise of discretion as it relates to issuing personal bonds. It is true that prior to March 27, 2017, the District Court Judges had specific rules regarding personal bonds. A number of the District Court Judges wanted to consider
eligibility for personal bond in the first instance rather than delegating that decision to the Hearing Officers. Referring this consideration in accordance with the instructions of the judge whose court the

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case is pending is appropriate, as, with respect to Felonies and Class A and B misdemeanors, my
jurisdiction is "limited concurrent jurisdiction." See TEx. Gov'T Cooe A¡w. $ 5a.858(a). In other words, as the cases I see already are assigned to a particular court and judge, I believe that judge has the choice as to what matters to refer to the Hearing Officers, and District Judges have within their discretion to not
refer consideration of a personal bond. Moreover, the Government Code specifically allows the court to review and alter my decisions. See id. $ 54.858(b) ("This section does not limit or impair the jurisdiction of the court in which the complaint, information, or indictment is filed to review or alter the decision of
the criminal law Hearing Officer.").

If the Commission believes that the Hearing Officers should be more independent, cases could be
assigned to a specific court after the probable cause hearing. However, because cases are currently assigned to a specific court before the probable cause hearing, it is entirely appropriate to refer decisions to the assigned judge in accordance with their instructions. Unfortunately, this solution is not within the
control of the Hearing Officers.

5

Please review the enclosed video recording (CJC-l). During one magistration, you appeared to

raise a defendant's bail from $1,000 to $2,000 because she responded to your questions with the

word "yeah" instead of "yes."

Prior to answering the commission's specific questions, I think some context would be helpful: In
conducting hearings, I try to speak very clearly and to be respectful of all defendants. I remind myself that I am seeing none of them on their best day. Specifically, it is my practice to refer to defendants as
"Mr.," "Sir," "Ms.r" or "Ma'am." I also say "please" and "thank you." In turn, I expect defendants to conduct themselves with at least a minimum level of respect and decorum, although I do not ask to be
referred to as "sir," 'Judge," "your honor," or any such honorific.

As explained above, the defendants appear by video, which does not provide me a good view of the defendant. The screen upon which I view the docket is approximately l0 inches x l8 inches. One quarter
of the screen shows the entire courtroom in which all defendants are located; one quarter is my own face; one quarter is the Assistant DA; and the remaining quarter is blank. Because of the small size of the
Defendant's image, I am unable to read a defendant's lips as an aid to hearing what is being said. Further, the audio is not perfect. The defendant's microphone picks up background noise, including talking,
sneezing, coughing, fidgeting, and snoring. These background noises often will drown out or make
difficult to hear what is being said, which can be frustrating. On my end of the link, I am very careful not to rustle papers any more than I have to as I know this will make it difficult for the defendant to hear what
I am saying. My speaker is small and sometimes not clear, sometimes "cutting out" and frequently
making it necessary to request that a defendant repeat a response.

There is also about a one second delay between the audio and the video, so that, on the video, the speaker's lips do not stop moving until about one second after the audio stops. The result is that, on video, it often appears that speakers are interrupting one another.
Given the technical challenges, it is imperative that I receive clear "yes" or "no" answers from the
defendants. Because of this, before the beginning of a docket, defendants are instructed to respond with a
clear o'yes" or "no." If a defendant forgets, I will remind the defendant that I need a "yes" or "no." Further, I am required by law to ask certain questions, such as whether the accused wants a court appointed attorney, and I am statutorily charged with relaying such a request to the trial court. I vgry
much want to be sure I understand the iesponse. Given the imperfections of the audio system, I do not
want to risk misunderstanding the response if it is "uh huh" or "uh uh" or even "yeah" unless it is
accompanied by other words that make clear the response.

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Furthermore, these are serious proceedings. I find responses such as 'ouh huh" or "yeah" to be an
indication of a lack of respect for the judicial system. From my experience, I also know that disrespect from one defendant often leads to disrespect from others on the docket, causing a chain-reaction. I have
seen dockets deteriorate to a dangerous point. On occasion, fights have broken out among defendants and between defendants and jailers. At times, defendants shout at me, the jailers, and each other. I have been called some very ugly and nasty names. Defendants have felt free to cuss me and walk off during the hearing, even while I am addressing the defendant. I try very hard to prevent this from happening and, on
occasion, have raised my voice to make clear that I will not tolerate this behavior. In my experience, it is easier to maintain order if I take a fìrm hand at the first sign of a problem.
After reviewing Ms. Jackson's video, if I had this to do again, I would try for a less harsh and short tone. Court personnel can tell you that I am, almost without exception, extremely patient in hearings. Out of approximately one-quarter million hearings over the years, the times I have raised my voice are few. It is no secret that the pretrial system in Harris County has come under close scrutiny lately, largely due to the ODonnell litigation. However, in the course of ODonnel/, Plaintiffs and others, after reviewing thousands of hours of videos, managed to find only a few hearings to criticize which did not show me at my best. It
is safe to assume that if other "bad" videos existed, Plaintiffs would have identified them and likely
collaborated with another group-such as the Texas Organizing Project-to publicize such videos in the way that this video was publicized. I believe the fact that so few "bad" videos have surfaced is strong evidence that all other hearings are routine and that my conduct, as a whole, is unobjectionable.
(a) Please describe whether that bond increase comports with the Criminal Code of
Procedure Art.17.15.
I believe the increase in bond comports with article 17.15 of the Texas Code of Criminal Procedure. In
my view, Ms. Jackson was disrespectful. Ms. Jackson did not seem to take the situation seriously and, as
such, it is reasonable to infer that she may not take seriously her obligation to return to court, One of the
factors in article 17 .15 to be considered is that "bail shall be sufficiently high to give reasonable assurance
that the undertaking will be complied with." Given Ms. Jackson's lack of respect and her attitude during
the hearing, a moderate increase in the bond hopefully demonstrated to her and the other defendants the
seriousness of the situation and further reiterated the need to comply with reasonable conditions and requests. In other words, if Ms. Jackson lacks the basic respect to answer a question with a simple "yes"
or "no," choosing instead to argue about the request, it is less likely that she will comply with the
conditions of bail or bond. Moreover, raising the bond from $1,000 to $2,000 did not make the bond oppressive. See Tnx. CoDE oF Cnlv. PRoc. art. 17.15.
(b) Please describe whether that bond increase comports with Canons 2A and 3B(4).
I believe my conduct comports with both Canons 2A and 3(BX4). Canon 2A requires that "a judge shall comply with the law and should act at all times in a manner that promotes public confidence in the
integrity and impartiality of the judiciary." As set forth above, I complied with the law, specifically
17.15, in raising Ms. Jackson's bond from $1,000 to $2,000. As discussed above, by requiring Ms. Jackson to follow a simple instruction and answer a question with a clear "yes" or "no," I believe I am giving the impression to all those present in the courtroom at the time, and the public atlarge, that these
are serious proceedings that should be respected. I believe demanding such respect "promotes public
confidence" in the judiciary. I also believe that there should be consequences for one's actions, including consequences for showing a disregard for the judicial process. By imposing consequences, I hope this instills confidence in the judicial system and shows that judges are in control of their courtroom and taking their job seriously. I do not believe the public would have much confidence in me as judge if they believed I let the accused run my courtroom.

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Canon 3(BX4) requires that "a judge shall be patient, dignified and courteous." I do not believe my
conduct or tone crossed the line. I was patient and courteous. I requested a simple "yes" or "no" three times. Then, in a stronger tone, while being yelled at, explained what I needed. Furthermore, I am also
required to abide by Canon 3(BX3), which requires that "a judge shall require order and decorum in
proceedings before the judge." I believe my conduct was a balance of these Canons. I was respectful and
professional, while still maintaining order in my courtroom. Hindsight is 20120.I am not claiming that
how I handled Ms. Jackson's hearing was exemplary. I am always striving to improve and learn and
striving to be exemplary, as I am sure all of us are, But I do not believe my conduct approached a
violation of the Canons of Judicial Ethics.

6

Please review the enclosed video recording (CJC-l), showing the magistration of Willie Love

Watson, and answer the questions below.

(a) Did you believe that you had discretion to issue Mr. Watson a Personal Release
("PR") bond? If not, why not?

I had the discretion to issue Mr. Watson a personal bond. Mr. Watson was arrested for the misdemeanor offense of driving while license invalid. The County Criminal Court at Law Judges do not prohibit
approval ofpersonal bonds for this offense.

In my opinion, Mr. Watson was not a good candidate for a personal bond. At the time of the hearing, I reviewed Mr. Watson's Pretrial Services packet, and I have re-reviewed it in preparing this answer. The
criminal history summary shows that Mr. Watson has been arrested l l times with a felony conviction and
two misdemeanor convictions. And importantly for bail setting purposes, Mr. Watson lives in Longview,
Texas, hundreds of miles from Harris County. He listed the length of time he has been in Harris County
as "0 Day," He appears to have no ties to the local community whatsoever. He also provided no reference
contact information to use to veriff his information, as required under Haris County Pretrial Services
policies. He did not know his employer.

Ultimately, I exercised my discretion to lower Mr. Watson's bond, but did not approve a personal bond.
(b) Please describe whether your demeanor with Mr. Watson comports with Canons
2A and 3B(4).

I believe my demeanor comports with both Canons 2Aand 3B(4). I was respectful and courteous to Mr. Watson and was sincere in saying that I hoped he could secure release on his own. I have empathy for Mr. Watson and hoped he would post his bond quickly. (Mr, Watson secured release through a plea two days later). The comment was not meant to be sarcastic or snide. If the words were taken as such, I am sorry.
Certainly, they were not meant that way.

7

Please provide the Commission with any additional information that you believe to be relevant.

You may include s\ryorn statements or affidavits from individuals in support of your responses.

I think it is important for the Commission to fully understand the realities of being a Hanis County
Criminal Law Hearing Officer. From 1993 until late 2016, only five Hearing Officers served at any one time, handling cases from all District Courts trying Criminal Cases, all Criminal Courts at Law and all Justice Courts-a total of 54 courts. A Hearing Officer is on duty 24 hours a day every day of the year, including holidays. A job description by the board ofjudges made clear the Hearing Officers are "at will employees," that the Hearing Officers are the "delegates" of the judges trying criminal cases, and that,
while on duty, Hearing Officers are not to leave the premises for any reason, including meals.

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Having only five Hearing Officers, with only one on duty at a time, has created significant hardships. "Probable Cause Court" has not closed during my tenure as a Hearing Officer, not even during floods and hurricanes. When one Hearing Officer takes vacation, it is the responsibility of the others to cover that Hearing Officer's duties, by working extra days. While we have occasionally had the benefìt of a retired judge filling in, for many years there was no such relief available, and substitutes continued to be the exception. Also, because of the difficulties it would cause to the other Hearing Officers, from 2005 up until2017, none of us have taken a sick day. In fact, Hearing Officers have presided even while sick and it is not unknown for a Hearing Officer to vomit at work, even while on the bench, because taking a sick day would impose too great a burden on the other Hearing Officers. Necessary surgeries and other medical procedures are scheduled for days off or months in advance in order to ensure coverage of the
court.
In late 2016, Haris County hired two additional Hearing Officers. The addition of these Hearing Officers has helped, but we are still understaffed.
Hearing Officers handle a variety of functions, although the primary functions are to preside at "Probable Cause" hearings and to dispose of Class C misdemeanor cases arising out of the Justice Courls. For this purpose, there are twelve dockets scheduled every 24 hours, roughly every two hours, day and night. Throughout the 24 hours, between dockets, and sometimes in conjunction therewith, Hearing Officers also perform magistrates' duties with regard to those arrested on warrants issued in other states and other counties within Texas. Throughout the 24 hours, Hearing Officers also review applications for arrest warrants, search warrants, "blood warrants" and mental health warrants, issuing the warrants when appropriate. In many cases, these functions are performed with a peace officer present who must wait for the availability of the Hearing Officer on duty. Throughout the 24 hour day, Hearing Officers also are
asked to determine Probable Cause off docket in situations in which a defendant will not be in Probable Cause Court within the statutory time limit for such a determination, see TBx. Coo¡ oF CRIM. PRoc. art. 17.003, and to release on personal bond those defendants for whom Probable Cause was not determined
within the time limit.
Each docket takes about an hour. On an ordinary day, each docket includes 20 to 30 defendants, although there may be as many as 45. I expect to see approximately 100 arrestees during my work day. In my more
than eleven years as a Hearing Officer, I estimate I have seen close to one-quarter million people on
Probable Cause and Justice ofthe Peace dockets.
Probable Cause dockets are conducted by videolink. I have set forth the technical difficulties above. As the Probable Cause docket begins, I read the assembled defendants their rights, as set out in the Code of
Criminal Procedure, and inquire whether they understand the rights. I explain most are there for a
probable cause hearing and then explain what that is, emphasizing that the hearing is not a trial. I explain that, in the event that probable cause is found, I will review the bond that has been attached to the case and will consider each for a personal bond. I explain the process for requesting a court appointed lawyer. As I cannot appoint lawyers, I explain that a request for a court appointed lawyer will be forwarded to the
trial judge.
It is not uncommon for an accused to swear at a Hearing Officer, to call a Hearing Officer names, or to show total disregard for a Hearing Officer and the judicial process. This reality is part of the job that I believe all the Hearing Officers accept. Over the course of a long shift, with dockets every two hours, and a large number of defendants, even the best intentioned person can get frustrated and fatigued. I have viewed the videos identified by the Commission as it relates to the complaint against me, as well as the
complaints against my fellow Hearing Officers. I have also reviewed videos selected by Plaintiffs' counsel in the ODonnell litigation. From all these videos, I have come to the conclusion that all the
Hearing Officers do a professional job in a very difficult situation, All people are fallible; all people at

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one time or another have a less than perfect moment. Most people, however, are not videotaped during
that moment. We are. In the videos I have reviewed, I have not seen one that I believe falls well below appropriate judicial standards. Granted, a small handful of unflattering videos viewed in isolation can
leave a bad impression. But when those isolated incidents are put into context that the Hearing Officers
hold twelve sometimes volatile dockets a day every day of the year, with up to 45 people on each docket,
in conjunction with an always unpredictable volume of other business, they are not so shocking.

Finally, if the Commission is concerned about the Hearing Officers' judicial independence, as discussed

above, this is not an issue that can be remedied by the Hearing Officers. The Hearing Officers serve many

masters. The Hearing Officers exercise the discretion they can within the bounds set. To the extent any

constraints existed, such as some District Judges asking that consideration for personal bonds be referred

to them (which has been abrogated), these constraints are within the law. I am aware of no law requiring,

in a case pending in District Court, that the Hearing Officer make the determination of eligibility for

personal bond. Conversely, the Roberson order, attached, requires that eligibility for a personal bond be
considered at the probable cause hearing in misdemeanor cases. In 2016, statistics show 25%o of

misdemeanor defendants who appeared before a Hearing Officer were approved for a personal bond,

plainly showing that the Hearing Officers, indeed, are exercising their discretion. Moreover, since the

misdemeanor judge's August letter, the Hearing Offrcers have collectively issued many more personal

bonds. A document

the increase in personal bonds is included herewith

(Judge's

)

E/r--5.
(Printed Name)

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Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 37 of 212

State ofTexas County of Hanis
BEFORE
that the correct. SUBSCRIBED

QJ-1 VERIF'ICATION
CJC No. 17-0350-AJ

$ $
authority, on this day personally appeared
who by me being first duly sworn, on his oath deposed and said to Commission's inquiries are based on personal knowledge, and true and

RN TO BEFORE ME, on this the

day of

2017.

(J
r'/( s
(Printed Name)
NOT PUBLIC

'tâvh ,-àr,Jl Þ, s /r,r:/ C/er K '
ç

Gardere0l - 10159560v.1

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Exhibit A: Exhibit B
Exhibit C:
Exhibit D Exhibit E: Exhibit F: Exhibit G: Exhibit H:

Documents Included with Response Representative correspondence with other judges August 8,2016 Letter from County Criminal Court atLaw Judges to Hearing Officers March 23,2017 Letter from District Courts Judges Trying Criminal Cases to Hearing Officers Hanis County Criminal Courts atLaw Rules of Court (Aug. 12,2016) Harris County Criminal Courts atLaw Rules of Court (cunent) Felony bail schedule and felony judges' representative instructionsl 2016Percent of Misdemeanor Arrest Population Receiving a Personal Bond2 Harris County Pretrial Services 2016 Annual Report3

I Individual instructions abrogated by March 23,2017 letfer. 2 The percentages reflected are based on the total population of misdemeanor arrestees. However, arrestees who bond out prior to being considered by a Hearing Officer are not included. Therefore, the number of personal bonds granted as a percentage of those actually appearing before a Hearing Officer is even higher. 3 One issue with the Report is that some statistics are presented based on the defendant (who may have multiple
cases) and some are based on the case.

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State Commission on Judicial Conduct

Honorable Jill Wallace 1201 Franklin 7th Floor Houston, TX77002
Re: CJC No, 17-0351-AJ
Dear Judge Wallace
As you ùre aware, the State Commission on Judicial Conduct exercises jurisdiction over allegations of judicial misconduct. Article V, Section l-a, Paragraph (7) of the Texas Constitution
provides that: "The Commission shall keep itself informed as fully as may be of circumstances relating to the misconduct or disability of particular persons holding an office named in Paragraph A of Subsection (6) of this Section, receive complaints or reports, formal or informal, from any source in this behalf, and make such preliminary investigations as it may determine." Enclosed herewith, please find a copy of a complaint filed by Senator John Whitmire of Austin, Texas (marked as Exhibit C-l). In addition, please find enclosed a CD with a copy of related video recordings (marked as Exhibit CJC-I).
As you know, our inquiries at this point are confidential, and it has been our experience that the majority of complaints can be resolved on the basis of information received from the judge. ln order for us to complete the investigation into this matter, we ask that you respond to the questions contained in item QJ-l, attached hereto.
If you need more space, please feel free to attach additional pages. After responding to the questions, please feel free to submit any comments, explanations, or justifications you believe
appropriate. Additionally, please personally sign, date and verify your answers before a notary public.
ln making this request, the Commission makes no prejudgment that you have done anything
improper, and we look forward to resolving this matter as expeditiously as possible. We appreciate your helping us to cary out our responsibilities and request your written responses by March 21r2017.
If you have any questions or if we may be of assistance to you, please do not hesitate to contact
this office.
Sincerely,
Kelly Gier Commission Counsel

KG/ Enclosures: Complaint (C-1), Videos (CJC-l) and QJ-1

P O Box 12265
J-2 Austin TX 78711-2265

SCJC 000038 rtww. scj c. state. tx. us

HARRISCO_CourtOrder 001761 (sl2) 463-s533
000253 Toll-free (877) 228-57 50

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 40 of 212

QJ-1 CJC No. 17-0351-AJ
LETTER oF INQUIRY: HoNoRanLE JILL WALLACE

Brief background of Hearing Officer Position

The position of Hanis County Criminal Law Hearing Officer is created and governed by Chapter 54 of the Government Code. See Tøx. Gov'T Cooa ANN. $$ 54.851-61. Hearing Officers have limited, concurrent jurisdiction with the District Courts and County Criminal Courts at Law, and concurrent
jurisdiction with the Justice Courts.

Hearing Officers are appointed by a nine member board made up of three judges of the district courts of Harris County trying criminal cases, three judges of the County Criminal Courts at Law, and three Justices of the Peace in accordance with $ 54.852 of the Government Code. Each Hearing Officer is appointed for a one year term that can be renewed, at the board's discretion, each year. The same board
can terminate a Hearing Offrcer at any time.

ln Haris County, one of the seven Hearing Officers (until the end of 2016, there were only five Hearing Officers) is on duty at all times, including holidays, weekends, and during severe weather events. I am unaware of any time, since the frst Hearing Officers were appointed, that there was not a Hearing Officer
on duty.

The primary responsibility of Hearing Officers is to conduct the first hearing after a criminal defendant is
arrested and, at that hearing, to determine whether probable cause exists. Every single hearing is videotaped, but "Probable Cause Court" is not a court of record. If probable cause is found, the Hearing
Officer is charged with setting bail and determining eligibility for a personal bond. A personal bond is a bond without any up front financial conditions to release and is subject to supervision by the Pre-Trial Services agency. At this hearing, we also ask whether the defendant would like a court-appointed lawyer. If the defendant responds affirmatively, we pass this information along to the court of record. The court
is assigned before we see the defendant.

This first hearing, commonly refered to as a probable cause, PC, or 15.17 hearing, is conducted via videolink or video teleconferencing, with the defendants typically in a courtroom at the jail and the Hearing Officer, clerk, pretrial services offrcer, and Assistant District Attomey in the Criminal Justice
Center. Harris County is currently developing a program to provide a public defender at these hearings,
with that program set to begin on July l, 2017 . Harris County will be the first large county in Texas to
provide a public defender at this stage.
1. Please provide the dates of your judicial services

December 26,2005 through the present.

2.

Who appointed you to the associate judge position?

The position of Haris County Criminal Law Hearing Officer is not the same as that of an associate judge. The associate judge position is created and governed by Chapter 544 of the Government Code. The position of Harris County Criminal Law Hearing Offrcer, which is my position, is created and governed
by Chapter 54 of the Government Code. SeeTEx. Gov'T CoDE ANN. $$ 54.851-61.

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I was appointed to the Hearing Ofücer position by the nine member board described above. My contract has been renewed each year since 2005 for a one year term. The Board meets annually to consider
Hearing Offrcer reappointments. Upon reappointment, Hearing Officers take a new oath of office

J

Please describe the factors you consider when seffing a bond for a suspect charged with an

offense, whether misdemeanor or felony. Please provide any documentation that guides your
decision making, including in your response any guidelines or limitations placed on your

discretion by the Court to whom each defendant is assigned.

In reviewing and setting bond, I consider the.factors set out in article 17.15 of the Code of Criminal
Procedure and all available facts and information. To assist me, Pretrial Services usually prepares a report that includes the results of a risk assessment and an interview with the defendant, assuming the defendant consented to the interview and was available (i.e., not in the hospital, etc.). Pretrial Services also attaches the results of a criminal history search to .the report, which often lists prior failures to appear. In both setting bond and considering eligibility for a.personal bond, I look very closes at failures to appear within
the last two years. ln addition, an Assistant District Attorney reads the factual allegations of the case,
which I also consider.

In light of all of the factual information available and Texas law, I also regard any rules, preferences, and policies of the assigned trial court judge to whom the case is assigned (cases are assigned cause numbers
and courts before the probable cause hearing, so I know which judge will get each case). My previous
experience as defense attomey also helps inform my decisions. I have spent much of my career working in criminal law and, where appropriate, I draw on this experience.

4

Have you ever been given a directive by any judge (County Court at Law or District Judge) that

restricts your discretion in any way as a magistrate? [f so, please describe the restrictions placed

upon you by each such judge, and the time period the described restrictions were in place. If you

have documents reflecting this directive, including emails, memos, letters, and the like, please

provide the Commission with all documents responsive to this request received from a judge in

the last two years.

Until March 27, 2017, several of the District Court Judges did not permit Hearing Officers to grant personal bonds, instructing that personal bond applications be referred to the assigned trial court for consideration. Most of the District Court Judges also had specific rules to follow in consideration of bond.
lncluded with this response are representative copies of charts outlining the specific instructions issued to the Hearing Officers. These individual rules were removed effective March 27,2017.

The County Criminal Court at Law Judges historically had similar rules. These rules were passed to the
Hearing Officers through the years through email, written notes, and word of mouth. For example, when a new Hearing Officer would start, they were informed of the various practices and preferences of each County Criminal Court at Law Judge. The County Criminal Court at Law Judges' preferences were never
formalized in the same way as the District Court Judges, and, in the last few years, there was some lack of clarity as to what rules were still in place and which ones were no longer effective. In an August 2016 letter, the County Criminal Court at Law Judges clarified that the Hearing Officers are to exercise full
discretion, guided only by Texas law and the Local Rules. I understood this letter to mean that all
previous instructions were no longer in effect.

It is my understanding that part of the Commission's inquiry relates to the exercise of discretion as it relates to issuing personal bonds. It is true that prior to March 27, 2017, the District Court Judges had specific rules regarding personal bonds. A number of the District Court Judges wanted to consider
eligibility for personal bond in the first instance rather than delegating that decision to the Hearing

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Officers. Referring this consideration in accordance with the instructions of the judge whose court the
case is pending is appropriate, as, with respect to Felonies and Class A and B misdemeanors, my
jurisdiction is "limited concuruent jurisdiction." S¿e TEX. Gov'T CoDE ANN. $ 5a.858(a). In other words,
as the cases I see already are assigned to a particular court and judge, I believe that judge has the choice
as to what matters to refer to the Hearing Officers, and District Judges have within their discretion to not refer consideration of a personal bond. Moreover, the Government Code specifically allows the court to review and alter my decisions. See id. $ 54.858(b) ("This section does not limit or impair the jurisdiction
of the court in which the complaint, information, or indictment is filed to review or alter the decision of
the criminal law Hearing Officer.").
If the Commission believes that the Hearing Officers should be more independent, cases could be
assigned to a specific court after the probable cause hearing. However, because cases are currently assigned to a specific court before the probable cause hearing, it is entirely appropriate to refer decisions
to the assigned judge in accordance with their instructions. Unfortunately, this solution is not within the control of the Hearing Officers.

5

Please review the enclosed video recording (CJC-1). During the magistration of Mr, English, he

said he was coming from work. You responded with, "No, you don't have to say anything, Mr.

English. You get to say that to your court appointed lawyer." Please describe whether your

magistration of Mr. English comports with the Criminal Code of Procedure Art. 17.15. Also,

please describe whether your demeanor with Mr. English comports with Canons 24, 3B(4) and

3B(8).

The Commission only provided a very short clip, less than four seconds, of Mr. English's hearing, so it is difficult to tell the context of that comment. I have, however, reviewed the entire hearing. A copy of the complete video is provided with this response.
Before addressing the Commission's specific questions, t think some background is important. My
primary function is determine whether probable cause exists. Aside from Class C cases, my role is not to judge guilty or innocence nor is it to pass on the merits of the case. The facts provided by the assistant
district attorney are enough to determine whether probable cause exists. Moreover, I generally have all of
the information before me that I need to determine whether to issue a personal bond and where to set bail.
In instances where I do not, I will ask the accused a question. [n such instances, the accused is encourage to speak, but I will try and limit them to answering only the question and not use the opportunity as an
invitation to discuss the merits of their case.

It is important for the Commission to understand that at these hearings the accused are not represented by
counsel. Moreover, they are not only appearing before me, they are also appearing before the district attorney. It is my experience that if the accused is given free rein to speak, they will often do more harm
than good to their case. I have watched defendants make incriminating statements in these hearings.
Therefore, I generally discourage the accused from speaking and will attempt to keep them from engaging in a lengthy dialogue. But I do not maintain an absolute bar on the accused speaking. If the accused has a question, and I genuinely believe that it is a question and that they do not want to discuss the merits of their case, I will let them speak. Furthermore, starting in July 2017, a public defender will be present at these hearings. The public defender will likely instruct the accused not to speak, but, more importantly, can be a conduit to convey any information that the accused feels necessary, but do so in a way that will
not harm the accused's case.

After reviewing this hearing, I believe if complied with article 17.I5.In the pretrial services packet, I
generally have all of the information before me that I need to determine whether to issue a personal bond and where to set bail. I see nothing in the video showing that I did not comply with article 17.15.

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I also believe that my conduct comports with Cannons 2A and 3B(4). Cannon 2A requires that I act in a manner that "promotes public confidence in the integrity and impartiality of the judiciary." Knowing that the accused are unrepresented, and knowing that accused could readily say a something in front of the prosecutor that could incriminate themselves, I believe limiting general statements by the accused, which it appears that Mr. English wanted to do, promotes the integrity and impartiality of the judiciary: It would
be patently unfair to the accused to allow them to incriminate themselves. Moreover, as noted above, I do allow genuine questions of the accused. rWhile my practice to try and limit what the accused says in these
hearings may seem unfair, it truly is in the best interests of the accused. As noted above, starting in July a
public defender will represent the accused. I will reexamine my practices and likely allow the public
defender to speak for the accused.

Cannon 3B(4) requires that I be "patient, dignified and courteous to litigants." I do not believe that my
conduct fell below what is required. rWhat is evident from the entire video (as opposed to the four second
clip provided by the Commission) is that I had concluded with Mr. English's hearing. Mr. English then
states, "I have to say something Ma'am, I was coming from work . . . " Mr. English sought to discuss the actual merits of his case. As I told Mr. English, the appropriate person to speak with about the merits of his case was his court appointed lawyer. My role is merely to find whether probable cause exists. I was
not, however, disrespectful in any way to Mr. English during this brief exchange. I needed to interject in
an abrupt manner to keep Mr. English from speaking and potentially incriminating himself.

6

Please review the enclosed video recording (CJC-l). During the magistration of Anthony Wayne

Goffney, he appears to have mental health issues. Please explain what steps you took to assist him

with his mental health illness. Also, please describe whether your demeanor with Mr. Goffney

comports with Canons 2A and 3B(4).

It is not evident from the video that a pretrial services agent is present in the courhoom. At the very
beginning of the hearing, I turn to the pretrial services agent and note that something appears to be
tenibly wrong with Mr. Goffney. Pretrial services took note of this and Mr. Goffney was later evaluated.
Also, my interaction with Mr. Goffney is very limited. Before he appears before me, Mr. Goffney interacted with law enforcement officers, jail staff and pretrial services. My contact with the accused is the shortest and most impersonal. In this case, and in all other cases where it is obvious, I will make a
note for pretrial services to follow-up. There is nothing more I could have done for Mr. Goffney.

I believe that my conduct fully comports with Canons 2A and 3B(4). It was difficult to understand Mr. Goffney, and I was very patient with him. I believe my demeanor towards Mr. Goffney was completely appropriate. Moreover, I must keep my docket moving. I had already noted to pretrial services that Mr.
Goffney had a mental health issue. Continuing to prod Mr. Goffney for clearer answers would have been
unproductive and would have only served to embarrass him.

7

Please provide the Commission with any additional information that you believe to be relevant.

You may include sworn statements or affidavits from individuals in support of your responses.

I think it is important for the Commission to fully understand the realities of being a Harris County
Criminal Law Hearing Officer. From 1993 until late 2016, only five Hearing Officers served at any one
time, handling cases from all District Courts trying Criminal Cases, all Criminal Courts at Law and all
Justice Courts-a total of 54 courts. A Hearing Officer is on duty 24 hours a day every day of the year, including holidays. A job description by the board ofjudges made clear the Hearing Officers are "at will employees," that the Hearing Officers are the "delegates" of the judges trying criminal cases, and that,
while on duty, Hearing Officers are not to leave the premises for any reason, including meals.

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Having only five Hearing Officers, with only one on duty at a time, has created significant hardships. "Probable Cause Court" has not closed during my tenure as a Hearing Officer, not even during floods and hurricanes. When one Hearing Offrcer takes vacation, it is the responsibility of the others to cover that Hearing Officer's duties, by working extra days. While we have occasionally had the benefit of a retired judge filling in, for many years there was no such relief available, and substitutes continued to be the exception. Also, because of the difficulties it would cause to the other Hearing Officers, from 2005 up until2017 , none of us have taken a sick day. In fact, Hearing Officers have presided even while sick and it is not unknown for a Hearing Officer to vomit at work, even while on the bench, because taking a sick day would impose too great a burden on the other Hearing Officers. Necessary surgeries and other medical procedures are scheduled for days off or months in advance in order to ensure coverage of the
court.
In late 2016, Harris County hired two additional Hearing Officers. The addition of these Hearing Officers has helped, but we are still understaffed
Hearing Officers handle avariety of functions, although the primary functions are to preside at "Probable Cause" hearings and to dispose of Class C misdemeanor cases arising out of the Justice Courts. For this purpose, there are twelve dockets scheduled every 24 hours, roughly every two hours, day and night. Throughout the 24 hours, between dockets, and sometimes in conjunction therewith, Hearing Offrcers also perform magistrates' duties with regard to those arrested on wanants issued in other states and other counties within Texas. Throughout the 24 hours, Hearing Officers also review applications for arrest warrants, search warrants, "blood warrants" and mental health warrants, issuing the warrants when appropriate. In many cases, these functions are performed with a peace officer present who must wait for the availability of the Hearing Officer on duty. Throughout the 24 hour day, Hearing Officers also are
asked to determine Probable Cause off docket in situations in which a defendant will not be in Probable Cause Court within the statutory time limit for such a determination, see TEx. Coop oF CRIM. PRoc. art.
17.003, and to release on personal bond those defendants for whom Probable Cause was not determined within the time limit.
Each docket takes about an hour. On an ordinary day, each docket includes 20 to 30 defendants, although there may be as many as 45.I expect to see approximately 100 arrestees during my work day. In my more
than eleven years as a Hearing Offrcer, I estimate I have seen close to one-quarter million people on
Probable Cause and Justice ofthe Peace dockets.
Probable Cause dockets are conducted by videolink. I have set forth the technical difficulties above. As the Probable Cause docket begins, I read the assembled defendants their rights, as set out in the Code of
Criminal Procedure, and inquire whether they understand the rights. I explain most are there for a
probable cause hearing and then explain what that is, emphasizing that the hearing is not a trial. I explain that, in the event that probable cause is found, I will review the bond that has been attached to the case and will consider each for a personal bond. I explain the process for requesting a court appointed lawyer. As I cannot appoint lawyers, I explain that a request for a court appointed lawyer will be forwarded to the hial judge.
It is not uncommon for an accused to swear at a Hearing Officer, to call a Hearing Officer names, or to show total disregard for a Hearing Officer and the judicial process. This reality is part of the job that I
believe all the Hearing Officers accept. Over the course of a long shift, with dockets every two hours, and
a large number of defendants, even the best intentioned person can get frustrated and fatigued. I have viewed the videos identified by the Commission as it relates to the complaint against me, as well as the
complaints against my fellow Hearing Officers. I have also reviewed videos selected by Plaintifß' counsel in the ODonnell litigation. From all these videos, I have come to the conclusion that all the
Hearing Officers do a professional job in a very difficult situation. All people are fallible; all people at

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one time or another have a less than perfect moment. Most people, however, are not videotaped during
that moment. We are. In the videos I have reviewed, I have not seen one that I believe falls well below appropriate judicial standards. Granted, a small handful of unflattering videos viewed in isolation can
leave a bad impression. But when those isolated incidents are put into context that the Hearing Officers hold twelve sometimes volatile dockets a day every day of the year, with up to 45 people on each docket, in conjunction with an always unpredictable volume of other business, they are not so shocking.
Finally, if the Commission is concerned about the Hearing Officers' judicial independence, as discussed above, this is not an issue that can be remedied by the Hearing Officers. The Hearing Officers serve many masters. The Hearing Officers exercise the discretion they can within the bounds set. To the extent any constraints existed, such as some District Judges asking that consideration for personal bonds be referred to them (which has been abrogated), these constraints are within the law. I am aware of no law requiring, in a case pending in District Court, that the Hearing Officer make the determination of eligibility for personal bond. Conversely, the Roberson order, attached, requires that eligibility for a personal bond be
considered at the probable cause hearing in misdemeanor cases. In 2016, statistics show 25% of
misdemeanor defendants who appeared before a Hearing Officer were approved for a personal bond, plainly showing that the Hearing Offrcers, indeed, are exercising their discretion. And personally, according to figures provided by Pretrial Services, in 2016 of 6,797 misdemeanor pretrial application presented to me, I granted 1,625 personal bonds, or granted personal bonds in239% of cases.

J&L lilqu"øí
(Printed Name)

Q-zr t-l
(Date)

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QJ.1 VERIF'ICATION
CJC No. 17-0351-AJ

State of Texas

$

County of Hanis

$

BEFORE ME. the undersigned authority, on this day personally appeared

Jrtu h9r<*¡,luo'

, who by me being first duly sworn, on his oath deposed and said

that the above responses to the Commission's inquiries are based on personal knowledge, and are true and

correct.

Zllr SUBSCRIBED AND SWORN TO BEFORE ME, on this the

day of

2017.

(Judge's

U s!0r^-

J,.. lrt/*u,ç,-.
(Printed Name)

Ll, zr.t1
(Date)
u G

N

Y PUBLTC

of

7

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Exhibit A:

Documents lncluded with Response Representative correspondence with other judges

Exhibit B:

August 8,2016 Letter from County Criminal Court atLaw Judges to Hearing Officers

Exhibit C:

March 23,2017 Letter from District Courts Judges Trying Criminal Cases to Hearing Officers

Exhibit D: Hanis County Criminal Courts at Law Rules of Court (Aug. 12,2016)

Exhibit E: Hanis County Criminal Courts at Law Rules of Court (current)

Exhibit F: Felony bail schedule and felony judges' representative instructionsl

Exhibit G: 2016Percent of Misdemeanor Arrest Population Receiving a Personal Bond2

Exhibit H: Harris County Pretrial Services 2016 Annual Reporl3

Exhibit I: Full video of Mr. English's magistration (provided electronically)

I Individual instructions abrogated by March 23,2017 lefter. 2 The percentages reflected are based on the total population of misdemeanor arrestees. However, arrestees who bond out prior to being considered by a Hearing Officer are not included. Therefore, the number of personal bonds granted as a percentage ofthose actually appearing before a Hearing Officer is even higher. 3 One issue with the Report is that some statistics are presented based on the defendant (who may have multiple
cases) and some are based on the case.

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State Commission on Judicial Conduct

Honorable Joseph Licata III
1201 Franklin Houston, TX77002
Re: CJC No. 17-0352-AJ
Dear Judge Licata:
As you are aware, the State Commission on Judicial Conduct exercises jurisdiction over allegations of judicial misconduct. Article V, Section l-a, Paragraph (7) of the Texas Constitution
provides that: "The Commission shall keep itself informed as fully as may be of circumstances relating to the misconduct or disability of particular persons holding an offtce named in Paragraph A of Subsection (6) of this Section, receive complaints or reports, formal or informal, from any source in this behalf, and make such preliminary investigations as it may determine." Enclosed herewith, please find a copy of a complaint filed by Senator John Whitmire of Austin, Texas (marked as Exhibit C-1). In addition, please find enclosed a CD with a copy of related video recordings (marked as Exhibit CJC-l).
As you know, our inquiries at this point are confidential, and it has been our experience that the majority of complaints can be resolved on the basis of information received from the judge. In order for us to complete the investigation into this matter, we ask that you respond to the questions contained in item QJ-l, attached hereto.
If you need more space, please feel free to attach additional pages. After responding to the questions, please feel free to submit any comments, explanations, or justifications you believe
appropriate. Additionally, please personally sign, date and verify your answers before a notary public.
In making this request, the Commission makes no prejudgment that you have done anything
improper, and we look forward to resolving this matter as expeditiously as possible, We appreciate your helping us to carry out our responsibilities and request your written responses by March 21,2017,
If you have any questions or if we may be of assistance to you, please do not hesitate to contact
this office.
Sincerely
Kelly Gier Commission Counsel

KG/ Enclosures: Complaint (C-1), Videos (CJC-1) and QJ-l

P O Box 12265
Austin TX 78711-2265

SCJC 000047 www. scj c.state.tx,us

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QJ-1
CJC No. L7-0352-AJ
LETTER OF INQUIRY: HONON¡NLE JOSEPH LICATA III

Brief background of Hearing Officer Position:
The position of Harris County Criminal Law Hearing Officer is created and governed by Chapter 54 of the Government Code. See Tnx. Gov'T CoDE ANN. $$ 54.851-61. Hearing Officers have limited, concunent jurisdiction with the courts they serve in Harris County-the District Courts, County Criminal Courts atLaw, and Justice Courts.
Hearing Officers are appointed by a nine member board made up of three judges of the District Courts of Harris County trying criminal cases, three judges of the County Criminal Courts at Law, and three Justices of the Peace in accordance with $ 54.852 of the Government Code. Each Hearing Offrcer is
appointed for a one year term that can be renewed, at the board's discretion, each year.
In Harris County, one of the seven Hearing Officers (five until the end of 2016) is on duty at all times,
including holidays, weekends, and during severe weather events. I am unaware of any time, since the
first Hearing Officers were appointed that there was not a Hearing Officer on duty. Every single hearing
is videotaped, but we are not a court of record.
Hearing Officers handle a variety of functions, although the primary functions are to preside at "Probable Cause" hearings and to dispose of Class C misdemeanor cases arising out of the Justice Courts. For this purpose, there are twelve dockets scheduled every 24 hours, roughly every two hours, day and night. Throughout the 24 hours, between dockets, and sometimes in conjunction therewith, Hearing Officers also perform magistrates' duties with regard to those arrested on warants issued in other states and other counties within Texas. Throughout the 24 hours, Hearing Officers also review applications for arrest warrants, search warrants, "blood warrants" and mental health warrants, issuing the warrants when appropriate. In many cases, these functions are performed with a peace officer present who must wait for the availability of the Hearing Officer on duty. Throughout the 24 hour day, Hearing Officers also are
asked to determine Probable Cause off docket in situations in which a defendant will not be in Probable Cause Court within the statutory time limit for such a determination, see TEx. CooP oF CRIM. PROC. art.
17.003, and to release on personal bond those defendants for whom Probable Cause was not determined within the time limit.
Each docket takes about an hour. On an ordinary day, each docket includes 20 to 30 defendants, although there may be as many as 45.
Hearing Officers' primary responsibility is to conduct the first hearing after a criminal defendant is arrested and, at that hearing, to determine whether probable cause exists. If probable cause is found, the Hearing Officer is charged with setting bail conditions and determining eligibility for a personal bond. A
personal bond is a bond without any up front financial conditions to release. At this hearing, we also ask
whether the defendant would like a court-appointed lawyer. If the defendant responds affirmatively, we
pass this information along to the court of record, The court is assigned beþre we see the defendant.
This first hearing, commonly refened to as a probable cause, PC, or 15.17 hearing, is conducted via video, with the defendants typically in a courtroom at the jail and the Hearing Offtcer, pretrial services agent, and Assistant District Attomey in the Criminal Justice Center. Harris County is currently developing a program to provide a public defender at these hearings, with that program set to begin on

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July l, 2017. Harris County will be the first large county in Texas to provide a public defender at this
stage.
1. Please provide the dates of your judicial services
March 2011 through the present.

2.

Who appointed you to the associate judge position?

The position of Harris County Criminal Law Hearing Officer is not the same as an associate judge. The
associate judge position is created and governed by Chapter 544 of the Government Code. The position
of Hanis County Criminal Law Hearing Officer, which is my position, is created and governed by
Chapter 54 of the Government Code. See Tpx. Gov'T CoDE ANN. $$ 54.851-61. The following judges were on the board who appointed me as a Hearing Officer per $ 54.852: Brown, Hughes, Ross, Richie, Mendoza, Hill, Ridgeway, Williamson, Delgado.

J

Please describe the factors you consider when setting a bond for a suspect charged with an

offense, whether misdemeanor or felony. Please provide any documentation that guides your
decision making, including in your response any guidelines or limitations placed on your

discretion by the Court to whom each defendant is assigned.

In reviewing and setting bond, I consider the factors set out in article 17.15 of the Code of Criminal Procedure, all available facts, and the accused's demeanor. To assist me, Pretrial Services usually
prepares a report that includes the results of a risk assessment and an interview with the defendant, assuming the defendant consented to the interview and was available (not in the hospital, etc.). Pretrial
Services also attaches a criminal history search to the report. I review the information provided by Pretrial
Services duringthe probable cause hearing. In addition, an assistant district attorney reads the facts of the
case, which I also take into account.

In light of all of the factual information available and Texas law, I also regard any rules, preferences, and
policies ofthe assigned trial courtjudge to whom the case is assigned (cases are currently assigned cause numbers and courts before the probable cause hearing, so I know which judge will get each case).

4

Have you ever been given a directive by any judge (County Court at Law or District Judge) that

restricts your discretion in any way as a magistrate? If so, please describe the restrictions placed

upon you by each such judge, and the time period the described restrictions were in place, If you

have documents reflecting this directive, including emails, memos, letters, and the like, please

provide the Commission with all documents responsive to this request received from a judge in

the last two years.

Until March 27,2017, some of the District Court Judges did not permit Hearing Officers to grant personal bonds, instructing that personal bond applications be refened to the assigned trial court for consideration. Most of the District Court Judges also had specific rules to follow in consideration of bond. Included with this response are representative copies of charts outlining the specific instructions issued to the Hearing Officers. These individual rules were removed on March 27,2017.

The County Criminal Court at Law Judges historically had similar rules. These rules were passed to the Hearing Officers through the years by email and word of mouth, For example, when a new Hearing Officer would start, they were informed of the various practices and preferences of each County Criminal

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Court at Law Judge. The County Criminal Court at Law Judges' preferences were never formalized in the same way as the District Court Judges, and, in the last few years, there was some lack of clarity as to what rules were still in place and which ones were no longer effective. In an August 2016 letter, the County
Criminal Court at Law Judges clarified that the Hearing Ofücers are to exercise full discretion in setting
conditions of release, guided only by Texas law and the Local Rules. I understood this letter to mean that
all previous instructions were displaced.

It is my understanding that part of the Commission's inquiry relates to the exercise of discretion as it relates to issuing personal bonds. It is true that prior to March 27, 2017, the District Court Judges had specific rules regarding personal bonds. For many judges, they wanted to be the ones to consider eligibility for personal bond in the first instance. Refening this consideration in accordance with the
instructions of the judge whose court the case is pending is appropriate, as my jurisdiction is "limited
concurrent jurisdiction." See TEX. Gov'T Coop Alttt. $ 5a.858(a). In other words, I believe each judge
has the choice as to what matters to refer to the Hearing Officers, and a District Judge is within their
discretion to not refer consideration of a personal bond. Moreover, the Govemment Code specifically
allows for the court to review and alter my decisions. See id. $ 54.858(b) ("This section does not limit or impair the jurisdiction of the court in which the complaint, information, or indictment is filed to review or
alter the decision of the criminal law Hearing Officer.").

If the Commission believes that the Hearing Offrcers should be more independent, a simple solution
would be to assign the case to a specifrc court after the probable cause hearing. However, because
currently cases are assigned to a specific court before the probable cause hearing, ifdirected (although not within the control of the Hearing Officers), I will refer decisions to the assigned judge in accordance with
their instructions.

5

Please review the enclosed video recording (CJC-I). During the magistration of Robin Clearey,

she said getting arrested was nothing new to her. You responded by saying, "It's nothing to me

either. It's job security." Please describe whether this statement comports with Canons 2A and

3B(4).

Before addressing the Commission's specific question about Ms. Clearey's video, I think it is important
to provide some context, including Ms. Clearey's pertinent criminal history which may not be available to
the commission. Ms. Clearey was on my Class C docket for three cases that were in warrant from Precinct
4 position l. She was booked in on May 12,2016 on the following cases: (i) TR41C3871603-no stop lights; (iD TR4lc387l602---expired registration; and (iii) TR41C3871601-no driver's license. Ms.
Clearey, however, also had an outstanding Class B case out of County Criminal Court at Law No. l4 for driving while license invalid with previous conviction for suspension. The bond was set by the District
Attorney on the Class B case at $3500. This case was not before me at this time.

Ms. Clearey pled guilty on her three Class C cases and was credited with time served. Accordingly, she
owed nothing on these tickets. I then, as I usually do, informed her that the Driving While License Invalid (DWLD carries a surcharge with the Texas Department of Public Safety and she would need to check
with them to possibly work out a payment plan so that her license would not be suspended. I also
informed her that even though she owed nothing on the Class C cases, she would have to post bond on her
Class B case out of County Criminal Court at Law No. 14 in the amount of $3500, which had been set by the district attorney's offîce. Because she was not on my docket for this case, I could only inform her of
the charge and the amount of the bond, I could not change this bond. I can only address cases actually
pending before me, and Ms. Clearey's Class B was not before me.

Moreover, Ms. Clearey had a lengthy criminal history, particularly as it related traffic offenses. As of today, she has fourteen traffic related offenses. Generally, it appeared that she would get a ticket, ignore

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it, get arested, and then take time served. I believe this pattern is what Ms. Clearey refers to in the video
as "I am always arrested, in and out, in and out, in and out. . . this is nothing to me, this is every day." Indeed, as of today, she has two outstanding cases in warrant for failure to maintain insurance and
operating a vehicle without license plate out of Precinct 4 Position l. Ms. Clearey also had other non-
traffic offenses, including five misdemeanors and one felony.

As to the Commission's specific questions, I believe my conduct comports with the Canon 2A and 3B(4).
I was courteous to Ms. Clearey. She had a question as to why her Class B case was different than her
Class C case. I tried to explain the difference to her. In fact, I spent a great deal of time with Ms. Clearey
trying to help her avoid the situation that got her in this trouble in the first place by informing her of the surcharge and explaining how to get her license in order to avoid future issues with her license, Ms.
Clearey then walks off stating that it was "nothing to her." I understood this comment as an indication
that Ms. Cleary had no desire to change or rectify her situation, and an acknowledgment that she would
rather continue her paffern of getting arrested and accepting time served. It is frustrating as a judicial
officer when a person, whom you are genuinely trying to help, is disrespectful and ambivalent to the serious situation they are in. That is why I commented that if it was nothing to her, it was nothing to me.

The comment about'Job security," however was not directed at Ms. Clearey, but was a comment made to
Justice of the Peace clerks who are in the room but cannot be seen on the video. However, this comment,
though not directed at Ms. Clearey, is regrettable. After reviewing the video, I wish I had not said that.
However, I do not believe that one off-hand commen! after the accused has shown so little respect for me and the judicial system, and after she had already walked off, is a breach of the Canons of Judicial Ethics.
Though I strive for perfection in the performance of my duties, that is sometimes unachievable and is not required by the Canons. I believe on the whole my exchange with Ms. Clearey showed a great deal of patience, professionalism, and compassion. I strive to be the best Hearing Officer I can be, which means
treating all those who appear before with the utmost respect,

6

Please provide the Commission with any additional information that you believe to be relevant.

You may include sworn statements or affidavits from individuals in support of your responses.

I think it is important for the Commission to fully understand the realities of being a Harris County
Criminal Law Hearing Offrcer. Since 1993, until late 2016, only five Hearing Officers have served at any one time, handling cases from all District Courts trying Criminal Cases, all Criminal Courts at Law and
all Justice Courts-a total of 54 courts. A job description by the committee made clear the Hearing Officers ate "at will employees," that the Hearing Officers are the "delegates" of the judges trying
criminal cases (53 in number, at that time), and that, while on duty, Hearing Officers are not to leave the
premises for any reason, including meals.

Only having five Hearing Officers created significant hardships, "Probable Cause Court" has not closed
since I have been a Hearing Officer, not even during floods and hurricanes. When one Hearing Officer
takes vacation, it is the responsibility of the others to cover that Hearing Officer's duties by working exha days. While we have occasionally had the benefit of a retired judge filling in, for many years there was no such relief available, and substitutes continue to be the exception. Also, because of the difficulties it
would cause to the other Hearing Offlrcers, from 2011, when I started, up until 2017, none of us have
taken a sick day. In fact, judges occasionally vomit while on the bench because taking a sick day would
impose too great a burden on the other Hearing Officers. Necessary surgeries and other medical procedures are scheduled for days off or months in advance in orderto ensure coverage of the court. At
the end of 2016, the judges hired two additional Hearing Officers. The addition of these Hearing Offrcers
has helped, but we are still understaffed.

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It is not uncommon for the accused to swear at a Hearing Officer, call a Hearing Officer names, or show a total disregard for a Hearing Officer and the judicial process, This reality is part of the job that I believe
all the Hearing Ofhcers accept. Over the course of a long shift, with numerous dockets, and a large
number of defendants, even the best intentioned person can get frustrated and fatigued. I have viewed the
videos identified by the Commission as it relates to the complaint against me, as well as the complaints against my fellow Hearing Officers, I have also reviewed videos selected by Plaintifß' counsel in the ODonnell litigation. From all these videos, I have come to the conclusion that all the Hearing Officers do an admirable and professional job in a very difficult situation. All people are fallible; all people at one
time or another have had a less than perfect moment. Most people, however, âre not videotaped while
doing so. In all the videos I have reviewed, I have not seen one that I believe falls well below the
expectation. Granted, when a small handful of unflattering videos viewed in isolation can leave a bad impression. But when those isolated incidents are put into to context of the factthat the Hearing Officers hold twelve dockets a day every day of the year, with 30 to 45 people on each docket, they are not so
shocking.

(J
(Printed N )

/ sttz (Date)

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QJ.1 VERIFICATION
CJC No. 17-0352-AJ

State of Texas

$

County of Hamis

$

BEFORE ME, the undersigned authority, on this day personally appeared
who by me being first duly swom, on his oath deposed and said

that the

responses to Commission's inquiries are based on personal knowledge, and are true and

correct.

2 SUBSCRIBED AND SWORN TO BEFORE ME, on this the (.^l- day of

20r7

(

,S

,/'å
(Date)

OJ

/,.

(Printed N

PUBLIC

. VERONIOA SANCHEZ Notary Public, State of Texac Commission Expires 04-28.2021
ID

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Exhibit A: Exhibit B
Exhibit C:
Exhibit D Exhibit E: Exhibit F: Exhibit G: Exhibit H:

Documents Included with Response Representative correspondence with other judges August 8,2016 Letter from County Criminal Court atLaw Judges to Hearing Officers March 23,2017 Letter from District Courts Judges Trying Criminal Cases to Hearing Officers Hanis County Criminal Courts atLaw Rules of Court (Aug. 12,2016) Harris County Criminal Courts atLaw Rules of Court (cunent) Felony bail schedule and felony judges' representative instructionsl 2016Percent of Misdemeanor Arrest Population Receiving a Personal Bond2 Harris County Pretrial Services 2016 Annual Report3

I Individual instructions abrogated by March 23,2017 letfer. 2 The percentages reflected are based on the total population of misdemeanor arrestees. However, arrestees who bond out prior to being considered by a Hearing Officer are not included. Therefore, the number of personal bonds granted as a percentage of those actually appearing before a Hearing Officer is even higher. 3 One issue with the Report is that some statistics are presented based on the defendant (who may have multiple
cases) and some are based on the case.

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EXHIBIT A

J-4

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January 4, 1999
TO ALL HEARING OFFICERS:
Judge Joan Huffman (183rd) called at 3:10 pm today and
instructed as follows:
1. No pre-trial bonds; 2. No lowering of bonds 3. Bonds may be raised within our discretion
Carol Carrier

J-4

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Note for Ganett, Jim

From: Date: Subject:
lo:

Huffman, Judge Joan
Fri, Mar 5,1999 1:28 PM
RE: Bond clarification
Garrett, Jim
Sorry I did not respond sooner, but my computer has been has been out for a couple of days For clarification: please do not lower a bond below the published bond schedule or below the amount originally set by the assistant district attorney, UNLESS the assistant district attorney at the probable cause hearing specifically requests that it be lowered because it has
been incorrectly set.
Thank you.
From: Garrett, Jim on Mon, Mar 1.,1999 12:26 lxNI Subject: Bond clarification To: Huffman, Judge Joan
Judge Huffman, when you told Carol Carrier how you wanted us to do things for your court, she reported that your instructions were not to lower any bonds in your court. Does that mean not to lower a bond below the published bond schedule amount or does it mean not
to lower the bond even if it has been set incorrectþ according to the asst. DA working the probable cause hearing? Thanks in advance for the guidance. Jim Garrett- Hearing Officer

J-4

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Case 4:16-cv-01"41,4 Document 220-L Filed in TXSD on 03/0Bi l-7 Page 2 oÍ 2

,Jördan, Júdqe Darrêll
,From:
:5rnt: To:
cê
Subjecü

Hagstette, Eric (€G[l triday, February 24.20lr7 il54 PM Jordan, Judge Darrell (CCL) Villagomez. Blanca {ËCL}; Wallace. Jill (CCL); Nicholas, Ronald (CCÐ;:Licata,loe (CCL); :Spence, Cbnnie (GCLI' StJulia n, Gou rtney (CCL) RE: Personal bonds

Judge,

live revíewed todat's docket, focusing on all öases thàtâre fÞss than two wéeks old nc¡ matter the bohd sêt, whleh ,includes N0 Bonds and a 550,000 bond which was posted. I left.some port ¡ts on tlre docket to:lhdic te the cases,,l
,revlêwed and a code which will reflect the flndings regard¡ngrthe bond - a total of approximately 2S:case3,
As you'know, when the DA accepts a charge, a bond,li assiÈned to the case at DA lnta ke, using the County Court at lsw bond schedule. The defendant can post that bond at any tlme. Defendants in misdcnreanor cases do not get to:PC tô be:: seenby.ahearingofficeruntilapproximately24hoürsàtteithearrest,ifthen, lnthevastmajorltyofcases,wedonot, and cannot, consider personal bonds until that appearance. Occasionally, if Pre-Tríal Services is äblê tô ldentifu a good cândÍdatêatHPD,ânappficat¡onwillbe"eârly,prêsena"6tt16,u5for.cönsideration. WeencouragePTStodothlsasrnuch
as possible. That belng said, the eafly presents are:a:smatf fraction:of the appllcations we consider¡ the majori-ty bêlng considered in conjunction with the PC hearing afterthe defendant ís booked in the HCJ. lf the defendant posts a surety bond before appearing ln PC, we will not see that pêrJon at alt and, of course, there is no need to:,considera personel bond.

Of the 25 cases I reviewed, I saw that 15 of the defêndants posted a surety bond before appearing at PC; theiefore, we

PC", never saw those defendants and, of course, would not consider them foi þersonal bo nds. I assigned to thëse cases a

code rèpresenting "Posted Bond Before

PBB P/c

I concluded that hearing officers approved personal bonds'for st least T,defendants, including one who was ¡pprov€d
'for a personal bond, but posted a sur€tf bond before the personaf bond was filed. To these cases I assigned á code
represent¡ng "Pre-Trial Bond at P/Cby hearing office/ PTR@P/C

I found 3 defendants who appeared at PC but who were not granted personal boncls for reasons I cannot readily
€scërtãíñ, ãlthough in one case I can see the bond was:,rãlsed:from:$500:o 55000. presumably becâüSê of something rêflectéd:inthecriminalhistoryorotherwisê. ltispossiblethedefendantswerèapproved,butthe,fequlredveiiflcation has:notyetcomethróugh. TherecöuldbeaVáríèty.Of'otfiêrêxþlanãtioni. To:thesec;¡ses,lasslgnedacod-é
representing'Seen atP/C, but no PfR bond approvedir P/C,NPTR,

I also flagged "nev,/' cases not receiving personal bonds with reasons I can ascertaín r,vhy no bond was approved. Parole holdË, CPL bond surrenders, felonfeS also filed, out of:stâte warrants v¿ithout a bond nre all reasonsrtlÍtqd, I note that, at P/C, we do not ever see bond surrênders, bond revocâtions, or CPI's'
f:am returning your 2/24 dacket with post its attached +o eaih case wíth the codes outlined above.

lf you have further questions or comments about any of this, do not hesltate to call ,"he hearing offìce¡' on duty åt: ;i ¡1379 or e-mail any or all of us.
'l was pleased to meet you ea rlier and wish you many good:things durlng your tenure as Judge.

J-4

I
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Villagomez, Blanca (CGL)

From: Sent: To: Cc: Subject:

Fields, Judge Mike (CCL) Tuesday, January 29,2013 B:18 AM Villagomez, Blanca (CCL) Fields, Judge Mike (CCL) Re: Bonds set at the BBBB888 or7777777

you're absolutely nightl And please don't forget the intenlocks on dwi's.

Michael R. Fields
( On lan 29, ZØ13, at 7:58, "Villagomez, Blanca (CCL)" <Blanca Villagomez(ôccl.hctx.net> wrote:
> Buenos Dias Judge,
tw7o>h7tihel7tuhewcsnaaetisnltaelosnsoterbifunteovcthotsieulolevnnaesevspIed.encoDuuinngofisedcsseaoenttrthisoaatinaslt-snc$ado5bphØ-upo,Øttly,ØtIhftIØoedayaboncadfwan'sisean,enstottmcnourumrspece'tsftsorattahogniendemptfmcntiotoaomju'santtpihgoapeheflsta.yuoros?bueenaIfocnndodeuofnonytol'tlwouwwiitamhnamtthltleoedo8aifan8ytn8eoouloyynn.yoIuf
Thanks, Blanca
- -- - -OrigÍnaL Message- - - -Fnom: Fields, Judge Mike (CCL) Sent: Monday, January 28, 2øL3 tØ:Zt PM To: Hagstette, Eric (CCL)
Cc: Fields, Judge Mike (CCL); Villagomez, Blanca (CCL); hlallace, lÍ11 (CCL); Nicholas,
Ronald (CcL)
> Subject: Re: Bonds set at the 8888888 on 7777777 Thanks Eric. And thanks again to all of you for the hand work you do.

Míchael R. Fields

On Jan 28, 2øL3, at 22:L8, "Hagstette, Eric (CCL)" <Enic Hagstettelôccl.hctx.net> wrote

>> Judge,

>> If the person at

defendant is back in all. We do see bond

jail stnictly for a bond revocation, we fonfeitures, MRP'S and MAJ's along with

will
new

not see that
cases. If the

defendant has a new case along wÍth his bond revocation, we only see the new case, not the

case in which bond has been nevoked. About the only time we see the 8888 is fon family

assault cases with bonds of or 7777 nanely and usually

$5ø,ØØØ and also fon possible undocumented aliens. then only fon serious felony cases with aggnavating

We see 9999
facts of some

sort.

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>> If bonds are being set on your bond nevocations, I cannot see how it is happening hene, but we will a1t take note of youn e-mail. >> Eric Hagstette

>> Fnom: Fields, Judge Mike (CCL)

>> Sent: Satunday, January 26, 2ø1-3 1'J':42 PM
>> To: Wallace, Jill (CCL); Nicholas, Ronald (CCL);

Licata, loe (CCL); Villagomez, Blanca

(CCL); Hagstette, Eric (CCL)

>> Subject: Bonds set at the 8888888 on 7777777

>> Hey Judges,

>> On occasion,
Typically, that

ymoeuanws itIhI astetehebobnodnsdohuatsobfeCenourertvoLk4esdeftonatveioitlhaetinontheof8b'sonodnctohned7it'sio.ns.

l¡lhat

tSIcimh-CheRaammAnebMcadeodtiantteeotdevmi.lsycpeIetfaeÍ,n(fatgthefnoetdromrop,asnoopcstmclhteoieneamgrsepdealsrisussahogeidntip,stbahtotheacenhnfbdaaeo.cnseiIdsfatapotatphnfen5aoøecce,pøeadnØsitdeøaoÍtsaiencnn)vuedoasdonsulvricdodeenenstnehwaiettlhiectheondhaetdfotheeelenfetododnraedntdfahetrn'eunstdgtbdasooen,nfteapdbnplebedpaeeafsofanoerrterteoinhnreIaddcetguontcuehtirhntetegya

ane not to use drugs or alcohot while on bond. Thanks.

>> Michael R. Fields

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Amended Local Rule 12:
RULE 12. APPROVAL OF PERSONAL BONDS
12.1. Whcthcr to approve or dcny a personal bond is up to thc reviewing magistratc's sound
discrction.
12.2. In gcneral, personal bonds are favorcd in the following types of cases, abscnt good causc to
deny a pcrsonal bond:
12.2.1. theft by check; 12.2.2. driving while license suspended or invalid; 12,2,3, gambling offenscs; 12.2.4. illegaldumping; 12.2.5. fictitious vehiclc license plate or registration; 12.2.6. prostitution; 12.2,7, violation of laws rcgulating sexually orientod businosscs; 12.2.8. publicintoxication; 12.2.9. driving without a license;
12.2.10. class B criminal trespass, if the defendant has no prior convictions or community
supervision for a Class B or greater offensc;
12.2,11, class B retailthcfr, if the defendant has no prior convictions or community supervision for a Class B or greater offensc; and
12.2.12. posscssing a drug or marijuana (cxcept possossion of synthetic cannabinoids or Class A
possession of marijuana), if thc defsndant has no prior convictions or community
supervision for a Class B or greater offense.
12.3. In general, personal bonds are disfavored whcrc the defendant has demonstrated ¿ risk to
¡pofend or harm society, cxamples of which might bc where:
12.3.1. the defendant is charged with an offonse allogod to h¡vc occuncd while on bond for
anothcr offense;
12.3.2. the defendant is charged with multiplc offcnsos (unless both are favored for personal
bond under the above criteria; not including offensos punishable by fine only);
12.3.3, the defondant is charged with an offcnse alloged to have occurred while the defendant
was on community supervision;
12.3,4. the defcndant appears to be a dangcr to himsclf/horsclf or others; or 12.3.5. thc defendant has shown an unwillingncss ûo follow bond conditions in the past,
12.4. In gencral, porsonal bonds are disfavored whcre the dofendant has previously failcd to eppcar
in court as instructed.

J-4

SCJC 000061

HARRISCO_CourtOrder 001784
000276

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 63 of 212
Amended Local Rule 12:
RULE 12. APPROVAL OF PERSONAL BONDS
12.1. Whether to approve or deny a personal bond is up to the reviewing magistrate's sound
discretion.
12.2. In general, personal bonds are favored in the following types of cases, absent good cause to
deny a personal bond:
12.2.1. theft by check; 12.2.2. driving white license suspended or invalid; 12,2,3, gamblingoffenses; 12,2,4. illegaldumping; 12.2.5. fictitious vehicle license plate or registration; 12.2.6. prostitution; 12.2.7. violation of laws regulating sexually oriented businesses; 12.2.8. public intoxication; 12,2.9. driving without a license;
12.2.10. ctass B criminal trespass, if the defendant has no prior convictions or comrmun'ity
supervision for a Class B or greater offense; 12.2,11. class B rctail theft, if the defenda¡rt has no prior convictisns or comrnunity supervision
for a Class B or greater offense; and 12.2.12. possessing a drug or marijuana (except possession of synthetic can,rùabinoids or Class A
possession of marijuana), if the defendant has no prior convictions or commu'nþ
supervision for a Class B or greater offense.
12.3. In general, personal bonds are disfavored where the defendant has demonstnated a risk to
rcoffend or harm socicty, examples of which might bc where:
12.3.1. the defendant is charged with an offense alloged to have occured while on bond for
another offense;
12.3.2. the defendant is charged with multiple offenses (unless both are favored for personal
bond under the above criteria; not includ,ing off-enses punishable by fine only);
12.3,3. the defenda'nt is oharged with an offense allegod to have occuned while the defendant
waõ on eornrrunity supervision;
12.3.4. the defendant app€ars to be a danger to hi,rnselflherself or others; or 12.3.5. the dcfe¡ldant has shown an unw,ill'i'ngnoss to follow bond conditions in the past. 12.4. In genera.l, personal bonds are disfavorød where the defondant has previously failed to appear
in court as instructod.

J-4

SCJC 000062

HARRISCO_CourtOrder 001785
000277

fuwt Dícffiçú BelI Scheda{e Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 64 of 212

'If
I

I

Offøco

ß*il

F
t

All capital felonies

I

No Bond

I

All murders not particularly speciliecl below .. All fìrst degree tèlonies not particulzrly specifiecl below....

i
$50,000.00 i
$20,000.00

All second clegree felonies not particularly specified below

'

$10,000.00

t

l

All felony DWI's not particularly specified below..

fil0,000.00

:

Al1 third degree f'elonies not particularly specified below...........

$ 5,000.00

All tìrurth clegree (State Jail) fþtonies nor parricularly òpecifìed f,eto*.....

$ 2,000.00

Repeat Olïanders

Habitual

No Boncl

First degree f'elony with plevious conviction

:&rDmúd
i
$30,000.00

Second degree f'elony with previous conviction.....

$20,000.00

Felcxy DWI with previous f'elony DWI conviction

D<luble boncl anrount for each p,nevious
fbkxay DWI conviction.

Third degree felony with previous conviction

$r0,000.00

Fourth degree (State Jail) felony with previons conviction

$ 5,000.00

Fourth clegree (State Jail) lèlony with more than one previous conviction

$ l-5,000.00

tt !l

D,Gfunút/nú oa Bafrt fo,r anyr F;a{,wgt eWG ffis

I I t

I

i

First degree felony .........

No Eond

! I

Seconcl degree f'elony..... Third clegree felony

I

No Bond

a

t

No Bo¡rel

I

Fourth clegree (State Jail) felony.............

No Bond

i

I

P*ñi,eutr*r tlú,ttoâiøtw

Multiple Counts
Person on f'elony probation for any grade of t'elony Any 39 offense or where deadly r'¡/eapon alleged.......
Motion to Revoke Probation..... Motion to Adjudicate Guilt....................... Large quantities ofcontrolled substance or

Separete sta+rcl,ard bail for each oft'ense in the tralrsaction.
No Bond
$30,000.00
.tlrm0ru
No Bond
At the Juclge's Discretion
Double the value of large quantities of the controlled substance or
property.

J-4

SCJC 000063

HARRISCO_CourtOrder 001786
000278

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 65 of 212

Licata, Joe (GGL)

From: Sent: To: Gc:
Subject:

Hagstette, Eric (CCL) Thursday, March 07,2013 7:35 PM Shelsy, Marshall (CCL) Villagómez, Blanca (CCL);Wallace, Jill (CCL); Nicholas, Ronald (CCL); Moore, Bill (HCDA); Licata, Joe (CCL)
Bond Schedule

Marshall,

Long time, no see! I hope all is well with you

The reason for this message is that there seems to be great confusion at DA lntake concerning the new bond rule for new cases filed while a defendant already is on bond.

As I understand it, if the defendant is on bond already for a misdemeanor, and picks up a new case, the bond for the new case shall be double the existing bond, or 55000, whichever is more. Meaning:

Original Bond
ssoo Srooo s1soo 52ooo $zsoo Sgooo s3so0 S+ooo $4soo Ssooo
Etc.

Bond for New Case
Ssooo Ssooo Ssooo $sooo Ssooo Soooo s7000 Ssooo Sgooo Sroooo

After a second bond is posted, bond for any subsequent case will be double the bond on the previous case.

lheartheDA'sofficeisallovertheplaceonthemeaningoftherule. lhaveheardthatearliertoday,amisdemeanor
bond was set at $60,000 because the defendant was out on a 530,000 felony bond. I did not take the new rule to apply to existing felony bonds, but I see that the wording of the new rule is not clear on that point, and the example you gave in an e-mail is clear as far as it goes, but does not address this point. Some clarification might be needed.

Thanks for your help

Eric Hagstette

J-4

SCJC 01 00064

HARRISCO_CourtOrder 001787
000279

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 66 of 212

Garrett, Jam es (GGL)

To: Subject:

New Hearing Officers Things you need to know

issued in Harris county. Read them and be sure the warrant is correct and contains all therequired elements before you
sign it. The DA's get sloppy from time to time. (8) You will do out of state fugitive cases. Read the Uniform treaty on ex]radiction. (9) Õn mental health warrants which we do on wêekends and at night during the week read them carefully and be sure ail of the elementss are satisfied before signing the warrant. Also, you may not issue a mental health warrant ió, unyon" younger than 16. Parents or guardians musl voluntarily commit 15 or younger children to a mental health facil¡i.(10) Ricnãr¿ Carper is the chief JP clerk and is the person to answer questions about mental health procedures and
class C cases.

J-4

1
SCJC 000065

HARRISCO_CourtOrder 001788
000280

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 67 of 212 Blanca

From:
Sent:
lo:
Subject: Attachments:

Shelsy, Marshall(CCL)
Monday, February 25,2013 7:SS AM Villagomez, Blanca (CCL)
Amended BailSchedule 2013 BAIL SCHEDULE TO pOST.doc

The judges modified the bail schedule by adding a provision that doubles bail defendant already released on bond commits a new misdemeanor offense, It

each time appears in

a

the shaded boxes. The schedule is effective at 1-2:01 a.m. on March lsr.

Example:
A defendant charged with DWI is released on a $500 bond. Two weeks later, he is arrested for Class B theft. Bond on the new offense is $5,000. The original bond remains a
$500.

If while on both these two bonds, he is arrested and charged with a third misdemeanor, his bond on the third offense is $10,000.

' Bond on a fourth offense would be $20,000.

é

Email me with any questions

thanks

nnf; Marshall A. Shelsy,
Staff Attorney, Office of County Court Management 12Ol Franklin Street, Suite 7OO0 Houston, Texas 77OO2 office # (7Lg)7s5-7734 Fax# (713755-8931 Email: marshall shelsy@ccl.hcb<.net On the web at http://wûw.ccl.hctx.net/
*;äityö aeTcbuorehrtpiohslyero,igenralpgeall,elcnvtaddrsociseonstrnhicirbfoeiduumpetlldieyonsntnisima,oaltmgoaebrenedotdritcaa/hoonteernsrlsmypiudritsiesoversieliteoohdglneetahadssen.eadnTcndhoaeennortyfefipincndofítooaisnrclmtuoipnmafogttelihiotnoi¡nstuostnm,ístefhoi¡slenfestsaaée,ngniyrgeáoreeariå,sipehårpcionctrerodsddh,ldvíoboerirmlteõept.der¡eri¡lavt,hin.ooe¡dui'nsrsm.¿.ueia¡¡-tomuya¡¡auugãiËl"*.ii.órùminñlTe1ñãs.si*riarsug;ä;ei.isl"siãia-yti,tró=aåucnh*mnaetamadvyeetdoarlseaitocbemocivvoaéeyndtacan6oindn¡stpaaecãinrcLseaoinsnrfoiaonblrm¡yocapdtiitnisroacionnlonssstmhuoar¡esfts,tmhioeanyin

J-4

SCJC1 000066

HARRISCO_CourtOrder 001789
000281

?ù.@M@É{neæaÉi:rrié:¡È,&iàr¿i¡þ!.,.1:
Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 68 of 212

- :. I ::.i,.j.:_ä

Garrett, James (ccL)

From: Sent: To: Subject

Hughes, Judge Jean (CCL) Monday, December 10, 20ô1 9:23 AM Garrett, James (CCL)
RE: Bond to be determined situations

-) my understanding is all cases since a misdemeanor ) BoND' what is actually suppose to be on the docket
our bond schedule is $SOOO for MRp/MAJ

should not be at no bond. when rr'tããi¡r "to be determinão; ãño

it goes into the computer as a No then ya,ll do a review and set a bond

----Original Message----

From: Sent:

Garrett, James (CCL) Monday, December 10,2001 7:4g AM

Sub- jech Io:

Hughes, Judge Jean (CCL)

RE; Bond to be determine'd situations

ccolshoffauiítcnrsetgarehsfaeasatorsbeeoatnusdtnshduesemerbteotbhntvehd.arahotsensthutsrimsiuaprimhtcieooasnuscratat.gñsyeaeot rau¡eotrfenNgroosu¡ioBsãnoãtlóynndtu;o.e*tnisrneeiâwîtJvoeJcnapaslplrew¡äsñaàpvasi¡n"ntdb¡"neane¡o.rnt

to MRp/MAJs and BFs? some of our Hearing and BFs by the Hearing officer after the trial under the impression that we are never to

----Original Message--From; Hughes, Judge Jean (ccL) Sent:

CC: Subjectr

James (CCL); Carrier, Carol CTY Criminal Judges (ccL); Wessels, Bond to be determined situations

(CCL); Villagomez, Blanca (CCL); Dixon, Howard Bob (CCL); Shelsy, Marshall (CCL); Heuitt, Ken

(CCL); Lewis, (District Clerk)

Travis

(CCL)

At our judges meeting yesterday, we reason' entered into the computer as making process:

d"insocubsosnedd".srintueatijounosgethsaiet cmidaeydaraisse.fiofilaowpsertsoongsuidbðonydãhuaîsññbeõei;n'ñ, ;foior èacn¡ys¡on

alfdtdhietiocnoam1l.piRnuretoevrrimeiwantdiooicnuartetbhsoantNdmosaóByhooeNedDual,veáyiroauoraèretdtotãse;;t;oyn;e;';aäftner';råeuvie"wsinogmtehoenfeollporwoivnidgeinfoforrmyoaut:ion plus any
"*;, ;; ammfrmoelloirsoactewyr-iooaeirnnfredicisltqmhita54u32oo.lit'r'''rhaefBccoeillpfhheetahpJaeeseaernhccMurnaikkagrvrSpeathpatDpnoesrpiaItrcircMoenpeirsrbreeSe,woycenimosnronoiradmrotkwp.ft.ahoiPiintotarhsgTcanv?hlhlrsete.hiher,shrseeisytictorstraaeactsrioalyithleeartleoyíhoruvrckefTrailhoodsåaspeternkar'üwt.coertduiik'benuo"ntãltgnhnlvffbasa-o"i"rcot"reåtattãisntnññÀctpdnáaãoËp.ntlu;itudå"ðdoiioy'ãttiw"iãrdJî;'orìlðeãi¡vhr*ñìtoi.i"edb"v-ã*ïräuo;vämii'.läÃ"róuyttriùnriJirioàue9ettoen"".irrm.itf1zrty-r"hut,n¡h.esteeertxrcrehepclesaetiervsrkireetianonnanfcAynaiinñNseog"xypl.ttpitãrechaooroorärutsrutudretntisynhim.taaytwornoytdrohaetcicanbfictrrgeecewupqthhmatueeseaasnnctrtahdtdalneysacf.eicnetecads-asanbretnoeehytsfauetltly
twihf eeyeoykucawanrieth6auta'snnolaf buaylposesduitasosttetciyldolonhluitasavitnceot.cftfhouaanrltltthäpejcnurtoidnqñigeuee,'ans"u¡tàiumoláin,ogfgeteerspitp.leyrYaoeosuseuida,ic"niãaugl"lu.njtuñh'deaã-ugrje.tu"ädii*tgåìte"aoncforto".omoM-.pätrh"rssehidcaionlluõgrrt'ejiunãdËwg-ehifi.cwyhoetuhewhaicllvapesreopvirsiodbpeleeynmoduinangnedaxnt d

to

do

You so.

are

there

to

use

your

best

discretion

in

making

decisions

but

do

not

hesitate

to

call

on

us

if

you

need

Judse

the new presidins judge will be Judse Anatia witkerson, ct g, and co-presidins is

"5X'r;1i3i17Jr,r'.oo',

Thanks,

Judge Jean Hughes

Presiding Judge

J-4

SCJC 1000067

HARRISCO_CourtOrder 001790
000282

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 69 of 212 Garrett, James (CCL)

From: Sent:
lo:
Subject:

Hughes, Judge Jean (CCL) Monday, December 10, 2001 9:23 AM Garrett, James (CCL) RE: Bond to be determined situations

-) my understanding is all cases since a misdemeanor should not be at no bond. when it goes into the computer as a NO ) BOND, what is actually suppose to be on the docket sheet is "to be determined" and thén ya'll do a review and set a bond,
our bond schedule is $5000 for MRP/MAJ

---Original Message----
From: Garrett, James (CCL) Sent: Monday, December 10,2001 7:48 AM To: Hughes, Judge Jean (CCL) Subject: RE: Bond to be determined situations
ls it safe to assume that this message refers only to new cases and not to MRP/MAJs and BFs? Some of our Hearing Officers are under the assumption that bond is to be set on MRP/MAJs and BFs by the Hearing Officer after the trial cout't has set the bond on such a case at No Bond. I have always been under the ìmpression that we are never to change a bond set by the trial court. Your guidance will be appreciated.

F--r-o-Omrig:inHalugMheess,sJaugdeg-e---Jean (CCL) SenE Friday, December 07, 2001 11:17 AM To: Garrett, James (CCL); Carrier, Carol (CCL); Villagomez, Blanca (CCL); Dixon, Howard (CCL); Lewis, Travis (CCL) Cc: CTY Criminal Judges (CCL); Wessels, Bob (CCL); Shelsy, Marshall (CCL); Heuitt, Ken (District Clerk)
Subjech Bond to be determined situations At our judges meeting yesterday, we discussed situations that may arise if a persons bond has been, for any reason, entered into the computer as "no bond". The judges decided as follows to guide you through your décision making process:

alfdtdhietiocnoamlpinu-foterrminadtiiocnatethsatNmOaBy ObNe Da,vayi9laubl?eretotoyosuetoornyeouafctearnrehvaiveewsinogmtehoenfeollporwoivnigdeinfoforrymoaut:ion plus any

1. Review our bond schedule

2. Check DIMS or have state check facts and determine if there is any extraordinary circumstances that may require a higher bond. ls there a violation of a protective order?

3. Check prior criminal history as well as history of bond forfeitures in ANY courts. What was the case set for - initial appearance, motions, trial? Take that into consideration

4. Be sure it is not a clerical error. Unfortunately, we've been experiencing those more frequently. Carefully research the JIMS screen for history of settings and any other activity
5. lf an attorney appears at the probable cause court, he must have an opportunity to be heard and be
allowed to f ile any papers with the clerk on duty- at probable cause. The clerk has the duty io accept and file any motions or other papenruork. They should Ìhen forward it directly to the clerk of the court handling ihe case - not microfilm.

.-

6. lf you still have further questions, please call the judge f rom the court in which the case is pending and

if you are unable to contact-that judge, callthe presiding judge then co-presiding judge. We will provid'e you next

week with an updated list of all phone numbers. You can also contact Marshall órBob if you have problém and

they can also assist you in contacting a judge if you are unable to do so.

You are there to use your best discretion in making decisions but do not hesitate to call on us if you need to do so.

Judge

_FYl - January_1,2002,
Don Jackson, Ct 3.

the new presiding

judge will be Judge

Analia

Wilkerson, Ct g, and co-presiding is

Thanks, Judge Jean Hughes Presiding Judge

J-4

1
SCJC 000068

HARRISCO_CourtOrder 001791
000283

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 70 of 212

Lee, Garrie
From: Sent: To: Subject:
lmportance:

Smith, Myra (DCA) Thu¡sday, September 02, 2004 2:2J pM PTSA PSD ALL (DCA) FW: Pre-trial bond conditions / defendants under 21
High

FYI

.'l'''

JHyodwgeeveKra,rathheanothseerntcolfn,dlli?tioinLsTsst.i-l¿s0rts_:s,.t,màtñ..r'fd,.lo9.

Judge Rea.q'./ei,-
-

Garrett a1d.. 'h1-e-rr"e

F--r-oormigi:nal

Message---' -'t}', ,¡! ,i-:t

' .qr

Karahan,.Jüü0e,Jav(CCL).

in Febru.ary 200_4 requiring
to conditions # z and # g.-
'tiì' 't!,,','.,r. 'ùi,,'

that

curfews

are

ro

be

decided

by

him

sent: pN ruesoay,fuvãmoér ìU áoog g,zr

'i:r ".,

ro: cu"ett,rôä¡nðJ (0ðL)--'

Cc: SubjecE Importance:

(CCL) Martinez, Carr,nen (DCA); Ramos¡ Donna 1. 21 High Pre-trial b-ond conditions / defendants under

. "¡.. ; {'

James,

'¡-
'v - .;,

during that period. insurance in order to drive motor

Jay Karahan
Judge, County Criminal Court at Law No. 8 Harris County, Texas
Harris County Criminal Justice Center 1201 Franklin Street, 9th Floor Houston, Texas 77002 713 / 7ss-6208

'ì¡!tl

Sufnan¡
ilo$¡r'l fieldrn n¡the

lûlfilll ---''---"----

thfs-- **,#

lnuìl0lpailtt útü eoStrt

n
j1
J-4

SCJC 1000069

HARRISCO_CourtOrder 001792
000284

O2-28-95 OC1a:s3e9P4]:r1,f9F-cRvO-M00H2CI2P6CII Document 32-7 FTOileCdRTon 03/27/20 in TXSDP0P01a/g00e171 of 212

Charlle Bross¡h¡n
@o¡d¡nmr

Dan Caetaneda
Ofllctrl Coun RËporr¿r

Jtucn Dre¡ne Burir,
"t'I¡¡n¡s Cou¡rry Crurrrnur CoUnr Ar I¿v #Il

February 22,1995

Judge James Garrett Chief Hearing Otficer 901 San Jacinto Houston, Texas TTAOT
DoarJudge Garrett, Please instruct tho probabte cause heari
öourt No. tf . ïhank you for your consideration. si

dants in öounty Criminat

Bull

Judge,

nty Crirninal Court No. 1i

J-4

SCJC 000070

'1t1 .r¡'

-,\.-.,.

HARRISCO_CourtOrder 001793
000285

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 72 of 212

Charlie Brossman
Cærdlna¡or

Dan Casraneda
Oflìclel Coun Reponer

Juocn Dm¡rn Bur¿
FI¡rrus Cou¡¡ry Cnr¡raln¿r Counr Ar Le,uø *11

March 7, l ggs

Mr. Jim Garrett

Chief Hearing Officer

301 San Jacinto Street

Houston, Texas 77002

\'

Dear Mr. Garrett
OirfetqIhauemerustiEassvvefai,odilreoanfpbtcrlleeyo,-ust(rroiis.ameel.,erneccoloeornamntsifnaueulswfeiooornyrkodwiuenar_fesgcnuhcdraoarueunsnrtesstd)p.iInobplci?ycreyiTtmeyorinfipoarràlevmvc¡eiaoowkuuersftotmhN;epoe.;mru"1-oi1iin.;. "gT¡soroecnlleaaarilsflye,
YYnri¡t I i1ilt ilul, avallaole.

s

e Bull

1-e aÍf

ë
'7

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/r,;&' A/*-t r* c-<' i(

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. 1302 Pnrsrou' 4ru Floon'Housror.r, Texes 77002.773/755-77g0 J-4 000286 SCJC 000071

HARRISCO_CourtOrder 001794
F¡x7r3/755-gg31,

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 73 of 212

Charlie Brossman
Coordlnator

Dan Castaneda officiãl court Reporter

Juocn Drexr Bulr
Hanrus Cou¡rrr Cru¡¿w¡r Counr 61 ¡¡'¡ø #11
March 7, 1995
Mr. Jim Garrett Chief Hearing Officer 301 San Jacinto Street Houston, Texas 77002
DirfeelqaaumreMsEtars.vvGaifdoialerarnbprtelrleyett,-st(roii.amel.ernecoleormansfauelswfiooornrdkweinafgesnhcdaoauunsrtses)diInbpCyrermfimeyrinptoarel mvCiaookuuesrttmhNreeom.rr1ueo1l-itn.rgiTasloroecnllaearailtslye, when lam not available
ly,

ne Bull

31:l f 14

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. HARRISCO_CourtOrder 001795
1302 PnssroN,4rH Froon Houstor.¡, Texes 77002.713/755-7780'P¡x773/755-8931

J-4

SCJC 000072

000287

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 74 of 212
EXHIBIT B

J-4

SCJC 000073

HARRISCO_CourtOrder 001796
000288

CCaassee 44::1196--ccvv--0A0L242L64 DDooccuummeenntt3126-76-1F4ileFdileodn i0n3T/2X7S/2D0oinn TAX2SlAD2lLP7agPeag7e5 2ofo2f 112I

JUDGES
Hon, Paula Goodh¡¡rl Counly Crimin¡l Court At Law Number I

Onnrcn oF CouRr M¡,NEcEMENT
Hrnnrs Couxrv CnrrvilxnL CouRTs AT LAw

STAFF
Ed Wells Courl Mrnager

Hon. William Harmon County Criminal Courl At Law Number 2
Hon N¡lalie C. Fleming County Crimin¡l Coüra At Lrw Number 3

Peyton Peebles StalT Attorney
lli¡n¡ Miz¡
Office Manrger

Hon. John Cl¡nton County Criminal Court At Law Number 4
Hon. Margaret S. Harris County Criminal Court At Law Number 5
Hon. Larry Standley County Criminâl Courl At Law Number ó
Hon. Pam Derbyshire Colnty Crlminsl Courf Al Law Number 7
Hon. Jay Karahrn County Criminal Courl
I At Law Number
Hon. Analia Wilkerson County Crlmin¡l Courl At Law Number 9
Hon. Dan Spjut Corrnty Crlminal Courl At Law Number l0
llon. Diane Bull Counly Criminal Court At Law Number I I
Hon. Robin Brown County Crlmlnsl Court At Law Number 12
Hon Don Smylh County Criminal Court At Law Number l3

Hon. Blanca Villagomez, Hon. Eric Hagstette, Hon. Joseph Licata, Hon. Ronald Nicholas, Hon. Jill Wallace,
Criminal Law Hearing Offrcers, Hanis County, Texas
Re: Magisfration duties and discretion
Judges Villagomez, Hagstette, Licata, Nicholas, and Wallace:
We are committed to making criminaljustice in Hanis County effrcient, fair, and legal for all those involved, balancing the interests of the accused with those of public safety.
Please know that as we strive for that goal in the l6 statutory county criminal courts,
we are mindful that you strive for the same goal in your courtroom.
We believe that, as criminal law hearing officers and Texas magistrates, you have full discretion to perform your duties under the Government Code and the Code of Criminal Procedure with respect to cases appearing before our courts. This includes determining bail amountsl and granting personal bonds in cases you deem appropriate.2 To facilitate the latter in appropriate cases, our courts have determined that Pretrial Services need only verify an arestee's information through one reliable source rather than two. We also recently acknowledged in our local rules that certain situations might inherently favor a personal bond whereas others might inherently disfavor one (see attached local rule amendment). These considerations might work well in your court as well.

Hon. Mike Fields Counfy Criminal Court At Law Number l4 Hon. Jean Spradling Hughes Counfy Crimln¡l Court At Law Number 15 Hon. Linda Garcia County Criminal Court At Låw Number 16
J-4

See Tzx. Cr:oe Cnrpt. P. ANN. at. I 7. I 5 (Vemon I 993):
The amount of bail to be required in any case is to be regulated by the court, judge, magistrate or officer taking the bail; they are to be governed in the exercise ofthis discretion by the Constitution and by the following rules:
l. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be
complied with.
2. The power to require bail is not to be so used as to make it an instrument of oppression, 3. The nature of the offense and the circumstances under which it was committed are to be
considered.
4, The ability to make bail is to be regarded, and proof may be taken upon this point. 5, The future safety of a victim of the alleged offense and the community shall be considered.
as well as Roberson v. Richardson, No. H-84-2974 (S.D. Tex. Nov. 25, I 987) (requiring a magistrate to consider a promulgated initial bail schedule amount as a factor, along with the factors appearing in article 17. 15, in determining an appropriate amount of bail).
I .See Tex. Cooe Cntrr,t. P, ANN, art, 17.03 and 17.03 (Vernon 1990) (giving Texas magistrates the
authority to release defendants on personal bonds in many instances); see also Tex, Cooa CRIM. P. ANN, art. 2.09 (Vernon 1993) (Harris County criminal law hearing officers are Texas magistrates).
HARRISCO_CourtOrder 001797
SCJC 000074 000289 1201 FRANKLTN | 7TH FLOOR I HOUSTON, TEXAS 77002 | 713.75s.5394 I FAX 713.755.8931

CCaassee 44::1I69--ccvv--000L24236"4 DDooccuummeenntt 3I26-67-LF4ileFdileodn i0n3T/2X7S/D20oinn TOX2Sl0D2lIP7agPeag7e6 3ofo2f 11,2L

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Please understand that our Local Rules are intended to: (l) provide a procedural
framework to carry out existing statutory law; or (2) restate existing statutory law. One
exception to statutory law is that the Local Rules speciff that the clerk's office will apply the initial bail schedule amount when originally filing the charge. Roberson requires a magistrate to consider the initial bail schedule amount as a factor when
determining the appropriate bail amount for each case. That amount must be taken into consideration along with other statutory factors:
l. The amount is high enough to ensure appearance in court; 2. The amount is not oppressive given the circumstances; 3. The amount takes into consideration the nature of the offense and the
circumstances under which it was allegedly committed;
4. The amount takes into consideration the accused's ability to make bail,
upon which you may take proof; and
5. The amount considers the future safety of a victim of the alleged offense
and the community.
Tex. Cooe Cntu. P. AnN. art. l7 .15 (Vernon 1993) (reproduce in footnote I ). The clerk should then enter the bail amount ultimately determined by the magistrate. Nothing in our Local Rules is intended to limit your discretion in deciding when a personal bond is appropriate or in assessing the appropriate bail amount.
We are working with the district courts and relevant Harris County agencies to implement the Arnold Foundation's Public Safety Assessment tool as quickly as possible. ln conjunction with the Pretrial Services interview information you receive now, this tool should help ensure that bail is assessed at a meaningful amount for each defendant and that risk and flight concerns are addressed with appropriate conditions.
We continue to ask Harris County to increase resources for its Pretrial Services
department, given that we feel: (1) the information they provide is so very important to
determining bail issues; and (2) it must be able to effectively supervise defendants
released on personal bonds. We trust you feel the same with respect to those affestees brought before you.
As you know, the Harris County Commissioner's Court recently approved two more hearing officer positions. The nine-member board with authority to appoint hearing officers (with Commissioner's Court approval) is already reviewing applications to choose the two best candidates for statutory l-year terms.3

r See Trx. Gov'r Cooe . Aruu. $ 54.852 (Vernon 1993):
(a) A board composed of three judges of the district courts of Harris County trying
criminal cases, three judges of the county criminal courts at law, and three justices of the peace in Hanis County may appoint criminal law hearing officers, with the consent and approval of the commissioners court, to perform the duties authorized by this subchapter. A quorum is two-thirds of the members of the
board.
(b) The board shall ensure that the criminal law hearing ofÏìcers appointed under this
subchapter are representative ofthe race, sex, national origin, and ethnicity ofthe
population of Harris County,
(c) A criminal law hearing offìcer serves a one-year term and continues to serve
until a successor is appointed.
(d) A criminal law hearing officer appointed under this subchapter may be
terminated at any time in the same manner as appointed.
(e) A criminal law hearing officer may not engage in the private practice of law or
HARRISCO_CourtOrder 001798

SCJC 000075

0P0ag0e 22 o9f30

CCaassee 44::1L96-c-cvv-0-002I42164 DDooccuummeenntt3126-76-LF4ileFdileodn i0n3T/2X7S/2D0ainn ATX2Sl0D2lIP7agPeag7e74ofo2f 1tL2

Hopefully you find this information helpful

on. P County

Presiding Court at Law No. I

nù* G.o,r,*-lklt,
Hon. Natalie Fleming, Py6ùiçg Judge County CriminalCourt a\J"¿9No. 3

Hon. William County Criminal
Hon

f-s-atc
iding Judge at Law No. 2
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Harris, Presiding
I Court at Law No. 5

Pam
County Criminal

,Ø
0
ding Judge rt at Law No. 7

County Hon. J

o. 6
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Presiding Judge at Law No. 8

t

ia Wilkerson,

Judge

Hon

Court

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Judge
I Court at Law No. l0

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Bull , Presiding Judge County Criminal Court at Law No. I I

Hon. Don

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at Law No. 13

Robin Brown, id at
ð

No. 12
Ib

Hon. Mike Fields, Presiding County Criminal Court at Law No. l4

g
Hughes, Presiding Judge
inal Court at Law No. l5

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Hon. Linda Garcia, Presiding Judge
County Criminal Court at Law No. l6

J-4

serve as a mediator or arbitrator or otherwise participate as a neutral party in any

(f) alternate dispute resolution proceeding, with or without compensation.
A criminal law hearing officer is subject to proceedings under Article V, Section

l-a, of the Texas Constitution.

HARRISCO_CourtOrder 001799

SCJC 000076

0P0ag0e 23 o9f31

CCaassee 44::1I69--ccvv--00012"246I4 DDooccuummeenntt 3126-67-LF4ileFdileodn i0n3T/2X7S/2D0oinn T02X1SAD211P7agPeag7e85ofo2f 1L2L

Amended Local Rule 12:

RULE 12. APPROVAL OF PERSONAL BONDS

12.1. Whether to approve or deny.a personal bond is up to the reviewing magistrate's sound
discretion.

12,2, In general, personal bonds are favored in the following types of cases, absent good cause to
deny a personal bond:

12,2,1, theft by check;

12.2.2. driving while license suspended or invalid;

12.2.3. gamblingoffenses;

12.2.4. illegaldumping;

12.2.5. frctítious vehicle license plate or registration;

12.2.6, prostitution;

12.2.7. violation of laws regulating sexually oriented businesses;

12.2.8. public intoxication;

12,2.9. driving without a license;

12.2.10. class B criminal trespass, if the defendant has no prior convictions or community
supervision for a Class B or greater offense;

12.2.11. class B retail theft, if the defendant has no prior convictions or community supervision for a Class B or greater offense; and

12.2.12. possessing a drug or marijuana (except possession of synthetic cannabinoids or Class A
possession of marijuana), if the defendant has no prior convictions or community
supervision for a Class B or greater offense.

12.3. In general, personal bonds are disfavored where the defendant has demonstrated a risk to
reoffend or harm society, examples of which might be where:

12.3.1, the defendant is charged with an offense alleged to have occurred while on bond for
another offense;

12.3.2. the defendant is charged with multiple offenses (unless both are favored for personal
bond under the above criteria; not íncluding offenses punishable by fine only);

12.3.3. the defendant is charged with an offense alleged to have occurred while the defendant
was on community supervision;

.4. 12.3

the defendant appears to be a danger to himself/herself or others; or

12.3.5. the defendant has shown an unwillingness to follow bond conditions in the past.

12.4. In general, personal bonds are disfavored where the defendant has previously failed to appear
in court as instructed.

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SCJC 000077

HARRISCO_CourtOrder 001800
000292

-?lgg{ CCaassee44::119'6-c-cv-v0-0a2L246.I4DDooccuummeenntt3126-67-1F4iFleildedoinnT03X/S27/20 in TXSD Page 79 of 212 rriC

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CLÊRX. U.S. DtSTRtcr a)uRT
FILED SOUTHERN OISTìICT OF TF¡.AS

UNITED STÀTES DISTRICT COURT SOUTHERN DISTRICÎ OF TE)IÀS HOUSTON DTVISION

r{ùv 2 5 r9g7

Jtsss E- Cr¡Rr(.

IÀRRY ROBERSON; ET ÀL.

s

BY DEruTY: ,^.

ír-al

s

VS

5 5

crviÏ, ÀcîIol¡ t¡o. :{-84-2974

5

s

NEEL RTCHÀRDSON; ET ÀL.

5

ry
Pending before the Court is the parties' stipulation

regard5.ng attorneys' f ees. the Court ORDERS this stipulation is hereby approved in all

respecÈs.

r!4 DONE in Houston, Texas, this 2

day gf Noveuber,

198?.

UN D SÎÀTES DTSÎRICT ü[,DGE
a
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SCJC 000078

HARRISCO_CourtOrder 001801
000293

CCaassee 44::1L96-c-cv-v0-002I246I4 DDooccuummeenntt 3L26-76-1F4ileFdileodn i0n3T/2X7S/D20oinn 0T2XlSOD2lIP7agPeag8e07ofo2f 1LL2

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F¡LED S^COrU€IiH|(E. RUI.{SD. IOSITSRÌRIC|CI IOFCOTÐtr(RASi

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS

ti0v 25 ffil

HOUSTON DIVISION LARRY ROBERSON, et al.,

J€SSE E Cl¡¡I'(.
BvÐEprJw:¡!.

lndividuallv and as Cless Pepiesentative Plaintiffs,
NEEL RICHARDSON, et al.,

CIVILACTION NO. H-8a€659-
eî 1q

Delendants.

AGREED FIN.AL JUDGMENT

On this day came on lo be heard the above-entilled and numbered cause. The parties appeared in open court by and through their attorneys of record and announced lhat all
claims, causes of action, and matters in controversy actually asserted, have been comprornised
and setlled,'and prayed lhat the Court render an Agreed Final Judgment ih accordance with
the terms set forlh herein.
The parties announced that their intention in consenting to entry of the herein contained judgment, and the reeson for the herein conlained orders, is to insure that Plaintiffs are aflorded all of the rights, privileges and immunities guaranteed by the Constitution and laws of the Unïted States of America and the State of Texas, including. but not limited to, the right to a prompl, lair and reliable determination of Probable Cause as set out ¡n Gerstein % Pugh,420 U.S. 103 (1978), a meaningfut review of atternatives to pre-scheduled baif amounts as set out in Rainwater v. Pugh, 572 F.zd 1053 (sth Cir. 1978)(en banc), and the right to the
prompt appointment of counsel.
The parties further announced that the reason for tha herein contained judgment is to afori each rnember of the Plaintitfs' class a Probable Cause and bond hearing before a duly elected Judge of a Stale District Court, County Criminal Court at law, Stalutory County Coutt et Larv aulhorized to hear criminal matters, County Court, Justice of the Peace, special Judge pursuanl lo Vernon's Annotaled Texas Civil Statutes. Government Code, Sec. 75.403. or such persons who may be'lemporarily appoinled or designated to lawfully preside on behalf of .a courl, but in no case shall such person or persons not be a resident of Hanis County, Texas, licensed lo practice law lor al least four (4) years and a member in good standing of the Stete 8er ol Texas (hereinafter referred to ãs a "Judicial Officer"). and the eppo¡ntment of
counsel. All of the foregoing shall be in accordance with the provisions of this Judgment.

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SCJC 000079

HARRISCO_CourtOrder 001802
000294

CCaassee 44::1t96--ccvv-0-A02I246I4 DDooccuummeenntt3126-67-1"F4ileFdileodn i0n3/27/20 in TXSD Page 81 of 212

It ¡q theretore, ORDERED, AOJUOGED and OECREED that the Judges of the Statutory
County Criminal Courls at L¡w of Hanis County Texas ("lhe Judges'), shall cause each person
accused of a Class "A' or 'B- misdemeanor otlense filed in the Statutory County Criminal Courts at Law of Hanis County, Texas, to be taken beforef a Judicial Oflicer, as soon as a Judicial ollicer is available atter the accused is placed in a jail operaieo b!, or under the aulhority of the Sheriff ot Harris County, Texas, or. other delention facilily operaled by or under the authority of the Sheritf of Har¡is County, Texas, whereupon the accused shall be
afforded a hearing that will entaíl an examination of whether "Probable Cause' (which is
definäd as a reasonable ground, based upon the facts and circumstances, sutficient to warrant a prudent man lo believe that the accused has committed each element of the oflense charged
and the accused is culpable, it being understood that if there is a sutficient delense
established by testimony or documentation of lhe arresting agency. then lhere is no Probable Cause) exists for the accused's further detention, set bail and review the accused's suitability lor releaSe on an alteralive to prescheduled bail amounts. At lhe hearing the Judicial Offìcer
shalh
(A) lnform the accused in clear, understandable language, of the accusation against him
and of any complaint or informatíon fifed against him;
(B) lnform lhe accused of his right to retain counsel; of his right to remain silent; of his right to have an attorney present duríng any interview with peace .officers or
prosecutors; of his right to lerminate police interrogation at any time; of his right to
request the appointment of counsel if he is an indígent (a person who is not
financially able lo employ counsel); and that any statement made by the accused can
and will be used against hím at trial,
(C) Determine whether Probable Cause exisls to wârrânt further detention of the . defendant on the charges pending. The Judicial Offìcer shall determine the existence
ol ProbaÞle Cause based upon witness teslimony (or aifidavits), the.arresting ofíicers
testimony, lhe Judicial Otfícer's analysís of a writlen offense report, .or of written
. field notes/¡eports prepared by the arresting officer. The Judicial Offìcer shall enter
the basis for his fÌndings on the record by completing a form regarding lhe findíngs

'Takeh Judicial

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2

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SCJC 000080

HARRISCO_CourtOrder 001803
000295

CCaassee 44::1I69--ccvv--00012,246I4 DDooccuummeenntt 3L26-76-LF4ileFdileodn i0n3T/2X7S/D20oinn T02X1S0D211P7agPeag8e29ofo2f 11L2

and orders made by the Judicial Officer and including the same with the papers ol the

case. Ìf the Judicial Otficer delermines lhere is nol Probable Cause, the accused shall

immediately be discharged lrom custody (detenlion).
(D) Where the Judicial Oflicer finds Probable Cause for lurlher delenlion, he shall: (1)

enter such finding on lhe record, and (2) set lhe amounl of bail required of the

accused for release and delermine the accused's eligibílity lcr release on personal

bond or alternalives to prescheduled bail amounts. Such bail determinatíons shalf be

according to the lotlowing criteria:
1. The bail shall be suffrcientiy high to give reasonable assurance lhat the

undertaking willbe complied with:
Z The nature of the otlense lor which Probable Cause has been lound and the
circumstances under which the ot{ense was allegedly committed are to be

considered, including both aggravating and mitigaling lactors lor which there is

reasonable ground to believe shown, if any;

3. The ability to make bail is lo be regarded. and proof may be taken upon th¡s

'

Poinq

4. The luture safety of the vïctim may be considered, and if this be a laclor.

release to a third person should also be considered¡ and
5. The Judicial Otlicer shalf also consider the accused's employment history,

residency, family affiliations. priór criminat record, previous court appearance

performance and any outstanding bonds.

It is further ORDERED that the Judge's shall also cause the Judiclal Officer to be available
lor conducting the hearings described ìn this order for persons accused of Class. "C'

misdemeanor offenses upon which the accused is booked into the Harris County Jail.
It is fuÉher ORDEFED that for a period of three years from entry of this order, if a

hearing has not been held within 24 hou¡:s of an arrest, the Judges shall cause records to be 'maintainbd showlng the accused's name, the case number and the arresting agency, and shall

make such records available to Plaintifü' counsel on requesl. ln.the event â particular

anesting ågency shows a patlern of lailing to produce accused persons for the hearings

required within 24 hours ol arresl, this Court shall enter an additional order requiring the delendants to immediately nolify Plaíntiffs' counsel when an accused is brought by such

agency before the Judícial Officer aller 24 hours from arrest has elapsed.

It is lurther ORDERED thal the bail determinalions made by the Judiciaf Officer shall not

be changed but for good cause shown. The basis for. and the linding of good cause, shall be

enlered upon the record.

J

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SCJC 000081

HARRISCO_CourtOrder 001804
000296

CCaassee44::\169--ccvv--0001242t64 DDooccuummeenntt 1362-67-L4FilFeidleodnin0T3X/2S7D/20oninAT2XlS0D2lt7PaPgaeg8e31o0fo2f1121-

It ìs lurlher ORDÉ:RED that the Judges shall provide Judicial Otficers who will be
continuously on duty to conducl the hearings referred to in this order during the 15 hot¡rc of each week day, and lor 15 hours each day on weekends, during which times the Judges are not avaìlable to preside. The illness or absence ol a Judicial Officer shall not absolve lhe
Judges of responsib¡l¡ty to provide Judicial Otficers under this Order.
It is further ORDERED thal the Statulory County Criminal Courls at Law of Harris
County, Texas, shall implement and maintain a bond schedule for all misdemeanor offenses within their jurisdiction. This schedule shall establish lhe initial amounts of bail required in each $pe or category ol offense. At the Probable Cause hearing the Judicial Officer shalf use the Bail Schedule, ín addition to the crileria in Seclíon D, in dclermining the appropriate
bail in a given case. The Judicial Officer shall have the authorily to order the accused
released on personal bond or released on other allernatives to prescheduled bail amounls. The
Judges shall direct the Pretrial Services Agency to make every effort lo insure that sufficient informalion is available at the time ol the hearings required herein for the Jucticial Officer to determine an accused's eligibility for a personal bond or alternalives to prescheduled bail
amounts.
It is lurthei ORDERED lhat the Judges shall appoint counsel prior to any adveæarial
iudicial proceedings (any proceeding held in the court in which the case is filed). or where lhe Judge concludes that the interests of justice require representation, for all accused indigents who do not refuse the appointmenl of counsel. The Judges may not deny appointed counsel to an accused sotely because the accused has posled, or is capable of postlng bail. Appointments shall not be revoked, rescinded, withdrawn or terminated when an accused has posted bail, but lor good cause shov¿n, and such.a fìnding and the basis therelore shall be
entered on the record. The posling of bond by the accused is not good cause for the
revocalion, recision, withdrawal or termination ol lhe appoinfment of counsel for an accused, ln considering whelher an accused is entilled to appointed counsel the Judges shall consider
faciors including. but not limiied lo, the follovring:
1. the accused's income, . 2. significant property orvnêd by the accused,
3. oulstanding obligalions of lhe accused, 4. necessary expenses ofthe accused, 5. the number and ages of any dependenls ofthe accused, and 6. *t utf,", the accused hes posted or is capable ol posting bail.
It is further OROERED thal the provisions of lhis Order shall be implemented on or betore, March l, 1988.'
4

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SCJC 000082

HARRISCO_CourtOrder 001805
000297

CCaassee44::I169--ccvv--000L242L64 DDooccuummeenntt L362-67-14FilFeidleodnin0T3/X2S7D/20onin0T2X1S02D1L7PaPgaeg8e41-o1fo2f1121-
This Agrced Final Plainlifls' Original and Amended Petitions, and lhe implementation of this Agreed Ju{gment conctudes all matlers contained therein. The Unlted States Districl Court retains exclusive jurisdiclion to eflecluate the relíef set out hereín and to issue such
other orders as are necessary. All relief not erpressly granted herein is denied.
stGNED ar Houston,Teras, o^thr2$"y ot /fu!;l{rsat.

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þ ¿iEÊ=¡Ê-€€r¡¡G
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APPROVED AS TO FORM AND SUBSTANCE

JAMES T. OfTZ¡NGER

JAMES T. OIIZINGER Atlomev in Charoe SodheÍn Districr-of Texas LD. 1932 Bissonnet
AHoCus7to1n3,/6T8e3xa{1s6787005
FOR PI,.AINT¡FFS

6298

BLINN WHITE & COOK

GRANTCOOK Atlornev in Cherce Southein Distrist-of Texas l.D. No. 5005 3300 Allled Bank Plaza 1000 Louisíana
Houlon, Texas 77002
AC 713/651-1300 ATTORNÉYS FOR DEFENDANTS

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5
SCJC 000083

HARRISCO_CourtOrder 001806
000298

 
 Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 85 of 212
EXHIBIT C

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SCJC 000084

HARRISCO_CourtOrder 001807
000299

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 86 of 212
D ¡y'rn¡c'r C o u n r,s T"n w NG C R I M t N Á t: (i ¡s rs
II uris (.\t un t.v, Ta,wn

manded Staudard fluil rflctí
'l'his leplates flny previous docr-rrnçnt:(s) regarding the lrelc:rry Þistrict Cor,rrts
llnn.ço$nr (Pn¡rrun l) llo¡l ns
. Follow Texas Code of Clrirninal Procedure Chapter l7 'r Purst¡alrt to $ I 7 .71 , ref'er all assaultivc cr,nses to the prcsicling jucige irs,rigneci
to the case pur$uant to the Ï"lamis County Direct Filing Orcler
' IIR ßond is l-¿'tvorect in all cÉrsùri in which the de.f'endnnt is cletenninccl to be
Iow risk
llrtlr,
Iìej'er to lSail fiuiclclines
Any questiotts should be relcrrecJ to the presicJing juclgc ns.rignec{ to the case pursrrant to the H¿rrris C,'ou,nty Direct Filing Ordcr
A-
$ìignecl March 4?. ", ?017

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SCJC 000085

HARRISCO_CourtOrder 001808
000300

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 87 of 212
Dtst'nn:r (ounrs TRt nyr; ÇntmtNrtt. C"ls¿s
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SCJC 000086

HARRISCO_CourtOrder 001809
000301

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 88 of 212
EXHIBIT D

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SCJC 000087

HARRISCO_CourtOrder 001810
000302

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 89 of 212
R{.ILHS $}flCOURT
Harris Counfy CrimÍnal Courts at Law
As amended through August 12,2016

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SCJC 000088

HARRISCO_CourtOrder 001811
000303

Hanas County Criminal Courts at Law
Case 4:19-cv-00226 Document 32-7 RuFleisleofdCoounrt03/27/20 in TXSD Page 90 of 212

Table of Contents

Rule L

Rule 2.

Rule 3.

Rule 4.

Rule 5.

6. Rule

Docketing of Misdemeanor [ndictments

Rule 7.

Docketing of Appeals from Non-Record Municipal Courts, Justice of the Peace

Courts, Municipal Courts of Record, and Administrative License Revocation

Code Hearings Pursuant to Chapters 524 andT24Texas Transportation

.....-...*u""..13

Rule 8. Docketing of Cases: Judge Recusal or Disqualification......... ,!...¡¡rr'r.|v.,,......".."".....14

Rule 9. Schedule of Bond Amounts....

...rr....1*i.¡k.¿.,....¡.;r...............15

Rule 10. Refund of Cash 8onds........

.,.,.i,.r.,r!................16

Rule 11. Bond Forfeiture Reinstatements, Dismissals, and Judgments................,.ra*r..-..,rrrr,,.,r............... l6

Rule 12. Approval of Personal Bonds DuringNon-Business Hours

.r.ô.,|'rr,!.r¡i¡,,."."...............l6

Rule 13. Signing of Pleadings

Rule 14. Preparation of JudgmentS .,..,,,*..,.;;^,,ri.;.|-,d...;r,,r'.',ì-.'r¡i.¡.¡¡.ie*.1.,|,sir...,rri-¡¡;";r,r.¡r.¡i;!.¡a..;....,,,."..... I 7 Rule 15. Petition for Occupational Driver's License

Rule 16. Attorney of Record

Rule 17. Juvenile Defendants

Rule 18. County Criminal Court Management Program...

Rule 19. Code of Judicial Conduct..o..*"..,,i"0....,,.ii¿,r+.:r..,¡ú;rir¡:¡¿.r¡ii¡:¡¡*r¿ai:;-..,¿.ir.+.¡,,riia+¡.,,ì.i¡.¡*..,r.¡.;.;..¡r..;";.;.2 I

Rule 20. COUftRepOftefS...,r,rr,.*...,,re..¡i,.r;;.rri.¡,.h

ú,,çriì¿.r¿.¡..tii.+:.....riiÌ,i..ri;i:i;i,*,iir.rf,r!',,i..i¡r..*.:.'r]...ri,,,",",,22

Rule 21. Satisfaction of Judgmenf Order Permítting Partial Payment on Fines and Costs,....,"..,,."..,.,.,."-22

Rrule22. Viewing and Copying DWI Video Tapes...

Rule 23. Release of Clerk's Record to Counsel....!¡,('.r.,,a,,,?¡+r.i,,¡r,.r+.,.,,r.,r...r*.rr..,rrr+r....,,+.d.¡rr,r*,..r ,.,.^..,,"..,23

Ftule24. Alternative Plan fsr the Appointment of Counsel to Indigent Defendants Under the

Texas Fair Defense Act

''.',,.',,,,,",,"".,,23

Rule 25. DísastEr Plan

¿"4

26 Rule

Sliding-Scale Fee Schedule for Global Positioning System

A App. Approved lntensive Training Programs....

...."".-r"...44 ...................,.".. 46

As anended through August 12, 2A16
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RULE 1.
l.l.

GENERAL PROVISIONS
On March 7,2016, the duly elected and appointed judges of the County Criminal Courts at Law of Harris County, Texas, met and adopted the following rules to facilitate the efficient management of the courts' dockets. These rules take effect April 6,2016.

1.2

These rules, in conjunction with the Code of Criminal Procedure, and the Government Code,

govern proceedíngs in the Hanis County Criminal Courts at Law. These rules shall not be

construed as extending thejurisdiction ofthese courts, nor shall they be construed to overrule
or conflict with the Texas Government Code, Texas Code of Criminal Procedure, Texas

Penal Code, Texas Rules of Evidence, or Texas Rules of Appellate Procedure. These rules are

intended to govern local proceedings where such rules are not in conflict with existing law

and where such rules are consistent with state statutory law and rules promulgated Uy ttre

Texas Court of Criminal Appeals and the Texas Supreme Court.

1.3.
1.4.
RULE 2;

The district clerk shall not make any changes with regard to random filing, numbering of cases, docketing of cases, transfer of cases, assignment of settings, or any other matters that affect the distribution of work or the conduct of the business of the Harris Counfy Criminal
Courts at Law unless so directed by the Judges of the County Criminal Courts at Law.
The following rules shall govern the assignment of misdemeanor cas¡es and other matters within the jurisdiction of the County Criminal Courts at Law of Harris County, Texas.
PROCEDURE FOR lHE FILING OF CASES

2.1. Numerical Sequence
2.1.1. Each criminal and civil case filed and docketed into the county criminal courts at law
shall be assigned a sequential number based on the following case number structure.
2.1.2. Beginning January 1,2000, case numbers shall consist of seven numerical digits, the
first case number filed on January 1,2A00, shall be "0978400.'Case numbers shall continue sequentially thereafter, which soheme shall allow cases to be numbered through 9,999,999.
2.2. Random FilÍng
2-2.1. All misdemeanor proceedings filed with the district clerk shall be randomly assigned
by the district clerk to the various county oriminal courts at law. This shall be
accomplished by means of a blind fìling process that provides for the equal distribution of new cases in such a manner that it cannot be determined to which court a case will be assigned until after the assignment occurs.
2.2'2. The primary means of assignment of cases shall be through the use of a computer
program that provides for the random assignment and equal distribution of cases. The computer program shall be capable of maintaining a joumal of filings and distribution of cases that will permit periodic or random audit to determine whether the program is
assigning cases as intended.
2.2.3. tf the primary means of assignment, the computer program, is not available, the district
clerk's office shall use the manual random selectíon device for the filing of cases into the county criminal courts at law. Prior to each case assignmen! the random seiection device shall be rotated on its axis, and one ball therein shall be withdrawn. The court number indicated on the ball randomly chosen shall become the assigned court for the case. The diskict clerk shall add the ball back into the random selection device immediately, so as to not disturb the random filing and docketing of all other cases into the county oriminal courts at law.

As amended through August I 2, 20 I 6
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2.2.4. The clerk shall receive, assign and account for all cas€s in ascending numerical
sequence.

2.2.5. How Criminal Câses Are Attracted To Courts

2.2.5.1.

Before using the computer program or the manual random selection device to
determine court assignment for a given case, the district clerk shall determine by
research whether the defendant named in the misdemeanor information has a
prior connection to an existing case in any of the county criminal courts at law. A prior connection is established when:

2.2.5.1.1.

a defendant is presently on community supervision in one of the county criminal courts at law;

2.2.5.1.2.

a defendant is charged with driving while intoxicated, committed within
five years of the date on which the most recent DWI offense was
committed;

2.2.5.1.3. 2.2.5.r.4. 2.2.5.t.5.

a defendant using a valid occupational driver's license granted by thejudge of a county criminal court at law is charged with another DrüI (Driving While Intoxicated) or DWLI (Driving While License Invalid);
a lower numbered cause, including a pending appeal of a class c offense from a justice or non-record municipal court, is pending against the
defendant/codefendant in a county øiminal court at law;
a defendant is charged and the charge arose from the same qiminal transaction that was the basis of a misdemeanor information previously
ftled on a co-defendant;

2.2.5.1.6. a defendant has not discharged a prior sentence ofconfinement; or

2.2.5.t.7.

a defendant appealed a final judgment, order granting community supervision, or denial of relief in a post-conviction habeas corpus
proceeding that is still pending before a court of criminal appeals.

2.2.5.2. If one of the above prior connections exists, the new misdemeanor case shall be
attracted to the court in whioh the defendant has the prior connection. If more
than one prior connection exists, the new misdemeanor case shall be attracted to
the court involved in the prior connection appearing first as listed above.

2.2.5.3. If a defendant has a pending case and is charged with a new case that would
attract to a different court under these rules, all pending cases shall transfer to the different court (see Rule 3).

2.2.5.4- In the event that a case is attracted to a court ín error, then the coordinator of the
court receiving the case in error shall complete a transfer order to be signed by the presiding or co-presiding judge that orders the case back into rotation. The order is then returned to the dishict clerk for compliance therewith.
2.2.6. Filing of Cases Charging PublÍc Lewdness, Gambling Offenses, Prostitution,
Violatlons of the Alcoholic Beverage Code, or County or Municipal Ordinances Relating to Sexually Oriented Businesses

2.2.6.1. .

There is no attraction by either codefendant or transaction in cases charging
public lewdness, prostitution, violations of the Alcoholic neverage Códe, gambling offenses, or county or municipal ordinances relating to sexually
oriented busínesses. The clerk shall apply all other rules of athaction.

As amended through August I 2, 20 I 6
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2.2.7. Appeals From JustÍce of the Peace Court, and Non-Record Municipal Courts 2.2.7,1. The rules of attraction shall apply to an appeal from a judgment in a criminal
case from a justice of the peace court, or non-record municipalcourt in the same manner as an original criminal case.
2.2,8" Re-files, Writs of Habeas Corpus, Mandamus, Prohibition, Restricted Driver
Licenses, Fugitives
2.2.8.1. If a case is re-filed, it shall be assigned to the same court as the case it
supersedes. The district clerk is then authorized to attract and set the re-filed case in the court where the initial misdemeanor information is or was pending. The setting date assigned to the re-filed case will be the same date as that of the initial pending case. If the initial case is no longer pending, the re-filed case shall be set in accordance with the rules governing the filing of new cases.
2.2.8.2. Motions for leave to apply for a writ of habeas corpus, mandamus, or prohibition
shall be filed pursuant to an order by the court agreeing to hear those matters. Petitions for restricted driver lícenses shall be filed in the court in which the conviction was entered and the driver license suspended. Petitions for resfricted driver licenses filed by a Hanis County resident that result from a suspension for
:if'#:"',",1i'ff å,ï,ff,',iï;i"ïÏ"Í"iHi'å:T,|:',Í'îi:öl:ili':i:Tffi :
filed in any court agreeing to hear the matter, or as provided for in subsection B
3 2 2 8 ü::;,'ï:ï";ä:::::i:::: ï:ï::ffäïi:;;ii:î,iïi, judges or are transferred by authority ofa separate order, all such assigned cases shall remain on the docket of the court of assignment until final disposition.
2.2.9. Appeals From The Administrative Suspension of a Personts Driver's License as
Provided by Texas Transportation Code Chapters 524 and724
2.2.9.1. See Rule 7.
2.2.10. Petitions for Occupational Driverns LÍcense
2.2.10.1. See Rule 15,
2.3. Application of Bail Schedule by District Attorney
2.3.1. In all cases, the District Attorney shall:
2.3.1.1. follow the bail schedule;
2.3.1.2. provide the District Clerk with a signed order from a judge or judicial officer
setting bail at a different amount; or
2.3.1.3. request in writing a higher bond on a form provided for that purpose and attach it
to the court's file.
2.4. Designation of Bail 2.4.1. The clerk shall enter the bail amount. 2.4.2. When the district clerk receives a complaint from the district attorney that is not
accompanied by an order setting bail and the amount on the charge is not consistent with the bail schedule, the clerk shall enter the number "888888' in the bond amount field.

As amended throughAugu.tt I2,20I6
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RULE 3. TRANSFER OF CASES

3.1. Research by Clerk

3. L l.

Upon filing and docketing of a misdemeanor indictment or information into the county
criminal courts at law, the district clerk will determine by research whether the named defendant has a prior connection in any of the county criminal courts at law. This
research shall be done in accordance with the criteria established in Rule 2.

3.2. Re-filing of Cases

3.2.1. All re-fìles of cases pending or dismissed shall be filed and docketed in accordance
with statutory rotation. The district clerk is authorizêd to transfer and set the re-filed case in the court where the initial misdemeanor indictment or information is or was pending. If the initial case is pending, the setting date assigned to the re-filed case will be the same Bs that for the inítial case. If the initial case is not pending, the re-filed case
shall be given an appropriate setting in accordance with these rules.

3.2.2. All writs of habeas corpus, contempt, and ex parte matters shall be filed and docketed
in accordance with these rules. The district clerk is authorized to transfer and set the proceedings in the court where a prior case connection exists or, if no prior connection exists, to transfer the proceeding to the court wherein the hearing on such proceedings
is to be conduoted.

3.3. Special Transfer Situations

3.3.1. S.O.B.E.R. Court Transfer on Motion to Revoke

3.3.1.1. Upon receiving a motion to revoke the probation of a defendant in S.O.B.E.R. Court, and upon consent of the defendant, the judge presiding over the
S.O,B.E.R. Court shall sign a docket notation that the case is to be transferred to
a judge presiding over a different S.O.B.E.R. Court and specify the court to
which the case is to be transferred as directed below.

3.3 .t .2.

The Office of Court Management shall maintain a list of all judges presiding over
s.o.B.E.R. court dockets in numerical order by oourt number. upon receiving notice that a case is to be transfered under this subsection, the Office of Court Management will consult the list and tell the sending court which judge is next on the list (in sequential order) to receive a revocation transfer. If the sending
judge would otherwise be next on the list, the case will be assigned to the
following judge and the sending judge will receive the next revocation for which
they are eligible.

. 3 .3 .l .3

The sending judge shall sign an order hansfening the case to the receiving judge. The judges, coordinators, and clerks shall then proceed as with any other case
transfer.

3.4. Docket NotatÍon

3.4.1. When it has been determined that a case is to be hansferred from one court to another,
the judge of the sending court shall enter a docket notation that the case is to be
transferred and shall speciff the court to which the case is to be transferred.

3.5. Transfer Order

3.5.1. After the docket notation is completed, the clerk of the sending court will prepare a transfer order, obtain the judge's signature, and cause the signed order and court case file to be timely delivered to the clerk of the receiving court. The clerk of the receiving

As amended through August 12, 2016
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court will obta¡n the receiving judge's signature on the transfer order. At that time, the receiving coordinator will set the case in the receiving court and complete the setting
information on the bottom of the transfer order.
3.6. Entry of Transfer Order
3.6.1. The clerk of the receiving court wilt deliver the completed transfer order and the court
file to the district clerk's office. The transfer order will be entered and verified in the
records maintained by the Justice Information Management System. The entries in the
court case fÌle will be completed prior to data entry/data verification of the transfer order. A copy of the completed transfer order bearing the transaction number will be filed in the court's case file. Duplicate copies of the transfer order shall also be
provided to the clerk of the receiving court for delivery to the assistant dishict attorney assigned to that court and to the defense attorney ofrecord.
3.7. Justice Information Management System Update
3.7.1. The district clerk shall update the Justice Information Management System records
with the case setting date of the receiving court, and shall enter the reason for the transfer. At that time, the setting record remaining in the transfening court will be
closed.
RULE 4. TNITIAL SETTINGS
4.1. First Settings
4.1.1. The first setting date of the case shall be known as the arraignment setting, and it shall
be provided by the district clerk on all oases except those filed as non-arrests, where instead a capias is issued for the defendant. The clerk shall set first settings in the following manner:
4.1.2. Cases filed on Monday through Thursday shall be set for arraignment on the same day
of the following week. Cases fìled on Friday, Saturday, or Sunday shall be set for
arraignment on the following Friday.
4.1.3. Non-arrest cases shall be set for anaignment in accordance with the above rules upon
the filing of an executed capias.
4.1.4. A defendant released from custody on a personal bond under the conditions described
in TEX. CODE CRIM. P. AlrN. art. 17.033, shall be set to appear in the court in which the case is pending at 9:00 o'clock a.m. on the day of release for the purpose of holding a hearing as required by Trx. CoDE Cruu. P. ANN. art. 15.17. If a defendant is released
from custody after 9:00 o'ólock 4.m., the defendant shall appear in court at 9:00
o'clock a.m. on the next business day.
4.1.5. The criminal law hearing officer ordering the defendant to be released shall, at the time
the defendant signs a personal bond, order the defendant, in writing, to appear as
provided above, and the hearing officer shall also direct personnel from the Prehial Services Deparfment to provide the defendant with written notice of the date, time and place that the court will be in session.
4.1.6. The hearing officer who orders the defendant's release shall immediately notiff, by e-
mail, the judge and the coordinator of the court in which the defendant is set, notiftíng them ofthe defendant's release and pending appearance in that court.
4.1.7. The district clerk shall enter the first setting at the time the complaint and information
are filed. The setting information shall be reflected on the complaint document above the misdemeanor charge literal in a manner that will provide the setting information on

As amended thrøtgh August 1 2, 201 6
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all copíes of the indictment, information, and complaint. Further, when a bond is filed with the district clerk, the district clerk shall provide written notice of the case's first setting date to the person filing the bond.
4.2. Probable Cause HearÍngs for Further Detention
4.2.1, Appearance Before A Criminal Law Hearing Oflicer
4.2.1.1. When the district clerk files an indíctment, information, or complaint alleging the
commission of a misdemeanor offense within the jurisdictional limits of a county
criminal court at law and the defendant is in the custody of law enforcement
officials in Harris County, the district clerk shall update the electronic records in the automated system to reflect that charges have been filed. Furtheç by general
order of the judges of the county críminal courts at law, all law enforcement officials in Harris County shall cause the pretrial detainees in their respective custody, who have been charged with a class A or class B misdemeanor, to be delivered to the criminal law hearing officer not later than 24 hours after anest for the purpose of conducting a hearing to determine probable cause for further
detention. Personnel and electronic files, along with original and hard copy files, where appropriate, from the district attorney, dishict clerk, and Prehial Services
Department necessary to conduct the hearings shall be present and made
available to the criminal law hearing officer. AII detainees will be deemed to
have been'otaken before a judge or judicial officer" if they are physically present at the hearing, or if their participation is achieved by the use of high-speed, twoway audio/video transmission technology. In circumstances where audio/video technology is utilized, the entire hearing must be recorded and maintained by the court for a period of one hundred twenty (120) days afrer the hearing. A written record of the proceedings shall be made.
4.2,2. Hearing Actions
4.2.2.1. The criminal law hearing officer shall perform the following for every person for
whom a hearing is conducted:
4.2.2.1.1. inform the accused in clear, understandable language, or through the use of
an interpreter consistent with TEX. CoDE Cnnr¿. P. ANN, arts. 38.30 & 38.31, as appropriate, of the charges against him and of any complaint or ínformation that may have been filed against him;
4,2.2.1.2. inform the accused of the accused's right to retain counsel; of the accused's
right to remain silent; of the accused's right to have an attorney present during any interview with peace officers or prosecutors; of the accused's
right to terminate police interrogation at any time; of the accused's right to
request the appointment of counsel if the accused is indigent; inform the accused of the process for requesting an appointed attorney; ask the
accused ífthe accused requests appointed counsel; and inform the accused that any statement the aocused makes can and probably will be used against the accused at tríal;
4.2.2.1.3, if the accused affirmatively requests appointed counsel, the judicial officer
if shall, assistance is requested, instruct Pretrial Services Department
personnel to assist the accused in completing the form. Pretuial Services
Department personnelshall assist the accused in completing the form.

As amended thraugh August 1 2, 201 6
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4.2.2.1.4. if the accused has not yet been interviewed, Pretrial Services Department
personne¡ shall promptly conduct an interview;
4.2.2.1.5. record the fact that the accused does not request appointed counsel, if
applicable;
4.2.2.1,6. immediately forward, or cause to be forwarded, a request for appointed
counsel and any supporting documents to the judge of the court in which
the case is pending;
4.2.2.1.7. determine whether probable cause exists for the further detention of the
accused on the charges filed, through the use of live witness testimony, affidavits, the arresting officer's testimony, an analysis of the written offense report, field notes, or other reports prepared by the arresting
officer, except in those cases where arrest was pursuant to the issuance of a warrant;
4.2.2.1.8. in cases involving the offense of stalking or family violence, determine
whether a magistrate's order for emergency protection should be entered;
4.2.2.1.9. enter the basis and results of the findings on the record and have the same
included in the papers of the case file maintained by the district clerk;
4.2.2.1.10. upon a finding that no probable cause for further detention exists, the criminal law hearing officer shall issue a signed order to the sheriff to
immediately release the accused from custody in that case; and
4.2.2.1.11. upon a finding that probable cause for further detention exists, the criminal law hearing officer shall, after determining whether the accused is curently on bail for a separate criminal offense, set the amount of bail
required of the accused for release and shall determine the eligibility of the accused for release on personal bond, cash bond, surety bond, or other
alternative to scheduled bail amounts, and shall issue a signed order remanding the defendant to the custody of the sheriff. A copy of such
finding and return by the sheriff shall be retained by the district clerk in the case file.
4.2.2.1.12. Judioial offltcers taking an action as identified above shall direct the clerk to
make appropriate entries into the automated system as the facts and law require, as set out below:
4.2.2.1.12.1. PC FOUND. Used when probable cause is found (i.e. on "to be"
warrants, or when defendant is not present)
4.2.2.1.12.2. WARNS GIVEN. Used when the statutory warnings are given, PC
has already been done.
4.2.2.1.12.3. PC/WARNS DONE. Used when the Judge/Magistrate does both.
4.2.3. Initial Bail Schedule
4.2.3.1. The bail schedule maintained by the county criminal court at law judges for all
misdemeanor offenses occurring within the courts' jurisdiction shall be referred to by the criminal law hearing officer. The initial bail amount may be changed on motion of the court, the hearing officer, or any party subject to the following criteria:

As amended lhrough August 12, 2Al6
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4.2-3.1.1. the bail shall be sufficiently high to give reasonable assurance that the
defendant will comply with the uãAertulãing;

4,2.3.1.2. the nature of the offense for which probable cause has been found and the
circumstances under which the offense was allegedly committed are to be considered, including both aggravating and mitigating factors for which there is reasonable ground to believe shotvn, if any;

.3. 4.2.3.1

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

point;

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

4,2.3.1.5, the criminal law hearing officer shall also consider the employment
history, residency, family affiliations, prior criminalrecord, previous court appearance performance, and any outstanding bonds ofthe accused.
4.2.3.2. MonitoringoflncarceratedDefendants

4.2.3.2.1. It shall be the responsibility of the courts' coordinators to monitor daily the
status of each detainee still in custody to determine whether the detainee has appeared before the criminal law hearing offrcer for a detention
hearing. If a detention hearing has not been held, the court will hold a hearing as set forth above. The court will also consider the issue of
appointment of counsel where raised by the defendant.

4.3. f ncarcerated Defendants' Twenty-fou r Hou r Settin g

4.3.l -

A twenty-four hour setting will be provided for all cases by the court in which the case
is pending, wherein the defendant remains incarcerated in the Harris County Jail. These
hearings will be condusted at regular docket calls on Monday through Friday. The
defendant shall be docketed in accordance with the following schedule, and in such cases the initial seven-day setting shall be canceled.

Court ApþearCnce Schedulé

Date Booked

24-Hour Appearance

Sunday Monday

0001-2400 0001-2400

Monday Tuesday

0900 0900

Tuesday Wednesday

0001-2400 0001-2400

Wednesday Thursday

0900 0900

Thursday Friday Saturday

0001-2400 0001-2400 000r -2400

Friday Monday Monday

0900 0900 0900

4.3.2,

At all other times (weekends, holidays, and nights), defendants booked into the county jail on any and all process pendíng ín or issued out of the county criminal courts at taw,
shall be brought immediately before a criminal law hearing officer who shall determine if probable cause exists for the oontinued detention of the defendant,

As amended through August 1 2, 20 1 6
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4.4. Subsequent Settings 4.4.1. All subsequent settings of misdemeanor cases shall be the specific responsibility of the
judge or coordinator of each of the county criminal courts at lawn who will file a notice of setting in writing with the district clerk or provide notice by entry on the court's docket sheets. That notice is to be used by the clerk for recording data in the automated
system.
4.4.2. Bond Reinstatement
4.4.2.1. When a case is again active because of the reinstatement of a bond, either with or
without cost, the district clerk shall enter a seven-day setting, except when a setting already exists in the system. When a setting already exists, the date in the
system shall prevail as the next setting date.
4,4.3. Bench Warrants and Attachments
4.4.3.1. Such documents shall have a setting date in the body of the document and the
district cferk shall set accordingly.
4.4.4. Summons in Lieu of Capias
4.4.4.1, When a misdemeanor information is filed against a corporation in, for example, a
pollution case, the process issued shall be a summons rather than a capias, The summons shall require that the corporation make an appearance at l0:00 A.M. on
the first Monday next following the expiration of twenty days from the date of
service.
4.4.4.2. When a summons is used against a defendant in lieu of a capias in a misdemeanor information that is a re-file of an earlier-filed misdemeanor
information, the appearance date on the newly filed case shall be set for the same date as the earlier filed case, except when the earlier filed case has no setting. In that event, both cases shall be set for seven days, and the setting in the re-filed case shall be for anaignment.
4.4.4.3. Neither a summons nor a capias may issue without a judicial finding of probable
cause.
4.4.5. Notice of Appeal
4.4.5.1. The district clerk shall notifr the court coordinator or judge of the court when a
notice of appeal is filed in a case in which the court either has entered judgment or suspended the imposition of judgment. The court coordinator shall place the case on the couft's docket as directed by the judge, or on the next regular
business day. The court coordinator shall notiff the defendant and the
defendant's attorney-of-record of the setting.
4.4.6. Noúice to Court When Appeal Bond Not Filed
4.4.6.1. When a defendant has given notice of appeal and an appeal bond has not been
filed in the papers of the cause within forty-eight hours, a report shall be sent to the court apprising the court that an appeal bond has not been filed. Upon receiving such a report, the court shall notif, the appellanldefendant's attorney.
Ifthe appellanldefendant has no attorney, the appellanldefendant shall appear before the court. If the appellant/defendant does not post an appeal bond, the
court shall issue a capias for the appellant/defendant.
4.4.7. Mandate of Abatement

As amendedthrough Augusl 12, 2()16
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4.4.7.1. The dishict clerk and couft coordinator shall noti$ the staff attorney for the
county criminal courts at law upon receipt of a mandate or order of abatement. The court coordinator shall set a date from fourteen (la) to twenty one (21) days from the date of receipt of order or mandate. The coordinator shall notify the suret¡r, the principal, and the attomey-of-record by certified mail.
4.4.8. Mandates of Affîrmance and Reversal and Remand
4.4.8.L The district clerk, upon receipt of an order or mandate, shall determine whether
the defendant is in the Harris County jail. If the defendant is in jail, the case shall
be set the next day court is convened. If the defendant is on bond, the dishict
clerk shall immediately issue a capias for the defendant, provide a seven-day setting, and forward the information to the court coordinator. Immediately upon receipt of the information from the clerk, the court coordinator shall noti$ the attorney-of-record on appeal, the surety on the appeal bond, ifone exists, and the appellant by regular mail. The court coordinator shall also attempt to notifu the above parties by teþhone.
4.4.9, Violation of Post Judgment Orders

4.4.9.1. The Sheriff shall bring any person arrested for violating a.post judgment order issued by a Judge of a County Criminal Court at Law before a Criminal Law Hearing Officer. The Hearing Officer shall determine the identity of the person,
and conduct a hearing on the reasons for the person's arrest and enter such orders as provided by law.
4.4.10. PetitÍons for Non-disclosure

4.4-10.1. [n accordance with TEX. Cov'T CoDE $ 4l l.0Sl(d) petitions for non-disclosure are filed with the district clerk, a fee is paid, and the case is set,
4.4.10.2. Petitions filed under this section will be set by the district clerk, upon collection
of the filing fee for fourteen days from the date the petition is filed, or as ordered
by the court.

RULE 5.
5.1 .

ADDING CASES TO THE DAILY DOCKET
Only the judge or the coordinator of the court may approve the addition of a case to the
docket.

5.2, 5.3-
RULE 6.

To request the addition of a case to the court's docket, the requesting party (district attorney, defense aftorney, court clerk, sheriff, et cetera), shall submit to the court coordinator the case number, defendant's name and status (iail or bond), and the reason for the request
Those cases approved for addition to the court's docket will be submitted via the county
criminal courts at law add-on form to the clerk of the court by 3:00 p.m. of the day before the case(s) is/are to be added to the docket. Jail cases may be exempt from this time requirement.
DOCKETING OF MISDEMEANOR INDICTMENTS

6.1. Upon receipt of a misdemeanor indictment returned by a Hanis County grand jury and
certifïcation that the case is to be transfened to the docket of the county criminal courts at law, the case shall be randomly filed and docketed into the county criminal courts at law in the manner prescribed by law and in accordance with these rules. The district clerk shall endorse the amount of bail upon the papers of the case in accordance with the bail schedule provided by these rules. The dishict clerk shall then issue a capias to the sheriff of Hanis
County, who shall immediately attempt to apprehend the defendant.

As amended through August I 2, 20 I 6
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RULE 7.
7.1.

DOCKETING OF APPEALS FROM NON.RECORD MUNICIPAL COURTS,
JUSTICE OF THE PEACE COURTS, MUNICIPAL COURTS OF RECORD, AND ADMINISTRATIVE LICENSE REVOCATION HEARINGS PURSUANT TO CHAPTERS 524 AND 724 TEXAS TRANSPORTATION CODE
Non-Record MunicÍpal Courts, and Justice of the Peace Courts:

7.1.1. Case Numbering, Filing and Rules of Attraction

7.1.1.1. All cases received by the district clerk of Harris County, Texas, from a non-
record municipal court, or justice of the peace court for the purpose of appealing
a misdemeanor conviction entered in such court shall receive a case number and assigned a court in the same manner as a criminal case filed by misdemeanor
information or indiçtment, and using the same rules of attraction.

7.1.2. Notice To Appellant

,1.2.1. 7

The de novo appeal shall be set for arraignment and pretrial hearing (as provided

by Tex. coDE cRrvr. P. Ar.w. art. 28.01) thify (30) days from the date that notice

of the hearing is sent via regular mail by the district clerk to the defendant at the

address shown on his bond. If the bond shows no such address, the notice may be

addressed to one ofthe sureties on the bond. Ifthere are no sureties on the bond,

notice shall be sent to the defendant at the address shown on the complaint, or

ticket made the basis of the prosecution. The provisions of TEX. CoDE CRIM. p.

Ar+¡. art 28.01 shall control the filing and hearing of all matters and the conduct

ofthe proceedings.

7.1.3. Contents of Notice

7.1.3.1. The notice shall contain the cause number assigned to the appeal and the court
into which the case was assigned; the time, date, and location of the court in
which the defendant is to appear; and shall contain the following statement:

o'The couft has scheduled your arraignment and a pretrial hearing in this case on
the above date. At this setting you will be asked to enter a plea of not guilty, nolo contendere, guilty, or make any other special plea provided by law. In addition, the Court will hear any matters you or your afiorney wish to raise prior
to trial at this time. These matters must be raised by written pretrial motion filed with the clerk of the court not later than seven (7) days before the hearing date,
uniess you receive permission from the judge of the cóurt to file them on another
date.'.

7,1.4. Defendant in Cusúody

7.1.4.1. Where the defendant is in custody, the de novo appeal shall be set for
anaignment on the next date the court is in session.

7.2. Municipal Courts of Record

7.2.t. Case Numbering

7..2.1.'1. Each appellate transcript shall be assigned a sequential number using the system established by these courts in 1976.
7.2.2. Case Filing and Rules of Attraction
7.2.2.1. The district clerk shall file the appellate record into the courts on a rotational
basis.

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7.2.2.2. Before assigning a court, the district clerk shall determine by research whether
the defendant named in the appeal has a prior connection to an existing appeal. A prior connection is established when a prior pending appeal from a municipal
court ofrecord exists.

7-2.2.3. The district clerk shall file a subsequent appeal in the same court if: (i) the
subsequent appeal arose from the same criminal transaction, or (ii) was tried
before sarne jury.
7.3. Administrative License Revocation Hearing AuthorÍzed By Chapters 524 and 724,
Texas Transportation Code
7.3.1, Procedure For The Filing of Cases

7.3.1.1. Each petition appealing the suspension, of a person's driving privilege as provided by Chapter 524, or 724, Texas Transportation Code, shall be filed and docketed
into the County Criminal Courts at Law, and County Civil Court at Law of Hanis County, Texas as provided by the Locàl Rules of each court division.
7.3.2. Random Filing; Rules of Assignment and Attraction

7,3.2.1. The district clerk shall assign a petition to the court in which the criminal case resulting from the enforcement contact: (l) is pending; (2) is on appeal; (3) in
which a judgment of conviction, or order granting community supewision was entered; or (4) dismissal order was entered, using the criminal case number
followed by the suffix "Y".

RULE 8. DOCKETING OF CASES: JUDGE R.ECUSAL OR DISQUALIFICATION

8.1. VoLUNTARY REcusAL oR DISQUALIFIcATIoN. Upon voluntarily granting a motion to recuse or disqualifr, or on a judge's decision to recuse or disqualifu without a motion, the
recusingjudge shall sign an order referring the case to the Presiding Judge ofthese courts. If
no motion to recuse or disqualify is pending, the recusing judge shall bríefly state the reason for the recusal or disqualification in the referral order. The Presíding Judge of these courts shall issue an order directing the clerk to assign a judge to preside over the case using its computerized random assignment program. The judges, coordinators, and clerks shall then
proceed as with any other case transfer.

L l .l.

After a transfer pursuant to Rule 8.1, the clerk shall take the next case that would have otherwise been assigned to the receiving court and instead assign it to the recusing
court.

8.2. Ixvot uxrARY REcusAL oR DISQUALIFICATIoN. Immediately after declining to grant a
motion to recuse or disqualiff, a judge shall sign an order referring the case to the Presiding Judge of the Second Administrative Judicial Region and direct a member of the Office of
County Court Management to transmit the referral order to the regional Presiding Judge. The
Presiding Judge of the Second Administrative Judicial Region shall assign a judge in the
manner provided by Rule 9.2.4, Regional Rules of Administration of the Second
Administrative Judicial Region of Texas, The judge assigned to rule on the motion shall sign an order granting or denying the motion using the form of order promulgated by the region. The order shall be filed with the clerk of the court. If the motion is granted, the district clerk
shall use the computerized random assignment program to determine the court to which the
case will be assigned. The judge assigned to rule on the motion shall sign an order
transferring the case to the randomly selected court. The judges, coordinators, and clerks shall
then proceed as with any other case transfer.

As amended through August 12, 2016
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RULE 9. 9.l.

SETTING AND MODIFYING BAIL SCHEDULE
Pursuant to the agreed final judgment and order of the federal court in Roberson v.
Richardson (No. H-84-2974), Southern District of Texas (1987)), the Harris County Criminal Court at Law Judges promulgate this initial bail schedule. The dishict attorney shall afüx an initial bail amount at the time a complaint is filed in a county criminal court at law. The initial
bail amount shall be determined by either presenting relevant information in the possession of
the district attorney to a county criminal court at law judge, or Harris County Hearing Officer, or by applying the initial bail schedule. The district clerk shall record the bail amount set by the judicial officer or applied by the district attorney from the initial bail schedule in the case file. This shall be the exclusive means of setting the initial amount of bail, unless otherwise directed by the Judges of the Harris County Criminal Courts at Law.

Misdemeanor Bail Schedule

lst Offense 2nd Offense

Cl¡ss:

lst Ofrense 2nd Offense

Cl¡ss:

Famíly Violence oi Thlþät of Violeice lst Offense
2nd Offense

$500 $500, plus $500 for cach prior misdemeanor conviction, plus $1,000 for each prior felony conviction (not to exceed $5,000)
$1,000 $1,000, plus $500 fo¡ each prior misdemeanor conviction, plus $1,000 for each prior felony conviction (not to exceed $5,000)
$ l,500 $ 1,500, plus $2,000 for cach prior conviction for a violent offensç or threat of violence

Cläis:

First Offense Subsequent Offense
Any offense committed while rrn bohd, community supervision, interrenfion, or parole Any motion to rdjudicrte or rcvoke community supervision

$500 $2,500, plus $1,000 for each prior conviction not to exceed $5,000
$5,000

9.2. The initial bail amount shall be determined by application of the bail schedule. In any case
where the district attorney desires a bond higher than that on the bail schedule, the district attorney shall make a request to a judge of the county criminal court at law or ¿ criminal law hearing officer. The order, when signed by the judge or hearing officer shall be provided to the district clerk along with the complaint and information for filing.
9.3. The district clerk shall apply the amount of bond from the bail schedule except in cases where
the district attorney has provided the clerk with an order setting bail signed by a judge of a count¡r criminal court at law or a criminal law hearing officer, in which case the clerk will apply the amount of bail provided for in the order setting bail.

As amended through August 12, 2016
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9.4. If the clerk does not receive an order setting bail or if the amount of bail exceeds tbe amount
provided for in the bail schedule, the clerk shall make an entry in the bail field as provided by Rule 2D, and bail will then be set by a judicial officer.

RULE 10. REFUND OF CASH BONDS
10.1. Unless a notice of appeal is given, cash bond deposits will be refunded to depositors other
than the defendantupon final disposition of the criminal proceeding. [f a notice of appeal is given, refunds will not be given until a replacement bond has been duly filed with the district
clerk.
10.2. In the event the criminal proceeding is reversed and remanded to the trial court, no refund or assignment will be granted until a replacement bond has been duly filed with the district
clerk.

RULE 11. BOND FORFEITURE REINSTATEMENTS, DISMISSALS, AND JUDGMENTS

11.1. All bond reinstatement orders, bond forfeiture dismissal orders, and agreed judgments,
wherein payments of costs of judgments are involved, shall be presented in person by the
bonding agency only to the judge of the court wherein the forfeiture occurred

11,2. The total amount of the costs on bond reinstatements with costs, dísmissals with costs, and in

'

the case of agreed judgments the total amount ofjudgment and costs, will be delivered to the court along with the order ofjudgment by the bonding company.

I1.3. Money orders, cashier's checks, and firm checks, payable to the Harris County dishict clerk,
are the only tender that will be accepted. Cash payments may be made in advance and a
receipt obtained from the district clerk and presented with the order or judgment.

11.4. All bonding agencies shall be required to obtain the future setting date from the court
coordínator prior to presenting orders of reinstatement and costs. All future settings shall be
seven days from the date of the reinstatement order.

1 1.5. Upon reinstatement, dismissal, or approval of agreed judgment by the judge of the court
wherein the forfeiture occurred, the order, judgment, and the accompanying tender shall be delivered by the judge to the clerk of his court for delivery to the district clerk's offrce,

RULE T2. APPROVAL OF PERSONAL BONDS
12.1. Whether to approve or deny a personal bond is up to the reviewing magistrate's sound
discretion.
12.2. [n general, personal bonds are favored in the following types of cases, absent good cause to
deny a personal bond:

t2.2.1. theft by check;

12.2.2. driving while license suspended or invalid;

12.2.3. gambling offenses;

12.2.4. illegaldumping;

t2.2.s. fictitious vehicle license plate or registration;

12.2.6. prostitution;

t2.2.7. violation of laws regulating sexually oriented businesses;

12.2.8. public intoxication;

12.2.9. driving without a license;

As amended thraugh August I 2, 201 6
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12.2.10. class B criminal trespass, if the defendant has no prior convictions or community
supervision for a Class B or greater offense;
12.2.11. class B retail theft, if the defendant has no prior convictions or community supervision for a Class B or greater offense; and
12.2.12. possessing a drug or marijuana (except possession of synthetic cannabinoids or Class A
possession of marijuana), if the defendant has no prior conviotions or community
supervision for a Class B or greater offense.
12.3. In general, personal bonds are disfavored where the defendant has demonstrated a risk to
reoffend or harm society, examples of which might be where:
12.3.1. the defendant is charged with an offense alleged to have occurred while on bond for
another offense;
12.3.2. the defendant is charged with multiple offenses (unless both are favored for personal
bond under the above criteria; not including offbnses punishable by fine only);
12.3.3. the defendant is charged with an offense alleged to have occurred while the defendant
wâs on community supervision;
12.3.4. the defendant appears to be a danger to himself/her'self or others; or
12.3.5. the defendant has shown an unwillingness to follow bond conditions in the past. 12.4. In general, personal bonds are disfavored where the defendant has previously failed to appear
in court as instructed.
RULE 13. SIGIilNG OF PLEADINGS
13.1. Every pleading, brief, or motion of a pafi represented by an attorney, shall bear the
manuscript signature of at least one of the attomeys of record, in his individuat name, along with his state bar card number, address, and telephone number. The pleading, brief, or motion shall further contain a certification that a copy of the document was mailed or hand-delivered to opposing counsel.
RULE 14. PREPARATION OF JUDGMENTS
14.1. The district clerk of Harris County, Texas, shall prepare the judgment in the case at the time
the judgment is rendered using a form approved by the Judges of these Courts, and present it without delay to the hial judge for approval and signature. Judgments in a multi-count
indictment or information shall be prepared by the prosecuting attorney at the time the"
judgment is rendered and the prosecuting attorney shall present it without delay to the trial judge forapproval and signature.
RULD 15. PETITION FOR OCCUPATIONAL DRIVER'S LICENSE
15.1. The District Clerk shall only accept for filing, a petition seeking an occupational ticense
resulting from a suspension, revocation, cancellation, or denial of a person's driving privilege pexeptirteiosnslyseceokvinegredanboyctohuepsaetirounlaels.liTcehneseDirsetsriuclttinCglefrrkomshaallsdusirpeecntsaionp,errseovnocwatiisohni,ng-detoniafill,eoar cancellation under a provision not covered in subsection A, below, to the County Clerk of this county.
15.2. Filing of Petition for Occupational License
15.2.1. A person may apply for an occupational license by filing a verified petition with the
District Clerk of Harris County, Texas if the person's license:

Ás amended through August I 2, 201 6
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L 15.2.l.

was automatically suspended, revoked, cancelled or denied upon conviction of an
offense in a county criminal court at law as provided by chapter 521,
Transportation Code; or;

15.2,1.2. was suspended or denied as provided by Chapter 524, or 724, Trcnsportation
Code; or

15.2.1.3. was suspended as provided by Chapter 708 Transportation Code.
I5.3. Assignment of Occupational License Petition

15.3,1. Suspension after conviction. The clerk shall assign the case to the court in which the
defendant's driver's license was most recently suspended upon conviction or order
granting community supervision as provided by Chapter 5àl Transportation Code
using the cause number from the case followed by the suffìx,.R',.

15.3.2. Suspension or denial after failing or refirsing to provide a sample of breath or blood.
The clerk shall assign the petition to the court in which the criminal case resulting from the failure or refusal is pending, or in which an order dismissing the case was entered, using the cause number of the case followed by the suffix 0,X,,.

15.3.3. Suspension after failing to pay a surcharge resulting from a conviction in a county
criminal court at law in Hanis County. . The clerk shall assign the petition to the court in whích the judgment was entered resulting in the accumulation of a point or points under the Texas Driver Responsibility Program, Chapter 708 Transportation Code using the cause number from the case followed by the suffïx o.R'.
f 5.4. Setting

15.4.1. The district clerk shall set the petition on the court's docket seven days from the date it
is filed, or on a date set by order ofthe Judge of the court with jurisdiction.

RULE 16. ATTORNEY OF RECORD

16.1. On the first appearance retained counsel shall complete the Attorney of Record form provided
by the court. Upon appointment under the Fair Defense Act, counsel shall complete the
appointment order signed by the Judge. Retained or appointed counsel shatl file the attorney
of record form, or the order appointing counsel with the clerk of the court before the
conclusion of his first appearance. The district clerk shall use the attorney of record form, or the order appointing counsel as a source document for data entry into the Justice Information Management System. A written motion and order of the court will be required for withdrawal
âs attomey of record.

16.2. The original attorney of record is presumed, under these rules, to continue as attorney when a
notice of appeal is filed. When the original attorney of record does not continue to represent
the defendant on appeal, then the original attorney of record shall file a motion to withdraw as
attorney of record in the county criminal court in which the case is pending. At the time the motion to withdraw is filed, the original attorney of record shall also request a hearing date from the court coordinator who shall set the motion on the court's docket within seven (7)
calendar days of presentment. The purpose of this hearing is to allow the court to rule on the motion to withdraw

16.3. When notice of appeal is filed and an attorney other than the attomey of record is retained to
prosecute the appeal, then appellate counsel shall file a motion to substitute counsel in the county criminal court at law in which judgment was entered. The motion shall be filed at the
time notice of appeal is filed, or not later than five (5) calendar days after the date counsel is retained or appointed. The appellate counsel shall also request a hearing date from the court

As amended through August 12, 2016
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coordinator who shall set the motion to substitute counsel on the court's docket within seven (7) calendar days of presentment. The purpose of this hearing is to allow the court to rule on
the motion to substitute counsel.

16.4. The written notice of appearance of counsel on appeal will be filed with the clerk for the case
fÏle and will become a part of the clerk's transcript on appeal.
16.5. When an attorney is appointed to represent an indigent defendant, the order appointing
counsel shall be the document used to attach the attomey's name to the case as an appointed attorney.

RULE 17. JuVENILE DEFENDANTS

l7.l. Any defendant who is charged with a misdemeanor offense within the jurisdiction of the
county criminal courts atlaw of Hanis County will be presumed to be an adult untit a proper judicial determination is made to the contrary.

.2. 17

In any case wherein proof is offered that a defendant may be a juvenile, the sheriffand/or the

district attorney are requested to make the court in which the cause is pending aware of the

style of the case in which the defendant is suspected to be a juvenile.

17.3. The court will set the case as soon as possible for a hearing as provided by Tex. CoDE CRIM.
P. ANN. art. 4.18, to determine if the defendant is a juvenile. Only after that determination will the defendant be released from custody, and the cause transferred to thejuvenile court in
accordance with Tnx. CODECRIM. P. ANN. art.4.t8, and Sectíon 56.08, Family Code.
l7.4. In all cases wherein a determination is made that a defendant is a juvenile, expeditious
transfer of the case will be made to remove the case from the criminal cdurt's docket.

17.5. The defendant may be released from custody if evidence is provided to the sheriffor other

holding

that the defendant is a juvenile. The evidence affecting the defendant's

release s^hgaenllabye presented to the court on the next court workday so that a judicial

determination may be made and, if the court finds that the defendant is a juvenile, a hansfer

to the juvenile court will be immediately processed. Should the court find, however, that the

defendant is not a juvenile, appropriate process will be issued for the defendant's arrest.

RULE 18. COUNTY CRIMINAL COURT MANAGEMENT PROGRAM

18.1. The presiding judge is chief executive officer, and is assisted by the co-presidingjudge. The
court manager assists the presiding and co-presiding judges and provides managemen! systems, and legal assistance to all courts, as well as training to the coordinators.
18.2. Court Manager and Coordinator System for CertaÍn Harris County Courts

18.2.1. The courts in Hanis County that have the same criminal jurisdiction may establish and
maintain a court manager and coordinator system,

18-2.2. The judges of the courts to which this section applies may appoint a court manager, one
or more court coordinators, and other staff as appropriate to the needs of the local
jurisdiction. The judges shall by rule designate the qualifications and duties of the court manager and the coordinators to improve criminal justice and expedite the processing
of the criminal cases through the county courts. The court manager and the
coordinators shall cooperate with state agencies having duties relating to the operation
ofthe courts to promote uniform and effisientjustice.

18.2.3. The couÍ manager and the coordinators serve at the pleasure of the judges. 18.2.4. The court manager and coordinators are entitled to reasonable compensation as set by
the judges of the courts served. The court manager's compensation may not exceed

As amended through August 12, 2016
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sixty (60) percent of the salary paid the judges, unless the commissioners' court by
order sets the court manager's compensation at a greater amount. The amount paid the coordinators may not exceed fifry (50) percent of the salary paid the judges.
t8.2.5. On the judges' orders, the commissioners' court shall frrnd the court manager and
coordinator system from fines collected by the courts served by the cout manager and coordinators. If the fines collected are insufficient to provide the total funding for the program, the county shallprovide the additional funds needed.
18.2.6. This section does not diminish the statutory duties and powers of the sherifi district
attorney, clerk of the court, or any court officer.
. 18.3 Court Coordinators Training/Salary Plan
18.3.1. The Hanis County Court Coordinators'Career Ladder Salary Plan was created by a joint order of the Judges of the District Courts Trying Criminal cases and the County
CriminalCourts at Law of Harris County, Texas. The plan became effective September l,1994.
18.3.1.1. Effective September 1,1994, all court coordinators employed by a district court or a county court at law shall be placed in Step 7.0 of the plan and shall be exempt from the bachelor's degree requirement for Step 8.0 through Step 12.0.
Court coordinators employed on or afrer September l, 1994 must meet the annual
requirement to attend sixteen (16) hours of continuing education to be eligible for
step increases for Step 8.0 through Step 12.0. All persons employed afrer September l, 1994 as a court coordinator in a district or county court at law will
be paid in accordance with eligibilþ requirements for plan steps and incentive
pay. As amended November 19,2002, the steps are reduced from 12 to eight.
18.3.1.2. The anniversary date ofthe plan will be September lst of each year.
18.3.1.3. The Administrative Office of the District Courts and the Office of County Court Management for the county criminal courts at law will certif, to the Harris
County Budget Office on August lst of each year the step level and incentive pay eligibility of each court coordinator.
I8.3.1.4. Continuing education is defined as enrollment in, and completion of, sixteen (16) hours of continuing education in courses offered by the Administrative Ofüce of
the District Courts and/or the Office of County Courl Management, or through attendance at programs offered by the Texas Center for the Judiciary, the Texas
Association for Court Administration, the Justice Management Institute, the National Center for State Courts, the Institute for Court Management, the
National Association for Court Management, the National Judicial College, the
Criminal Justioe Center at Sam Houston State Universþ, or other approved programs. Continuing education hours are required in addition to any other
educational r'equirement of this plan.
18.3.1.5. In addition to the basic salary provided in Step 1.0 through 12.0, incentive pay will be awarded to those persons meeting the minimum eligibility requirementi. Similar to other benefits, such as longevity pay, incentive pay follows the "person," not the "position," and incentive pay is not considered when cost of
living increases are calculated.
18.3.1.6. For completion of at least sixty (60) hours of college credit, or for attainment of an associate's degree, a person will be eligible for a step classification of 0.1 and incentive pay of $75.00 per month. To be eligible for plan credit, at least half of

As ømended throughAugust 12, 2016
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the credit hours must be from the following subject areas: English, math, computer science, accounting, management or public administration, human
resource or personnel management, psychology, sociology, criminaljustice, Iaw,
government or political science, or a foreign language. All hours must be granted from an institution recognized by the Texas Higher Education Coordinating Board, or must be transferable to one of its recognized institutions. A person who has graduated from the Executive Development Program of the Institute for Court Management of the National Center for State Courts meets the minimum
requirement for this incentive pay step.
18.3.1.7. A person who is multilingual and has been certified, through written and oral
examination, to interpret in the courts is eligible for incentive pay step 0.1.
18.3.1.8. For attainment of a bachelor's degree, a person will be eligible for a step
classification of 0.2 and incentive pay of $150.00 per month. The major area of
study or at least half of the earned credit hours must be from one of the following subject areas: English, math, computer science, accounting, management or
public administration, human resource or personnel management, psychology, sociology, criminal justice, law, govemment or political science, or a foreign language. All hours must be granted from an institution recognized by the Texas Higher Education Coordinating Board ot be transferable to one of its recognized
institutions.
18.3.1.9. For attainment of a master's degree, a person will be eligible for a step
classification of 0.3 and incentive pay of 9225.00 per month. The major area of
study or at least half of the earned credit hours must be from one of the following subject areas: English, math, computer science, accounting, management or
public administration, human resource or personnel management, psychology, sociology, criminal justice, law, government or political science, or a foreign language. All hours must be granted from an institution recognized by the Texas Higher Education Coordinating Board or be transferable to one of its recognized
institutions.
18.4. Staff
. 18.4.f Court Manager
18.4.1.1. The County Criminal Court Manager is chosen by a majorrty of the county
criminal court at law judges and hired by the presiding judge. Although the court
manager serves at the pleasure of the courts, the court manager's primary
responsibility is to the presiding judge of the county criminalcourts at law.
t8.4.2. Assistant Court Manager (Projecf Analyst)
18.4.2.1. The assistant court mahager is interviewed and hired by the court manager with
the approvalof the presiding judge. This person also serves as the project analyst for the county criminal courts at law.
18.4.3. Staff Attorney
18.4.3.1. The staff attorney for the county criminal courts at law is appointed by the
presiding judge and hired by the court manager.
RULE 19. CODE OF JUDICIAL CONDUCT
19.1. All persons employed by the county criminal courts at law in any capacity shall, within the
first thirty days of einployment, be apprised of the contents of the Code of Judicial Conduct

As amended through Augwt 12, 2016
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by the court manager, or by the staff attorney at the direction of the court manager, as the Code applies to the affected employee. The employee shall have an opportunity to ask appropriate questions related to the intent and meaning of the Code. When the meaning and intent of the Code of Judicial Conduct is understood by the employee, the acknowledgment on the following page shall be executed and signed with at least one witness present. The completed acknowledgment shall be filed in the employee's personnel file folder, and a copy shall be retained by the employee (see form at Policies and Procedures, Appendix, Page A-8).
RULE 20. COURT REPORTERS
20.1. Absent and substitute court reporteru.
20.1.1. A court reporter in a counfy criminal court at law will be allowed only that vacation and sick leave time as approved by the commissioners' court for Hanis County
employees. In the event of a court reporter's absence that is not covered by approved vacation or sick leave time, that court reporter will be responsible for paying the costs to provide the court with a substitute reporter.
20.1.2. During the approved absence of a court reporter, the Office of County Court
Management shall be contacted to determine whether a reporter from another county criminal court at law is available before a substitute is hired, unless the court's reporter has made prior arrangernents for coverage with another court reporter.
RULE 21. SATISFACTION OF JUDGMENT: ORDER PERMITTING PARTIAL PAYMENT
ON FINES AND COSTS
21.1. The Sheriff of Harris County, Texas is directed to accept either the full amount or a partial
amount of any fine, court costs or fees lawfully adjudged against a defendant. The sheriff or his designated deputy shall notif, the judge of the court with jurisdiction over the defendant
within 72 hours that partial funds were remitted, and shall ínclude the (l) case number; (2)
name of the defendant; (3) amount remitted; (4) date remitted; and (5) amount outstanding, as reflected in the records of the sheriff.
RULE 22. VIEWING AND COPYING DWI VIDEO TAPES
22.1. A pro se defendant or the attorney whose name appears on the court's Attorney of Record
form required under Rule 16 shall be permitted to view and obtain a copy of a videotape made pursuant to Acts, I983, CH. 303,524, without an order. Either the pro se defendant or attorney of record may designate a third parfy to obtain a copy of a video tape by designating
that person or company on the attorney of record form or separate motion to the court.
22.2. The Hanis County District Attorney shall permit ttre pro se defendant, or the attomey of
record or a third party to view and obtain a copy of a video tape at a time and place mutually agreeable to the parties.
22.3. To obtain a copy of a video tape the pro se defendan! the defendant's attorney or a
designated third pafy shall provide the Hanis County District Attorney with a blank video
tape cassette or other recording medium agreeable to the parties and the court.
22.4. The distríct clerk shall enterthe name of the designated person or company into the Justice
lnformation Management System by utilizing an appropriate connection code that can be
viewed on the computer transaction that shows parties connected to a case number.
22.5. Rule 22 is effective upon completion of changes in the Justice lnformation Management
System that will facilitate compliance with these rules, but not later than the first day of
August 1999.

.Ås amended through August I 2, 2016
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RULE 23 RELEASE OF CLERK'S RECORD TO COUNSEL

23.1.

The attorney representing a defendant appealing a judgment of a county criminal court at law shall be permitted the use of a copy of the Clerk's Record. Before releasing a copy of the Clerk's Record, the District Clerk of Hanis County or a deputy clerk shall determine from the records in his possession the identity of the attorney of record on appeal. The Dishict Clerk or a deputy clerk shalt only release a copy of the Clerk's Record to the attorney representing the
defendant on appeal. Ifthe identity ofthe attorney ofrecord on appeal cannot be ascertained
or is in dispute, the clerk shall refer the attomey to the judge of the court in which judgment
was entered and shall not release a copy of the Clerk's Record without a written order from a judge of a county criminal court at law.

23.2. The Dishict Clerk shall develop procedures to ensure that copies of the Clerk's Record are released and returned in a timely manner and their location always known.
RULE 24. ALTT,RNATIVE PLAN FOR THE APPOINTMENT OF COUNSEL TO INDIGENT
DEFENDAI\TTS UNDER THE FAIR DEFENSE ACT
24.I. DEFINITIONS
24.1.1" Appoínting authority means the Judges of the County Criminal Courts at Law of
Harris County, Texas.
24.1.2, Approved attorney means an attorney meeting the objective qualifications of this
Plan, and approved by a majority of the Judges of these Courts.
24.1.3. Appointment manager means the person who implements appointment procedures.
24.1.4. A day means a single day on which an attorney. is assigned to appear in a court.
24.1-5. Case means each cause number, or count in which a defendant is charged with a
separate offense. ,See Ofüce of Court Administration, Texas Judicial Counsel
Monthly Report Instructions.
24.1.6'' Contract means the agreement between an approved attorney and the Harris County
Commissioners Court meeting the requirements established by the Texas Indigent Defense Commission.
24.1.7. Cantract Defender Program. Contract defender program means a system under
which private attorneys, acting as independent contractors and compensated with public funds, are engaged to provide legal representation and services to a group of unspecified indigent defendants who appear before a particular court or group of
courts.
24.1.8,. Contracting Authority. The contracting authority is the Commissioners Court of
Hanis County, Texas.
24.1.9, Contractor. The contractor is an individual attorney licensed to practice law in the
State of Texas, me.eting the eligibility criteria in this Plan that can be bound by
contract.

24.1.10, Crimínal Law Hearing Officer means a judicial officer created by Chapter 54,
Subchapter L of the Texas Government Code (g 54.851 et seq.)
24.1.11- Defendant means a person accused of a crime or juvenile offense, as those terms are
defined by Section 7l.001 of the Texas Govemment Code.
24,1.12. Disposedmeans:

24.1.12.1. entry of an order dismissing the case;

As amendedthroughAugust 12, 2016
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24.1.12.2. the defendant has been sentenced after a plea of guilty or no contest;

24.1.12.3. trial on the merits resulting in a verdict;

24.1.12.4. entry of an order granting community supervision;

24.1.12.5. a motion for new trial has been overruled;

24.1.12.6. submission of a brief on appeal;
24.1.12.7. granting or denial of an application for writ of habeas corpus or other
extraordinary relief.

24.1.13. Fair Defense Act Management System (FDAMS)

24.1.14. First-chair counsel means the attorney in charge of the case. 24.1.15. He or him refers to a male or female.

24.1.16. Household means all individuals who are actually dependent on the defendant for
financial support.

24.1.t7
24.t.t8.

Indígent means a person who is not financially able to employ counsel. A person is
presumed indigent if the total income derived by that person (and any of his
dependents) is equal to or less than 125o/o of the United States Health and Human
Services poverty'guidelines applicable to that defendant's family/household.
Iternized Fee Voucher. The itemized fee voucher shall be in electronic form promulgated by these couÉs and approved by the Hanis County Auditor. It shall
include at a minimum all the information necessary for the county auditor or other designated official to complete the expenditure report required to be submitted to the Office of Court Admínistration by Section 7l,0351 (e), Government Code.

24.1.19. Judge means a Judge of a Harris County Criminal Court at Law.

24.1.24. Judicial Officer means a Judge of a Harris County Criminal Court at Law, or a Harris County Ciiminal Law Hearing Ofücer.

24.t.21"

Majoríty of judges means not less than: (a) eight of the duly elected and qualified judges of the Harris County Criririnal Courts at Law priorto January 1,2016; or (b) nine of the duly elected and qualifred judges of the Hanis County Criminal Courts at Law on or after January l, 2016.

24.1.22

Plan means the Alternative Plan adopted by the Judges of the County Criminal
Courts at Law of Harris County, Texas, on November 5,2015,

24.r.23, 24.1.24.

Probable cquse means a reasonable ground, based upon the facts and circumstances, sufficient to warrant a prudent man to believe that the defendant has committed each element of the offense charged and the defendant is culpable, it being understood that
if there is a suffïcient defense established by testimony or documentation of the
anestíng agency, then there is no "probable cause".l
Publíc Defender means the Chief Public Defender of the Harris County Public
Defender's Office.

I Roberson v. Richardson, Civil Action No. H084-3659, United States Disffict Court For The Southem District of
Texas, Houston Division (1987).

As amended through August I 2, 20 I 6
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24.1.25. Second-chair counsel means an attorney who is not eligible to be appointed as first-
chair couilsel, who volunteers for the purpose of gaining experience, knowledge, and
competency in the representation of a defendant.

24.1.26. Taken beþre a magistrate means either physically bringing the defendant before the
judicial officer in person or the image of the arrested person may be presented to the
magistrate by means of an electronic broadcast system.as provided by TEX CODE
CzuM. PROC. ART. 15,17(a).

24.1.27. The cost of obtainíng competent prívate legal representatíorz includes the reasonable
cost of support services such as investigators and expert witnesses as necessary and
appropriate given the nature ofthe case.

24.1.28. Wrorking day mems Monday through Friday, except official federal, state, and county
holidays.

24.2. PROUPT AND ACCURATE MAGISTRATE PROCEEDINGS.

24.2.1. DuTy oF ARRESTINc OFFICEn. The arresting officer, or the person having custody of
the arrestee, shall ensure that every arrestee shall be brought before a judicial offìcer without unnecessary delay, but not later than 48 hours after the person is anested.

24.2.1.1. Unless arrested pursuant to an arrest warant, bench warrant, capias, or other

order of a magistrate orjudge, necessary forms est¿blishing probable cause shall

be completed and filed contemporaneous with the arrestee being booked into the

.

Harris County Jail for any misdemeanor punishable by incarceration.

24.2.2. RELEASE oF DEFENDANT ARRESTED WITHour WARRANT. A person arrested for a misdemeanor without a warrant and who is detained in jail must be release not later
than the 24th hour after arres! on a bond in an amount not to exceed $5,000, if ajudicial
offlrcer has not determined that probable cause exists to believe that the person
committed the offense for which the person is charged.
24.2.3. Postpo¡len RELEASE. If requested by the State of Texas, a judicial officer may
posþone the release of the defendant for not more than 72 hours after the defendant's
arrest if a probable cause determination has not been made, in compliance with the
procedure set forth in ART. 17.033, TEX CoDE CRtvt. PRoc. Anrs.

24.2.4. R¡conn oF PRoCEEDINC. In each case in which a person anested is taken before a judicial officer, any combination of an etectronic recording, written form, or other
documentati on m emori alizing

24.2.4.1. the judicial officer informing the defendant of the defendant's right to request
appointment of counsel;

24.2.4.2. the judicial officer asking the person whether the person wants to request the
appointment of counsel;

24.2,4.3. inshuction on how to request the appointment of counsel and

24.2.4.4. whether the person requested the appointment of counsel.

24.2.5. DsraNoRNT BRoucHT BEFoRE JUDIcIAL OFFICER. The judicial officer shall determine ifthe defendant can speak and understand the English language, or ifthe defendant is
deaf or hearing impaired.

24.2.6. INTERPRETEn. [f the person does not speak and understand the English language or is
deaf, the judicial officer shall in an appropriate manner, and consistent with ARTS.

As a¡nended through August I 2, 20 I 6
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38.30, and 38.31, TEX. CODE CRIM. PRoc. ARTS., communicate with the defendant
using an interpreter.
24.2.6.1. TRANSLATE FORMS AND DocuMENTs. Interpreters provided at County expense
shall provide sight translation of court documents and con'espondence associated with the case or proceeding.2
24.2.7. THE HEARING. The judicial officer shall inform the defendant of the nature of the
charge and of any affidavit, if available, filed therewith:
24.2.7.1. The officer shall admonish the defendant of:
24.2.7.1.1. the right to retain counsel;
24.2.7 .1.2. ttre right to remain silent;
24.2.7.1.3. the right to have an attorney present during any interview with peace
officers or attorneys representing the State ofTexas;
24.2.7.1.4. the right to terminate an interview at any time;
24.2.7.1.5. the right not to make a statement and that any statement made by the
defendant may be used against the defendant.
24.2.8. INFoRMATION AND EXPLANATION oF THE RIGHT To COTJNSEL.
24.2.8.1. The judicial ofücer shall:
24.2.8.1.1. Inform the defendant of the right to appointed counsel if the person cannot
afford counsel and the procedùres for ràquesting appointment ofcounsel in the trial court;
24.2.8.1.2. Inquire as to whether the defendant is requesting that counsel be appointed;
24.2.8.1.3. Clearly note on the magistrate's admonishment form, or Probable Cause for Further Detention form, the defendant's choice viz: to request the
appointment of counsel or not to request the appointment of counsel.
24.2.8,2. If the judicial offioer has reason to believe the defendant is not mentally
competent, the judicial officer shall enter a request for counsel on behalf of the defendant to alert the judge of the court in which the case is pending that counsel
with the specialized skills necessary to represent mentally ill, or intellectually
disabled should be appointed to the case.
24.2.9. DETERMINATION OF PROEABI,T CAUSC FOR FURTHER DETENTION. [N A SASC WhErE thc
individual wa3 arrested without an arrest warrant, bench warrant, or capias, or other order of a magistrate or judge, the judicial offÌcer shall determine whether there is probable cause to believe the person committed the offense stated in the comptaint.
24.2.10. SETTTNG Ben. The judioíal officer shall set the amount of bail and consider the
defendant for release on a personal bond.3
24.2.11. ARREST oN Our-oF-Cou¡lrv WARRANT. The judicial officer and dishict clerk shall follow the same procedure for a person arrested on one or more out-oÊcounty warrants.

z Rule 5.2, Harris County Limited English Proficiency (LEP) PIan for Court Proceedings required by 42 U.S.C. 2000d, et seq (2015).
Roberson v. Ríc hardsory supra.

As amended through August I 2, 201 6
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24.2.1,1.1. If the anestee requests the appoíntment of counsel, the judicial officer shall ask the arrestee to complete an affidavit of indigence and fïnancial statement, and
shall ensure the arrestee has assistance in completing the forms.

24.2.11.2. The district clerk shall transmit the form to the county issuing the wan¿nt within
24 hours of the request being made.

24.2.12. THE MAGISTRATE SHALL RECORDTHE FOLLOWING:

24.2.12.1. The date and time the defendant was arrested and the date and time when the
defendant was brought before the magistrate;

24.2.12-2. Whether the judicial officer informed the defendant of the right to request appointment of counsel, and the procedure for requesting counsel in the trial
court; and

24.2.12.3. Whether the defendant requested appointment of counsel.

24.2.13. TIMELY TRANSMISSION OF FORMS TO THE TRIAL COURT. The Dishict CIerK of Harris County, Texas, through a deputy district clerk, shall immediately transmit or cause to be transmitted the magishate's form or Probable Cause for Fufther Detention form to the judge of the court in which the case is pending for use the following business day to timely conduct an indigence hearing as requested by the defendant.

24.3. RIGHT TO APPOINTED COUNSEL.

24.3.1. A defendant found to be indigent as that term is used herein, and who requests
appoínted counsel has the right to counsel:

24.3.1.1.

judicial proceeding that may result in punishment by

å"iåt"*Xiersarial

24.3.1.2. in any criminal proceeding before the court if the judge concludes that the
interests ofjustice require representation;

24.3.1.3. in a direct appeal to a court of appeals;

24.3.1.4. following arrest for violating a condition of community supewision; and 24.3.1.5. following arrest on an out-oÊcounty warrant.
24.3.2. The judge of the court may also appoint counsel, in the interests ofjustice to a person
appearing before the court, regardless of the person's financial status.
24.4. DsrnnmruNcINDrcENcE.

24.4.1. Procedures Used to Determine Indigence.

24.4.1.1. Indigence is determined by the judge of the court with dispositive jurisdiction. The judge may require the defendant to respond to questions about the defendant's financial status, produce documentation supporting financial information provided, and/or order a court official to veiifr financial information
provided.

24,4.1.2. A request by the appointing authority for additional information, documentation, and/or verification cannot delay appointment of counsel beyond the timelines
specified in Anr.1.051. TEX. Coon CRu. pRoc.

As amended through August 12, 2016
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24.4.2. FINANCIAL STANDARD. For purposes of appointing counsel, a person is indigent if the
person is not financially able to employ counsel.a The standard shall apply to each defendant equally, regardless of whether the defendant is in custody or is released on
bail.
24.4.3. FACToRS FoR DETERMININc INDIcENCE. A judge shall consider the following factors
in determining whether a defendant is indigent:
24.4.3.1. defendant'sincome,
24.4.3.2. source(s) of income,
24.4.3.3. assets and property owned, or in which the defendant has an interest,
24.4.3.4. outstanding obligations,
24.4.3.5. necessaryexpenses,
24.4.3.6. the number and ages of dependents, and
24.4.3.7, spousal income that is available to the defendant.
24.4.4. PRESUMPTIONS.
24.4.4.1. The defendant is presumed to be indigent if his net household income does not
exceed l25Yo of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register.
24.4.4.2. A defendant determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the defendant's financial
circumstances occurs.
24.4.5. USE oF INFORMATION LIMITED. Information gathered for determining indigence, both
in the affidavit of indigence and through oral examination, mây not be used for any
purpose other than:
24.4.5.1. Determining if defendant is (or is not) indigent; or
24.4.5.2. lmpeaching direct testimony of defendant regarding the defendant's indigence.
24.4.6. REVIEw. A defendant's status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the
defendant, the defendant's attorney, or the attorney representing the state.
24.4.6,1. The defendant's indigent status will be presumed not to have changed. The
presumption can be rebutted in the review proceedings based on the following:
' 24.4.6.2. Evidence of a material change.in the defendant's fìnancial circumstances, as a
result of which the defendant does not meet any of the standards for indigence contained in these rules; or
24.4.6.3. Additional information regarding the defendant's financial circumstances that shows that the defendant does not meet any of the standards for indigence
contained in these rules.
24.4.6.4. If a defendant previously determined to be indigent is subsequently determíned
not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.

4 See Tex.Cooe Cn¡u. P. AwN. art. 1.051(b).

As amended through Åugust I 2, 20 I 6
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24.4.6.5. [f the court determines that a defendant has financial resources that enable him to
offset in part or in whole the costs of the legal services provided, including any
expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs, the amount that it finds
the defendant is able to pay.

24.5, Establishing Minimum Attorney Qualifications.
24.5.1. QUn¡,mICATIoNs. To be qualified an attorney must submit a completed application,
resume, recent photograph, and signed attorney acknowledgement form. The attorney must also:

24.5.1.1. Have been licensed to practice law for at least one year;

24.5.1.2. Have accumulated a minimum of l0 points according to the following scale, at
least 2 points of which are from cases tried to verdict as first chair counsel (the attomey shall list the point total in each area with the application):

24.5.1.2.1. T"f*,g,,",ointu for each continuous 365-day period in the preceding 3 years as
a practicing attorney (up to 3 periods with 5 points maximum);

24.5.1.2.2. T.fv,p,_fig,fg,fq, for each successfully completed intensive oriminal law
training program in the last 3-year period appearing on the coults' list of approved intensive training programs (see Appendix A) (up to 4 points
maximum);

24.5.1.2.3. #.î¡q;p.çj#S:for each criminal case tried to a verdict in county or district court as first-chair counsel (list case styles and cause numbers) (up to 5
póints maximum; at least 2 points required);

24.5-1.2.4. -*A*',t¡¡di$ for each continuous 120-day period in the preceding 3 years as
an intern or legal assistant working under the supervision of a Texas lawyer
whose practice was devoted at least 80% to criminal law in county or
district courts (up to 3 points maximum);

24.5.1.2.5. ,llm*-tr,,p.iilf; for each Texas State Bar approved CLE lecture given by the

attorney, with accompanying written materials, on a criminal law topic

(provide written materials and list CLE title, date, and location) (up to 2

6 ffiilå'* 24 s' 2

points maximum);
;kT ñïi;Tf"tfËl1 iJ,i:"$i"¿:î :i';l;;l,ff

(provide annual CLE printouts) (up to 2 points maximum);

24.5.1.2.7. Ç¡rp *ofut, for each law review article authored by the attorney and
published by an ABA-accredited law school on a criminal law topic (attach
article and citation) (up to I point maximum); and

24.5.1.2.8. #ng::h4lf$s-i¡¡* for each criminal case tried to a verdict in county or district
court ás seôond-chair counsel (list case styles and cause numbers) (up to 5
points maximum). To claim credit in this subsection, the attorney must have been present during the entire trial, from jury selection through final
verdict;

24.5.1.3. Demonstrate substantive knowledge of criminal law, criminal procedure, and
evidentiary rules applicable to misdemeanor cases by scoring at least 75Yo on an open-book test written by judicial staff and members of the Public Defender's
Office of Harris County, Texas;

As amended through Áugust 1 2, 20 1 6
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24.5.1.4.

Maintain telephone and fax numbers, as well as a physical location (other than a public building) in which the attorney can conduct confidential meetings and
discussions without compromising professionalism and the attorney-client
privilege;

24.5.1.5. 24.5.1.6.

Have attended at least l0 hours of CLE related to criminal law in the year prior to filing an application (submit CLE verification);
Agree to attend at least 10 hours of cLE related to criminal law annually, including one hour of ethics, and annually submit an afïidavit showing
compliance with this CLE requirement;

24.5.1.7 24.5.1.8

Agree to attend CLE programs as directed by the Presiding Judge of these courts;
Agree to submit an affidavit showing compliance with the annual cLE
requirements;

24.5.1.9

Provide (and keep current) an email address to which the office of County Court Management may send official notices and conespondence regarding the plan, including, but not limited to, matters concerning cLE, changes to the plan and
eligibility requirements, notice of removal from the approved list, and other
adm in istrative matters ;

24.5.1.10. Consistently demonstrate commitment to providing effective assistance of
counsel and quality representation to criminal defendants;

24.5.1.11. Maintain a demeanor which is professional and conducive to effective
representation;

24.5.1.12. Demonstrate effectiveness of advocacy skills including, but not limited to, such

items as: voir dire; direct and cross examination; introduction o{ objection
and admissibilþ of evidence; argument; instructions; and recognition

to,
of

appellate issues;

24.5.1.13. Communicate effectively with the other parties involved in his cases. The attomey must make thorough use of sentencing laws, seeking imaginative and
creative sentencing alternatives;

24.5,1.14. Appear in court punctually and keep the court apprised of his whereabouts;
24.5.1.15. Be cognizant that the manner in which he or she interacts with judicial officers, prosecutors, courtroom personnel; law enforcement personnel, co-counsel, and other members. of the justice system contributes to the effective representation of
his indigent clients;

24,5.1.16. Be of sound mind;

. 24.5 .l '17 Agree to report to the Texas Indigent Defense Commission, by October 1 5th of

each year, the percentage of the attorney's practice time that was dedicated to

work based on appointments accepted juvenile delinquency cases for the prior

in Hanis County for
year (term beginning

adult criminal on October lst

.and and

ending September 30th); and

24.5.2. CoNTINUtNc DuTIEs; ExcEPTIoNs. A qualified attorney that has not been removed from the list of qualified attomeys must fulfill the obligations, expectations, and
agreements listed in Rule 24.5.1, except that the attorney need not annually:

24.5.2.1. Resubmit an application, resume, and photograph; or

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24.5.2-2. Retake the competency exam (see Rule 24.5.1.4).
24.5.3. OBLIGATIoN To REPoRT CERTAIN OccuRRENcEs. A qualified attorney shall notiff
the presiding judge of these courts not later than 48 hours after any of the following
events:
. 24.5 .3 .l The attorney's arrest for any state or federal offense punishable by confinement;
24.5.3.2. The attorney's placement on community supervision, diversion, or intervention;
24.5.3.3. Any judicial findíng that the attomey provided ineffective assistance of counsel;
24.5.3.4. Disciplinary action by the State Bar of Texas against the attorney, including but
not limited to any active or probated suspension; or
24.5.3.5. The attorney enters a plea of guilty or no contest to, or is found guilty of, an
offense punishable by confinement.
24.5.4. SnECIALTv CoURT PRocRAMs, PuBLrc DEFENDER, DEFENSE Spncu,l-lsrs.5 These
categories provide opportunities for lawyers to diversifu their practices, to control the size oftheir caseloads, to choose the types ofcases they handle, and to have access to adequate resources to properly defend their clients.
24.5.4.L SPECIAL MENTAL HEALTH CASELoAD. An assistant Harris County Pubtic Defender with significant previous experience and specialized training in
representing mentally ill and intellectually disabled persons charged with a
criminal offense, shall represent a defendant:
24.5.4.1.1. ldentified by an algorithm composed of data approved by the judges covered by this Plan in consultation with the chief public defender, indicating a likelíhood that mental illness and/or intellectual disability
is/are a factor in the defendant's arrest;
24.5.4.1.2. Arrested at least three times during the twelve months prior to the cunent
arrest, with a medical and social history suggesting that court ordered stepdown therapy may reduce the probability of future arrests; or,
24.5.4.1.3. Following a fïnding by a court that the defendant is incompetent.
24.5.4.2. MENTAL ÉIeaLrH DEFENSE Specleust. Represents a defendant ídentified using the mental health algorithm; a defendant found incompetent; or a defendant
manifesting signs of mental illness when the Public Defender's Ofhce reaches its daily or annual case load cap, The attorney must:
24.5.4.2.1. Meet the general qualifications; and
24.5.4,2.2. Meet at least one of the following three requirements:
24.5.4.2.3. Has previous experience representing mentally ill offenders in Texas;
24.5.4.2.4. Possesses an undergraduate or graduate degree in social work or a related
field; andlor
24.5.4.2.5. Attended the four hour Mental Health Defense Specialist seminar
sponsored by the Harris County Public Defender's Office.

5 "Specialist," as used in these Rules, does not refer to any certification through the Texas Board of Legal
Specialization.

As ømended through Augast 12, 2016
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24.5.4.3. APPEALS AND HABEAS CoRPUS. The Harris County Public Defender shall represent all persons appealing ajudgment or order ofthese courts. If, because of
a conflict, the public defender is unable to represent a defendant on appeal, a judge shall request the names of qualified appellate attomeys from which he or
she shall select a name.
24.5.4.3.1. This category provides counsel in cases where the Public Defender's
Office has a conflict. The attorney must:
24.5.4.3.1.1. Meet the general qualifìcations; and
24.5.4.3.1.2. Have been attorney of record in at least flrve direct appeals and the
appeal of adverse rulings in at least two writs of habeas corpus.
24.5.4.4. BILINGUAL ArroR¡¡ev. Represents a defendant who does not speak or
understand the English language. The attomey must:
24.5.4.4.1. Meet the general qualifications; and
24.5.4.4.2. Demonstrate a Level III proficiency in a foreign language administered by a nationally recognized entþ or organization that teaches individuals to read, write, and speak foreign languages through on-site instruction in
Harris, County, Texas.
24.5.4.5. FUGITIvE DEFENSE SPECIALIST. Represents a p€rson who has been anested in
Hanis County, Texas on a warrant from another state or another county in Texas. The attomey must:
24.5.4.5.1. Meet the general qualifïcations; and
24.5.4.5.2, Have previous experience representing fugitives, The State of Texas, or
both, in hearings or writ applications before ajudge or magistrate involving defendants held under authority of out-oÊstate or out-of-county warants.
24.5.4,6. S.O.B.E.R CouRr PRoGRAM Artonx¡v. Represents a defendant in the
S.O.B.E.R Court Specialty program for persons convicted of driving while
intoxicated. The attorney must:
24.5.4-6.1. Meet the general qualifications;
24.5.4.6.2. Observe one staffing and review in each S.O.B.E.R. Court;
24.5.4.6.3. Read selected articles on specialty courts, and the role of defense counsel
in specialty courts;
24.5.4.6.4. Work under the direction of a S.O.B.E.R. Court mentor attorney,
representing program participants for 60 days;
24.5.4.6.5. Agree to attend grant sponsored specialty court training; and
24.5.4.6.6. Agree to an hourly fee for professional services, and which does not include training (except for representation of a client under a mentor);
graduations, or other activities.
24,5.4.7, VgteRRN's Counr PRocRAM AttonNev. Represents a Veteran or current
member of the United States armed forces, including a member of the Reserves,
National Guard or State Guard, who has been accepted into Veterans Court
Program. The attomey must:
24.5.4.7.1. Meet the general qualifications;

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24.5.4.7.2. Read selected articles on specialty courts, and the role of defense counsel
in specialty coufts;
24.5.4.7.3. Observe three dockets (staffìng and review);
24.5.4.7.4. Agree to attend grant-sponsored team training; and
24.5-4.7.5. Agree to an hourly fee for professional services, and which does not include training (except for representation of a client under a mentor);
graduations, or other activities.
24.5.4.8. S.A.F.E. Counr PROGRAM ATToRNEY. Represents a defendant who is charged with prostitution, from the age of 17 years of age through the age of 25 years of
age who has been accepted into the S.A.F.E. Court program. The attomey must:
24.5.4.8.1. Meet the general qualificationS;
24.5.4.8.2. Read selected articles on specialty courts, and the role of defense counsel
in specialty courts;
24.5.4.8.3. Observe three dockets (staffing and review);
24.5.4.8.4. Agree to attend grant sponsored team training; and
24.5.4.8.5. Agree to an hourly fee for professional services, and which does not include training (except for representation of a client under a mentor);
graduations, or other activities.
24.5.5. DEAF oR HEARTNG IMPAIRED. Represents a defendant who is dea{ or severely hearing
impaired. The attorney must:
. 24.5 .5.1 Meet the general qualifications;
24.5.5.2. Have a working knowledge of American Sign Language or other universally
accepted sign language; and
24.5.5.3, Possess the willingness to work through a state-licensed interpreter for the deaf
and hearing impaired.
24.6. APPROVAL oF QUALIFIED ATToRNEYS. Approval decisions are based on an assessment of
the need of the Courts to add attorneys in various categories based on an analysis of current caseloads and projections for the future.
24.6.1. The judges will review qualified applications at their January, May, and September
meetings, or as the needs of the courts require.
24.6.2. MAJORITY VorE FoR APPROvAL. A majority vote (nine votes) of the judges presiding over the County Criminal Courts at Law is necessary to approve an attorney's
placement on the list of Attorn'eys Eligible for Appointment.
24.6.3. ADMINISTRATIVE MEETING. Prior to the first appointment period, each approved
attomey shall attend a two hour meeting with the Courts' staff attomey to review the F.D.A.M.S. and V.i.P.S. electronic assignment and payment procedures.
24.6.4. AI.INUAL DurY To REPORT CLE Cotr¿pt IANCE. The annual reporting period begins on
November I st and ends October 31st of the following year.
24.6.5. FORM oF REPORT. CLE hours shall be reported by submitting the State Bar of Texas
Minimum Continuing Legal Education annual Verification Report or reports attached to an affidavit attesting to the truth and accuracy ofthe report(s).

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24.6.6. COMPLÍANCE. Eash attorney is responsible for timely filing the attorney's CLE reporl and affidavitwith the Office of County Court Manag€ment, l20l Franklin Stree! 7th
Floor, Houston, Texas 77002.
24.1. VOLT'NTARY AND INVOLUNTARY REMOVAL OF APPROVED ATTORNEY
FROM THE LIST OF ELIGIBLE ATTORNEYS AND APPEAL.
24.7.1. INVOLLINTARY REMOVAL. The judges, by majorþ vote, may remove an attorney from
the approved list if they find the attorney:
24.7.1.1. no longer meets the qualifications under 24.5;
24.7.1.2. is not competent to properly represent indigent defendants in the County
Criminal Courts at Law; or
24.7.1.3. intentionally or repeatedly fails to make every reasonable effort to contact a
defendant not later than the end of the first working day after the date on which the attorney is appointed, and to interview the defendant as soon as practicable after the attorney is appointed
24.7.2. VOLUNTARY REMOVAL. An attorney may request to be removed from the list of
approved attorneys for a limited or indefïnite period by making such request in writing, addressed to the Presiding Judge of the County Criminal Courts at Law.
24.7.3. RETNSTATEMENT. An attorney may request reinstatement in the same manner as a
request for removal.
24.7.4. Appeel.. An approved attorney may appeal his involuntary removal from the list of
Attorneys Eligible for Appointment using the following procedure:
24.7.4.1. At any time within 30 days after an attorney receives notice of the attorney's
removal from the list of Attorneys Eligible for Appointment, the attorney may
give written notice of appeal to the Presiding Judge of the Hanis County
Criminal Courts atLaw.
24.7.4.1.1:. For purposes of Rule 24.7.4.1, there exists a rebuttable presumption that the attomey received notice of his removal from the list on the earlier of: (1) the date the Office of Court Management emailed notice to the email address on file for the attorney; or (2) one day after the Office of Court management mailed notice to the mailing address on file for the attorney.
24.7.4.2. Upon receipt of a notice of appeal, the Presiding Judge shall request that a
member of the Office of County Court Management verifu the accuracy of the
vote and subsequent notice to the attorney.
24.7.4.3. .lf review indicates an error, the Presiding Judge shall direct a member of the
Office of County Court Management to make the necessary conections.
24.7.4.4. Within 14 days receipt of the attorney's notice of appeal, a member of the Office of County Court Management shall notiff the applicant of his status as to the list
of Attorneys eligible for Appointment.
24.8. RopI¡.cBn,rENT oFAPPRovED coUNsEL FRoM A CASE oR CAsEs.
24.8.1. ATTORNEYREeUEST.
l. 24.8.L A lawyer may request permission to withdraw by filing a written motion with the
court.

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24.8.1.2. The judge presiding over the case may grant the motion for good cause only after finding that the client will not be prejudiced by the substitution.
24.8.1.3. After granting the motion, the judge presiding over the case shall immediately
appoint another qualified attorney as provided by these rules.
24.8.2. Fon Ceuse. The judge presiding over the case may replace counsel after entering written findings in the record showing good cause and that no prejudice to the
defendant will result from the removal, including without limitation:
24.8.2.L current information about the defendant and charges indicating that counsel of
different qualifications is appropriate for the defendant under these rules;
24.8.2.2. a violation of the attorney's professional responsibilities; or
24.8.2.3. a principled reason.ó
24.8.2.4. A judge, upon leaming an indigent defendant was previously represented by a
mental health defense specialist, shall appoint that specialist to the new case. The
court coordinator shall immediately notiff the mental health defense specialist of
the appointment.
24.8.3. Depm¡nn¡,¡r I{EQUEST. The appointing judge may substitute counsel if:
24.8.3.1. at the conclusion of a trial, the indigen.t defendant desires to prosecute a direct
appeal and requests that the court appoint different counsel; or
24.8.3.2. the defendant shows good cause for replacing appointed counsel, including
counsel's persistent or prolonged failure to communicate with the defendant.
24.8.4, REPLACEMENTPROCEDURE.
24.8.4.1. I4 after assignment, an attorney is unable to serve, the presiding judge of the court shall attempt to fill the vacancy with another attorney assigned to the court,
orto another court.
24.8.4.2. If another attorney from the list of attorneys assigned to these courts is
unavailable, the presiding judge of the court shall fill the vacancy using FDAMS.
24.9. APPoINTMENT oF CoUNSEL. The appointing authorþ is the judge of the court in which the
defendant's case is filed.
24.9.1. TNCARCERATED PERSoN. Following the appearance before a judicial ofücer, a
defendant shall be scheduled to appear the next business day before the judge ofthe court in which the case is pending. Prior to conducting an arraignment proceeding, the judge shall make the inquiríes, provide the admonishments, and related information regarding the right to counsel, and the right to self-representation as provided by state
and federal law, and appoint counsel if the dofendant is indigent for the purposes of
receiving counsel.
24.9.2. PeRsoN RELEASED oN BOND. A defendant released on bail before the defendant's
appearance described above, shall appear the 7th day following release, or the next business day following the 7th day. Prior to conducting an arraignment proceeding, the judge shall make the inquiries, provide the admonishments, and related information regarding the right to counsel, and the right to self-representation as provided by state

6 Stotts v. llliser,849 S.W.2d 366 (Tex. Crim. App. 1995).

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and federal law, and appoint counsel if the defendant is indigent for the purposes of
receiving counsel.
24.9.3. PERSON ARRESTED TN ANOTHER Cou¡.¡ry oN A ÉIARRÍS COTINTY WARRANT. Within 24
hours of receiving notice of a defendant's arrest in another county, the judge of the
court that issued the arrest procèss shall appoint counsel for the defendant.
24.9.4. PERSoN ARR¡srEn oN Our-oF-CouNrv WnnRnNr rN I-IARRIs CouNTy. A person arrested on an out-of-county wanant must be appointed counsel on the I lth day following the date the defendant was booked into the Hanis County Jail if the person
has not been transferred or released to the custody of the county issuing the warrant.
24.9.5. OerRIlIINc REQUEST FoR APPoINTED CoLTNsEL FoRM. The form used to request appointment of counsel and the financial affidavit in support of the request are
available to defendants and interested third parties by requesting same from the court coordinator in any county criminal court at law.
24.9.6. FILING rHE FORM. The completed forms shall be filed with the deputy district clerk in
the court where the case is pending.
24.10. DUTY oF APPOINTED CouusnI.
24.10.1. INtrnl CoNtecr. An attorney appointed to represent an indigent defendant shall make every reasonable effort to contact the defendant not later than the end of the first
working day and to intervíew the defendant as soon as practicable.
24.10,2. DURATIoN oF APPoINTMENT.
24.10.2.1. Appointed counsel shall zealously represent a defendant until charges are
dismissed, the defendant is acquitted, or the attorney is permitted or ordered by the court to withdraw as counsel after a finding of good cause entered on the
record.T
24.10.2.2. On each successive arrest of a defendant previously represented by a mental health defense specialist, or assistant public defender, the judge of the court in
which the case is pending shall make every effort to appoint the assistant public
defender, or mental health defense specialist who previously represented the
defendant.
24.10.3. CoNoucr oF CoLJNsEt. Appointed counsel shall perform the attorney's duty owed to the defendant in accordance with the adopted procedures of this Plan, the requirements of law, and the Texas Disciplinary Rules of Professional Conducl
24.10.4. TIMELY APPEARANCE IN COURT.
24.10.4.1. An attorney assigned to a court shall appear at 8:30 a.m. unless otherwise
instructed by the judge presiding.
24.10.4.2, An attorney assigned to a couú is subject to temporary reassignment to another
court.
24.10.4.3. An attorney shall remain in an assigned court until expressly released by the
judge presiding.
24.10.4.4. An attorney failing to appear as provided by this subsection is subject to
immediate replacement by the judge presiding,

7 See TEx. CoDE CzuM. P. AN¡¡. art. 26.04{J|,.

As amended through August I 2, 201 6
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24.1A.5. ABSENCE oR CoNFLICT. Appointed counsel shall inform the judge presiding when any of the following occurs:
24.10.5.1. counsel is unable to appear to discharge his or her duties according to the
published schedule; or
24.10.5.2. counsel cannot represent an indigent defendant because of a legal or ethical
confliot.
24.10.6. FIRST AND SECOND CHATR CouNseL. An attorney appointed to represent a defendant shall not formally or informally associate second-chair counsel without the written approvalof the judge presiding. An attorney who provides legal services to an indigent defendant to whom the attorney has not been appointed does so pro bono.
24.10.6.1. Fnsr-CserRCOI.JNSEL
24.10.6.1.1. All motions filed in the case shall be filed in the name of first-chair
counsel.
24.10.6.1.2. First-chair counsel shall appear on all matters before the Court and speak
for the defendant.
24.10.6.1.3. First-chair counsel may assign tasks to second-chair counsel on behalf of
the defendant.
24.10.6.2. SECOND-CHAIR CoIjNSEL
24.10.6.2.1. Under the direction and in the presence of lead counsel, second-chair
counsel may prepare, present, or argue motions, examine witnesses, and participate in a hearing or trial.
24.10.6.2.2. Second-chair counsel shall complete and file an attorney of record form with the district clerk. The form shall state on its face that the attorney is
second-chair counsel.
24.10.6-2.3. Second-chair counsel is not entitled to compensation from Hanis County for work performed while acting in this capacþ.
24.tQ.6.2,4. Second-chair counsel shall be present for the entire trial.
24.10.6.2.5. Only one (1) second-chair counsel is permitted on a case.
24.10.6.3. SuBsnrurloN BY APPoINTED Cou¡,lspl- PRoHIBITED. Only with approval of the
judge presiding, may an attorney send another attorney to appear on his behalf. If
agreed to by the judge in the court where the case is pending, the attorney making
the appearance must be eligible for appointment to represent an indigent
defendant in these courts. The attorney shall not be entitled to compensation for his appearance.
24.II, TUT FITR, NEUTRAL AND NoNDISCRIMINATORY ATToRNEY SELECTToN PRocESS. Each
assignment shall be randomly and impartially distributed among the list of attorneys eligibte for appointment based upon the needs of the courts, an individual attorney's qualifications, and willingness and availability to work during an assignment period.
24.11.1. ATTORNEY CerecoRles. An individual attorney may be qualified in more than one
category.
24,11.1.1. Speaks only English.
24.1i.l.2. Speaks Spanish, or other foreign language.

As amended through August 12, 2016
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24.t1.1.3. Mental health defense specialist.

24.1t.1.4. Appeal and Habeas Corpus.

24.1t.1.5. Veteran's Court.

24.11.1.6. S.O.B.E.R Court.

24.11.1.7. American Sign Language.

24.11.t.8. S.A.F.E. Court.

24.tt.1.9. Fugitive defense specialist.

24.11.2. ASSIGNMENT TYPE oR TERM. An attorney may choose to be available for any single term, or may combine a term and daily assignments during any quarterly appointment
period.
24.11.2.1. DAILY AsstcNMeNr. One (l) calendar day. Means one day on which a court has
a docket.

24.11.2.2. FoUR (4) WEEK DAY-TERM AsslctltvfexT. Means four consecutive weeks.

24,11.2.3. THIRTEEN (13) WEEK TERM ASSIGNMENT. Means thirteen consecutive weeks.

24.11.2-4. TwENTY-sIx (26) Weer TERM AsslcNMENT. Means twenty-six consecutive

.

weeks.

24.11.2.5. FIFTY-Two (52) WEEK TERM AssIcNMENT. Means fifty-two consecutive weeks.

24.11.3. Atlt¡UnL CALENDAR. [n December of each year, the calendar for the succeeding year
will be published to attomeys eligible to receive appointments via email, and by
posting on the website of the Office of County Court Management.

24.11.4. FAIR DEFENSE AcT MeNeceueNT SYSTEM (FDAMS). This software application \ryas
created by the Administrative Office of the District Courts in Harris County. It matches eligible attorneys with the needs of an individual court and creates a list of approved
attorneys with the requested qualifications, from which a judge must select oné or
more, but may not rejeot the list and repeat the process.

24.11.4.1. DAILY AsstcNMENr. When submitting a request for an attorney, the court shall
designate the date of the assignment and any special qualifications €.g.,
"bilingual" and"a mental health defense specialisf'which it may require.
24.11.4.1.1. PRocEDURE. The oomputer shall provide to the court ten randomly selected nÍlmes per request. A court may submit two daily assignment requests at the same time, provided the requests contain different qualifications. A court may not submít another request until at least one
attorney has been assigned from one or two pending lists and the remaining
names from that list have been returned to the attorney pool.

24.11,4.2. TEnu AssIGNMEI{T. The computer program shall equally divide the pool of attorneys available for limited term assignments among the requesting courts.
The program shall provide the randomly selected names to the requesting court
beginning at 9:00 a.m. on Monday of the selection week.

24.11 .4.2.1. The court shall make at least one term assignment from the provided names
promptly, and return the remainder to the pool available for use by other
courts.

As amended through Auga^rt 12, 20 I 6
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2 4 1 1 4 2 :T,"'A;"i,'ïh,äåïi;: iiüî"i,"ili*":i"iåiiffi äi:Í,i.# computer shall provide the court with no more than six (6) randomly selected names from the remaining poolof available approved attorneys.

24.11.5. DETERMTNrNc A¡¡¡.1uru. Cessloeo Lttulrs. There are many factors that play a role in determining caseload limits in any given jurisdiction. The most striking example is the computer, and its effect on case processíng as well as attorney time and work product.
24,11.5.1. This Plan uses the power of computers to: (l) match attomeys'and courts'work
needs and schedules as well as ensuring thât appointments are random and nondiscriminatory; Q) expedite the payment of appointed counsel; and (3) schedule multiple cases on the same day, thus allowing the attorney to handle multiple cases each day rather thanjust one or two cases.

24.11.5.2. Likewise, computing power enables lawyers to: (1) do on-line research; (2) access organizational brief banks; (3) produce template motions; (4) obtain continuing legal education without losing traditional workdays; and (5) track
their time easily.

24.11.6. ANNUAL CASELoAD LrMrrs. Caseload limits are:

24.11.6.1- Class B or A misdemeanors pending in Harris County, Texas: Up to 600 cases, of
which:

24.11 .6.1.1. Up to 350 can involve mentally ill or incompetent defendants; and

24.11,6.1.2. Up to 125 can involve defendants in the following specialty areas:
24.11.6.1.2.1. Appeals;

24.11.6.1.2.2. Habeascorpusapplications;

24.11.6.1.2.3. Defendants in the S.O.B.E.R. Court program;

24.11.6.1.2.4. Defendants in the Veteran's Court program; or 24.11.6.1.2.5. Defendants in the S.A.F.E. Court program.

24.11.7. Detly Cesploao Lwtns. An attorney shall not receive more than five new clients per
day.

24.12. FEE AND EXPENSE PAYMENT PRocESs.

24.12.1. FEE SCHEDULE- Appointed oounsel shall be compensated for all time reasonably necessary to adequately represent the defendant according to the following fee
schedule, and as set forth in his or her contract for indigent defense services with Hanis County, Texas.s

24.12.2. DAILY FLAT FEE RATE. To receive the daily rate, an attorney shall:

24.12.2.t. appear for docket call at the time and place designated by the judge of the
assigned court;

24.12.2.2. accept appointments in that court or any other county court to which the attorney

day; may be assigned on that

i

I See TEx. Aorvur.¡ C. Tnle I , PART 8, SuacuerreR B $$ I 74. 1 0 et seç

As amended through Augwt ¡ 2, 201 6
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24.12.2.3. remain available to the judges of the County Criminal Courts at Law until the courts' morning docket call is concluded, or the attorney is released by the judge
of the court to which the lawyer is assigned; and

24.12.2.4. provide professional sewices, including the resetting of cases, first to appointed cases in the County Criminal Courts at Law.

24.T2.3. HOURLY RATE.

24.12.3.1. Out-oÊCourt- $25lhr. to $50/hr.

- 24,12.3.2. Out of Court (MentalHealth Caseload) $50/hr. - 24.12.3.3. Motions, Hearings $50/hr. to $90/trr. - 24.12.3.4. Trial (includes competency or sanity) $60/hr. to $90/hr. - 24.12.3.5. Mental Health Defense Specialist $90/hr. - 24.12.3.6. Specialty Court $l25ltrr.
24.12.3.7. Hourly rates shall be paid for performing the appropriate statutory services defined in TEX. Cooe CRIM. PRoc. ANN. art. 26.05(a), based on the time and
labor required, the complexity of the case, and the experience and ability of the
appointed counsel.

24.12.4. FLAT FEE SCHEDULE.

- 24.12.4.1. Term & Daily Assignments $250 per docket - 24.12.4.2. Term and Daily Assignment Foreign Language Certified $300 per docket
24.12.4.3. Individual non-issue claims: $50 per case per day, and may not exceed $100.00 per day total, for all County Criminal Courts at Láw combined.

-No 24.12.4.4. Non-Issue or Plea (concunent with weekly or daily assignment)

fee

- 24.12.4.5. Appeal & Extraordinary Writs $750.00

- 24.12.4.6. Petition For Discretionary Review $350.00

- 24.12.4.7. Oral Argument Before Court of Criminal Appeals $250.00

24.12,5. EXPENSES.

24.12.5.1, Reasonable and Necessary Expenses
24.12..5.1.1, The County will reimburse appointed attorneys for reasonable and
neçessary expenses including investigation and mental health and expert
witnesses incuned on behalf of an indigent client with and without prior approval as provided by Tex. Cooe CRIM. PRoc. ANN. arts. 26.05(d) and
26.052(Ð, (e), and (h).
24.12.5.2. Out'of-county travel expenses will be reimbursed with prior approval, using
çounty rates and policíes.

24.12.5.3. Counsel shall submit the original invoice or reoeipt, along with any request for reimbursement.

- 24.12.6. [NvesucRroRs S40 per hour standard rate.
24.12.7. CowcunnnNT PAYMENTS.

As amended through August I 2, 20 I 6
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24.12.7.1. An attomey engaged in a weekly or daily assignment shall not be compensated for a non-issue or plea appearance that occurs on the same day the attorney is
assigned to a court pursuant to a quarterly assignment.
24.12.7,2. An attorney is entitled to payment for out-oÊcout-hours, a motion hearing at which testimony is taken, trial, or professional services performed in a Specialty Court Program on the same day the attorney is paid for a daily or weekly term
assignment.
24.12.8. ADDITIONAL COMPENSATION.
24.12.8.1. An attorney appointed to represent an indigent defendant shall not accept
addítional compensation for professional services performed on behalf of the
defendant as a result of the appointment, in any form from any source other than Harris County, Texas.
24.1 2.9 . JUDICIAL DETERMINATION OF ATTORNEY COMPENSATION.
24.12.9.1. The following procedures apply to the review and approval of attorney's fees:
24.12.9.1.1. Appointed counsel shall request payment on a form approved by the judges of the County Criminal Courts at Law and the County Auditor. Counsel shall submit the request for payment to the presiding judge in the court. The payment request shall list all services performed by the attorney on
behalf of the defendant.
24.12.9.1-2. The judge shall either approve the amount requested or enter written findings stating the amount the judge approves and each reason for
approving an amount differing from the requested amount.
24.12.9.1.3. An attorney whose request for payment is disapproved or not acted upon within 60 days may appeal the disapproval by fìling a motion with the
Presiding Judge of the Second Administrative Judicial Region.e
24.12.9.1.4. Upon receip! the auditor shall forward the order to the Office of County Court Management for review by the Presiding Judge or Court Manager.
24.12.10. Accouxrr¡¡c oF ATToRNEY HouRs. To be entitled to payment, appointed counsel
shall provide the following information:
24.12.10.1. Houru.Y R¡re.
24.12.10.1.1. STANDARD. Time must be itemized in tenths of one-hour (60 minute)
increments on a form approved under the PIan.
24.12.10.1.2. ITEMIZATION. Counsel must prepare and maintain time records for each appointed client showing the date of service, nature of service rendered, and hours worked.
24.12.10.2. FLAT FEE RATE. The date and type of service performed.
24.12.11. SUBIVIISSION OF FEE VOUCHER.
24.12.11.1. An attorney, expert, or private investigator shall submit a fee claim on a form approved by the Judges of the County Criminal Courts at Law, and the Harris Counfy Auditor.

e See TEx. CoDE CRIM. P. ANIN. art. 26,05(c).

As amended through August 12, 2016
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24.12.11.2. An attorney assigned to a court for a term shall submit one fee voucher per week listing each crise number to which he was appointed on each day of the week at the conclusion of the docket on the business day of that week.
24.12.11.3. An attorney assigned to work more than one day but less than five (5) days shall submit a fee voucher listing each case number to which he was appointed on each day of the week that he was assigned at the conclusion of the docket on the last business day ofthat week.
24.12.11.4. Fee vouchers for individual cases shall be submitted upon disposition of the case, e.g, dismissal, plea, or trial.
24.12.11.5. To receive compensation, an attomey must submit a fee voucher to the
appointing judge not later than the 30th day afrer the date the case is disposed.
24.12.11.6. The instructions on the rWeekly/Daíly Assignments, and Individual Non-Term Appointment Fee Claims are incorporated herein as a part of this Alternative
Plan.
24.12.11.7. An attorney is responsible for correctly completing and timely filing a fee voucher meeting the requirements of law, the Harris County Auditor, and this
Plan.
24.12.11.8. The presiding judge of a court may withdraw an order directing the Harris
County Auditor to pay a previously approved claim for attomey fees,
reimbursement, expert witness fees, or other lítigation-related expenses, if the
claimant fails to correct a claim returned by the county auditor.
24.12.12. PAYMENT BY COLJNTY AuolroR. The Harris County Auditor shall only pay a claim
submitted by an attomey whose name appears on the list of approved attorneys
assigned to a county criminal court at law during a term or date assigned by FDAMS. The OfÏice of County Court Management shall provide the County Auditor's Office with a cunent list of attorneys certified to accept appointments. The Auditor shall send a claim submitted by an attorney who is not on the list of certified attorneys to the Court Manager.
24.12.12.1. REASONABLE AND NECESSARY ExPENSES. The County will reimburse appointed attorneys for reasonable and necessary expenses, including investigation and mental health and expert witnesses, incuned on behalf of an indigent client as provided under TEX. CODE CRItvt. Pnoc. AtiN. arts. 26.05(d) and26.052(Ð, (g),
and (h).
24.12.12.2. ORIGTNAL INVOICE oR RECEIPT. Counsel shall submit the original invoice or receipt along with any request for reimbursement.
24.12.12.3. SYSTEM PERSON NUMBER (SPN). To ensure accuracy in the hacking and reporting of fees paid to attorneys and others under this Plan, the Auditor shall amend the current attomey fee voucher to include a space for the Justice Information Management System Person Number of the individual seeking
payment of county funds.
24.13. CoNTRACT DEFENDER PRoGRAM.
24.13.1. In all term assignments the appointing authority shall follow the Texas Indigent
Defense Commission Contract Defender Program Rules, as published in The Texas
Administrative Code, Title I, Part 8, Chapter 174 sub chapter B, Part II, as setout
below:

As amended through Áugust I 2, 20 1 6
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II. APPLICATION OF STANDARDS AND CONTRACTING PROCEDURES
$174.11. Application of Subchapter. This Subchapter applies to all contract
defender programs. This Subchapter does not apply to public defender programs established and govemed by Chapter 26, Code of Criminal Procedure.
5174.12. Application Process. The-appointing authority shall solicit and select contractors in accordance with the procedure governing alternative appointment programs contained in Article 26.04, Code of Criminal Procedure.
(a) Notification. The notification of the opportunity to apply (NOA) to be a contractor shall be distributed in a manner that reasonably covers all
practicing members of the bar within the county or other region
designated by the appointing authority. The notification shall inform
attorneys of all requirements for submitting applications.
(b) Opportunity to Respond. All potential contractors shall have the same
opportunity to respond to the NOA and be considered for the award of a
contract.
(c) Application. All applications must be submitted in writing and shall be maintained by the appointing authority or contracting authority in accordance with the Texas State Library and Archives Commission
Retention Schedule for Local Records- Local Schedule GR.
$174.13. Application Review Process. Following the review of all applications the appointing authority shall by a màjorþ vote select contractor(s), specif the
types of cases each contractor is qualified to handle, and authorize the
contracting authority to enter into a contract. The attorneys associated with the
selected contractor(s) must meet the attorney qualification requirements
contained in the indigent defense procedures adopted pursuant to Article 26.04,
Code of Criminal Procedure, If the contract does not exclude capital cases in
which the death penalty is sought, the attorneys associated with the selected contractor(s) must also meet the attomey qualifications set by the regional selection committee and be approved by the regional selection committee to represent clients in capital cases. The appointing authority shall consider at least the following factors when evaluating applications:
(a) Experience and qualifications of the applicant;
(b) Applicant's past performance in representing defendants in criminal
cases;
(c) Applicant's disciplinary history with the state bar;
(d) Applicant's ability to comply with the terms of the contract; and
(e) Cost ofthe services under the contract.
ç174.14. Awarding the Contract. In accordance with Article 26,04(h), Code of Criminal Procedure, the contracting authorrty may approve the recommended
contractor(s) and enter into a contract for servíces. The contracting authority shall
enter into a contract only if it complies with these standards and all applicable law governing professional services contracts entered into by counties. A
contract shall not be awarded solely on the basis of cost.

Às amended throughAugust 12, 2016
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RULE 25. DISASTER PLAN IO
25.1. It is the intention of the Judges of these courts to establish a coordinated response for the
transaction ofessentialjudicial functions in the event ofa disaster.
25.2. DEFINITIONS
25.2.1. As used herein, the following terrns and phrases shall have the following meanings:
25.2.1.1. Criminal Law Hearing Offrcer means a judicial officer created by Chapter 54,
Subchapter L of the Texas Government Code ($g 54.851 et seq.)
25,2.1.2. Defendant means a person detained, arrested, or otherwise in the custody of a law
enforcement agency for a misdemeanor offense.
25.2.1.3. Judge or judges means a Judge of a Hanis Couhty Criminal Court at Law.
25.2.1.4. Disaster means the occurrence or imminent threat of widespread or severe damage, iqiury, or loss of life or property resulting from any natural or man-
made cause, including fire, flood, earthquake, wind, storm, wave action, oil spíll or other water contamination, volcanic activity, epidemic, air contamination, blight, drought, infestation, exptosion, riot, hostiie military or paramilitary action, other public calamity requiring emergency action, or energy emergency,, as
provided by Section 418.004, Texas Govemment Code.
25.2.1-5. Quorum vote means two-thirds of the judges of these courts. 25.2.1.6. Presiding Judge means the presiding judge of these courts.
25.3, MODIFICATION OR SUSPSNSTON OF THESE RULES DURING A DISASTER
253.f. Judicial Action
25.3.1.1. The Judges by quorum vote may modiff or suspend one or more of these rules
during the pendency ofthe disaster declared by the governor.
25.3.1.2. An order under this provision shall:
25.3.1.2.1. extend for not more than 30 days from the date the order is signed unless
renewed; and.
25.3.1.2.2. be consistent with other law.
25.3.2. Lack of a Majority
25.3.2.L If a disaster prevents the judges from immediately acting as provided above, the
Presiding Judge may act on their behalf.
25.3.2.2. If a disaster prevents the presiding judge from acting under this rule, the co-
presiding judge may act on their behalf.
25.3.2.3. If a disaster prevents the co- presiding judge from acting under this rule, the
chairperson of the administration committee may act on their behalf.
RULE 26. SLIDTNG.SCALE FEE SCHEDULE FOR GLOBAL POSITIONTNG SYSTEM'¡
26.1. [t is the intention of the Judges of these courts to establish a coordinated response for the
transaction ofessentialjudicial functions in the event ofa disaster.

ttt0 See Trx. Gov'r CoDE ANIN. S 7a.093(c)Q). See TEx. CoDE CRlrrr. Pno. ANN. art. 17.49.

As amended lhrough Aagust I 2, 201 6
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26.2. If, upon consent of the victim to wearing a global positioning monitoring system receptor
device, a judicial officer determines that the likelihood of the defendant's participation in a global positioning monitoring system program described by Tnx. CoDE CRIM. PRoc. ANN. art. 17.49 (Vernon 2009) wíll deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the alleged victim, the judicial officer shalldetermíne if the defendant is financially able to pay the costs of the receptor device, and the global positioning monitoring
systems transmitter or similar device. If the judicial officer determines that the defendant is
. indigent, the judicial officer shall require the defendant to pay costs of the electronic receptor
device and transmitter according to the following sliding scale:

Net Annual lncome (from Sliding Scale Worksheet) $0-$r2.000 $ 12,000$18,000
$t 8,001$24,000
$24,001$33,000
$33,001$42,000 $42,001$55,000
$55,001$70,000 $70,001 and above

Percent of
Total Fee per Service 38% 4s% 50%
55o/o
600/o
6s% 80%
l00o/o

As anended through August 12, 2016
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A: Appn¡rorx

ArpRovrD INTENSTvE TRATNTNc Pnocnenrs

The following programs are currently approved as "intensive haining programs" as used in Rule 24.5.1.2.2:
r TexasBarCLE Advanced Críminal Law course t* Gideon's Promise l4-day training session * Gerry Spence Trial Lawyer's College r Criminal Defênse Trial Skills & Triat Law Program at The Center
for American and International Law
o TCDLA Texas Criminal Trial College

As qmendedthroughAugust 12, 2016
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Hørris County, Texas

Recommen ded Standard Bail Practices

This replaces any previous document(s) regarding the Felony District Courts

PnnsoN,tr

TRIAL) BOWNS

. Follow Texas Code of Criminal Procedure Chapter 17

¡ Pursuant to $ 17 .2I, refer all assaultive cases to the presiding judge assigned

to the case pursuant to the Harris County Direct Filing Order

favored in all cases in which the defendant is determined to be

low risk

Bnrl
Refer to Bail Guidelines

Any questions should be referred to the presiding judge assigned to the case pursuant to the Harris Counfy Direct Filing Order

23 Signed March

,2017

Hazel J
rh 1

Ro
1

J
l7gth Di

Court

J-4

228th District

23Oth District Court

232nd District Court

Recommended Standard Bail Practices 03l20l1.
HARRISCO_CourPtOargdeer I00o1f8257

SCJC 0000134

000349

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Drcrntcr Coanrs TnytNe CnrunN¿t C,qsns

Harrís County, Texas

Randy Roll 179th District Court

Evans

lgOth Di

Court

J
182

anessa V
l g3th

24gth

€ourt

Denise Bradley 262"d District Court
Jim W 263'd D

/,-l+

Ritchie

337th

Court

84th District Court
Susan
185th District
Collins 208th District Court

33gth
Court Powell
ct Court

J-4

Recommended Standard Bail Practices 03i2017 HARRISCO_CourtPOardgeer200o1f8258

SCJC 0000135

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EXHIBIT E

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RULES OF COURT

Harris County Criminal Courts at Law

.

As amended through February 9,2017

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Harris County Criminal Courts at Law Rules of Court

Table of Contents

Rule l. General Provisions

J

Rule 2. Procedure for the Filing of Cases ....

J

Rule 3. Transfer of Cases

6

Rule 4, Initial Seuings

7

Rule 5. Adding Cases to the Daily Docket........

l3

Rule 6. Docketing of Misdemeanor Indictments

13

Rule 7. Docketing of Appeals from Non-Record Municipal Courts, Justice of the Peace
Courts, Municipal Courts of Record, and Administrative License Revocation

Hearings Pursuant to Chapters 524 and724 Texas Transportation Code .......

13

Rule 8. Docketing of Cases: Judge Recusal or Disqualification.....

15

Rule 9. Schedule of Bond Amounts......

15

Rule 10. Refund of Cash Bonds..........

l6

Rule 11. Bond Forfeiture Reinstatements, D ismissals, and Judgments ....,.......

t7

Rule 12. Approval of Personal Bonds During Non-Business Hours

l7

Rule 13. Signing of Pleadings

........ l8

Rule 14. Preparation of Judgments

18

Rule 15. Petition for Occupational Driver's License

18

Rule 16. Attorney of Record

t9

Rule 17. Juvenile Defendants.

20

Rule 18. County Criminal Court Management Program......

20

Rule 19. Code of Judicial Conduct...................

22

Rule 20. Court Reporters.........................

23

Rule 21. Satisfaction of Judgment: Order Permitting Partial Payment on Fines and Costs

23

Rule 22. Viewing and Copying DWI Video Tapes....

23

Rule 23. Release of Clerk's Record to Counsel

....23

Rule 24.. Alternative Plan for the Appointment of Counsel to Indigent Defendants Under the

Texas Fair Defense Act

.......24

Rule 25 Disaster Plan............

44

Rule 26 Sliding-Scale Fee Schedule for Global Positioning System........

45

App.A Approved Intensive Training Programs.....

',.,.4,7

As amended through February 9, 2017
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Harris County Criminal Courts at Law Rules of Court

RULE 1. GENERAL PROVISIONS

l.l. 1.2.

On February 9,2017, the duly elected and appointed judges of the County Criminal Courts at Law of Haris County, Texas, adopted the following amended rules to facilitate the efficient
management of the courts' dockets. These amended rules take effect March 9,2017.The
rules in effect prior to February 9 , 2017 , remain in effect until March 9, 2017 .
These rules, in conjunction with the Code of Criminal Procedure, and the Government Code, govern proceedings in the Harris County Criminal Courts at Law. These rules shall not be construed as extending thejurisdiction ofthese courts, nor shall they be construed to overrule
or conflict with the Texas Government Code, Texas Code of Criminal Procedure, Texas
Penal Code, Texas Rules of Evidence, or Texas Rules of Appellate Procedure, These rules are intended to govern local proceedings where such rules are not in conflict with existing law and where such rules are consistent with state statutory law and rules promulgated by the Texas Court of Criminal Appeals and the Texas Supreme Court.

1.3. The district clerk shall not make any changes with regard to random filing, numbering of
cases, docketing of cases, transfer of cases, assignment of settings, or any other matters that affect the distribution of work or the conduct of the business of the Harris County Criminal Courts at Law unless so directed by the Judges of the County Criminal Courts atLaw.

1.4. The following rules shall govern the assignment of misdemeanor cases and other matters
within the jurisdiction of the County Criminal Courts at Law of Harris County, Texas.

RULE 2. PROCEDURE FOR THE FILING OF CASES

2.1. NumericalSequence

2.1.1. Each criminal and civil case filed and docketed into the county criminal courts at law
shall be assigned a sequential number based on the following case number structure.

2.1.2. Beginning January 1,2000, case numbers shall consist of seven numerical digits, the
first case number filed on January 1,2000, shall be "0978400." Case numbers shall
continue sequentially thereafter, which scheme shall allow cases to be numbered
through 9,999,999.

2.2, Random Filing

2.2.1. All misdemeanor proceedings filed with the district clerk shall be randomly assigned
by the district clerk to the various county criminal courts at law. This shall be
accomplished by means of a blind filing process that provides for the equal distribution of new cases in such a manner that it cannot be determined to which court a case will
be assigned until after the assignment occurs.

2.2.1.1. Exception for presiding judge: The presiding judge of the Hanis County
Criminal Courts atLaw shall receive 20o/o fewer new case filings while acting in
that capacity. To accomplish this, the district clerk shall assign 4 cases to the County Criminal Court at Law to which the presiding judge is elected for every 5
cases assigned to each other County Criminal Court at Law.

2.2.2. The primary means of assignment of cases shall be through the use of a computer
program that provides for the random assignment and equal distribution of cases. The computer program shall be capable of maintaining a joumal of filings and distribution of cases that will permit periodic or random audit to determine whether the program is
assigning cases as intended.

2.2.3. If the primary means of assignment, the computer program, is not available, the district
clerk's office shall use the manual random selection device for the filing of cases into

As amended through February 9, 2017
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Harris County Criminal Courts at Law Rules ofCourt
the county criminal courts at law. Prior to each case assignment, the random selection device shall be rotated on its axis, and one ball therein shall be withdrawn. The court number indicated on the ball randomly chosen shall become the assigned court for the
case. The district clerk shall add the ball back into the random selection device immediately, so as to not disturb the random filing and docketing of all other cases into
the county criminal courts at law.
2.2.4. The clerk shall receive, assign and account for all cases in ascending numerical
sequence.
2.2.5, How Criminal Cases Are Attracted To Courts 2.2.5.1. Before using the computer program or the manual random selection device to
determine court assignment for a given case, the district clerk shall determine by
research whether the defendant named in the misdemeanor information has a prior connection to an existing case in any of the county criminal courts at law. A
prior connection is established when:
2.2.5.1.1. a defendant is presently on community supervision in one of the county
criminal courts at law;
2.2.5.1.2. a defendant is charged with driving while intoxicated, committed within five years of the date on which the most recent DWI offense was
commifted;
2.2.5.1.3. a defendant using a valid occupational driver's license granted by the judge
of a county criminal court at law is charged with another DWI (Driving While Intoxicated) or DWLI (Driving While License Invalid);
2.2.5.1.4. a lower numbered cause, including a pending appeal of a class C offense from a justice or non-record municipal court, is pending against the
defendanVcodefendant in a county criminal court at law;
2.2.5.1.5. a defendant is charged and the charge arose from the same criminal transaction that was the basis of a misdemeanor information previously
filed on a cò-defendant;
2.2.5.1.6. a defendant has not discharged a prior sentence of confinement; or
2.2.5.1.7. a defendant appealed a ftnal judgment, order granting community supervision, or denial of relief in a post-conviction habeas corpus
proceeding that is still pending before a court of criminal appeals.
2.2.5.2. If one of the above prior connections exists, the new misdemeanor case shall be
attracted to the court in which the defendant has the prior connection. If more
than one prior connection exists, the new misdemeanor case shall be attracted to the court involved in the prior connection appearing first as listed above.
2.2.5.3. If a defendant has a pending case and is charged with a new case that would
allractto a different court under these rules, all pending cases shall transfer to the different court (see Rule 3).
2.2.5.4. In the event that a case is attracted to a court in error, then the coordinator of the
court receiving the case in error shall complete a transfer order to be signed by the presiding or co-presiding judge that orders the case back into rotation. The order is then returned to the district clerk for compliance therewith.

As amended through February 9, 2017
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Harris County Criminal Courts at Law Rules ofCourt

2.2,6. Filing of Cases Charging Public Lewdness, Gambling Offenses, Prostitution,
Violations of the Alcoholic Beverage Code, or County or Municipal Ordinances
Relating to Sexually Oriented Businesses

2.2.6.1. There is no attraction by either codefendant or transaction in cases charging public lewdness, prostitution, violations of the Alcoholic Beverage Code, gambling offenses, or county or municipal ordinances relating to sexually
oriented businesses. The clerk shall apply all other rules ofattraction.
2.2.7. Appeals From Justice of the Peace Court, and Non-Record Municipal Courts

2.2.7.1. The rules of attraction shall apply to an appeal from a judgment in a criminal
case from a justice of the peace court, or non-record municipal court in the same manner as an original criminal case.
2.2,8, Re-files, Writs of Habeas Corpus, Mandamus, Prohibition, Restricted Driver
Licenses, Fugitives

2.2.8.1. If a case is re-filed, it shall be assigned to the same court as the case it
supersedes. The district clerk is then authorized to attract and set the re-fìled case in the court where the initial misdemeanor information is or was pending. The sefting date assigned to the re-filed case will be the same date as that of the initial
pending case. Ifthe initial case is no longer pending, the re-filed case shall be set
in accordance with the rules governing the filing of new cases.

2.2.8.2. Motions for leave to apply for a writ of habeas corpus, mandamus, or prohibition
shall be filed pursuant to an order by the court agreeing to hear those matters. Petitions for restricted driver licenses shall be filed in the court in which the conviction was entered and the driver license suspended. Petitions for restricted
driver licenses filed by a Harris County resident that result from a suspension for
an offense committed in another county (other than for driving while intoxicated
or an offense or administrative violation that results in a suspension) shall be filed in any court agreeing to hear the matter, or as provided for in subsection B of Rule 2. Fugitive cases shall be filed in County Criminal Court at Law No. 10.

2.2.8.3. Unless the above categories of cases are later transferred by agreement of the
judges or are transfened by authority ofa separate order, all such assigned cases
shall remain on the docket of the court of assignment until final disposition.
2.2.9. Appeals From The Administrative Suspension of a Person's Driveros License as
Provided by Texas Transportation Code Chapters 524 and 724

2.2.9.1. See Rule 7.

2.2,10, Petitions for Occupational Driver's License

2.2.10.1. See Rule 15.

2.3. Application of Bail Schedule by District Attorney

. 2.3 .l

In all cases, the District Attorney shall:

2.3.1.1. follow the bail schedule;

2.3.1.2. provide the District Clerk with a signed order from a judge or judicial officer
setting bail at a different amount; or

2.3.1.3. request in writing a higher bond on a form provided for that purpose and attach it
to the court's file.

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2.4, Designation of Bail 2.4.1. The clerk shall enter the bail amount. 2.4.2. When the district clerk receives a complaint from the district attorney that is not
accompanied by an order setting bail and the amount on the charge is not consistent with the bail schedule, the clerk shall enter the number "888888" in the bond amount field.
RULE3. TRANSFEROFCASES
3.f. Research by Clerk 3.1.1. Upon filing and docketing of a misdemeanor indictment or information into the county
criminal courts at law, the district clerk will determine by research whether the named defendant has a prior connection in any of the county criminal courts at law. This
research shall be done in accordance with the criteria established in Rule 2.
3.2. Re-filing of Cases 3.2.1. All re-files of cases pending or dismissed shall be f,rled and docketed in accordance
with statutory rotation. The district clerk is authorized to transfer and set the re-filed case in the court where the initial misdemeanor indictment or information is or was pending. If the initial case is pending, the setting date assigned to the re-filed case will be the same as that for the initial case. If the initial case is not pending, the re-filed case shall be given an appropriate setting in accordance with these rules.
3.2.2. All writs of habeas corpus, contempt, and ex parte matters shall be filed and docketed
in accordance with these rules. The district clerk is authorized to transfer and set the proceedings in the court where a prior case connection exists or, ifno prior connection exists, to transfer the proceeding to the court wherein the hearing on such proceedings is to be conducted.
3.3. Special Transfer Situations 3.3.1. S.O.B.E.R. Court Transfer on Motion to Revoke
3.3.1.1. Upon receiving a motion to revoke the probation of a defendant in S.O.B.E.R. Court, and upon consent of the defendant, the judge presiding over the
S.O.B.E.R. Court shall sign a docket notation that the case is to be transferred to
a judge presiding over a different S.O.B.E.R. Court and specifu the court to
which the case is to be transferred as directed below.
3.3.1.2. The Office of Court Management shall maintain a list of all judges presiding over
S.O.B.E.R. Court dockets in numerical order by court number. Upon receiving notice that a case is to be transferred under this subsection, the Office of Court Management will consult the list and tell the sending court which judge is next
on the list (in sequential order) to receive a revocation transfer. If the sending judge would otherwise be next on the list, the case will be assigned to the following judge and the sending judge will receive the next revocation for which
they are eligible.
3.3.1.3. The sending judge shall sign an order transfering the case to the receiving judge.
The judges, coordinators, and clerks shall then proceed as with any other case
transfer.

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3.4. Docket Notation 3.4.1. When it has been determined that a case is to be transferred from one court to another,
the judge of the sending court shall enter a docket notation that the case is to be
transferred and shall specifu the court to which the case is to be transferred.
3.5. Transfer Order 3.5.1. After the docket notation is completed, the clerk of the sending court will prepare a
transfer order, obtain the judge's signature, and cause the signed order and court case file to be timely delivered to the clerk of the receiving court. The clerk of the receiving
court will obtain the receiving judge's signature on the transfer order. At that time, the receiving coordinator will set the case in the receiving court and complete the setting
information on the bottom of the transfer order.
3.6. Entry of Transfer Order 3.6.1. The clerk of the receiving court will deliver the completed transfer order and the court
file to the district clerk's office. The transfer order will be entered and verified in the
records maintained by the Justice Information Management System, The entries in the
court case file will be completed prior to data entryldafa verification of the transfer . order. A copy of the completed transfer order bearing the transaction number will be filed in the court's case file. Duplicate copies of the transfer order shall also be
provided to the clerk ofthe receiving court for delivery to the assistant district attorney assigned to that court and to the defense attorney ofrecord.
3.7. Justice Information Management System Update 3.7.1. The district clerk shall update the Justice Information Management System records
with the case setting date of the receiving court, and shall enter the reason for the transfer. At that time, the setting record remaining in the transferring court will be
closed.
RULE 4. INITIAL SETTINGS
4.1. First Settings 4.1.1. The first setting date of the case shall initially be known as the arraignment setting, and
it shall be provided by the district clerk on all cases except those filed as non-arrests, where instead a capias is issued for the defendant. The clerk shall set first settings in the following manner:
4.1.2. Cases f,rled on Monday through Thursday shall be set for arraignment on the same day
of the following week. Cases filed on Friday, Saturday, or Sunday shall be set for arraignment on the following Friday. An arraignment setting shall not affect statutory
timelines for determining indigence or appointing counsel.
4.1.3. Non-arrest cases shall be set for arraignment in accordance with the above rules upon
the filing of an executed capias.
4.1.4. A defendant released from custody on apersonal bond underthe conditions described
in TEX. CoDE CRIM. P. ANN. art. 17.033, shall be set to appear in the court in which the case is pending at 9:00 o'clock a.m. on the day of release for the purpose of holding a
hearing as required by Tex. CoDE CRIM. P. ANN. art. l5.l7.If a defendant is released from custody after 9:00 o'clock a.m., the defendant shall appear in court at 9:00
o'clock a.m. on the next business day.

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4.1.5. The criminal law hearing officer ordering the defendant to be released shall, at the time
the defendant signs a personal bond, order the defendant, in writing, to appear as provided above, and the hearing officer shall also direct personnel from the Pretrial
Services Department to provide the defendant with written notice of the date, time and place that the court will be in session.

4.1.6. The hearing officer who orders the defendant's release shall immediately notifu, by e-
mail, the judge and the coordinator of the court in which the defendant is set, notifuing
them ofthe defendant's release and pending appearance in that court.

4.1.7. The district clerk shall enter the first setting at the time the complaint and information
are filed. The setting information shall be reflected on the complaint document above the misdemeanor charge literal in a manner that will provide the setting information on all copies of the indictment, information, and complaint. Further, when a bond is filed with the district clerk, the district clerk shall provide written notice of the case's first setting date to the person filing the bond.

4,2. Probable Cause Hearings for Further Detention

4,2.1. Appearance Before A Criminal Law Hearing OffÏcer

4.2.1.1. When the district clerk files an indictment, information, or complaint alleging the
commission of a misdemeanor offense within the jurisdictional limits of a county
criminal court at law and the defendant is in the custody of law enforcement
officials in Harris County, the district clerk shall update the electronic records in
the automated system to reflect that charges have been filed. Further, by general
order of the judges of the county criminal courts at law, all law enforcement officials in Harris County shall cause the pretrial detainees in their respective custody, who have been charged with a class A or class B misdemeanor, to be delivered to the criminal law hearing officer not later than 24 hours after arrest for the purpose of conducting a hearing to determine probable cause for further
detention. Personnel and electronic files, along with original and hard copy files,
where appropriate, from the district attorney, district clerk, and Pretrial Services
Department necessary to conduct the hearings shall be present and made available to the criminal law hearing officer. All detainees will be deemed to
have been ootaken before ajudge orjudicial offrcer" ifthey are physically present at the hearing, or if their participation is achieved by the use of high-speed, twoway audio/video transmission technology. In circumstances where audio/video
technology is utilized, the entire hearing must be recorded and maintained by the
court for a period of one hundred twenty (120) days after the hearing. A written
record of the proceedings shall be made.

4.2.2. Hearing Actions

4.2.2.1. The criminal law hearing officer shall perform the following for every person for
whom a hearing is conducted:

4.2.2.1 .1.

inform the accused in clear, understandable language, or through the use of an interpreter consistent with Tex. CoDE CRIM. P. ANN. arts. 38.30 & 38.31, as appropriate, of the charges against him and of any complaint or
information that may have been filed against him;

4.2.2.1 .2.

inform the accused of the accused's right to retain counsel; of the accused's right to remain silent; of the accused's right to have an attorney present during any interview with peace officers or prosecutors; of the accused's

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right to terminate police interrogation at any time; of the accused's right to
request the appointment of counsel if the accused is indigent; inform the accused of the process for requesting an appointed attomey; ask the accused ifthe accused requests appointed counsel; and inform the accused that any statement the accused makes can and probably will be used against the accused attrial;
4.2.2.1.3. if the accused affirmatively requests appointed counsel, the judicial officer
shall, if assistance is requested, instruct Pretrial Services Department
personnel to assist the accused in completing the form. Pretrial Services Department personnel shall assist the accused in completing the form.
4.2.2.1.4. if the accused has not yet been interviewed, Pretrial Services Department
personnel shall promptly conduct an interview;
4.2.2.1.5. record the fact that the accused does not request appointed counsel, if
applicable;
4.2.2.1.6. immediately forward, or cause to be forwarded, a request for appointed
counsel and any supporting documents to the judge of the court in which
the case is p.ending;
4.2.2.1.7. determine whether probable cause exists for the further detention of the
accused on the charges filed, through the use of live witness testimony, affidavits, the arresting officer's testimony, an analysis of the written offense report, field notes, or other reports prepared by the arresting officer, except in those cases where arrest was pursuant to the issuance ofa
warrant;
4.2.2.1.8. in cases involving the offense of stalking or family violence, determine
whether a magistrate's order for emergency protection should be entered;
4.2.2.1.9. enter the basis and results of the findings on the record and have the same
included in the papers of the case file maintained by the district clerk;
4.2.2.1.10. upon a finding that no probable cause for further detention exists, the criminal law hearing officer shall issue a signed order to the sheriff to
immediately release the accused from custody in that case; and
4.2.2.1.11. upon a finding that probable cause for further detention exists, the criminal law hearing officer shall, after determining whether the accused is currently on bail for a separate criminal offense, set the amount of bail
required of the accused for release and shall determine the eligibility of the accused for release on personal bond, cash bond, surety bond, or other
alternative to scheduled bail amounts, and shall issue a signed order remanding the defendant to the custody of the sheriff. A copy of such
finding and return by the sheriffshall be retained by the district clerk in the case file.
4.2.2.1.12. Judicial officers taking an action as identified above shall direct the clerk to
make appropriate entries into the automated system as the facts and law require, as set out below:
4.2.2.1.12.1. PC FOUND. Used when probable cause is found (i.e. on "to be"
. warrants, or when defendant is not present)

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4.2.2.1.12.2. WARNS GIVEN. Used when the statutory wamings are given, PC
has already been done.
4.2.2.1.12.3. PC/WARNS DONE. Used when the Judge/Magistrate does both.
4,2,3. Initial Bail Schedule 4.2.3.1. The bail schedule maintained by the county criminal court at law judges for all
misdemeanor offenses occurring within the courts' jurisdiction shall be referred to by the criminal law hearing officer. The initial bail amount may be changed on motion of the court, the hearing offrcer, or any party subject to the following criteria:
4.2.3.1.1. the bail shall be sufficiently high to give reasonable assurance that the
defendant will comply with the undertaking;
4.2.3.1.2. the nature of the offense for which probable cause has been found and the
circumstances under which the offense was allegedly committed are to be considered, including both aggravating and mitigating factors for which there is reasonable ground to believe shown, if any;
4.2.3.1.3. the ability to make bail is to be regarded, and proof may be taken upon this
point;
4.2.3.1.4. the future safety of the victim and the community may be considered, and
ifthis is a factor, release to a third person should also be considered; and
4.2.3.1.5. the criminal law hearing officer shall also consider the employment
history, residency, family affiliations, prior criminal record, previous court appearance performance, and any outstanding bonds ofthe accused.
4.2.3,2. MonitoringoflncarceratedDefendants
4.2.3.2.1. It shall be the responsibility of the courts' coordinators to monitor daily the
status of each detainee still in custody to determine whether the detainee
has appeared before the criminal law hearing officer for a detention
hearing. If a detention hearing has not been held, the court will hold a hearing as set forth above. The court will also consider the issue of
appointment of counsel where raised by the defendant.
4,3. Next Business Day Setting for Those Booked Into the Harris County Jail 4.3.1. The initial arraignment setting pursuant to Rule 4.1.2 shall be replaced with a bail
review hearing setting for any anestee that is booked into the Harris County Jail. The anestee shall appear before the court in which the case is pending on the business day following the booking date, regardless of whether the defendant has been released from
custody. Absent a waiver by the defendant and defense counsel, the court will review conditions of release, bail amount set, and personal bond decision and modify if good cause exists to do so. These hearings will be conducted at regular docket calls on Monday through Friday and the judge shall perform all necessary functions under the law (determining probable cause if necessary, performing an Article 15.17 proceeding ifnot previously done, assessing indigency and appointing counsel ifappropriate, etc.).
The defendant shall be docketed in accordance with the following schedule, and in such cases the initial seven-day setting shall be canceled.

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Court Äppearance Schedule

Date Booked

24-Hour Appearance

Sunday Monday

0000-2400 0000-2400

Monday Tuesday

0900 0900

Tuesday

0000-2400

Wednesday

0900

Wednesday

0000-2400

Thursday

0900

Thursday

0000-2400

Friday

0900

Friday

0000-2400

Monday

0900

Saturday

0000-2400

Monday

0900

4.3.2. At all other times (weekends, holidays, and nights), defendants booked into the county
jail on any and all process pending in or issued out of the county criminal courts at law,
shall be brought immediately before a criminal law hearing officer who shall determine ifprobable cause exists for the continued detention ofthe defendant.

4.4. Subsequent Settings

4.4.1. All subsequent settings of misdemeanor cases shall be the specific responsibility of the
judge or coordinator of each of the county criminal courts at law, who will file a notice of setting in writing with the district clerk or provide notice by entry on the court's
docket sheets. That notice is to be used by the clerk for recording data in the automated
system.

4,4.2, Bond Reinstatement

4.4.2.1. When a case is again active because of the reinstatement of a bond, either with or
without cost, the district clerk shall enter a seven-day setting, except when a setting already exists in the system. When a setting already exists, the date in the
system shall prevail as the next setting date.

4.4.3. Bench Warrants and Attachments

4.4.3.1. Such documents shall have a setting date in the body of the document and the
district clerk shall set accordingly.

4.4.4. Summons in Lieu of Capias

. 4.4.4.1

When a misdemeanor information is filed against a corporation in, for example, a pollution case, the process issued shall be a summons rather than a capias. The summons shall require that the corporation make an appearance at l0:00 A.M. on
the first Monday next following the expiration of twenty days from the date of
service.

4.4.4.2. When a summons is used against a defendant in lieu of a capias in a misdemeanor information that is a re-file of an earlier-filed misdemeanor
information, the appearance date on the newly filed case shall be set for the same date as the earlier filed case, except when the earlier filed case has no setting. In

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that event, both cases shall be set for seven days, and the setting in the re-filed case shall be for arraignment.
4.4.4.3. Neither a summons nor a capias may issue without a judicial finding of probable
cause.
4,4.5. Notice of Appeal 4.4.5.1. The district clerk shall notif, the court coordinator or judge of the courtwhen a
notice of appeal is filed in a case in which the court either has entered judgment or suspended the imposition of judgment. The court coordinator shall place the case on the court's docket as directed by the judge, or on the next regular
business day. The court coordinator shall notify the defendant and the
defendant's attorney-oÊrecord of the setting.
4.4.6, Notice to Court When Appeal Bond Not Filed 4.4.6.1. When a defendant has given notice of appeal and an appeal bond has not been
filed in the papers of the cause within forty-eight hours, a report shall be sent to the court apprising the court that an appeal bond has not been filed. Upon receiving such a report, the court shall notify the appellant/defendant's attorney.
If the appellant/defendant has no attorney, the appellant/defendant shall appear before the court. If the appellant/defendant does not post an appeal bond, the
court shall issue a capias for the appellanldefendant.
4.4,7. Mandate of Abatement 4.4.7.1. The district clerk and court coordinator shall noti$r the staff attorney for the
county criminal courts at law upon receipt of a mandate or order of abatement. The court coordinator shall set a date from fourteen (14) to twenty one (21) days from the date of receipt of order or mandate. The coordinator shall notify the
surety, the principal, and the attorney-of-record by certified mail.
4,4.8, Mandates of Affirmance and Reversal and Remand
4.4.8.1. The district clerk, upon receipt of an order or mandate, shall determine whether
the defendant is in the Harris County jail. If the defendant is in jail, the case shall
be set the next day court is convened. If the defendant is on bond, the district
clerk shall immediately issue a capias for the defendant, provide a seven-day setting, and forward the information to the court coordinator. Immediately upon receipt of the information from the clerk, the court coordinator shall notify the attorney-of-record on appeal, the surety on the appeal bond, ifone exists, and the appellant by regular mail. The court coordinator shall also attempt to noti$' the
above parties by telephone.
4.4.9. Violation of Post Judgment Orders
4.4.9.1. The Sheriff shall bring any person arrested for violating a post judgment order issued by a Judge of a County Criminal Court at Law before a Criminal Law Hearing Officer. The Hearing Officer shall determine the identity of the person,
and conduct a hearing on the reasons for the person's arrest and enter such orders as provided by law.
4,4,10, PetitionsforNon-disclosure
4.4.10.1. In accordance with TEX. GoV'T CODE S 41 1.081(d) petitions for non-disclosure are filed with the district clerk, a fee is paid, and the case is set.

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4.4.10.2. Petitions filed under this section will be set by the district clerk, upon collection
of the filing fee for fourteen days from the date the petition is filed, or as ordered by the court.

RULE 5. ADDING CASES TO THE DAILY DOCKET

5.1. Only the judge or the coordinator of the court may approve the addition of a case to the
docket.
5.2. To request the addition of a case to the courl's docket, the requesting paf (district attomey,
defense attorney, court clerk, sheriff, et cetera), shall submit to the court coordinator the case
number, defendant's name and status (ail or bond), and the reason for the request.

5.3 Those cases approved for addition to the court's docket will be submitted via the county
criminal courts at law add-on form to the clerk of the court by 3:00 p.m. of the day before the case(s) is/are to be added to the docket. Jail cases may be exempt from this time requirement.

RULE 6. DOCKETING OF MISDEMEANOR INDICTMENTS

6.1. Upon receipt of a misdemeanor indictment returned by a Harris County grand jury and
certification that the case is to be transferred to the docket of the county criminal courts at law, the case shall be randomly filed and docketed into the county criminal courts at law in the manner prescribed by law and in accordance with these rules. The district clerk shall endorse the amount of bail upon the papers of the case in accordance with the bail schedule provided by these rules. The district clerk shall then issue a capias to the sheriff of Harris
County, who shall immediately attempt to apprehend the defendant.

RULE 7.

DOCKETING OF APPEALS FROM NON-RECORD MUNICIPAL COURTS,
JUSTICE OF THE PEACE COURTS, MUNICIPAL COURTS OF RECORD, AND ADMINISTRATIVE LICENSE REVOCATION HEARINGS PURSUANT TO
CHAPTERS 524 AND 724 TEXAS TRANSPORTATION CODE

7,1. Non-Record Municipal Courts, and Justice of the Peace Courts:

7.1.1. Case Numbering, Filing and Rules of Attraction

7.1.1.1. All cases received by the district clerk of Hanis County, Texas, from a non-
record municipal court, or justice of the peace court for the purpose of appealing
a misdemeanor conviction entered in such court shall receive a case number and assigned a court in the same manner as a criminal case filed by misdemeanor
information or indictment, and using the same rules of attraction.

7.1.2, Notice To Appellant

7 .l .2.1.

The de novo appeal shall be set for anaignment and pretrial hearing (as provided by TEX. CoDE CzuM. P. ANN. art. 28.01) thirty (30) days from the date that notice of the hearing is sent via regular mail by the district clerk to the defendant at the address shown on his bond. Ifthe bond shows no such address, the notice may be addressed to one ofthe sureties on the bond. Ifthere are no sureties on the bond, notice shall be sent to the defendant at the address shown on the complaint, or ticket made the basis of the prosecution. The provisions of TBx. CoDE CRIM. P. Axtt. art. 28.01 shall control the filing and hearing of all matters and the conduct ofthe proceedings.

7.1.3. Contents of Notice

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7.1.3.1. The notice shall contain the cause number assigned to the appeal and the court
into which the case was assigned; the time, date, and location of the court in which the defendant is to appear; and shall contain the following statement:
"The court has scheduled your arraignment and a pretrial hearing in this case on
the above date. At this setting you will be asked to enter a plea of not guilty, nolo contendere, guilty, or make any other special plea provided by law. In addition, the Court will hear any matters you or your attorney wish to raise prior to trial at this time. These matters must be raised by written pretrial motion filed with the clerk of the court not later than seven (7) days before the hearing date,
unless you receive permission from the judge of the court to file them on another
daLe."
7.1.4. Defendant in Custody 7.1.4.1. Where the defendant is in custody, the de novo appeal shall be set for
arraignment on the next date the court is in session.
7.2. Municipal Courts of Record
7,2,1, Case Numbering
7.2.1.1. Each appellate transcript shall be assigned a sequential number using the system established by these courts in 1976.
7.2.2. Case Filing and Rules of Attraction 7.2.2.1. The district clerk shall file the appellate record into the courts on a rotational
basis.
7.2.2.2. Before assigning a court, the district clerk shall determine by research whether
the defendant named in the appeal has a prior connection to an existing appeal. A prior connection is established when a prior pending appeal from a municipal court ofrecord exists.
7.2.2.3. The district clerk shall file a subsequent appeal in the same court if: (i) the
subsequent appeal arose from the same criminal transaction, or (ii) was tried
before same jury.
7.3. Administrative License Revocation Hearing Authorized By Chapters 524 and 724,
Texas Transportation Code
7,3,1. Procedure For The Filing of Cases
7.3.1.1. Each petition appealing the suspension, of a person's driving privilege as provided by Chapter 524, or 724, Texas Transportation Code, shall be filed and docketed into the County Criminal Courts atLaw, and County Civil Court atLaw of Harris
County, Texas as provided by the Local Rules of each court division,
7.3,2. Random Filing; Rules of Assignment and Attraction 7.3.2.1. The district clerk shall assign a petition to the court in which the criminal case
resulting from the enforcement contact: (l) is pending; (2) is on appeal; (3) in
which a judgment of conviction, or order granting community supervision was entered; or (4) dismissal order was entered, using the criminal case number followed by the suffix "Y".

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RULE 8. DOCKETING OF CASES: JUDGE RECUSÄL OR DISQUALIFICATION

8.1. VOLUNTARY ItEcusAL oR DISeUALIFICATIoN. Upon voluntarily granting a motion to recuse or disqualiff, or on a judge's decision to recuse or disqualify without a motion, the
recusing judge shall sign an order referring the case to the Presiding Judge ofthese courts. If
no motion to recuse or disquali$, is pending, the recusing judge shall briefly state the reason
for the recusal or disqualifrcation in the referral order. The Presiding Judge of these courts shall issue an order directing the clerk to assign a judge to preside over the case using its computerized random assignment program. The judges, coordinators, and clerks shall then
proceed as with any other case transfer.

1. 8.1

After a transfer pursuant to Rule 8.1, the clerk shall take the next case that would have

otherwise been assigned to the receiving court and instead assign it to the recusing

court.

8.2. INvoLUNTARv flrcusAr, oR DISQUALIFIcATIoN. Immediately after declining to grant a

motion to recuse or disqualify, a judge shall sign an order referring the case to the Presiding

Judge of the Second Administrative Judicial Region and direct a member of the Office of

County Court Management to transmit the referral order to the regional Presiding Judge, The

Presiding Judge of manner provided

the
by

Second Administrative
Rule 9.2.4, Regional

Judicial Region shall assign a
Rules of Administration of

¡judge in the the Second

Administrative Judicial Region of Texas. The judge assigned to rule on the motion shall sign

an order granting or denying the motion using the form of order promulgated by the region.

The order shall be filed with the clerk of the court. If the motion is granted, the district clerk

shall use the computerized random assignment program to determine the court to which the
case will be assigned. The judge assigned to rule on the motion shall sign an order

transferring the case to the randomly selected court. Thejudges, coordinators, and clerks shall

then proceed as with any other case transfer.

RULE 9.
9.1.

SETTING AND MODIFYING BAIL SCHEDULE
Pursuant to the agreed final judgment and order of the federal court in Roberson v.
Richardson (No. H-84-2974), Southem District of Texas (1987)), the Harris County Criminal Court at Law Judges promulgate this initial bail schedule. The district attorney shall affix an initial bail amount at the time a complaint is filed in a county criminal court at law. The initial
bail amount shall be determined by either presenting relevant information in the possession of
the district attorney to a county criminal court at law judge, or Harris County Hearing Officer, or by applying the initial bail schedule. The district clerk shall record the bail amount set by the judicial officer or applied by the district attorney from the initial bail schedule in the case file. This shall be the exclusive means of setting the initial amount of bail, unless otherwise directed by the Judges of the Harris County Criminal Courts at Law.

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Class: Class: Class: Class Class:

Misdemeanor Bail Schedule

B, Standard Offense

I st Offense 2nd Offense

$500
$500, plus $500 for each prior misdemeanor conviction, plus $ 1,000 for each prior felony convíction (not to exceed $5,000)

A, Standard Offense I st Olfense 2nd Offense
Family Violence or Threât of Violence

$ l,000
$1,000, plus $500 for each prior misdemeanor conviction, plus $1,000 for each prior felony conviction (not to exceed $5,000)

I st Offense 2nd Offense
D\ilI

$1,s00
$1,500, plus $2,000 for each prior conviction for a violent offense or threat of violence

First Offense Subsequent Offense

$s00
$2,500, plus $1,000 for each prior conviction not to exceed $s,000

Any offense committed while on bond, community supervision, intervention, or parole
Any motion to adjudicate or revoke community supervision

$5,000 $s,000

9.2. The initial bail amount shall be determined by application of the bail schedule. In any case where the district attorney desires a bond higher than that on the bail schedule, the district attomey shall make a request to a judge of the county criminal court at law or a criminal law hearing officer. The order, when signed by the judge or hearing officer shall be provided to
the district clerk along with the complaint and information for filing.

9.3. The district clerk shall apply the amount of bond from the bail schedule except in cases where the district attorney has provided the clerk with an order setting bail signed by a judge of a county criminal court at law or a criminal law hearing officer, in which case the clerk will apply the amount of bail provided for in the order setting bail.

9.4. If the clerk does not receive an order setting bail or if the amount of bail exceeds the amount
provided for in the bail schedule, the clerk shall make an entry in the bail field as provided by Rule 2D, and bail will then be set by a judicial officer.

RULE 10. REFUND OF CASH BONDS

10.1.

Unless a notice of appeal is given, cash bond deposits will be refunded to depositors other than the defendant upon final disposition of the criminal proceeding. If a notice of appeal is given, refunds will not be given until a replacement bond has been duly frled with the district
clerk.

10.2. In the event the criminal proceeding is reversed and remanded to the trial court, no refund or
assignment will be granted until a replacement bond has been duly filed with the district
clerk.

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RULE 11. BOND FORFEITURE REINSTATEMENTS, DISMISSALS, AND JUDGMENTS
ll.l. All bond reinstatement orders, bond forfeiture dismissal orders, and agreed judgments,
wherein payments of costs of judgments are involved, shall be presented in person by the bonding agency only to thejudge ofthe court wherein the forfeiture occurred
11.2. The total amount of the costs on bond reinstatements with costs, dismissals with costs, and in
the case of agreed judgments the total amount of judgment and costs, will be delivered to the court along with the order ofjudgment by the bonding company.
11.3. Money orders, cashier's checks, and firm checks, payable to the Harris County district clerk, are the only tender that will be accepted. Cash payments may be made in advance and a
receipt obtained from the district clerk and presented with the order or judgment.
11.4. All bonding agencies shall be required to obtain the future setting date from the court coordinator prior to presenting orders of reinstatement and costs. All future settings shall be
seven days from the date ofthe reinstatement order.
11.5. Upon reinstatement, dismissal, or approval of agreed judgment by the judge of the court
wherein the forfeiture occurred, the order, judgment, and the accompanying tender shall be delivered by the judge to the clerk ofhis court for delivery to the district clerk's office.
RULE 12. APPROVAL OF PERSONAL BONDS
l2.l . Whether to approve or deny a personal bond is up to the reviewing magistrate's sound
discretion.
12.2. In general, personal bonds are favored in the following types of cases, absent good cause to
deny a personal bond:
12.2.1. theft by check;
12.2.2. driving while license suspended or invalid;
12.2.3. gambling offenses;
12.2.4. illegal dumping;
12.2.5. hctitious vehicle license plate or registration;
12.2.6. prostitution;
. 12.2.7 violation of laws regulating sexually oriented businesses;
12.2.8. public intoxication;
12.2.9. driving without a license; 12.2.10. class B criminal trespass, if the defendant has no prior convictions or community
supervision for a Class B or greater offense;
12.2.11. class B retail theft, if the defendant has no prior convictions or community supervision for a Class B or greater offense; and
12.2.12. possessing a drug or marijuana (except possession of synthetic cannabinoids or Class A
possession of marijuana), if the defendant has no prior convictions or community
supervision for a Class B or greater offense.
12.3. In general, personal bonds are disfavored where the defendant has demonstrated a risk to
reoffend or harm society, examples of which might be where:

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12.3.1. the defendant is charged with an offense alleged to have occurred while on bond for
another offense;
12.3.2. the defendant is charged with multiple offenses (unless both are favored for personal
bond under the above criteria; not including offenses punishable by fine only);
12.3.3. the defendant is charged with an offense alleged to have occurred while the defendant
was on community supervision;
12.3.4. the defendant appears to be a danger to himself/herself or others; or
12.3.5. the defendant has shown an unwillingness to follow bond conditions in the past. 12.4. In general, personal bonds are disfavored where the defendant has previously failed to appear
in court as instructed.
RULE 13. SIGNING OF PLEADINGS
13.1. Every pleading, brief, or motion of a party represented by an attorney, shall bear the
manuscript signature of at least one of the attorneys of record, in his individual name, along with his state bar card number, address, and telephone number. The pleading, brief, or motion shall further contain a certifìcationfhat a copy of the document was mailed or hand-delivered to opposing counsel.
RULE 14. PREPARATION OF JUDGMENTS
14.1. The district clerk of Harris County, Texas, shall prepare the judgment in the case at the time
thejudgment is rendered using a form approved by the Judges ofthese Courts, and present it without delay to the trial judge for approval and signature. Judgments in a multi-count indictment or information shall be prepared by the prosecuting attorney at the time the judgment is rendered and the prosecuting attorney shall present it without delay to the trial
judge for approval and signature.
RULE T5. PETITION FOR OCCUPATIONAL DRIVER'S LICENSF."
15.1. The District Clerk shall only accept for filing, a petition seeking an occupational license
resulting from a suspension, revocation, cancellation, or denial of a person's driving privilege expressly covered by these rules. The District Clerk shall direct a person wishing to file a petition seeking an occupational license resulting from a suspension, revocation, denial, or cancellation under a provision not covered in subsection A, below, to the County Clerk of this county.
15,2. Filing of Petition for Occupational License
15.2.1. A person may apply for an occupational license by filing a verified petition with the
District Clerk of Hanis County, Texas if the person's license:
15.2.1.1, was automatically suspended, revoked, cancelled or denied upon conviction of an
offense in a county criminal court at law as provided by Chapter 521,
Transportation Code; or;
15.2.1.2. was sugpended or denied as provided by Chapter 524, or T24,Transportation
Code; or
15.2.1.3. was suspended as provided by Chapter 708 Transportation Code.
15.3. Assignment of Occupational License Petition 15.3.1. Suspension after conviction. The clerk shall assign the case to the court in which the
defendant's driver's license was most recently suspended upon conviction or order

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granting community supervision as provided by Chapter 521 Transportation Code using the cause number from the case followed by the suffix "R".
15.3.2. Suspension or denial after failing or refusing to provide a sample of breath or blood.
The clerk shall assign the petition to the court in which the criminal case resulting from the failure or refusal is pending, or in which an order dismissing the case was entered, using the cause number of the case followed by the suffix "X".
15.3.3. Suspension after failing to pay a surcharge resulting from a conviction in a county
criminal court at law in Hamis County. . The clerk shall assign the petition to the court in which the judgment was entered resulting in the accumulation of a point or points under the Texas Driver Responsibility Program, Chapter 708 Transportation Code using the cause number from the case followed by the suffix "R".
15.4. Setting
15.4.1. The district clerk shall set the petition on the court's docket seven days from the date it
is filed, or on a date set by order of the Judge of the court with jurisdiction.
RULE 16. ATTORNEYOF RECORD
16.1. On the first appearance retained counsel shall complete the Attorney of Record form provided
by the court. Upon appointment under the Fair Defense Act, counsel shall complete the
' appointment order signed by the Judge. Retained or appointed counsel shall file the attorney
of record form, or the order appointing counsel with the clerk of the court before the
conclusion of his {irst appearance. The district clerk shall use the attomey of record form, or the order appointing counsel as a source document for data entry into the Justice Information Management System. A written motion and order of the court will be required for withdrawal as attorney ofrecord.
16.2. The original attorney of record is presumed, under these rules, to continue as attorney when a
notice of appeal is filed. When the original attorney of record does not continue to represent the defendant on appeal, then the original attorney of record shall file a motion to withdraw as attorney of record in the county criminal court in which the case is pending. At the time.the motion to withdraw is filed, the original attorney of record shall also request a hearing date from the court coordinator who shall set the motion on the court's docket within seven (7) calendar days of presentment. The purpose of this hearing is to allow the court to rule on the
motion to withdraw.
16.3. When notice of appeal is filed and an attorney other than the attorney of record is retained to
prosecute the appeal, then appellate counsel shall file a motion to substitute counsel in the county criminal court at law in which judgment was entered. The motion shall be filed at the time notice of appeal is filed, or not later than five (5) calendar days after the date counsel is retained or appointed. The appellate counsel shall also request a hearing date from the court coordinator who shall set the motion to substitute counsel on the court's docket within seven (7) calendar days of presentment. The purpose of this hearing is to allow the court to rule on
the motion to substitute counsel.
16.4. The written notice of appearance of counsel on appeal will be filed with the clerk for the case
f,rle and will become a part of the clerk's transcript on appeal.
16.5. When an attomey is appointed to represent an indigent defendant, the order appointing
counsel shall be the document used to attach the attorney's name to the case as an appointed attorney.

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RULE 17. JUVENILE DEFENDANTS

17.1. Any defendant who is charged with a misdemeanor offense within the jurisdiction of the
county criminal courts at law of Harris County will be presumed to be an adult until a proper judicial determination is made to the contrary.

.2. l7

In any case wherein proof is offered that a defendant may be a juvenile, the sheriff and/or the

district attorney are requested to make the court in which the cause is pending aware of the

style of the case in which the defendant is suspected to be a juvenile.

.3. l7

The court will set the case as soon as possible for a hearing as provided by TEX. CoDE CRIM.

P. ANN. art.4.18, to determine if the defendant is a juvenile. Only after that determination

will the defendant be released from custody, and the cause transferred to thejuvenile court in

accordance with T¡x. CODE CRIM. P. ANN. art.4.18, and Section 56.08, Family Code.

17.4. In all cases wherein a determination is made that a defendant is a juvenile, expeditious
transfer of the case will be made to remove the case from the criminal court's docket.

17.5. The defendant may be released from custody if evidence is provided to the sheriff or other
holding agency that the defendant is a juvenile. The evidence affecting the defendant's release shall be presented to the court on the next court workday so that a judicial determination may be made and, if the court finds that the defendant is a juvenile, a transfer
to the juvenile court will be immediately processed. Should the court find, however, that the
defendant is not ajuvenile, appropriate process will be issued for the defendant's arrest.

RULE 18. COUNTY CRIMINAL COURT MANAGEMENT PROGRAM

18.1. The presiding judge is chief executive offìcer, and is assisted by the co-presiding judge. The
court manager assists the presiding and co-presiding judges and provides management,
systems, and legal assistance to all courts, as well as training to the coordinators.

18.2, Court Manager and Coordinator System for Certain Harris County Courts

18.2.1. The courts in Harris County that have the same criminal jurisdiction may establish and
maintain a court manager and coordinator system.

18.2.2. The judges of the courts to which this section applies may appoint a court manager, one
or more court coordinators, and other staff as appropriate to the needs of the local jurisdiction. The judges shall by rule designate the qualifications and duties of the court manager and the coordinators to improve criminal justice and expedite the processing
of the criminal cases through the county courts. The court manager and the
coordinators shall cooperate with state agencies having duties relating to the operation
of the courts to promote uniform and efficient justice.

18.2.3. The court manager and the coordinators serve at the pleasure of the judges.

18.2.4. The court manager and coordinators are entitled to reasonable compensation as set by
the judges of the courts served. The court manager's compensation may not exceed sixty (60) percent of the salary paid the judges, unless the commissioners' court by
order sets the court manager's compensation at a greater amount. The amount paid the
coordinators may not exceed fifty (50) percent ofthe salary paid thejudges.

18.2.5. On the judges' orders, the commissioners' court shall fund the court manager and
coordinator system from fines collected by the courts served by the court manager and
coordinators. If the fines collected are insufficient to provide the total funding for the
program, the county shall provide the additional funds needed.

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18.2.6. This section does not diminish the statutory duties and powers of the sheriff, district
attorney, clerk ofthe court, or any court offìcer.

18.3. CourtCoordinatorsTraining/SalaryPlan

18.3.1. The Harris County Court Coordinators' Career Ladder Salary Plan was created by a
joint order of the Judges of the District Courts Trying Criminal cases and the County
Criminal Courts atLaw of Harris County, Texas. The plan became effective September
l, lgg4.

18.3.1.1. Effective September 1,1994, all court coordinators employed by a district court or a county court at law shall be placed in Step 7.0 of the plan and shall be
exempt from the bachelor's degree requirement for Step 8.0 through Step 12.0.
Court coordinators employed on or after September l, 1994 must meet the annual
requirement to attend sixteen (16) hours of continuing education to be eligible for
step increases for Step 8.0 through Step 12.0. All persons employed after September l, 1994 as a court coordinator in a district or county court at law will
be paid in accordance with eligibility requirements for plan steps and incentive
pay. As amended November 19,2002, the steps are reduced from l2 to eight.

18.3.1.2. The anniversary date of the plan will be September lst of each year.

18.3.1.3. The Administrative Office of the District Courts and the Office of County Court Management for the county criminal courts at law will certify to the Harris
County Budget Ofhce on August I st of each year the step level and incentive pay
eligibility of each court coordinator.

.4. I 8.3 . I

Continuing education is defined as enrollment in, and completion of, sixteen ( l6)

hours of continuing education in courses offered by the Administrative Office of

the District Courts andlor the Office of County Court Management, or through

attendance at programs offered by the Texas Center for the Judiciary, the Texas

Association for Court Administration, the Justice Management Institute, the National Center for State Courts, the Institute for Court Management, the

National Association for Court Management, the National Judicial College, the

Criminal Justice Center at Sam Houston State University, or other approved

programs. Continuing education hours are required in addition to any other

educational requirement of this plan.

18.3.1.5. In addition to the basic salary provided in Step 1.0 through 12.0, incentive pay will be awarded to those persons meeting the minimum eligibility requirements. Similar to other benefits, such as longevity pay, incentive pay follows the "person," not the 'oposition," and incentive pay is not considered when cost of
living increases are calculated.

18.3.1.6. For completion of at least sixty (60) hours of college credit, or for attainment of an associate's degree, a person will be eligible for a step classification of 0.1 and incentive pay of $75.00 per month. To be eligible for plan credit, at least half of the credit hours must be from the following subject areas: English, math, computer science, accounting, management or public administration, human
resource or personnel management, psychology, sociology, criminal justice, law,
government or political science, or a foreign language. All hours must be granted
from an institution recognized by the Texas Higher Education Coordinating
Board, or must be transferable to one of its recognized institutions. A person who
has graduated from the Executive Development Program of the Institute for

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Court Management of the National Center for State Courts meets the minimum requirement for this incentive pay step.
18.3.1.7. A person who is multilingual and has been certified, through written and oral
examination, to interpret in the courts is eligible for incentive pay step 0.1.
18.3.1.8. For attainment of a bachelor's degree, a person will be eligible for a step
classification of 0.2 and incentive pay of $150.00 per month. The major area of
study or at least half of the earned credit hours must be from one of the following subject areas: English, math, computer science, accounting, management or public administration, human resource or personnel management, psychology, sociology, criminal justice, law, government or political science, or a foreign
language. All hours must be granted from an institution recognized by the Texas
Higher Education Coordinating Board or be transferable to one of its recognized institutions.
18.3.1.9. For attainment of a master's degree, a person will be eligible for a step
classification of 0.3 and incentive pay of $225.00 per month. The major area of
study or at least half of the earned credit hours must be from one of the following subject areas: English, math, computer science, accounting, management or public administration, human resource or personnel management, psychology, sociology, criminal justice, law, government or political science, or a foreign
language. All hours must be granted from an institution recognized by the Texas
Higher Education Coordinating Board or be transferable to one of its recognized institutions.
18.4. Staff
18.4.1. Court Manager
18.4.1.1. The County Criminal Court Manager is chosen by a majority of the county
criminal court at law judges and hired by the presiding judge. Although the court
manager serves at the pleasure of the courts, the court manager's primary
responsibility is to the presiding judge of the county criminal courts at law.
18.4.2. Assistant Court Manager (Project Analyst)
18.4.2.1. The assistant court manager is interviewed and hired by the court manager with
the approval ofthe presidingjudge. This person also serves as the project analyst for the county criminal courts at law.
18.4.3. Staff Attorney
18.4.3.1. The staff attorney for the county criminal courts at law is appointed by the
presiding judge and hired by the court manager.
RULE 19. CODE OF JUDICIAL CONDUCT
19.1. All persons employed by the county criminal coufts at law in any capacity shall, withinthe
first thirty days of employment, be apprised of the contents of the Code of Judicial Conduct by the court manager, or by the staff attorney at the direction of the court manager, as the Code applies to the affected employee. The employee shall have an opportunity to ask appropriate questions related to the intent and meaning of the Code. When the meaning and intent of the Code of Judicial Conduct is understood by the employee, the acknowledgment on the following page shall be executed and signed with at least one witness present. The completed acknowledgment shall be filed in the employee's personnel file folder, and a copy shall be retained by the employee (see form at Policies and Procedures, Appendix, Page A-8).

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RULE 20. COURT REPORTERS
20,1. Absent and substitute court reporters.

20.1.1. A court reporter in a county criminal court at law will be allowed only that vacation and sick leave time as approved by the commissioners' court for Harris County
employees. In the event of a court repofter's absence that is not covered by approved vacation or sick leave time, that court reporter will be responsible for paying the costs to provide the court with a substitute reporter.
20.1.2. During the approved absence of a court reporter, the Offrce of County Court
Management shall be contacted to determine whether a reporter from another county criminal court at law is available before a substitute is hired, unless the court's reporter has made prior arrangements for coverage with another court reporter.

RULE 21. SATISFACTION OF JUDGMENT: ORDER PERMITTING PARTIAL PAYMENT ON FINES AND COSTS
21.1. The Sheriff of Harris County, Texas is directed to accept either the full amount or a partial
amount of any fine, court costs or fees lawfully adjudged against a defendant. The sheriff or his designated deputy shall noti$r the judge of the court with jurisdiction over the defendant within 72 hours that partial funds were remitted, and shall include the (1) case number; (2) name of the defendant; (3) amount remitted; (4) date remitted; and (5) amount outstanding, as reflected in the records ofthe sheriff.

RULE 22. VIEWING AND COPYING DWI VIDEO TAPES

22.1.

A pro se defendant or the attorney whose name appears on the court's Attorney of Record form required under Rule 16 shall be permitted to view and obtain a copy of a videotape
made pursuant to Acts, 1983, CH. 303, ç24, without an order. Either the pro se defendant or attomey of record may designate a third party to obtain a copy of a video tape by designating
that person or company on the attorney of record form or separate motion to the court.

22.2.

The Harris County District Attorney shall permit the pro se defendant, or the attorney of
record or a third party to view and obtain a copy of a video tape at a time and place mutually agreeable to the parties.

22.3.

To obtain a copy of a video tape the pro se defendant, the defendant's attorney or a
designated third party shall provide the Harris County District Attorney with a blank video
tape cassette or other recording medium agreeable to the parties and the court.

)') L The district clerk shall enter the name of the designated person or company into the Justice Information Management System by utilizing an appropriate connection code that can be viewed on the computer transaction that shows parties connected to a case number.

22.5.

Rule 22 is effective upon completion of changes in the Justice Information Management System that will facilitate compliance with these rules, but not later than the first day of
August 1999.

RULE 23. RELEASE OF CLERK'S RECORD TO COUNSEL

23.1.

The attomey representing a defendant appealing a judgment of a county criminal court at law shall be permitted the use of a copy of the Clerk's Record. Before releasing a copy of the Clerk's Record, the District Clerk of Hanis County or a deputy clerk shall determine from the records in his possession the identity of the attorney of record on appeal. The District Clerk or a deputy clerk shall only release a copy ofthe Clerk's Record to the attorney representing the

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defendant on appeal. Ifthe identity ofthe attorney ofrecord on appeal cannot be ascertained
or is in dispute, the clerk shall referthe attorney to the jqdge of the court in which judgment was entered and shall not release a copy of the Clerk's Record without a written order from a judge of a county criminal court at law.
23.2. The District Clerk shall develop procedures to ensure that copies of the Clerk's Record are
released and returned in a timely manner and their location always known.

RULE 24. ALTERNATIVE PLAN FOR THE APPOINTMENT OF COUNSEL TO INDIGENT DEFENDANTS UNDER THE FAIR DEFENSE ACT

24,I. DEFINITIONS

24.1.1. Appointing authority means the Judges of the County Criminal Courts at Law of
Harris County, Texas.

24.1.2. Approved attorney means an attorney meeting the objective qualifications of this
Plan, and approved by a majority of the Judges of these Courts.

.3. 24.1

Appointment mqnqger means the person who implements appointment procedures.

24.1.4. A day means a single day on which an attorney is assigned to appear in a court.

24.1 .5.

Case means each cause number, or count in which a defendant is charged with a
separate offense. ,See Office of Court Administration, Texas Judicial Counsel
Monthly Report Instructions.

24.1 .6.

Contract means the agreement between an approved attorney and the Harris County Commissioners Court meeting the requirements established by the Texas Indigent Defense Commission.

24.1 .7.

Contract Defender Program. Contract defender program means a system under
which private attorneys, acting as independent contractors and compensated with public funds, are engaged to provide legal representation and services to a group of unspecified indigent defendants who appear before a particular court or group of
courts.

24.1.8. Contracting Authority. The contracting authority is the Commissioners Court of
Harris County, Texas.

24.1.g. Contractor. The contractor is an individual attorney licensed to practice law in the
State of Texas, meeting the eligibility criteria in this Plan that can be bound by
contract.

24.1.10. Criminal Law Hearing Officer means a judicial officer created by Chapter 54,
Subchapter L ofthe Texas Government Code ($ 54.851 et seq.)

.11. 24.l

Defendant means a person accused of a crime or juvenile offense, as those terms are

defined by Section 71.001 of the Texas Government Code.

24.1.12. Disposedmeans:
. 24.1 .12.1 entry of an order dismissing the case;

24.1.12.2. the defendant has been sentenced after a plea of guilty or no contest;

24.1.12.3. trial on the merits resulting in a verdict;

24.1.12.4. entry of an order granting community supervision;

24.1.12.5. a motion for new trial has been overruled;

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24.1.12.6. 24.1.12.7.

submission of a brief on appeal;
granting or denial of an application for writ of habeas corpus or other
extraordinary relief.

24.1.13 Fair Defense Act Monagement System (FDAMS)

24.1.t4 First-chair counsel means the attomey in charge of the case.

24.1.15 He or him refers to a male or female.

24.1.16

Household means all individuals who are actually dependent on the defendant for
financial support.

24.1.17 24.1.18.

Indigent means a person who is not financially able to employ counsel. A person is
presumed indigent if the total income derived by that person (and any of his
dependents) is equal to or less than l25Yo of the United States Health and Human
Services poverty guidelines applicable to that defendant's family/household.
Itemized Fee Voucher. The itemized fee voucher shall be in electronic form promulgated by these courts and approved by the Hanis County Auditor. It shall
include at a minimum all the information necessary for the county auditor or other designated official to complete the expenditure report required to be submitted to the Office of Court Administration by Section 7 I .03 5 I (e), Govemment Code.

24.1.19 Judge means a Judge of a Harris County Criminal Court at Law.

24.1.20

Judicial Officer means a Judge of a Harris County Criminal Court at Law, or a Harris County Criminal Law Hearing Officer.

24.1,21

Majority of judges means not less than: (a) eight of the duly elected and qualified judges of the Harris County Criminal Courts at Law prior to January 1, 2016; or (b) nine of the duly elected and qualified judges of the Harris County Criminal Courts at Law on or after January l, 2016.

24.1.22

Plan means the Alternative Plan ad'opted by the Judges of the County Criminal
Courts atLaw of Harris County, Texas, on November 5,2015.

24.1.23 24.1.24.

Probable cause means a reasonable ground, based upon the facts and circumstances, sufficient to wanant a prudent man to believe that the defendant has committed each element of the offense charged and the defendant is culpable, it being understood that
if there is a sufficient defense established by testimony or documentation of the
arresting agency, then there is no "probable cause".l
Public Defender means the Chief Public Defender of the Harris County Public
Defender's Office.

24.r.25.

Second-chair counsel means an attomey who is not eligible to be appointed as firstchair counsel, who volunteers for the purpose of gaining experience, knowledge, and competency in the representation of a defendant.

24.1.26.

Taken before a magistral¿ means either physically bringing the defendant before the judicial officer in person or the image of the arrested person may be presented to the magistrate by means of an electronic broadcast system.as provided by TEX CODE CRIM. PROC. ART. 15.17(a).

I Roberson v. Richardson, Civil Action No. H084-3659, United States District Court For The Southern District of
Texas, Houston Division (1987).

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.27. 24.1

The cost of obtaining competent private legal representation includes the reasonable

cost of support services such as investigators and expert witnesses as necessary and

appropriate given the nature ofthe case.

24.1.28. Working day means Monday through Friday, except official federal, state, and county
holidays.

24,2, PROMPTAND ACCURATE MAGISTRATE PROCEEDINGS.

24.2.1. DUTY oF ARRESTING OFFICER. The arresting officer, or the person having custody of
the arrestee, shall ensure that every arrestee shall be brought before a judicial officer
without unnecessary delay, but not later than 48 hours after the person is arrested.

24.2.1.1. Unless arrested pursuant to an arrest warrant, bench warrant, capias, or other
order of a magistrate or judge, necessary forms establishing probable cause shall be completed and filed contemporaneous with the arrestee being booked into the Harris County Jail for any misdemeanor punishable by incarceration.
24.2.2. RELEASE oF CERTATN DEFENDANTS ARRESTED WrrHour WARRANT. A person
arrested for a misdemeanor without a warrant and who is detained in jail must be
released not later than the 24'h hour after arrest, on a bond in an amount not to exceed $5,000, if a judicial officer has not determined that probable cause exists to believe that
the person committed the offense for which the person is charged. If the person is
unable to obtain a surety for the bond or unable to deposit money in an amount of the
bond, the person must be released on personal bond.
24.2.3. POSTPONED I{ELEASE. If requested by the State of Texas, a judicial officer may
postpone the release of the defendant for not more than72 hours after the defendant's
arrest if a probable cause determination has not been made, in compliance with the
procedure set forth in ARr. 17.033, TEX CoDE CRIM. PRoc. ARTS.
24.2.4. REcoRD oF PRoCEEDING. In each case in which a person arrested is taken before a judicial officer, any combination of an electronic recording, written form, or other
do c u mentati o n memorializing:
24.2.4.1. the judicial officer informing the defendant of the defendant's right to request
appointment of counsel;
24.2.4.2. the judicial officer asking the person whether the person wants to request the
appointment of counsel;

24.2.4.3 instruction on how to request the appointment of counsel and

24.2.4.4 whether the person requested the appointment of counsel.

24.2.5

DEFENDANT BRoUGHT BEFoRE JUDICIAL OFFICER. The judicial officer shall determine ifthe defendant can speak and understand the English language, or ifthe defendant is deaf or hearing impaired.

24.2.6.

INTERPRETEn. Ifthe person does not speak and understand the English language or is deaf, the judicial officer shall in an appropriate manner, and consistent with ARTS. 38.30, and 38.31, TEX. CODE CzuM. PROC. ARTS., communicate with the defendant
using an interpreter.

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24.2.6.1. TReNsLar¡ FORMS AND DoCUMENTS. Interpreters provided at County expense
shall provide sight translation ofcourt documents and correspondence associated with the case or proceeding.2

24.2.7. Tt{E HEAzuNG. The judicial officer shall inform the defendant of the nature of the
charge and of any affidavit, if available, filed therewith:

24.2.7.1. The officer shall admonish the defendant of:

24.2.7.1.1. the right to retain counsel;
24.2.7 .1.2. the right to remain silent;
3 24 27 1 :ii#:,n|i,.:ff 1T"å[::î:1"ff:H,:îiri.#J interview with peace

. 24 .2.7 .l .4 the right to terminate an interview at any time;

2427 1s'

anv statement made bv the

ä?"Tål,l,Hr'i#:5;å;,ïïä:Tå:lJii

24.2.8. INFoRMATIoN AND EXPLANATION OF THE zuGHT TO COUNSEL.

1' 24.2.8.1. The judicial ofhcer shall: 2 4 2 8 *ffiJff"::i"#l;"ï,'l;.1'iåi?"i'äi*i,iffi :ffi5i:i""å:i:ili the trial court;

24.2.8.1.2. Inquire as to whether the defendant is requesting that counsel be appointed;

24.2.8.1.3. Clearly note on the magistrate's admonishment form, or Probable Cause for Further Detention form, the defendant's choice viz: to request the
appointment of counsel or not to request the appointment of counsel.
24.2.8.2. If the judicial officer has reason to believe the defendant is not mentally
competent, the judicial officer shall enter a request for counsel on behalf of the defendant to alert thejudge ofthe court in which the case is pending that counsel
with the specialized skills necessary to represent mentally ill, or intellectually
disabled should be appointed to the case.

24.2.9. DETERMINATIoN oF PROBABLE CAUSE FOR FURTHER DETENTION. In a case wheTe the
individual was arrested without an arrest warrant, bench warrant, or capias, or other order of a magistrate or judge, the judicial officer shall determine whether there is
probable cause to believe the person committed the offense stated in the complaint.

24.2.10. SETTTNc BAIL. The judicial officer shall set the amount of bail and consider the
defendant for release on a personal bond.3

24.2.11. ARREST oN OUT-oF-CouNTY WARRANT. The judicial officer and district clerk shall follow the same procedure for a person arrested on one or more out-oÊcounty warrants.

24.2.11.1. If the arrestee requests the appointment of counsel, the judicial officer shall ask the arrestee to complete an affidavit of indigence and financial statement, and
shall ensure the arrestee has assistance in completing the forms.

2 Rule 5.2, Harris County Limited English Proficiency (LEP) Plan for Court Proceedings required by 42 U.S.C 3 2000d, et seq (2015).
Roberson v. Richqrdson, supra.

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24.2.11.2. The district clerk shall transmit the form to the county issuing the warrant within 24 hours of the request being made.

24.2,12, THE MAGISTRATE SHALL RECORD THE FOLLOWING:

24.2.12.1. The date and time the defendant was arrested and the date and time when the
defendant was brought before the magistrate;

24.2.12.2. Whether the judicial officer informed the defendant of the right to request
appointment of counsel, and the procedure for requesting counsel in the trial
court; and

24.2.12.3. Whether the defendant requested appointment of counsel.

24,2.13, TIMELY TRANSMISSION OF FORMS TO THE TRIAL COURT. The District CIerK of Harris County, Texas, through a deputy district clerk, shall immediately transmit or cause to be transmitted the magistrate's form or Probable Cause for Further Detention form to the judge of the court in which the case is pending for use the following business day to
timely conduct an indigence hearing as requested by the defendant.

24.3. RIGHTTo APPoINTED COUNSEL.

24.3.1. A defendant found to be indigent as that term is used herein, and who requests
appointed counsel has the right to counsel:

24.3.1.1. in any adversarial judicial proceeding that may result in punishment by
confinement;

24.3,1.2. in any criminal proceeding before the court if the judge concludes that the
interests ofjustice require representation;

. 24.3.l.3. in a direct appeal to a court of appeals;

.4. 24 .3 .l

following arrest for violating a condition of community supervision; and

.5. 24.3.1

following arrest on an out-oÊcounty warrant.

24.3.2. The judge of the court may also appoint counsel, in the interests ofjustice to a person
appearing before the court, regardless ofthe person's financial status.
24,4. DETERMINING INDIGENCE.

24.4.1. Procedures Used to Determine Indigence.

24.4.1.1. Indigence is determined by the judge of the court with dispositive jurisdiction.
The judge may require the defendant to respond to questions about the
defendant's financial status, produce documentation supporting frnancial information provided, and/or order a court offtcial to veri$ financial information
provided.

24.4.1.2. A request by the appointing authority for additional information, documentation, andlor verification cannot delay appointment of counsel beyond the timelines
specified in 4nr.1.051. TEX. CoDE CRIM. PRoc

24.4.2. FINANCIAL STANDARD. For purposes of appointing counsel, a person is indigent if the
person is not financially able to employ counsel.a The standard shall apply to each defendant equally, regardless of whether the defendant is in custody or is released on
bail.

4 SeeTøx. CooB CnrvI. P. ANN. art. 1,051(b)

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24.4.3. FAcToRs FoR DETERMINING INDIcENcE. A judge shall consider the following factors
in determining whether a defendant is indigent:
24.4.3.1. defendant's income,
24.4.3.2. source(s) of income,
. 24.4.3 .3 assets and property owned, or in which the defendant has an interest,
24.4.3.4. outstanding obligations,
24.4.3.5. necessary expenses,
24.4.3.6. the number and ages of dependents, and
. 24.4.3 .7 spousal income that is available to the defendant.
24.4.4, PRESUMPTIONS.
24.4.4.1. The defendant is presumed to be indigent if his net household income does not
exceed l25o/o of the Poverty Guidelines as revised annually by the United States Department of Health and Human Services and published in the Federal Register.
24.4.4.2. A defendant determined to be indigent is presumed to remain indigent for the remainder of the case unless a material change in the defendant's financial
circumstances occurs.
24.4.5. USE oF INFORMATION LIMITED. Information gathered for determining indigence, both in the affidavit of indigence and through oral examination, may not be used for any
purpose other than:
24.4.5.1. Determining if defendant is (or is not) indigent; or
24.4.5.2. Impeaching direct testimony of defendant regarding the defendant's indigence.
24.4.6. REVIEw. A defendant's status as indigent or not indigent may be reviewed in a formal hearing at any stage of court proceedings, on a motion for reconsideration by the
defendant, the defendant's attorney, or the attorney representing the state.
24.4.6.1. The defendant's indigent status will be presumed not to have changed. The
presumption can be rebutted in the review proceedings based on the following:
24.4.6.2. Evidence of a material change in the defendant's financial circumstances, as a result of which the defendant does not meet any of the standards for indigence
contained in these rules; or
24.4.6.3. Additional information regarding the defendant's financial circumstances that shows that the defendant does not meet any of the standards for indigence
contained in these rules.
24.4.6.4. If a defendant previously determined to be indigent is subsequently determined
not to be indigent, the attorney shall be compensated by the county according to the fee schedule for hours reasonably expended on the case.
24.4.6.5. If the court determines that a defendant has financial resources that enable him to
offset in part or in whole the costs of the legal services provided, including any
expenses and costs, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs, the amount that it finds
the defendant is able to pay.
24.5. Establishing Minimum Attorney Qualifications.

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24.5.1. Quar-mtcauoNs. To be qualified an attorney must submit a completed application,
resume, recent photograph, and signed afforney acknowledgement form. The attorney
must also:

24.5.1.1. Have been licensed to practice law for at least one year;

24.5.1.2. Have accumulated a minimum of 10 points according to the following scale, at
least 2 points of which are from cases tried to verdict as first chair counsel (the attorney shall list the point total in each area with the application):

24.5.1.2.1. Two points for each continuous 365-day period in the preceding 3 years as
a practicing attorney (up to 3 periods with 5 points maximum);

24.5.1.2.2. Two points for each successfully completed intensive criminal law training program in the last 3-year period appearing on the courts' list of approved intensive training programs (see Appendix A) (up to 4 points
maximum);

24.5.1.2.3. One point for each criminal case tried to a verdict in county or district court as first-chair counsel (list case styles and cause numbers) (up to 5
points maximum; at least 2 points required);

24.5.1.2.4. One noint for each continuous 120-day period in the preceding 3 years as
an intern or legal assistant working under the supervision of a Texas lawyer
whose practice was devoted at least 80% to criminal law in county or
district courts (up to 3 points maximum);

24.5.1.2.5. One noint for each Texas State Bar approved CLE lecture given by the attorney, with accompanying written materials, on a criminal law topic
(provide written materials and list CLE title, date, and location) (up to 2
points maximum);

24.5.1.2.6. One point for each CLE reporting period in the last 3 years in which the
attorney attended at least 40 hours of CLE training related to criminal law (provide annual CLE printouts) (up to 2 points maximum);

24.5.1.2.7. One point for each law review article authored by the attorney and
published by an ABA-accredited law school on a criminal law topic (attach article and citation) (up to I point maximum); and

.2.8. 24 .5 .l

One-half noint for each criminal case tried to a verdict in county or district

court as second-chair counsel (list case styles and cause numbers) (up to 5

points maximum). To claim credit in this subsection, the attomey must

have been present during the entire trial, from jury selection through final

verdict;

24.5.1.3. Demonstrate substantive knowledge of criminal law, criminal procedure, and
evidentiary rules applicable to misdemeanor cases by scoring at least 75Yo on an open-book test written by judicial staff and members of the Public Defender's
Office of Hanis County, Texas (unless the attorney is board certified in criminal or criminal appellate law by the Texas Board of Legal Specializafion, in which
case he or she is exempt from the exam requirement);

24.5.1.4. Maintain telephone and fax numbers, as well as a physical location (other than a public building) in which the attorney can conduct confidential meetings and discussions without compromising professionalism and the attomey-client
privilege;

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. 24 .5 .l .5 Have attended at least I 0 hours of CLE related to criminal law in the year prior to
filing an application (submit CLE verification);
24.5.1.6. Agree to attend at least 10 hours of CLE related to criminal law annually,
including one hour of ethics, and annually submit an affrdavit showing
compliance with this CLE requirement;
24.5.1.7. Agree to attend CLE programs as directed by the Presiding Judge of these courts;
24.5.1.8. Agree to submit an affidavit showing compliance with the annual CLE
requirements;
24.5.1.9. Provide (and keep current) an email address to which the Office of County Court
Management may send official notices and correspondence regarding the Plan, including, but not limited to, matters concerning CLE, changes to the Plan and
eligibility requirements, notice of removal from the approved list, and other
administrative matters;
24.5.1.10. Consistently demonstrate commitment to providing effective assistance of
counsel and quality representation to criminal defendants;
24.5.1.11. Maintain a demeanor which is professional and conducive to effective
representation;
24.5.1.12. Demonstrate effectiveness of advocacy skills including, but not limited to, such
items as: voir dire; direct and cross examination; introduction of objection to, and. admissibility of evidence; argument; instructions; and recognition of
appellate issues;
24.5.1.13. Communicate effectively with the other parties involved in his cases. The
attorney must make thorough use of sentencing laws, seeking imaginative and
creative sentencing alternatives ;
24.5.1.14. Appear in court punctually and keep the court apprised of his whereabouts;
24.5.1.15. Be cognizant that the manner in which he or she interacts with judicial officers, prosecutors, courtroom personnel, law enforcement personnel, co-counsel, and other members of the justice system contributes to the effective representation of his indigent clients;
24.5.1.16. Be of sound mind;
24.5.1.17. Agree to report to the Texas Indigent Defense Commission, by October 15th of each year, the percentage of the attorney's practice time that was dedicated to work based on appointments accepted in Harris County for adult criminal and juvenile delinquency cases for the prior year (term beginning on October lst and
ending September 30th); and
24.5.2. Co¡¡trNur¡rc DurIEs; ExcEprIoNS. A qualified attorney that has not been removed from the list of qualified attorneys must fulfill the obligations, expectations, and
agreements listed in Rule 24.5.1, except that the attomey need not annually:
24.5.2.1. Resubmit an application, resume, and photograph; or
24.5.2.2. Retake the competency exam (see Rule 24.5.1.4).
24.5.3. OBLIGATToN To IlEpoRT CERTATN OccunnnNcrs. A qualified attorney shall notifu
the presiding judge of these courts not later than 48 hours after any of the following
events:

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.1. 24.5 .3

The attorney's arrest for any state or federal offense punishable by confinement;

24.5.3.2. The attorney's placement on community supervision, diversion, or intervention;
. 24 .5 .3 .3 Any judicial frnding that the attorney provided ineffective assistance of counsel;

24.5.3.4. Disciplinary action by the State Bar of Texas against the attorney, including but
not limited to any active or probated suspension; or

24.5.3.5. The attorney enters a plea of guilty or no contest to, or is found guilty of, an
offense punishable by confinement.

24.5.4. SPECTALTY COURT PROGRAMS, PUBLIC DEFENDER, DEFENSE SPECIALISTS.s ThCSC
categories provide opportunities for lawyers to diversiS their practices, to control the size oftheir caseloads, to choose the types ofcases they handle, and to have access to adequate resources to properly defend their clients.

24.5.4.1. SpEctAL MENTAL HEALTH CaseLoeo. An assistant Harris County Public Defender with significant previous experience and specialized training in
representing mentally ill and intellectually disabled persons charged with a
criminal offense, shall represent a defendant:

24.5.4.1.1. Identified by an algorithm composed of data approved by the judges covered by this Plan in consultation with the chief public defender, indicating a likelihood that mental illness and/or intellectual disability
is/are a factor in the defendant's arrest;

24.5.4.1.2. Arrested at least three times during the twelve months prior to the current arrest, with a medical and social history suggesting that court ordered step-
down therapy may reduce the probability of future anests; or,
. 24.5 .4.1 .3 Following a finding by a court that the defendant is incompetent.

24.5.4.2. MENTAL HEALTH DEFENSE SIECIALIST. Represents a defendant identified using the mental health algorithm; a defendant found incompetent; or a defendant
manifesting signs of mental illness when the Public Defender's Office reaches its
daily or annual case load cap. The attomey must:

24.5.4.2.1. Meet the general qualifications; and

24.5.4.2.2. Meet at least one of the following three requirements:

24.5.4.2.3. Has previous experience representing mentally ill offenders in Texas;

24.5.4.2.4. Possesses an undergraduate or graduate degree in social work or a related
field; and/or

24.5.4.2.5. Attended the four hour Mental Health Defense Specialist seminar
sponsored by the Harris County Public Defender's Office.

24.5.4.3. APPEALS AND HABEAS CoRPUs. The Harris County Public Defender shall represent all persons appealing ajudgment or order ofthese courts. If, because of a conflict, the public defender is unable to represent a defendant on appeal, a judge shall request the names of qualified appellate attorneys from which he or
she shall select a name.

5 "Specialist," as used in these Rules, does not refer to any certification through the Texas Board of Legal
Specialization.

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24.5.4.3.1. This category provides counsel in cases where the Public Defender's
Office has a conflict. The attorney must:

. 24.5 .4.3 .l .l

Meet the general qualifications; and

245.4.3.1.2. Have been attorney of record in at least five direct appeals and the
appeal of adverse rulings in at least two writs of habeai corpus.

24.5.4.4. BILINGUAL ATToRNEY. Represents a defendant who does not speak or
understand the English language. The attorney must:

24.5.4.4.1. Meet the general qualifications; and

24.5.4.4.2. Demonstrate a Level III proficiency in a foreign language administered by a nationally recognized entity or organization that teaches individuals to read, write, and speak foreign languages through on-site instruction in
Harris, County, Texas.

24.5.4.5. FUGITIVE DEFENSE SPECIALIST. Represents a person who has been arrested in
Harris County, Texas on a warrant from another state or another county in Texas. The attorney must:

24.5.4.5.1. Meetthe general qualifications; and

24.5.4.5.2. Have previous experience representing fugitives, The State of Texas, or both, in hearings or writ applications before a judge or magistrate involving
defendants held under authority ofout-of-state or out-of-county warrants.
24.5.4.6. S.O.B.E.R CoURT PRocRAM ATToRNEY. Represents a defendant in the
S.O.B.E.R Court Specialty program for persons convicted of driving while
intoxicated. The attorney must:

24.5.4.6.1. Meetthe general qualifications;

24.5.4.6.2. Observe one staffing and review in each S.O.B.E.R. Court;

24.5.4.6.3. Read selected articles on specialty courts, and the role of defense counsel
in specialty courts;
24.5.4.6.4. Work under the direction of a S.O.B.E.R. Court mentor attorney,
representing program participants for 60 days;
. 24.5 .4.6.5 Agree to attend grant sponsored specialty court training; and

24.5.4.6.6. Agree to an hourly fee for professional services, and which does not include training (except for representation of a client under a mentor);
graduations, or other activities.

24.5.4.7. VETERAN'S CouRr PRoGRAM ATToRNEY. Represents a Veteran or current
member of the United States armed forces, including a member of the Reserves,
National Guard or State Guard, who has been accepted into Veterans Court
Program. The attorney must:

24.5.4.7.1. Meetthe general qualifications;

24.5.4.7.2. Read selected articles on specialty courts, and the role of defense counsel
in specialty courts;
. 24.5 .4.7 .3 Observe three dockets (staffing and review);

24.5.4.7.4. Agree to attend grant-sponsored team training; and

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24.5.4.7.5. Agree to an hourly fee for professional services, and which does not include training (except for representation of a client under a mentor);
graduations, or other activities.

24.5.4.8. S.A.F,E. CoURT PRocRAM ATToRNEY. Represents a defendant who is charged with prostitution, from the age of 17 years of age through the age of 25 years of
age who has been accepted into the S.A.F.E. Court program. The attorney must:

.1. 24 .5 .4.8

Meet the general qualifications;

24.5.4.8.2. Read selected articles on specialty courts, and the role of defense counsel
in specialty courts;

24.5.4.8.3. Observe three dockets (staffing and review);

24.5.4.8.4. Agree to attend grant sponsored team training; and

24.5.4.8.5. Agree to an hourly fee for professional services, and which does not include training (except for representation of a client under a mentor);
graduations, or other activities.
. 24.5 .5 DEAF oR HEARING ltr¡palngo. Represents a defendant who is deaf, or severely hearing
impaired. The attorney must:
24.5 .5.1. Meet the general qualifìcations;

24.5.5.2. Have a working knowledge of American Sign Language or other universally
accepted sign language; and

24.5.5.3. Possess the willingness to work through a state-licensed interpreter for the deaf
and hearing impaired.

24.6. AppRovAL oF QuALIFIED ATToRNEYs. Approval decisions are based on an assessment of
the need ofthe Courts to add attorneys in various categories based on an analysis of current
caseloads and projections for the future.

24.6.1. The judges will review qualified applications at their January, May, and September
meetings, or as the needs of the courts require.

24.6.2. MAJoRITv VorE FoR AppRovAL. A majority vote (nine votes) of the judges presiding over the County Criminal Courts at Law is necessary to approve an attorney's
placement on the list of Attorneys Eligible for Appointment.

24.6.3. ADMINISTRATIVE MEETING. Prior to the first appointment period, each approved
attorney shall attend a two hour meeting with the Courts' staff attorney to review the
F.D.A.M.S. and V.i.P.S. electronic assignment and payment procedures.

24.6.4. ANNUAL Dury ro REpoRT CLE CoMrLIANcE. The annual reporting period begins on
November I st and ends October 31st of the following year.

24.6.5. FoRM oF REPORT. CLE hours shall be reported by submitting the State Bar of Texas
Minimum Continuing Legal Education annual Verification Report or reports attached to an affidavit attesting to the truth and accuracy ofthe report(s).

24.6.6. CoMPLIANCT. Each attorney is responsible for timely filing the attorney's CLE report
and affidavit with the Office of County Court Management, 1201 Franklin Street, Tth Floor, Houston, Texas 77002.

24.7. VOLUNTARY AND INVOLUNTARY REMOVAL OF APPROVED ATTORNEY
FROM THE LIST OF ELIGIBLE ATTORNEYS AND APPEAL.

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.l. 24.7

INVoLUNTARY REMovAI-. The judges, by majority vote, may remove an attorney from

the approved list if they find the attorney:

.1.1. 24.7

no longer meets the qualifications under 24.5;

24.7.1.2. is not competent to properly represent indigent defendants in the County
Criminal Courts at Law;

24.7.1.3. intentionally or repeatedly fails to make every reasonable effon to contact a
defendant not later than the end of the first working day after the date on which the attorney is appointed, and to interview the defendant as soon as practicable after the attorney is appointed; or

24.7.1.4. repeatedly declines judicial requests to represent indigent defendants through
individual or term assignments.

24.7.2. VoLLTNTARY REMOVAL. An attorney may request to be removed from the list of
approved attorneys for a limited or indefinite period by making such request in writing, addressed to the Presiding Judge of the County Criminal Courts at Law.

24.7.3. REINSTATEMENT. An attorney may request reinstatement in the same manner as a
request for removal.

24.7.4. APPEAL. An approved attorney may appeal his involuntary removal from the list of
Attomeys Eligible for Appointment using the following procedure:

24.7.4.1. At any time within 30 days after an attorney receives notice of the attorney's removal from the list of Attorneys Eligible for Appointment, the attorney may give written notice of appeal to the Presiding Judge of the Harris County
Criminal Courts at. Law.

24.7.4.1.1. For purposes of Rule 24.7.4.1, there exists a rebuttable presumption that
the attorney received notice of his removal from the list on the earlier of:
(l) the date the Office of Court Management emailed notice to the email
address on file for the attorney; or (2) one day after the Offrce of Court
management mailed notice to the mailing address on file for the attorney.

24.7.4.2. Upon receipt of a notice of appeal, the Presiding Judge shall request that a member of the Office of County Court Management verifu the accuracy of the
vote and subsequent notice to the attomey.

24.7.4.3. If review indicates an error, the Presiding Judge shall direct a member of the
Office of County Court Management to make the necessary corrections.

24.7.4.4. Within l4 days receipt of the attorney's notice of appeal, a member of the Office
of County Court Management shall noti$, the applicant of his status as to the list of Attorneys eligible for Appointment.

24.8. REPLACEMENT OF APPROVED COUNSEL FROM A CISN OR CASES.

24.8.1. ATTORNEYREQUEST.

24.8.1.1. A lawyer may request permission to withdraw by filing a written motion with the
court.

24.8.1.2. The judge presiding over the case may grant the motion for good cause only after finding that the client will not be prejudiced by the substitution.

24.8.1.3. After granting the motion, the judge presiding over the case shall immediately
appoint another qualified attorney as provided by these rules.

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24.8.2. FoR CAUSE. The judge presiding over the case may replace counsel after entering written findings in the record showing good cause and that no prejudice to the
defendant will result from the removal, including without limitation:
24.8.2.1. current information about the defendant and charges indicating that counsel of
different qualifications is appropriate for the defendant under these rules;
24.8.2.2. a violation of the attorney's professional responsibilities; or
24.8.2.3. a principled reason.6
24.8.2.4. A judge, upon learning an indigent defendant was previously represented by a mental health defense specialist, shall appoint that specialist to the new case. The court coordinator shall immediately notifu the mental health defense specialist of
the appointment.
. 24 .8.3 DEFENDANT [{-EQUEST. The appointing judge may substitute counsel if:
24.8.3.1. at the conclusion of a trial, the indigent defendant desires to prosecute a direct
appeal and requests that the court appoint different counsel; or
24.8.3.2. the defendant shows good cause for replacing appointed counsel, including
counsel's persistent or prolonged failure to communicate with the defendant.
24.8.4. REPLACEMENTPR0CEDURE.
24.8.4.1. If, after assignment, an attorney is unable to serve, the presiding judge of the court shall attempt to fill the vacancy with another attorney assigned to the court,
or to another court.
24.8.4.2. If another attorney from the list of attorneys assigned to these courts is
unavailable, the presiding judge of the court shall fill the vacancy using FDAMS.
24,9. APPoINTMENT oF CouNsnr,. The appointing authority is the judge of the court in which the
defendant's case is filed.
24.9.1. PERsoNs BooKED INTo rHE CouNrv JAIL. All defendants fhal are booked into the
Harris County Jail shall be scheduled to appear the next business day before the judge
of the court in which the case is pending pursuant to Rule 4.3.1. The judge shall appoint counsel ifthe defendant requests, and is entitled to, appointed counsel or ifthe
interests ofjustice require the appointment of counsel.
24.9,2. PERSoN RELEASED oN BoND PRIoR To BOoKING IN THE C0UNTY JAIL, A defendant
released on bail before being booked into the Harris County Jail shall appear the 7th
day following release (or the next business day following the 7th day if the 7th day is not a business day). Prior to conducting an arraignment proceeding, the judge shall
perform the duties required under Article 15.17 and shall appoint counsel if the
defendant requests, and is entitled to, appointed counsel or if the interests of justice
require the appointment of counsel.
24.9.3. PERSON ARRESTED IN ANOTHER COUNTY ON A HARRIS COIINTY WARRANT. WithiN 24 hours of receiving notice of a defendant's arrest in another county, the judge of the
court that issued the arrest process shall appoint counsel for the defendant.
24.9.4. PERSoN ARRESTED oN Our-oF-CouNTy WARRANT rN HARRTS CorJNTy. A person arrested on an out-of-county warrant must be appointed counsel on the I lth day
6 Stotts v. I4/iser,849 S.V/.2d 366 (Tex. Crim. App. 1995)

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following the date the defendant was booked into the Harris County Jail if the person has not been transferred or released to the custody ofthe county issuing the warrant.
24.9.5. OBTATNING REeUEST FoR ApporNTED CoTINSEL FORM. The form used to request appointment of counsel and the financial affrdavit in support of the request are
available to defendants and interested third parties by requesting same from the court coordinator in any county criminal court at law.
24.9.6. FILINc rHE FoRM. The completed forms shall be filed with the deputy district clerk in
the court where the case is pending.
24,10. DUTY OF APPOINTED COUNSEL.
24.10.1. INITIAL CoNTACT. An attorney appointed to represent an indigent defendant shall make every reasonable effort to contact the defendant not later than the end of the first working day and to interview the defendant as soon as practicable.
24.10.2. DURATIoN oF APPoINTMENT.
24.10.2.1. Appointed counsel shall zealously represent a defendant until charges are
dismissed, the defendant is acquitted, or the attomey is permitted or ordered by the court to withdraw as counsel affer a hnding of good cause entered on the
record.T
24.10.2.2. On each successive arrest of a defendant previously represented by a mental health defense specialist, or assistant public defender, the judge of the court in
which the case is pending shall make every effort to appoint the assistant public
defender, or mental health defense specialist who previously represented the
defendant.
24.10.3. CoNDUCT oF COUNSEL. Appointed counsel shall perform the attomey's duty owed to the defendant in accordance with the adopted procedures of this Plan, the requirements of law, and the Texas Disciplinary Rules of Professional Conduct.
24.10.4. TIMELY APPEARANCE IN CoURT.
24.10.4.1. An attorney assigned to a court shall appear at 8:30 a.m. unless otherwise
instructed by the judge presiding.
24.10.4.2. An attorney assigned to a court is subject to temporary reassignment to another
court.
24.10.4.3. An attorney shall remain in an assigned court until expressly released by the
judge presiding.
24.10.4.4. An attorney failing to appear as provided by this subsection is subject to
immediate replacement by the judge presiding.
24.10.5. ABSENcE oR CoNFLIcr. Appointed counsel shall inform the judge presiding when any of the following occurs:
24.10.5.1. counsel is unable to appear to discharge his or her duties according to the
published schedule; or
24.10.5.2. counsel cannot represent an indigent defendant because of a legal or ethical
conflict.

7 SeeTex. CoDE CRIM. P. ANN. art.26.0aQ)

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24.10.6. FIRST AND SECoND CnelR CouNsu-. An attorney appointed to represent a defendant shall not formally or informally associate second-chair counsel without the written approval of the judge presiding. An attorney who provides legal services to an indigent defendant to whom the attorney has not been appointed does so pro bono.
24.10.6.1. FIRST-CHAIR CoUNSEL
24.10.6.1.1. All motions filed in the case shall be frled in the name of first-chair
counsel.
24.10.6.1.2. First-chair counsel shall appear on all matters before the Court and speak for the defendant.
24.10.6.1.3. First-chair counsel may assign tasks to second-chair counsel on behalf of
the defendant.
24.10.6.2. SECoND-CHAIR CoUNSEL
24.10.6.2.1. Under the direction and in the presence of lead counsel, second-chair
counsel may prepare, present, or argue motions, examine witnesses, and participate in a hearing or trial.
24.10.6.2.2. Second-chair counsel shall complete and file an attorney of record form with the district clerk. The form shall state on its face that the attorney is
second-chair counsel.
24.10.6.2.3. Second-chair counsel is not entitled to compensation from Harris County for work performed while acting in this capacity.
24.10.6.2.4. Second-chair counsel shall be present for the entire trial.
24.10.6.2.5. Only one (1) second-chair counsel is permitted on a case.
24.10.6.3. SUBSTITUTIoN By AppoINTED CoUNSEL PRoHrBrrEo. Only with approval of the
If judge presiding, may an attomey send another attorney to appear on his behalf.
agreed to by the judge in the court where the case is pending, the attorney making
the appearance must be eligible for appointment to represent an indigent
defendant in these courts. The attorney shall not be entitled to compensation for his appearance.
24,IT. THE FAIR, NEUTRAL AND NONDISCRIMINATORY ATTORNEY SELECTION PRocEsS. Each
assignment shall be randomly and impartially distributed among the list of attorneys eligible for appointment based upon the needs of the courts, an individual attorney's qualifications, and willingness and availability to work during an assignment period.
24.11.1. ATTORNEY CATEGORIES. An individual attorney may be qualified in more than one
category.
24.11.1.1. Speaks only English.
24.11.1.2. Speaks Spanish, or other foreign language.
24.11.1.3. Mental health defense specialist.
24.11.1.4. Appeal and Habeas Corpus.
24.tt.l.5. Veteran's Court.
24.tL.1.6. S.O.B.E.R Court.
24.tt .t .7 . American Sign Language.

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24.11.1.8. S.A.F.E. Court.

24.11.1.9. Fugitive defense specialist.

24,11.2. ASSIGNMENT TYPE oR TERM. An attorney may choose to be available for any single term, or may combine a term and daily assignments during any quarterly appointment
period.

24.11.2.1. DAILY ASSIGNMENT. One (1) calendar day. Means one day on which a court has
a docket.

24.11.2.2. FouR (4) WEEK DAY-TERM ASSIGNMENT. Means four consecutive weeks.

24.11.2.3. 24.11.2.4.

THIRTEEN (13) WEEK TERM ASSIGNMENT. Means thirteen consecutive weeks
TWENTY-SIX (26) WEEK TERM ASSIGNMENT. Means twenty-six consecutive
weeks.

24.11 .2.5. FIFTY-TWo (52) WEEK TERM ASSIGNMENT. Means fifty-two consecutive weeks.

24.11.3. ANNUAL CALENDAR. In December of each year, the calendar for the succeeding year
will be published to attorneys eligible to receive appointments via email, and by
posting on the website of the Office of County Court Management.

24.11.4. FAIR DEFENSE ACT MANAGEMENT SYSTEM (FDAMS). This software application was created by the Administrative Office of the District Courts in Harris County. It matches eligible aftorneys with the needs of an individual court and creates a list of approved attorneys with the requested qualifications, from which a judge must select one or more, but may not reject the list and repeat the process.
24.11.4.1. DAILY ASSIGNMENT. lWhen submitting a request for an attorney, the court shall
designate the date of the assignment and any special qualifications €.9.,
"bilingual" and 'oa mental health defense specialist" which it may require.
24.11.4.1.1. PRoCEDURE. The computer shall provide to the court ten randomly selected names per request. A court may submit two daily assignment requests at the same time, provided the requests contain different
qualifications. A court may not submit another request until at least one
attorney has been assigned from one or two pending lists and the remaining names from that list have been returned to the attorney pool.

24.11.4.2. TERM ASSIcNMENT. The computer program shall equally divide the pool of attorneys available for limited term assignments among the requesting courts. The program shall provide the randomly selected names to the requesting court
beginning at 9:00 a.m. on Monday of the selection week.

24.11.4.2.1. The court shall make at least one term assignment from the provided names promptly, and return the remainder to the pool available for use by other
courts.

24.11.4.2.2. In the event the selected attorney becomes unavailable, or an additional attorney is required, the court may submit an 'additional request. The computer shall provide the court with no more than six (6) randomly
selected names from the remaining pool of available approved attorneys.

24.11.5. DETERMINING ANNUAL CASELoAD LIMITS. There are many factors that play a role in determining caseload limits in any given jurisdiction. The most striking example is the
computer, and its effect on case processing as well as attorney time and work product.

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24.11.5.1. This Plan uses the power of computers to: (l) match attomeys' and coufts' work
needs and schedules as well as ensuring that appointments are random and nondiscriminatory; (2) expedite the payment of appointed counsel; and (3) schedule multiple cases on, the same day, thus allowing the attomey to handle multiple cases each day rather thanjust one or two cases.
24.11.5.2. Likewise, computing power enables lawyers to: (1) do on-line research; (2) access organizational brief banks; (3) produce template motions; (4) obtain continuing legal education without losing traditional workdays; and (5) track
their time easily.
24.11.6. ANNUAL CASELoAD LIMITS. Caseload limits are:
24.11.6.1. Class B or A misdemeanors pending in Harris County, Texas: Up to 600 cases, of
which:
24.11.6.1.1. Up to 350 can involve mentally ill or incompetent defendants; and
24.11.6.1.2, Up to 125 can involve defendants in the following specialfy areas:
24.11.6.1.2.1. Appeals;
24.11.6.1.2.2. Habeas corpus applications;
24.11.6.1.2.3. Defendants in the S.O.B.E.R. Court program;
24.11.6.1.2.4. Defendants in the Veteran's Court program; or
24.11.6.1.2.5. Defendants in the S.A.F.E. Court program.
24.11.7. DAILY CASELoAD LIMITS. An attorney shall not receive more than five new clients per
day.
24,12, FEE ÄND EXPENSE PÀYMENT PRocEss.
24.12.1. FEE SCHEDULE. Appointed counsel shall be compensated for all time reasonably necessary to adequately represent the defendant according to the following fee
schedule, and as set forth in his or her contract for indigent defense services with Harris County, Texas.s
24.12.2. DAILY FLAT FEE RATE. To receive the daily rate, an attorney shall:
24.12.2.1. appear for docket call at the time and place designated by the judge of the
assigned court;
24.12.2.2. accept appointments in that court or any other county court to which the attorney may be assigned on that day;
24.12.2.3. remain available to the judges of the County Criminal Courts at Law until the courts' morning docket call is concluded, or the attorney is released by the judge
of the court to which the lawyer is assigned; and
24.12.2.4. provide professional services, including the resetting of cases, first to appointed cases in the County Criminal Courts atLaw.
24.12.3. HOURLY RATE.
- 24.12.3.1. Out-of-Court $25lhr. to $5O/hr. - 24.12.3.2. Out of Court (Mental Health Caseload) $50/hr.
SeeTsx. ADMrN C. TrrLE l, PARr 8, SuncHerrEnB $$174.10 et seq,

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- 24.12.3.3. Motions, Hearings $50/hr. to $90/hr. - 24.12.3.4, Trial (includes competency or sanity) $60/hr. to $90/hr. - 24.12.3.5. Mental Health Defense Specialist $90/hr. - 24.12.3.6. Specialty Court $125lhr.
24.12.3.7. Hourly rates shall be paid for performing the appropriate statutory services defined in TBx. CoDE CRIM. PRoc. A¡rN. art. 26.05(a), based on the time and labor required, the complexity of the case, and the experience and ability of the
appointed counsel.
24.12.4. FLAT FEE SCHBOUI-B.
- 24.12.4.1. Term & Daily Assignments $250 per docket - 24.12.4.2. Term and Daily Assignment Foreign Language Certified $300 per docket
24.12.4.3. Individual non-issue claims: $50 per case per day, and may not exceed $100.00 per day total, for all County Criminal Courts at Law combined.
- 24.12.4.4. Non-Issue or Plea (concurrent with weekly or daily assignment) No fee - 24.12.4.5. Appeal & Extraordinary Writs $750.00 - 24.12.4.6. Petition For Discretionary Review $350.00 - 24.12.4.7. Oral Argument Before Court of Criminal Appeals $250.00
24.12.5. ExPENsEs.
24.12.5.1. Reasonable and Necessary Expenses
24.12.5.1.1. The County will reimburse appointed attorneys for reasonable and
necessary expenses including investigation and mental health and expert witnesses incurred on behalf of an indigent client with and without prior
rEx' coDE czuM' PRoc' ANN' arts' 26'05(d) and
;åË;ä, eiïf¡i,*
24.12.5.2. Out-of-county travel expenses will be reimbursed with prior approval, using
county rates and policies.
24.12.5.3. Counsel shall submit the original invoice or receipt, along with any request for
reimbursement.
- 24.12.6. INVEsTIcAToRs $40 per hour standard rate.
24.12.7, CONCURRENT PAYMENTS.
24.12.7.1. An attorney engaged in a weekly or daily assignment shall not be compensated for a non-issue or plea appearance that occurs on the same day the attorney is assigned to a court pursuant to a quarterly assignment.
24.12.7.2. An attorney is entitled to payment for out-of-court-hours, a motion hearing at which testimony is taken, trial, or professional services performed in a Specialty Court Program on the same day the attorney is paid for a daily or weekly term
assignment.
24.12.8. ADDITIoNAL CoMPENSATION.
24.12.8.1. An attomey appointed to represent an indigent defendant shall not accept additional compensation for professional services performed on behalf of the

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defendant, as a result ofthe appointment, in any form from any source other than Harris County, Texas.
24 .1 2.9 . JUDTCIAL DETERMINATION OF ATTORNEY COMPENSATION.
24.12.9.1. The following procedures apply to the review and approval of attorney's fees:
24.12.9.1.1. Appointed counsel shall request payment on a form approved by the judges of the County Criminal Courts at Law and the County Auditor. Counsel shall submit the request for payment to the presiding judge in the court, The payment request shall list all services performed by the attorney on behalf of the defendant.
24.12.9.1.2. The judge shall either approve the amount requested or enter written findings stating the amount the judge approves and each reason for
approving an amount differing from the requested amount.
24.12.9.1.3. An attorney whose request for payment is disapproved or not acted upon within 60 days may appeal the disapproval by filing a motion with the
Presiding Judge of the Second Administrative Judicial Region.e
24 1 2 e t 4 8ff å ffi i;;*iliillä;l# f filii":ffi ii::: i:":lii,*"::i:*
24.12.10. ACcoUNTING oF ATTORNEY HouRS. To be entitled to payment, appointed counsel
shall provide the following information:
24.12.10.1. HOURLY RArE.
24.12.10.1.1. STANDARD. Time must be itemized in tenths of one-hour (60 minute)
increments on a form approved under the Plan.
241210.',iäi#J':ir:iTiïi,,iü:ïri,i:lil3liüT,lï,ïïi.yå.".1"1

24.12.10.2. FLAT FEE RATE. The date and type of service performed.
24.12.1I. SUBMISSIoN oF FEE VOUCHER.
24.12.11.1. An attorney, expert, or private investigator shall submit a fee claim on a form approved by the Judges of the County Criminal Courts at Law, and the Haris
County Auditor.
24.12.11.2. An attorney assigned to a court for a term shall submit one fee voucher per week listing each case number to which he was appointed on each day of the week at the conclusion ofthe docket on the business day ofthat week.
24.12.1l 3. An attorney assigned to work more than one day but less than five (5) days shall submit a fee voucher listing each case number to which he was appointed on each day of the week that he was assigned at the conclusion of the docket on the last business day of that week.
24.12.11 .4. Fee vouchers for individual cases shall be submitted upon disposition of the case, e.g. dismissal, plea, or trial.
24,12.11 .5. To receive compensation, an attorney must submit a fee voucher to the
appointingjudge not later than the 30th day after the date the case is disposed.
See Tnx. Cooe Czuvt. P. ANt¡, art,26.05(c).

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24.12.11.6. The instructions on the Weekly/Daily Assignments, and Individual Non-Term Appointment Fee Claims are incorporated herein as a part of this Altemative
Plan.
24.12.11.7. An attorney is responsible for conectly completing and timely filing a fee voucher meeting the requirements of law, the Harris County Auditor, and this
Plan.
24.12.11.8. The presiding judge of a court may withdraw an order directing the Hanis
County Auditor to pay a previously approved claim for attorney fees,
reimbursement, expert witness fees, or other litigation-related expenses, if the
claimant fails to correct a claim returned by the county auditor.
24.12.12. PAYMENT BY CoUNTY AUDIToR. The Harris County Auditor shall only pay a claim
submitted by an attorney whose name appears on the list of approved attomeys
assigned to a county criminal court at law during a term or date assigned by FDAMS. The Office of County Court Management shall provide the County Auditor's Office with a current list of attorneys certified to accept appointments. The Auditor shall send a claim submitted by an attorney who is not on the list of certifred attorneys to the Court Manager.
24.12.12.1. REASoNABLE AND NECESSARY EXPENSES. The County will reimburse appointed attorneys for reasonable and necessary expenses, including investigation and mental health and expert witnesses, incurred on behalf of an indigent client as
provided under TEX. CoDE CzuM. PRoc. ANN. arts. 26.05(d) and 26.052(Ð, (e), and (h).
24.12.12.2. OzucINAL INVoICE oR RECEIPT. Counsel shall submit the original invoice or receipt along with any request for reimbursement.
24.12.12.3. SYSTEM PERSoN NUMBER (SPN). To ensure accuracy in the tracking and
reporting of fees paid to attorneys and others under this Plan, the Auditor shall
amend the current attorney fee voucher to include a space for the Justice Information Management System Person Number of the individual seeking
payment of county funds.
24.13, CONTRACT DEFENDER PROGRAM.
24.13.1. In all term assignments the appointing authority shall follow the Texas Indigent
Defense Commission Contract Defender Program Rules, as published in The Texas
Administrative Code, Title I, Part 8, Chapter 174 sub chapter B, Part II, as setout
below:
II. APPLICATION OF STANDARDS AND CONTRACTING PROCEDURES
$174.11. Application of Subchapter. This Subchapter applies to all contract
defender programs. This Subchapter does not apply to public defender programs established and governed by Chapter 26, Code of Criminal Procedure.
5174.12. Application Process. The appointing authority shall solicit and select contractors in accordance with the procedure governing alternative appointment programs contained in Article 26.04,Code of Criminal Procedure.
(a) Notification. The notification of the opportunity to apply (NOA) to be a contractor shall be distributed in a manner that reasonably covers all

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practicing members of the bar within the county or other region
designated by the appointing authority. The notification shall inform attorneys of all requirements for submitting applications.
(b) Opportunity to Respond. All potential contractors shall have the same
opportunity to respond to the NOA and be considered for the award of a
contract.
(c) Application. All applications must be submitted in writing and shall be maintained by the appointing authority or contracting authority in accordance with the Texas State Library and Archives Commission
Retention Schedule for Local Records- Local Schedule GR.
$174.13. Application Review Process. Following the review of all applications the appointing authority shall by a majority vote select contractor(s), speciff the
types of cases each contractor is qualified to handle, and authorize the
contracting authority to enter into a contract. The attomeys associated with the
selected contractor(s) must meet the attorney qualification requirements
contained in the indigent defense procedures adopted pursuant to Article 26.04,
Code of Criminal Procedure. If tlle contract does not exclude capital cases in which the death penalty is sought, the attorneys associated with the selected contractor(s) must also meet the attorney qualifications set by the regional
selection committee and be approved by the regional selection committee to represent clients in capital cases. The appointing authority shall consider at least the following factors when evaluating applications:
(a) Experience and qualifications ofthe applicant;
(b) Applicant's past performance in representing defendants in criminal
CASES;
(c) Applicant's disciplinary history with the state bar;
(d) Applicant's ability to comply with the terms of the contract; and
(e) Cost ofthe services under the contract.
ç174.14. Awarding the Contract. In accordance with Article 26.04(h), Code of
Criminal Procedure, the contracting authority may approve the recommended contractor(s) and enter into a contract for services. The contracting authority shall
enter into a contract only if it complies with these standards and all applicable law goveming professional services contracts entered into by counties. A
contract shall not be awarded solely on the basis ofcost.
RULE 25. DISASTER PLAN IO
25.1. It is the intention ofthe Judges ofthese courts to establish a coordinated response for the
transaction ofessentialjudicial functions in the event ofa disaster.
25.2. DEFINITIONS
25.2.1. As used herein, the following terms and phrases shall have the following meanings:
25.2.1.1. Criminal Law Hearing Officer means a judicial officer created by Chapter 54,
Subchapter L of the Texas Government Code ($$ 54.851 et seq.)

r0 See Tex. Gov'r CoDE ANN. $ 7a.093(cX2).

As amended through February 9, 2017
J-4

SCJC 0000180

Page 44 HARRISCO_CourtOrder 001903
JUD0GE0S003O094256

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 182 of 212
Harris County Criminal Courts at Law Rules ofCourt

.2. 25.2.1

Defendant means a person detained, arrested, or otherwise in the custody of a law

enforcement agency for a misdemeanor offense.

25.2.1.3. Judge or judges means a Judge of a Harris County Criminal Court at Law.

25.2.1.4. Disaster means the occurrence or imminent threat of widespread or severe damage, injury, or loss of life or properfy resulting from any natural or man-
made cause, including fire, flood, earthquake, wind, storm, wave action, oil spill
or other water contamination, volcanic activity, epidemic, air contamination,
blight, drought, infestation, explosion, riot, hostile military or paramilitary action,
other public calamity requiring emergency action, or energy emergency" as
provided by Section 418.004, Texas Government Code.

25.2.1.5. Quorum vote means two-thirds of the judges of these coufis. 25.2.1.6. Presiding Judge means the presiding judge of these courts.

25.3, M0DIFICATIoN oR SuspnNslo¡¡ oF THESE RULES DURING A DISASTER

25.3.1. JudicialAction

25.3.1.1, The Judges by quorum vote may modiff or suspend one or more of these rules
during the pendency ofthe disaster declared by the governor.

25.3.1.2. An order under this provision shall:

25.3.1.2.1. extend for not more than 30 days from the date the order is signed unless
renewed; and.

25.3.1.2.2. be consistent with other law.

25,3,2, Lack of a Majority

25.3.2.1. If a disaster prevents the judges from immediately acting as provided above, the
Presiding Judge may act on their behalf.

25.3.2.2. If a disaster prevents the presiding judge from acting under this rule, the co-
presiding judge may act on their behalf.

25.3.2.3. If a disaster prevents the co- presiding judge from acting under this rule, the
chairperson of the administration committee may act on their behalf.

RULE 26. SLIDING-SCALE FEE SCHEDULE FOR GLOBAL POSITIONING SYSTEM11

26.1. It is the intention of the Judges of these courts to establish a coordinated response for the
transaction ofessentialjudicial functions in the event ofa disaster.

26.2. If, upon consent of the victim to wearing a global positioning monitoring system receptor
device, a judicial officer determines that the likelihood of the defendant's participation in a global positioning monitoring system program described by Tex. CODE CRIM. PRoc. ANN. art. 17.49 (Vernon 2009) will deter the defendant from seeking to kill, physically injure, stalk, or otherwise threaten the alleged victim, the judicial officer shall determine if the defendant is
financially able to pay the costs of the receptor device, and the global positioning monitoring
systems transmitter or similar device. If the judicial officer determines that the defendant is
indigent, thejudicial officer shall require the defendant to pay costs ofthe electronic receptor
device and transmitter according to the following sliding scale:

tt See TEx.CoDE CRIM. PRo. ANN. art, 17.49

As amended through February 9, 2017
J-4

SCJC 0000181

Page 45 HARRISCO_CourtOrder 001904
000396 JUDGES OOO427

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 183 of 212
Harris County Criminal Courts at Law Rules of Court

Net Annual Income (from Sliding Scale Worksheet) s0-$12.000 $12,000$18,000
$18,001$24,000
$24,001$33,000
$33,001s42,000 $42,001$55,000
$55,001$70,000 $70,001 and above

Percent of
Total Fee per Service 38% 45%
50% 55% 60%
65% 80%
100%

As amended through February 9, 2017
J-4

SCJC 0000182

Page 46 HARRISCO_CourtOrder 001905
000397 JUDGES OOO428

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 184 of 212
Harris County Criminal Courts at Law Rules of Court
Appnxnrx A: AppnovnD INTENSTvE TRAININc PRocRAMS
The following programs are currently approved as 'ointensive training programs" as used in Rule 24.5.t.2.2:
o TexasBarCLE Advanced Criminal Law course ¡ Gideon's Promise l4-day training session . Gerry Spence Trial Lawyer's College o Criminal Defense Trial Skills & Trial Law Program at The Center
for American and Intemational Law
o TCDLA Texas Criminal Trial College

As amended through February 9, 2017
J-4

SCJC 0000183

Page 47 HARRISCO_CourtOrder 001906
JUD0GE0S0O3OO94289

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 185 of 212
EXHIBIT F

J-4

SCJC 0000184

HARRISCO_CourtOrder 001907
000399

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 186 of 212
District Court Bail Schedule

Offense

Bail

A1l capitat felonics........
All rnurders not particularly speciliecl brl lorv .......... All {'irst deglee l-elonies not particr"rlarly speci{'ic,cl l-rtllow All second clcgree felonies not particularly specified below ... All f'elony D!VI's not particr"rlarly speci{'iei'l below
A1t third degree f'elonies not partioular'ly specifictl below All iburth clegree (State Jail) tèlonies nof ¡rarticularly specifìed below..
Repeat C)ffenders

No Bonc'l $50,000.00 $20,000.00 $ 10,000.00 $ 10.000.00 $ s,000.00 $ 2.000.00

Habitual.... Prior felonv conviction cnd accused of a felonv involvine the use of a deadlv weanon First clegree f'elony with pt'evious ctxviction .... Second ciegree f'elony lvith previous conviclion Felony DWI with previous i'elony ÐWI conviciion

No Boncl
No Bond
$30,f)00.00
$20,000.00 l)ouhle boncl aniount fbr each previous fèlony D'TVI conviction.

ifhirr{ degree ièlony with previous convictíon Fourth degree (State Jail) lelony with pi'eviorrs conviction Fourth degret: (State Jail) telony with lnore than one prcvious conviction
Defendant on Bail for any Felony Charge witht

$ r 0.000.00 $ 5,000.00 $i l-5,000.00

First degree felony........ Seconcl degree,0r""r........... Thild degree t'elony Fourth clegree (State Jail) f'elony..............

No Bond No Bond No Boncl No Bond

Parlicular Situations

Multiple Counts

Separate stanclarcl bail f'or each offènse in the transaction.

Person on fèiony plobation fbr any grade of tÞlony Any 39 offènse c¡"where deadly weapon aileged Anv defendant with deoortation higtory or undocumented nrerence in United States Motion t0 Revoke Probation...... Motion to Adj udicate GuiIt....................
Large quantifies ofcontrolled substance or

No Bond
$30,000.00
$35"000.00
No Bond
At the Juclge's Discretion
Double tire val¡"¡e of large quantities of the
controlled substanr:e or property.

J-4

SCJC 0000185

HARRISCO_CourtOrder 001908
000400

D¡str¡ct Court
L74th L76th t77th
178th

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the District Court BailSchedule, can the hearing officer correct it?
Yes.

Can the Cheaasreing4:o1ff9ic-ecrvs-0gr0a2n2t 6pre-DocuWpmaoreutilcndutly3aor2ui-n7liskteruFtchitlieeondhseoafnroinr0gs3eo/tf2tfii7nceg/2rsb0atioilnifnoTclXlaosSweDsanyPalbnfglouaetepa1wen8rasa7robrnsaocnifostn2o(d1nneo2rp)r,maraaorlleer,ethapebosrhteiennagtr,alng

tr¡albonds?

where l.C.E. has placed a detainer on the

officers to follow the bail schedule

defendant?

or set at no bond?

Are there any other instructíons for
setting bail in specific types of cases that you would like the hearing offlcers to follow?

Yes for non-violent offenses.

Set bonds, except where the feds have ruled and set
L^.J.

Follow bailschedule

No, use your discretion

Yes.

Yes; state jail felonies, non-3g offenses. No Bond.

Follow regular bond schedule.

The hearing officer may lower any bond recommended by the prosecutor in state iail felclnies and non-3 g offenses.

Yes, but only if the bond is set higher than the bond schedule.
Yes.

Yes. All state jail felonies, unless enhanced with 3rd degree or higher; and all non-violent.. unenhanced 3rd degree felonies.

No bond on persons in the U.5. illegally,

Yes. Mandatory probation, no prior criminal history, confi'rmed place to live with telephone. Also, in exceptional circumstances such ái need for dialysis or unusual medical circumstances, not for 3(g) cases.

Follow the current procedure until further notice.

Follow the schedule and the instructions above.
Follow the bail schedule

Always consider the accused's ability to make bond. (The bond schedule completely fails to do so.)
The hearing officer may lower any bond recommended by the prosecutor in theft cases where there is not risk of flight or in except. circufnstances such as need for dialysis or unusual medical circumstances, not for 3(g) cases.

179th Yes.

Yes, for STJ and 3rd degree cases. (on clean records)

lf a person has contacts with this county, they should be treated equal to citizens regarding bonds. I am not an immigration judge. Regardless of country of origin, everyone will be treated equally. Having sa¡d that, if
someone has tenuous or no ties to this county, then they should be placed at "no bond."

No Bond.

.lt Use pretrial release bonds where warranted on clean records.

180th Yes, but not if the bond was previously Please refer to the court. changed by me.

Set at no Bond

182nd 183rd

No lowering. OK to raise if
appropriate.
Yes.

184rh Yes.

No.
Yes. -

Standard rules to be followed. No Bond

ln non-aggravated cases when the magistrate believes it is appropriate. Sex. Please follow standard procedure. Offenses should be considered aggravated.

J-4

SCJC 0000186

No Bond.
Set at no bond. No Bond Hearing officer,may use his/her dlscretion.

Undocument aliens and failure to register as sex offender - minimum 535K; evading arrest w/mv - minimum $5000.00.
Call or email with any questions. I don't want any bonds lowered at P.C. Ok to r¡ico i? hr rt nn lnurorino
No.
Please do not lower bonds or give PR bonds in DWI cases, intox assault, or intox
manslaughter cases. Please raise bond if defendant is danger to the public.
HARRISCO_CourtOrder 001909
000401 LLl20/2009

District Court
185th

lf the Cr¡m¡nal Law Hearing Officers realize a bond amount is incorrectly set under the District Court BailSchedule, can the hearing officer correct it?

Can

Case 4:19-cv-00226
the hearing officers grant prebonds?

WwpahDoretuoircledcuullya.mCor u.eEinln.iskttherau3stc2htpi-eo7lanhcseeFadfroiilanregdsdeeoottfatfininicngee0rr3sbao/t2inol7itfn/ho2ecll0aoswiensaTnXy SolbnfDfloufaitcepaePwenrsraasargtoborneascfnio1sotln8lo(odnn8weoprorftma,hfraeao2rll1eebr,2aethiaplebossrchtehienneagtdr,uainleg

defendant?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

or set at no bond?

Please set bond for felon in poss. of a

No - please refer.

s35,000.00

Set at no bond.

Habitual offenders should be

held

bond.

ln extraordinary cases where the defendant is a risk to the community with
bond set according to the bond schedule, then please use your discretion

209rh 228th

232nd
248th 262nd 263rd

337th

338th 339th

35lst

J-4

Follow the bail schedule.
t Follow bond schedule for persons with deportat¡on history or undocumented presence.

No Bond. No bond.

mandatory probation gvith no prior criminal history but with confirmed place Follow bond schedule.
per schedule of judges (535,000.00)
refer to the court.

No bond. Follow schedule (unless Lst degree
Follow schedule. Set at no bond

lf defendant is not a legal resident and has no priors, bond should be set at 535,000.00

Follow the bail schedule

es. State Jail and Non-3G offenses.

Follow the bail schedule.

Follow the bail schedule.

Follow the bond schedule. lf defendant is able to make Follow bond schedule bond, send them to Pre-Trial.

Follow bond schSedCuleJ. C 0000187

Follow bond schedule.

lf order of emergency protection granted, then bearing officer to leave at no bond.
adhere to bond schedule in cases ng persons with deportation history or undocumented presence.
Feel free to call me with any questions.
ln the Code of Criminal Procedure, Art. 1.2, Sec.3G cases, involving a deadly the bond should be set at a
minimum of 550,000.00, and the hearing officer may increase the amount he/she deems appropriate should probable case warrant same.
lf I have set a bond, please do not lower bond without my permission. Failure toHAreRgRisISteCrOa_sCsoeuxrtoOfrfdeenrd0e0r19-1N0o bond; Possession of child porn. -
000402 $30,000.00 (can be raised if on bond, on

I
I
lD¡st.ict Court
L74th

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the District €ourt Bail Schedule, can the hearing officer correct it?

Case 4:19-cv-00226
Can the hearing officers grant pretrial boÍrds?

DWoocuulmd yeonut l3ik2e-t7he Fheilaerdingonoff0ic3e/r2s7to/2f0ollionwTaXnSy DlbfluaPepawegraserorna1ni8st9o(nnoopfrma2ra1oll2er,eaPbosretinntg,a

particular instructions for setting bail in cases

not an absconder), are the hearing

where l.C.E. has placed a detainer on the

officers to follow the ba¡l schedule

defendant?

or set at no bond?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

ture safety of a victim ofthe alleged

Non violent SJF & 3rd-1st offenders

offense andlar the communitY is in

Yes.

(Except for violation of protective orders, sex crimes(not prostitution) & defendant

Follow the bail schedule.

Follow bail schedule.

danger of harm, use discretion in setting an appropriate bond highter than the

meets requisites of Art.17.04 Tx CCP)

schedule recommendation and these

176rh Yes
t77th Yes

178th Yes

179th es.

180th Yes

182nd

No lowering. OK to raise if
appropriate.

183rd Yes

Yes, for SJF, 2nd and 3rd degree felony first offenders.

Standard rules to be followed.

Yes. Cases where defendant is PTI approved. Prostitution, Iheft 3rd,
unehhanced SJF theft. Full time students No not charged with Burg Hab or 3(g).

1. Yes, for first offender non-violent cases. 2. For all PCS cases <1g with no prior felony convictions, confirm place to live. 3. Follow the current procedure until further notice Also, where dialysis is needed or other unusual medical circumstances. NOTfor
3(g) cases.

1. 2.

Yes for first offender, For all PCS< 1 as long

non-violent cases. as no burglaries or

No. lf defendant has permanent county set a standard bond.

contacts

with

the

convictions for violent offenses.

No

No Bond

No

Standard rules to be followed.

Yes

No Bond

Follow bond schedule. Follow the bail schedule
Follow the bail schedule.
Follow the bond schedule. No Bond Set at no bond. No Bond

No PR bonds on Ch 49 offenses.
No. PR Bonds on CH 49 offenses.
None - Follow these instructions on the bond schedule
1. No PR bonds on lntox offenses. 2. Please set bonds according to bond schedule on family violence cases after Mag Order is signed.
None Call or email with any quest¡ons. I don't want any bonds lowered at P.C. Ok to
reice it huf no lowerins.
No

184rh
J-4

ln non-aggravated cases when the magistrate believes it is appropriate. Sex. Offenses should be considered aggravated

Please follow standard procedure

SCJC 0000188

Hearing officer may use his/her discretíon.

Please do not lower bonds or give PR
bonds in DWI cases, intox assault, or ¡ntox
manslaughter cases. Please raise bond if
defendaHnAtRisRIdSaCnOge_rCotourtthOerdPeru0b0lic1.911 1./27 /" o17
000403

District Court
185th
208th

lf the Criminal Law Hearing Officers realize a bond amount ¡s incorrectly set under the Distr¡ct Court Bail Schedule, can the hearing officer correct it?

Case 4:19-cv-00226
Can the hearing officers grant pretr¡al bonds?

DWoocuuldmyeonut l3ik2e-t7he hFeilaeridngoonff0ic3e/r2s 7to/2f0ollionwTaXnSy DblfluaePpawergaserorna1ni9st0o(nnoopfrma2rao1ll2er,eapbosrteinngt ,a

particular instructions for setting bail in cases

not an absconder), are the hearing

where l.C.E. has placed a detainer on the

officers to follow the bail schedule

defendant?

or set at no bond?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

Yes. PCS< 1 gram if no prior felony

Yes.

convictions and defendant is not

Set bond at 535,000.

Set at no bond

No

homeless.

ln cases where special circumstances

Yes: for non-violent state jail and third

cause the hearing officer to determine

Yes

degree felonies with no prior felony

Follow bond schedule for defendants who are not

convictions (as recommended by Pre-Trial legally in the Un¡ted States.

Follow the bond schedule

the defendant is a risk to the community, not withstanding the bond schedule,

Services.)

adjust the bond accordinglY.

209th Yes

No.

Follow the bail schedule

No Bond

No

228th Yes.

AIISJ (shall), 3rd(may) and 2nd{may) degree non/violent defendants with no criminal history. No PR bonds on 1st degree.

All SJ (shall), 3rd(may) and 2nd(may) degree

Follow bond schedule. Evaluate ability

non/violent defendants with no criminal history. No PR to pay. Hearing officer may reduce

bonds on 1st degree. Evaluate ability to pay. May

when appropriate (See #5 of Question

reduce when appropriate (See #5 on queston #5)

#s).

1. Hearing Officer can grant PR bonds on SJ,3rd and 2nd degree where accused has no prior felonies and in the interest of justice. 2. lf accused is on probationfollow bond schdelue-no PR 3. CaP Murder-No Bond. Murder/Man/lntox Man - bond schedule. 4.High bonds for Super ASA and miltiple victim/violent offense. 5. Haring officer discretion regarding any circumstances not outlined
in these instructions.

230th Yes
232nd Yes 248th Yes. 262nd êc 263rd Yes
J-4

Yes. Non violent state jail and 3rd degree first offenders. No crimes of violence or Follow the bond schedule. history of violence. DWl, burglaries and all others refer to the court.

Yes; mandatory probation with no prior criminal history but with confirmed place to live and phone #.
No

Follow bond schedule Follow the Judge's Bail Schedule (S35,000)

No

Follow the schedule.

No.

Yes, refer to the court.

SCJC 0000189

Follow the bond schedule
No bond Set at no bond Follow schedule. Set at no bond

Set bonds according to schedule on family violence cases after MOEP is signed.
No
No
Call with any questions
No. HARRISCO_CourtOrder 001912
t/27 /20t7
000404

District Court

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the District Court Bail Schedule, can the hearing officer correct ¡t?

Case 4:19-cv-00226
Can the hearing officers grant pretrial bonds?

DWoocuulmd yeonut l3ik2e-t7he Fheilaeridngoonff0ic3e/r2s 7to/2f0ollionwTaXnSy DlbfluaPepawergaserorna1ni9st1o(nnoopfrma2ra1oll2er,eapbosrte¡nntg,a

particular instructions for sett¡ng bail in cases

not an absconder), are the hearing

where l.C.E. has placed a deta¡ner on the

officers to follow the ba¡l schedule

defendant?

or set at no bond?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

337th Yes.

Yes, for first offenders non-violent cases, all PCS<1g with no prior felony convict¡ons, confirm place to live, and where dialysis is Follow the bond schedule. needed or other unusual medical circumstances. Not for Art. 424.054 cases.

Follow bond schedule.

No PR bonds on lntox offenses. Please set bonds according to bond schedule on family violence cases after Mag. Order is signed.

338th Yes. 339th Yes. 351st Yes.

Yes, in non-violent state jail and third degree felony cases. Hearing officer may not grant pre-trial bonds in DW|-related
cases.

Follow the bail schedule.

Yes. For Non-Violent state jail and 3rd degree felonies with no prior feolny convictions (as recommended by Pre-Trial
Services.)

Follow the bond schedule

No.

Follow bond schedule.

Follow the bail schedule. Follow bond schedule. Follow bond schedule.

No.
Call or email with questions.
Failure to reg¡ster as sex offender - No bond; Possession ofchild Porn. 530,000.00 (can be raised if on bond, or probation, or prior.)

Presumption of PR bond in all PC5<1g,

Prostitution 4th where defendant is

determined low risk by PSA with proper

Rrc

Yes

verification. PR bond is favored in all cases See Standard bond. Refer to RIC Judge for further

where defendant is determined low/moderate risk by PSA with proper

bond consideration.

Follow the bond schedule.

ln all situations Please use Your descretion in granting a PR bond or
setting bond.

verification. Please use your descretion in

determining if PR bond is appropriate in

other situations.

J-4

SCJC 0000190

HARRISCO_CourtOrder 001913
tl27 /20L7
000405

District
rt
L74th

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the District Court Bail Schedule, can the hearing officer correct it?
Yes

Case 4:19-cv-00226
Can the hearing officers grant Pretrial bonds?

Document 32-7 Filed on 03/27/20 in TXSD lfPaapgeers1on92is oonf 2p1ar2ole, absent a

Would you like the hearing officers to follow any particular instructions for setting bail in cases

blue warrant {normal rePorting, not an absconder), are the hearing

where l.C.E. has placed a detainer on the

officers to follow the bail schedule

defendant?

or set at no bond?

there any other insÛuctions for sett¡ng bail in specific types of cases that you would like the hearing officers to follow?

Non violent SJF & 3rd-1st offenders (Except for violation of protective orders, sex crimes(not prostitution) & defendant meets requisites of Art.17.04 Tx CCP)

Follow the bail schedule.

Follow bail schedule.

lf there is a reasonable belief that the safety of a victim of the alleged
nse and/or the communítY is in danger of harm, use discretion in setting an appropriate bond highter than the schedule recommendation and these
instructions.

176rh Yes

Yes, for SJF, 2nd and 3rd degree felony first offenders.

Standard rules to be followed.

Follow bond schedule.

No PR bonds on Ch 49 offenses.

t77th Yes.

178th Yes.

r7gth Yes.

180th Yes

182nd

No lowering. OK to raise if
appropriate.

183rd Yes.

Yes, for first offender non-violent cases.

Hearing officer may not grant pre-trial

No

bonds in Chaper 49 offenses.

1. Yes, for first offender non-violent cases. 2. For all PCS cases <1g with no prior felony convictions, confirm place to live. 3. Follow the current procedure until further notice Also, where dialysis is needed or other unusual medical circumstances. NOT for
3(g) cases.
1. Yes for first offender, non-violent cases. No. lf defendant has permanent contacts with the 2. For all PCS< 1- as long as no burglaries or county set a standard bond. convíctions for violent offenses.

No

No Bond.

No.

Standard rules to be followed

Yes

No Bond

Set at No Bond.
Follow the bail schedule.
Follow the bond schedule. No Bond Set at no bond No Bond.

No

None - Follow these instructions on the bond schedule

1. No PR bonds on lntox offenses. 2. Please set bonds according to bond
schedule on family violence cases after Mag Order is signed.

None

or

any

want any bonds lowered at P.C. Ok to

No

J-4

SCJC 0000191

HARRISCO_CourtOrder 001914
000406 2ltl20t7

District Court

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the District Court BailSchedule, can the hearing officer correct it?

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 193 of 212

Can the hearing officers grant pretrial bonds?

Would you like the hearing officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant (normal reporting, not an absconder), are the hearing officers to follow the bail schedule or set at no bond?

Are there any other instructions for
setting bail in specific types of cases that you would like the hearing officers to follow?

184th Yes.

ln non-aggravated cases when the magistrate believes it is appropr¡ate. Sex. Please follow standard procedure Offenses should be considered aggravated

Hearing officer may use his/her discretion.

Please do not lower bonds or give PR bonds in DWI cases, intox assault, or intox
manslaughter cases. Please raise bond if defendant is danger to the Public.

18sth Yes. 208th Yes 209th Yes.
228rh Yes.
230rh Yes
J-4

Yes. PCS< 1 gram if no prior felony convictions and defendant is not homeless.

Set bond at 535,000.

Yes: for non-violent state jail and third degree felonies with no prior felony conv¡ctions (as recommended by Pre-Trial Services.)

Follow bond schedule for defendants who are not legally in the United States.

Set at no bond Follow the bond schedule.

No
ln cases where special circumstances cause the hearing officer to determine the defendant is a risk to the çommunity, not withstanding the bond schedule, adjust the bond accordinglY.

No.
All SJ (shall), 3rd(may) and 2nd(may) degree non/violent defendants with no
criminal history. No PR bonds on lst
degree.

Follow the bail schedule

No Bond.

No.

All SJ (shall), 3rd(may) and 2nd(may)degree

Follow bond schedule. Evaluate ability

non/violent defendants with no criminal history. No PR to pay. Hearing officer may reduce

bonds on 1st degree. Evaluate abílity to pay. May

when appropriate {See #5 of Question

reduce when appropriate (See #5 on queston #5)

#s).

1. Hearing Officer can grant PR bonds on SJ, 3rd and 2nd degree where accused has no prior felonies and in the interest of justice. 2. lf accused is on probationfollow bond schdelue-no PR 3. CaP Murder-No Bond. Murder/Man/lntox Man - bond schedule. 4.High bonds for Super ASA and miltiple victim/violent offense. 5. Haring officer discretion regarding any circumstances not outlined in these instructions.

Yes. Non violent state jail and 3rd degree

first offenders. No crimes of violence or Follow the bond schedule history of violence. DWl, burglaries and all

others refer to the court.

SCJC 0000192

Follow the bond schedule

Set bonds according to schedule on family vioHleAnRcReIScCasOe_sCaofutertrOMrdOerE0P01is91s5igned.
000407 2/112017

District
232nd 248th 262nd 263rd

lf the CriminalLaw Hearing Officers realize a bond amount is incorectly set under the District Court BailSchedule, can the hearing officer correct it?

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 194 of 212

Can the hearing officers grant pretrial bonds?

Would you Iike the hearing officers to follow any particular instructions for setting bail in cases where l,C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant {normal reporting, not an absconder), are the hearing officers to follow the bail schedule

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

or set at no bond?

Yes; mandatory probation with no prior

Yes.

criminal history but with confirmed place Follow bond schedule.

No bond

No.

to live and phone #.

Yes.

No

Follow the Judge's Bail Schedule (535,000)

Set at no bond

No

Yes

No

Follow the schedule

Follow schedule

Call with any questions

Yes.

No.

Yes, refer to the court.

Set at no bond

No.

337th Yes.

Yes, for first offenders non-violent cases, all PCS<1g with no príor felony convictions, confirm place to live, and where dialysis is Follow the bond schedule. needed or other unusual medical circumstances. Not for Art. 424.054 cases.

Follow bond schedule

No PR bonds on lntox offenses. Please set bonds according to bond schedule on family violence cases after Mag. Order is signed.

338th Yes. 339th Yes 351st Yes

Rtc

Yes

J-4

Yes, for first offender and non-violent offenses. Hearing officer may not grant pre-trial bonds on Chapter 49 offenses.

Follow the bail schedule.

Yes. For Non-Violent state jail and 3rd degree felonies with no prior feolny convictions (as recommended by Pre-Irial
Services.)

Follow the bond schedule

No Bond Follow bond schedule.

No.

Follow bond schedule.

Follow bond schedule.

Presumption of PR bond in all PCS<!g,

Prostitution 4th where defendant is

determined low risk by PSA with proper

verification. PR bond is favored in all cases where defendant is determined

See Standard bond. Refer to RIC Judge for further

loflmoderate risk by PSA with proper

bond consideration.

verification. Please use your descretion in

determining if PR bond is appropriate in other situations.

SCJC 0000193

Follow the bond schedule

No
Call or email with questions.
Failure to register as sex offender - No bond; Possession of child porn. 530,000.00 (can be raised if on bond, or probation, or prior.)
ln allsituations please use your descretion in granting a PR bond or
setting bond.
HARRISCO_CourtOrder 001916
000408 17

District Court
174th 176th 177th
178th
17gth 180th t82nd 183r.1 184th
r85th
208th 20!)rh

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 195 of 212

rf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the Distr¡ct Court BailSchedule, can the hearing officer correct it?
Yes. Yes.
Yes.
Yes.
Yes

Can the hearing officers grant pretrial bonds?
Yes for non-violent offenses. Yes, Lst offender, non-violent offenses.

Would you like the hearing officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the

lf a person is on parole, absent a blue warrant (normal reporting, not an absconder), are the hearing

Are there any other instructions for setting bail in specific types of cases that you would like the hearing

defendant?

officers to follow the bail schedule officers to follow?

or set at no bond?

Set bonds, except where the feds have ruled and set bonds.

Follow bail schedule

No, use your discretion

Follow bond schedule please.

Yes. Cases where defendant is PTI approved. Prostitution, Theft 3rd,
unehhanced SJF theft. Full time students No not charged with Burg Hab or 3(g).

Follow the bail schedule.

No. PR Bonds on CH 49 offenses.

1. Yes, for first offender non-violent cases.

2. For all PCS cases <1.g with no prior

felony convictions, confirm place to live. 3. Also, where dialysis is needed or other

Follow the current procedure until further notice

unusual medical circumstances. NOT for

3(sl cases.

1. Yes for first offende¡ non-violent cases. 2. For all PCS< 1 as long as no burglaries or No convictions for violent offenses.

Follow the bail schedule Follow the bond schedule.

None - Follow these instructions on the bond schedule
1. No PR bonds on lntox offenses. 2. Please set bonds according to bond schedule on family violence cases after Mae Order is siened.

Yes

No

No Bond.

No Bond

None

No lowering. OK to raise if appropriate.
/pc
Yes.
Yes

No.

Standard rules to be followed.

es-

No Bond-

ln non-aggravated cases when the magistrate believes it ¡s appropriate. Sex. Please follow standard procedure Offenses should be considered aggravated

Yes. PCS< 1" gram if no prior felony convictions and defendant is not homeless.

Set bond at 535,000

Set at no bond. No BondHearing officer may use his/her d¡scretion.
Set at no bond

Cãll or emeil w¡th any questions. I don't want any bonds lowered at P.C. Ok to reisê ¡t- but no lowprins No. Please do not lower bonds or give PR bonds in DWI cases, intox assault, or ¡ntox manslaughter cases. Please raise bond if defendant is danger to the public.
No

Yes: for non-violent state jail and third

ln cases where special circumstances

Yes

degree felonies with no prior felony

Follow bond schedule for defendants who are not

convictions (as recommended by Pre-Trial legally in the United States.

Follow the bond schedule

cause the hearing officer to determine the defendant is a risk to the community,

Services.)

not withstandíng the bond schedule,

adjust the bond accordingly.

Yes.

No.

Follow the bail schedule.

No Bond

No.

72/16/2OL6

J-4

SCJC 0000194

HARRISCO_CourtOrder 001917
000409

D¡str¡ct Court
228th

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 196 of 212

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the District Court BailSchedule, can the hearing officer correct it?

Can the hearing officers grant Pretrial bonds?

All SJ (shall), 3rd(may) and 2nd(may)

degree non/violent defendants with no

Yes.

criminal history. No PR bonds on 1st

degree.

Would you like the hearing officers to follow any particular instructions for seüing bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant (normal reporting, not an absconder), are the hearing officers to follow the bail schedule or set at no bond?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

All SJ (shall), 3rd(may) and 2nd(may) degree non/violent defendants with no criminal history. No PR Follow bond schedule. Evaluate ability

bonds on 1st degree. Evaluate ability to pay. May

to pay.

reduce when appropriate (See #5)

1. Hearing Officer can grant PR bonds on SJ, 3rd and 2nd degree where accused has no prior felonies and in the interest of justice. 2. lf accused is on probationfollow bond schdelue-no PR 3. Cap Murder-No Bond. Murder/Man/lntox Man - bond schedule.

230th Yes
232nd Yes. 248th Yes. 262nd Yes. 263rd Yes. 337th Yes. 338th Yes.
33gth Yes.
351st Yes.

Rtc

Yes

Yes. Non violent state ja¡l and 3rd degree

first offenders. No crimes of violence or Follow the bond schedule. history of violence. DWl, burglaries and all

others refer to the court.

Yes; manclatory proþatron wrth no pnor

criminal history but with confirmed place ln lirre rnd nhnno lt No
No.
No. ln all cases except 3G oftenses, DWI 3rd ¡n¡l femilv vinlon¡e if nu¡lified Yes, tn non-vtolent state Jall and tntrd degree felony cases. Hearing officer may
not grant pre-trial bonds in DWl-related

Follow bond schedule.
Follow the Judse's Bail Schedule {535.000) Follow the schedule. Yes. refer to the court Follow the Judge's Bond Schedule currently at 535,000.
Follow the ba¡l schedule.

aãcêç.
Yes. For Non-Vrolent state Jarl and Jro degree felonies with no prior feolny
convictions (as recommended by Pre-Trial

Follow the bond schedule.

Qan¡i¡ac ì

Follow the bond schedule.
No bond Set at no bond. Follow schedule. Set at no bond. Follow bond schedule absent blue wârrãnt
Follow the bail schedule
Follow bond schedule.

No.

Follow bond schedule

Follow bond schedule.

rresufnptron or rñ fJ(,nlf rfr drr rL)<rË,,

Prostitution 4th where defendant is

determined low risk by PSA with proper

verification. PR bond is favored in all cases See Standard bond. Refer to RIC Judge for further

where defendant is determined

low/moderate risk by PSA with proper

bond considerat¡on.

verification. Please use your descretion in

determining if PR bond is appropriate in

^¡h^. .¡i,,¡+ianc

Follow the bond schedule

Set bonds according to schedule on family violence cases after MOEP is signed.
No. No Call with anv ouestions. No Call or email with any questions.
No
Call or email with questions. as sex
bond; Possession of child porn. 530,000.00 (can be raised if on bond, on
ln all situations please use your descretion in granting a PR bond or
setting bond.
11 lqr I' 01"6

J-4

SCJC 0000195

HARRISCO_CourtOrder 001918
000410

J-4

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 197 of 212

D¡str¡ct Court
174th

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the District Court Bail Schedule, can the hearing officer correct it?

Can the hearing officers grant pretrial bonds?

Yes.

Yes for non-violent offenses.

Would you like the hearing officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant (normal report¡ng, not an absconder), are the hearing officers to follow the ba¡l schedule

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

or set at no bond?

Set bonds, except where the feds have ruled and set bonds.

Follow bail schedule.

No, use your discret¡on

176th Yes.

Yes, 1st offender, non-violent offenses.

Follow bond schedule please.

t77th Yes.

178th Yes.

179rh Yes.

180th Yes

182nd 183rd

No lowering. OK to raise if
appropriate.
Yes.

184th Yes.

18sth Yes.

208th Yes

Yes. Cases where defendant is PTI approved. Prost¡tut¡on, Theft 3rd,
unehhanced SJF theft. Full time students No not charged with Burg Hab or 3(g).
L. Yes, for first offender non-violent cases. 2. For all PCS cases <1g with no prior felony convictions, confirm place to live. 3.
Follow the current procedure until further notice. Also, where dialysis is needed or other unusual medical circumstances. NOT for 3(g) cases.
1. Yes for first offender, non-violent cases. 2. For all PCS< 1 as long as no burglaries or No convictions for violent offenses.

No

No Bond

No.

Standard rules to be followed

Yes.

No Bond

ln non-aggravated cases when the magistrate believes it is appropriate. Sex. Please follow standard procedure. Offenses should be considered aggravated

Yes. PCS< 1 gram if no prior felony convictions and defendant is not homeless.

Set bond at 535,000.

Yes: for non-violent state ja¡l and third degree felonies with no prior felony convictions (as recommended by Pre-Trial Services.)

Follow bond schedule for defendants who are not legally in the Uníted States.

Follow the bail schedule
Follow the bail schedule.
Follow the bond schedule. No Bond. Set at no bond. No Bond. Hearing officer may use his/her discretion. Set at no bond
Follow the bond schedule.

No. PR Bonds on CH 49 offenses.
None - Follow these instructions on the bond schedule
1. No PR bonds on lntox offenses. 2. Please set bonds according to bond schedule on family violence cases after Mas Order is sisnedNone Call or email with any questions. I don't want any bonds lowered at P.C. Ok to raise it. but no lowerine-
No. Please do not lower bonds or give PR bonds in DWI cases, intox assault, or intox
manslaughter cases. Please raise bond if defendant is danger to the public.
No
ln cases where specíal circumstances cause the hearing officer to determine the defendant is a risk to the community, not withstanding the bond schedule,
adjust the bond accordingly. 10113/ 6

SCJC 0000196

HARRISCO_CourtOrder 001919
000411

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 198 of 212

D¡str¡ct Court
209th 228th
230th
232nd 248th

tf the Cr¡m¡nal Law Hearing Officers realize a bond amount is incorrectly set under the District Court BailSchedule, can the hearing officer correct it?

Can the hearing officers grant pretr¡albonds?

Would you like the hear¡ng officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant (normal reporting, not an absconder), are the hearing officers to follow the bail schedule or set at no bond?

Are there any other instructions for seü¡ng bail in specific types of cases that you would like the hearing officers to follow?

Yes.

No

Yes.

No.

Follow the bail schedule. No.

No Bond.

No

No bond.

No

Yes. Non violent state ja¡l and 3rd degree

Yes

first offenders. No crimes of violence or history of violence. DWl, burglaries and all

Follow

the bond schedule

Follow the bond schedule.

Set bonds according to schedule on family violence cases after MOEP is signed.

others refer to the court.

Yes; mandatory probation with no prior

Yes.

criminal history but with confirmed place Follow bond schedule.

No bond.

No

to live and nhnnp lf

Yes.

No

Follow the Judge's Bail Schedule (535,000)

Set at no bond

No

262nd Yes.

No

Follow the schedule

Follow schedule

Feel free to call me with any questions.

263¡d Yes. 337th Yes. 338th Yes.
33flth Yes.
351st Yes.

Rrc

Yes

No ln all cases except 3G offenses, DWI 3rd and familv violence. if sualified. Yes, in non-violent state jail and third degree felony cases. Hearing officer may not grant pre-trial bonds in DWI-related
cases. Yes. For Non-Violent state ja¡l and 3rd
degree felonies with no prior feolny convictions (as recommended by Pre-Trial
Services.)

Yes, refer to the court. Follow the Judge's Bond Schedule currently at 535,000. Follow the bail schedule.
Follow the bond schedule

Set at no bond. Follow bond schedule absent blue warÍant. Follow the ba¡l schedule
Follow bond schedule

No

Follow bond schedule.

Follow bond schedule.

Presumption of PR bond in all PCS<19,

Prostitution 4th where defendant is

determined low risk by PSA with proper

verification. PR bond is favored in all cases where defendant is determined

See Standard

bond.

Refer to

RIC Judge for further

low/moderate risk by PSA with proper

bond consideration.

verification. Please use your descretion in

determining if PR bond is appropriate in

other situations.

Follow the bond schedule

No. Call or email with any questions.
No.
Call or email with questions.
Failure to reg¡ster as sex offender - No bond; Possession of child porn. 530,000.00 (can be raised if on bond, on orobation. or orior.ì
ln all situations please use your descretion in granting a PR bond or
setting bond.

10/13/2076

J-4

SCJC 0000197

HARRISCO_CourtOrder 001920
000412

J-4

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 199 of 212

District Court
z&Bth
20gdr 22tth
z30rh
232¡d¡
2.ü
2621á 253rú

lf the Criminal Law Hearing Officers realize a bond amount ¡s incorrectly set under the District Court Eail scheduh, ean the hearing officer correst it?
Yes

Can the hearing officers grant pretr¡al bonds?
Yes: for non-violent statejail and third degree felonies with no prior felony convictions {as recommended by Pre-Trial Services.)

l*" Would you like the hearing offkers to follow any
partkular ¡nstructions for setting bail in eases
where l.C.E. has placed a detainer on the

lf a person is on parole, absent a blue warrant (normal reporting, not an absconder), are the hearing
to follow the bail schedule

lsett¡tntg"rb"alal niny

otlær instructions for specific typs of cases

Itn"t you would like the hearing

defendant?

to foltow?

set at no bond?

lofficerc

Follow bond schedule for defendants who are not legally in the United States.

Follow th€ bond schedule.

ln cases where special circumstances :cause the hearing officer to determine
the defendant is a risk to the commun¡ty,
,not withstanding the bond schedule, adjust the bond accordingly.

Yes.

No.

Yes.

No.

Follow the bail schedule. No

lno aonu.

Iwo.

lno uoø

lruo.

Yes. Non violent state jail and 3rd degree

first sffenders. No crimes of violence or

Yes

Follow the bond schedule.

history of violence. DWl, burglaries and all

others refer to the court.

the bond schedule.

Set bonds according to schedule on family violence cases afiler MOEP is signed.

Yes; mandatory probation with no prior

Yes.

criminal history but with confirmed place Follow bond schedule.

oo"o

to live and oû¡one #.

l*o

1^,,

Yes.

No.

Follow the Judge's Bail Schedule (535,000)

lset at no bond.

lHo

Yes.

No.

Yes.

No.

Follow the schedule. Yes, refer to the court.

ft"** scrredute
lset at no bond.

lfeetfree to call me with any questions.
l¡¿o.

337rh Yes.

ln all cases except 3G offenses, DWI 3rd and family violence, if qualified.

Follow bond schedule absent blue Follow the Judge's Bond Schedule currently at 535,0O0. warrant.

Call or email with any questions.

3!¡trtr Yes. 3:ìgrh Yes. 35lst Yes.

Yes, ín non-violent state jail and third degree felony cases. Hearing officer may not grant pre-triel bonds in DWI-related

Follow the ba¡l schedule.

Yes. For Non-Vblent stateia¡l and 3rd degree felonies with no prior feohy convictions (as recommended by Pre-Trial Scrvices.)

Follow the bond schedule.

No.

Follow bond schedule.

I
hotlo* the bail schedule.
I
bond schedule.
bond schedute
l*,,"*

1."
* lo,, emait with questions.
I
lFailure to register as sex offender - l{o lUona; Possession of child porn. l$so,ooo.oo (can be raised if on bond, on lorobation. or orior.)

e/23/201.6

SCJC 0000198

HARRISCO_CourtOrder 001921
000413

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 200 of 212

District Court
174th

lf the Criminal Law Hearing Officerc realize a bond amount is incorrectly set under the District Court Bail Schedule, can the hearing officer correct it?

Can the hearing officers grant pretrial bonds?

Yes.

Yes for non-violent offenses.

176th Yes.

Yes, 1st offender, non-violent offenses

ttrould you like the hearing officers to follow any particular instructions for setting bail in cases wherc l.C.E. has placed ¡ detainer on the defendant?

tf a person is on parole, absent a blue warrant (normal repofting, not an absconder), are the heerirg officers to follow the bail schedulc or sct at no bond?

Are there any other instructions for sett¡ng bail in specific types of cases that you would like the hearing officers to follow?

Set boncls, except where the feds have ruled and set honds

Follow bail schedule

No, use your discretion

Follow bond schedule please.

177th Yes.
178th Yes.
17ltth Yes. 180rh Yes
No lowering. OK to raise if 182nd
appropriate. 183rd Yes. 184rtr Yes. 185th Yes.

Yes. Cases where defendant is PTI approved. Prostitution, Theft 3rd, unehhanced SJF theft. Full tirne students No not charged with Burg Hab or 3(g).

1. Yes, for first offender non-violent cases.

2. For all PCS cases <1g with no prior

felony convictions, confirm place to live. 3. Also, where dialysis is needed or other

Follow the current procedure until further notice.

unusual medícal circumstances. NOT for

3(g) cases.

1. Yes for first offender, non-úolent cases. 2. For all PCS< 1. as lorq as no burghries or No convictions for violent offenses.

No

No Bond.

No.

Standard rules to be followed.

Yes.

No Bond.

ln non-aggravated cases when the magistrate believes it is appropriate. Sex. Please follow standard procedure. Offenses should be considered aggravated

Yes. PCS< l gram if no prior felony
convictions and defendant is not homeless.

Set bond at $35,000

Follow the bail schedule
Follow the bail schedule
Follow the bond schedule. No Bond. Set at no bond. No Bond.
Hearirg officer may use h¡lher
discretk¡n. Set at no bond.

No. PR Bonds on CH 49 offenses.
None - Follow these instructions on the bond schedule
1. No PR bonds on lntox offenses. 2. Please set bonds according to bond schedule on family violence cases after Mag Order is signed.
None Call or email with any questions. I don't want any bonds lowered at P.C. Ok to raise it. but no lowerins. No. Please do not lower bonds or give PR bonds in DWI cases, intox assault, or intox
manslaughter cases. Please raise b'ond if defendant is danger to the public.
No

e/23/2016

J-4

SCJC 0000199

HARRISCO_CourtOrder 001922
000414

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 201 of 212

District Court
185th
208th
20gth 228th 230th 232nd 248th 262nd 263¡d

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the District Court Bail Schedule, can the hearing officer correct it?
Yes.
Yes

Can the hearing officers grant pretrialbonds?

Would you like the hearing officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant (normal rePorting, not an absconder), are the hearing officers to follow the bail schedule or set at no bond?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

Yes. PCS< 1 gram if no prior felony convictions and defendant is not homeless.

Set bond at 535,000

Set at no bond.

No

Yes: for non-violent state jail and third degree felónies with no prior felony convictions (as recommended by Pre-Trial Services.)

Follow bond schedule for defendants who are not legally in the United States.

Follow the bond schedule.

ln cases where special circumstances cause the hearing officer to determine the defendant is a risk to the community, not withstanding the bond schedule, adjust the bond accordingly.

Yes Yes Yes, Unless it was changed by me.
Yes.
Yes. Yes. Yes.

No.
No. Refer to Court. Yes; mandatory probation w¡th no pr¡or
criminal history but with confirmed place to live and ohone #.
No.

Follow the bail schedule No. Set at no Bond
Follow bond schedule.
Follow the Judge's Bail Schedule (S:S,OOO¡

No.

Follow the schedule.

No

Yes, refer to the court.

No Bond. No bond. Set at no bond
No bond.
Set at no bond Follow schedule. Set at no bond.

No. No. No.
No.
No Feel free to call me with any questions No.

337th Yes.

ln all cases except 3G offenses, DWI 3rd and family violence, if qualified.

Follow bond schedule absent blue Follow the Judge's Bond Schedule currently at 535,000. warrant.

Call or email with any questions.

338th Yes. 339th Yes. 351st Yes.

Yes, in non-violent state jail and third degree felony cases. Hearing officer may not grant pre-trial bonds in DWI-related ceses.
Yes. State Jail and Non-3G offenses.

Follow the bail schedule

Follow the bail schedule

Follow the bond schedule. lf defendant is able to make Follow bond schedule. bond, send them to Prê-Trial.

No.

Follow bond schedule.

Follow bond schedule.

No.

I have set a bond, please do not lower

without my permission

Failure to register as sex

er-No

bond; Possession of child porn. -

530,000.00 (can be raised if on bond, on

J-4

SCJC 0000200

HARRISCO_CourtOrder 001923
000415

J-4

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 202 of 212

District Court
174th

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the District Court BailSchedule, can the hearing officer correct it?

Can the hearing officers grant pretrial bonds?

Yes.

Yes for non-violent offenses.

Would you like the hear¡ng officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant (normal reporting, not an absconder), are the hearing officers to follow the bail schedule or set at no bond?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

Set bonds, except where the feds have ruled and set b¡nds.

Follow bail schedule

No, use your discretion

176th Yes.

Yes, 1st offender, non-violent offenses.

Follow bond schedule please

t77th Yes. 178th Yes. 179th Yes.

No

No

Yes. Mandatory probatíon, no prior criminal history, confirmed place to live with telephone. Also, in exceptional circumstances such as need for dialysis or unusual medical circumstances, not for 3(g) cases.

Follow the current procedure until further notice.

No Bond Follow the bail schedule

1. Yes for first offender, non-violent cases. 2. For all PCS< 1 as long as no burglaries or No convictions for violent offenses.

L)LV
e0b

Follow the bond schedule.

The hearing officer may lower any bond recommended by the prosecutor in theft cases where there is not risk of flight or in except. circumstances such as need for dialysis or unusual medical circumstances, not for 3(g) cases.
1. No PR bonds on lntox offenses. 2. Please set bonds according to bond schedule on family violence cases after Mag Order is signed.

180th Yes

182nd 183rd

No lowering. OK to raise if appropriate.
Yes.

184th Yes

No

No Bond

No.

Standard rules to be followed

Yes

No Bond.

ln non-aggravated cases when the magistrate believes it is appropriate. Sex. Offenses should be considered aggravated

Please follow standard procedure

No Bond.
Set at no bond. No Bond Hearing officer may use his/her discretion.

None
Call or email with any questions. I want any bonds lowered at P.C. Ok to ra rse bu No.
Please do not lower bonds or give PR bonds in DWI cases, intox assault, or intox manslaughter cases. Please raise bond if defendant is danger to the public.
6al4b

SCJC 0000201

HARRISCO_CourtOrder 001924
000416

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 203 of 212

District Court
208th

tf the Criminal Law Hearing Officers realize a bond amount is ineorrectly set under the District Court Bail Schedule, can the hearing officer correct it?
Yes

Can the hearing officers grant pre.tr¡al bonds?

Would you like the hearing officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant {normal report¡ng, not an absconder), are the hearing officers to follow the ba¡l schedule or set at no bond?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

Yes: for non-violent state jail and third degree felonies with no prior felony convictions (as recommended by Pre-Trial
Services.)

Follow bond schedule for defendants who are not legally in the United States.

Follow the bond schedule.

ln cases where special circumstances eause the hearing officer to determine the defendant is a risk to the community, not withstanding the bond schedule, adjust the bond accordingly.

20gth Yes. 228th Yes.
230th Yes
232nd Yes. 248th Yes. 262nd Yes. 263rd Yes.

No.

Follow the bail schedule.

No.

No.

Yes. Non violent state jail and 3rd degree first offenders. No crimes of violence or Follow the bond schedule. history of violence. DWl, burglaries and all others refer to the court.

Yes; mandatory probation with no prior criminal history but with confirmed place to live and ohone #.
No.

Follow bond schedule Follow the Judge's Bail Schedule (SfS,OOO¡

No.

Follow the schedule.

No.

Yes, refer to the court.

No Bond. No bond.
Follow the bond schedule
No bond. Set at no bond. Follow schedule. Set at no bond.

No No
Set bonds according to schedule on family violence cases after MOEP is signed.
No. No Feel free to call me with any questions. No.

337th Yes.

ln all cases except 3G offenses, DWI 3rd and family violence, if qualified.

Follow bond schedule absent blue Follow the Judge's Bond Schedule currently at 535,000. warrant.

Call or email with any questions.

338th Yes. 339rh Yes. 35lst Yes

Yes, in non-violent state jail and third degree felony cases. Hearing officer may not grant pre-trial bonds in Dw|-related ceses. Yes. For Non-Violent state ja¡l and 3rd degree felonies with no prior feolny convictions (as recommended by Pre-Trial
Services.)

Follow the bail schedule. Follow the bond schedule.

No.

Follow bond schedule.

Follow the bail schedule. Follow bond schedule Follow bond schedule.

No.
Ca{l or email with questions
Failure to reg¡ster as sex offender - No bond; Possession of child porn. 530,000.00 (can be raised if on bond, on nrohation or nrior I

J-4

SCJC 0000202

HARRISCO_CourtOrder 001925
000417

J-4

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 204 of 212

District Court
t74th

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the D¡str¡ct Court Bail Schedule, cen the hearing officer correct it?

Can the hearing officers grant pretrial bonds?

Yes.

Yes for non-violent offenses.

176th Yes

Yes, lst offender, non-violent offenses.

Would you like the hearing officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant (normal report¡ng, not an absconder), are the hearing officers to follow the bail schedule or set at no bond?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

Set bonds, except where the feds have ruled and set bonds.

Follow bail schedule.

No, use your discretion.

Follow bond schedule please.

t77th Yes.

No

No

No Bond.

178th Yes.

17gth Yes.

180th Yes

182nd 183rd

No lowering. OK to raise if
appropriate.
Yes.

184th Yes.

185th Yes.

Yes. Mandatory probation, no prior criminal history, confirmed place to live with telephone. Also, in exceptional circumstances such as need for dialysis or unusual medical circumstances, not for 3(g) cases.

Foflow the current procedure until further notice.

Follow the bail schedule.

1. Yes for first offender, non-violent cases. 2. For all PCS< 1 as long as no burglaríes or No convicÌions for violent offenses.

Follow the bond schedule.

No

No Bond

No Bond

No

Standard rules to be followed

Yes.

No Bond.

ln non'aggravated cases when the magistrate believes it is appropriate. Sex. Offenses should be considered aggravated

Please follow standard procedure.

Yes. PCS< l gram if no prior felony
conv¡ct¡ons and defendant is not homeless.

Set bond at 535,000.

Set at no bond No Bond. Hearing officer may use his/her discretion.
Set at no bond

The hearing officer may lower any bond recommended by the prosecutor in theft cases where there is not risk of flight or in except. circumstances such as need for dialysis or unusual medicál circumstances, not for 3(g) cases.
1. No PR bonds on lntox offenses. 2. Please set bonds according to bond schedule on family violence cases after Mag Order is signed.
None
or email with any quest¡ons. I nt any bonds lowered at P.C. Ok to ratse No.
Please do not lower bonds or give PR bonds in DWI cases, intôx assault, or intox manslaughter cases. Please raise bond if defendant is danger to the public.
No

6-Ø*16

SCJC 0000203

HARRISCO_CourtOrder 001926
000418

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 205 of 212

District Court
18sth
208th
209th 22sth 230th 232nd 248th 262nd 263rd

lf the Criminal Law Hearing Officers realire a bond amount is incorrectly set under the District Court Bailschedule, can the hearing officer correct it?
Yes

Can the hearing offiçers grant pretrialbonds?
Yes. PCS< 1. gram if no prior felony convictions and defendant is not homeless.

Would you likc türc hcaring officers to follow any particular instruetlom for sctting bail in ca¡c¡

lf a person is on parole, absent a blue warrant (normal rePorting

Arc there any other instructions for scRing bail in specific types of cases

where l.C.E. hec deccd a dctainer on thc defendant?

not an absconder), are the hearing that you would like the hearing officers to follow the ba¡l schedule officers to fsllow? or set at no bond?

Set bond at 535,000.

Set at no bond

No

Yes: for non-violent state jail and third

ln cases where special circumstances

Yes

degree feloniés with no prior felony

Follow bond schedule for defendants who are not

convictions (as recommended by Pre-Trial legally in the United States.

Follow the bond schedule

cause the hearing officer to determine the defendant is a risk to the community, not withstanding the bond schedule,

Services.)

adjust the bond accordingly.

Yes.

No

Follow the bail schedule

No Eond

No.

Yes.

No

No.

No bond

No.

Yes, Unless it was changed by me.

Refer to Court

Set at no Bond

Set at no bond

No.

Yes; mandatory probation with no Brior

Yes.

criminal history but with confirmed place Follow bond schedule.

No bond

No.

to live and ohone #.

Yes.

No

Follow the Judge's Bail Schedule (535,000)

Set at no bond

No

Yes.

No

Follow the schedule.

Follow schedule

Feel free to call me with any questions.

Yes.

No.

Yes, refer to the court.

Set at no bond

No.

337th Yes. 338th Yes 339th Yes. 35lst Yes.

û: ,rJ \û
.V

ln all cases except 3G offenses, DWI 3rd and family violence, if qualified.

Follow bond schedule absent blue Follow the Judge's Bond Schedule currently at 535,000. warrant.

Yes, in non-violent state jail and third degree felony cases. Hearing officer may not grant pre-trial bonds in DWI-related ceses. Yes. For Non-Violent state jail and 3rd degree felonies with no prior feolny convictions (as recommended by Pre-Trial Services.)

Follow the bail schedule Follow the bond schedule

Follow the bail schedule Follow bond schedule.

No.

Follow bond schedule

Follow bond schedule.

Call or email with any questions.
No.
Call or email with questions. Failure to register as sex offender - No bond; Possession of child porn. 530,000.00 (can be raised if on bond, on orobation. or orior.)

J-4

SCJC 0000204

HARRISCO_CourtOrder 001927
000419

J-4

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 206 of 212

District Court
174th

lf the Cr¡m¡nal Law Hearing 0fficers realize a bond amount is incorrectly set under thc District Court Bail Schedule, can the hearing officer corect it?

Can the hearing officers grant preÙ¡albonds?

Yes.

Yes for non-violent offenses.

Would you llke the hcarirlg sffieers to follow any pertkrrlar instructions for settittS beil ln c¡scs
where l.C.E. þs plecsd a detainer on thc
defendant?

lf a person is on parole, ab¡ent a blue warrant (normal reporting, not an absconder|, are the hcaring officers to follow the ba¡l schedule or set at no bond?

Are there any other instructions for scttin3 bail in speciltc typcs of cases that yoùr would like the hearing officers to fullw?

Set bonds, except where the feds have ruied and set honrlq

Follow bail schedule

No, use your discretion.

176th Yes.

Yes, 1st offender, non-violent offenses.

Follow bond schedule please.

t77th Yes.
178ür Yes 179rh Yes

No

No

Yes. Mandatory probation, no prior criminal history confirmed place to lite with telephone. Also, in exceptional circumstances such as need for dialysis or unusual medical circumstances, not for
3(g) cases.

Follow the current procedure until further notice.

No Bond Follow the bail scledule

1. Yes for first offender, non-vioÞnt ceses. 2. For all PCS< 1 as long as no burglaries or No convictions for violent offenses.

Follow the bond schedule

The hearing officer may lower any bond recommerded by the prosccutor in theft cases where there is not r¡sk of flþht or in except. circumstances such as need for dialysis or unusual medical circumstances, not for 3(g) cases.
1. No PR bonds on lntoxoffenses. 2. Please set bonds according to bond schedule on family violence cases after Mag Order is signed.

180rh Yes

1t2rd 1t3d

No lowering. OK to raise if
appropriate.
Yes.

18aËr Yes.

No

No Bond

No.

Standard rules to be fo$owed

Yes.

No Bond

ln non-aggravated cases when the magistrate believes ¡t is appropriate. 5€x. Please follow standard procedure Offenses should be considered aggravated.

No Bond
S,et at no bond. No Bond Hearing officer may use his/her discretion.

None
or email with any questions. I any bonds lmrered at P.C. Ot to
No.
Please do not lover bonds or give PR bonds in DWI cases, intox assault, or intox manslaughter cases. Please raise bond if defendant is danger to the public.
ô-q -/6

SCJC 0000205

HARRISCO_CourtOrder 001928
000420

J-4

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 207 of 212

District Court
174rh

f the Cr¡m¡nal Law Hearing
Officers realize a bond amount ¡s incorrectly set under th€ Distr¡ct Court Bail Schcdulc, ciNn the hearing officer correct ¡t?

Cen the hearing officers grant Pretrialbonds?

Yes.

Yes for non-violent offenses.

Would you likc thc hcaring offfcers to follow any pertkular instnrtions for scttirç bail in cascs wherc l.C.E. h¡s pl¡ccd e dctainer on thc
defendant?

lf a person is on parole, absent a blue warrant (normal reporting, not an absconder), are thc hearitg officers to follow the bail schedulc
or ret ¡t no bond?

Are there any other instructions Sor sstt¡rE bail in speciffc typcr of cases that you would lite thc heerirx3 officerc to follow?

Set bonds, except where the feds have ruled and set hondc,

Follow bail schedule.

No, use your discretion

176th Yes.

Yes, 1st offender, non-violent offenses.

Follow bond schedule please.

177úr Yes. 17Eür Yes. 179th Yes.

No

No

Yes. Mandatory probation, no prior criminal h¡story confirmed dacc to lltæ with telephone. Also, in exceptional circumstances such as need for didysis or unusual medical circumstances, not for 3þ)cases.

Follow the current procedure until further notice.

No Bond Follow the bail schedule.

1. Yes for first offender, ncn-vioþnt cases. 2. For all PCS< 1 as long as no burglaries or No convictions for violent offenses.

Follow the bond schedule

The hearing officer may lower any bond reconrmendcd by the prosecutor ¡n thcft cases where there is not risk of flight or in except. circumstances such as need for dialysis or unusual medical circumstances, not for 3(g) cases.
1. No PR bonds on lntox offenses. 2. Please set bonds according to bond sclredule on family violence cases after Mag Order is signed.

180rh Yes

1E:lnd 1E3rd

No lowering. OK to raise if appropriate.
Ves.

184th Yes.

No

No Bond

No.

Standard rules to be followed

Yes.

No Bord.

ln non-aggravated cases when the magistrate believes ¡t is appropriate. Sex. Please follow standard procedure Offenses should be considered aggravated.

No Bond.
Set d ns bond.
No Bond. Hearing officer may use his/her discretion.

None
Call or emailn¡th any questions. I don't want any bonds lowered at P.C. Ok to raisc it. but no bwerinc.
No.
Please do not lower bonds or giw PR bonds in DWI cases, intox assautt, or intox manslaughter cas€s. Please raise bond if defendant is danger to the public.
tolf.1l2OL4

SCJC 0000206

HARRISCO_CourtOrder 001929
000421

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 208 of 212

District Court
ll5dr
zærh
20$ñ 22tür ZXtdr
z:tN
2atrà 262nd 263rd

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set undcr the District Court Bail Schcdulc, can the hearing oflicer correct it?

Can the hearing officers trant pretrial bonds?

Yes.

No - please refer

Would you like the hearing officars to follor any particuler instruetions for scttirg beil in cases
where l.C.E. h¡s @ed a dct¡iner on the
defendant?

lf a person is on parolc, absent a blue warrant (normal reporting
not en absconderf, elt th€ hearllç officers to follow the ball sci¡edulc

Are there any other instructions for scttiry bail in specific types of cares that you rculd like thc hearing officers to fdlow?

or set at no bond?

S3s,m.oo

Set at no bond.

Please set bond for felon in poss. of a weapon. Habitual offenders should be
held dout bond.

Yes.

No

Yes. Yes.
Yes, Unbss it was changod by me.
Ye3.
Yes.

No.
No.
Refer to Court. Yes; mandatory probation with no prior criminal history but with confirmed place to l¡ve and phone #. No

Follow the bail schedule No. Set at no Bond.
Follow bond schedule
Follow the Judge's Bail Schedule ($3S,OOO¡

No Bond. No bord. Sct õt no bond.
No bond.
Set at no bond

ln extraordinary cases where the defendant is a risk to the community with the bond set according to the bond schedule, then please use your discretion in setting the bond ( or high risk of llight).
No. No. No.
No.
l{o

Yes.

No

Follow the schedule.

Follow schedule.

Feel free to call me w¡th any questions.

Yes.

No.

Yes, refer to the court.

Set.t no borld.

No.

337*r Yes.
3:¡8rh Yes. 339rh Yes. 35lst Yes.

ln all cases except 3G offense¡ DWI 3rd ard famiþviolence, if qualifnd.

Follow the Judge's Bond Schedule currently at 535,@0.

Follow bond schedule absent blue warrant.

Call or email with any questions.

Yes, in non-violent state jail and third degree felony cases. Hearing ofñcer may not grant pre-tr¡al bonds in Outl-r€htcd
cases.
Ycs. StateJail and Non-3G offcrxes.

Follow the bail schedule.

Follow the bail schedule.

Follow the bond schedule. lf defendant bond, send th€m to Pre-Trial.

is atÍc

to

make

Follow bond scheduþ.

No.

Follow bond schedule

Follow bond schedule.

No
lf I have set a bond, please do not lowr
bond without my permission. Failure to reg¡ster as sex offender - No bond; Possession of child porn. 530,000.00 (can be raised if on bond, on orobation. or nrior^ì

J-4

SCJC 0000207

HARRISCO_CourtOrder 001930
000422

J-4

17¿3th

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 209 of 212

the Criminal Law Hearing realize a bond amount is
incorrectly set under the District Court BaÌl Scheduþ, ean the hearirg officer correct it?

the hearing officers grant Prebonds?

Yes.

Yes for non-violent offenses.

üþ$. Wot H Vou Fkc thc hc¡çirç ofñcers to folbnr any
pârtiaut¡r Mr$crionc for scttir€ bail in mæ
whcrc l.C.E. h¡É placed a detalner on thG defendant?

lf a person is on Parole, abeent a blue w¡rrant (r¡ormel rePorting" not en absconder|, are the heariry officers to follow the bail scfiedule
or s€t at no bord?

Are thara ræf oünr for¡tructlm for

settin¡ b¡il in spGclfic typcs of cescs

thetyou wt¡d

hcerirç

officers to ûolhr?

except

ru

set tollow bail schedule.

No, use your discretion

176th Yes.

Yes, 1.st offender, non-violent offenses'

Follow bond schedule Please

17?th Yes. 17&h Yes.

17Sl Yes.

1&h Yes

18f$d l$tr'd

No lowering. OK to raise if &ppropriate.
Yes.

181ür Yes.

ItStr Yes.

No

No Bond

Yes. Mandatory probation, no Prior criminal history, confirmed place to live with telephone. ¡{lso, in exceptional
circumstances such as need fs diaþis or
unusual medical circumstarrces, not for
3(g) cases.

Follow the current procedure until further notlce.

Follow the bail schedu¡e.

1. Yes for first offender, rrcn-violent cases. 2. For all PCS< 1 as long as no burglaries or No convlctions for violent offenses.

Follow the bond schedule.

No

No Bond

No.

Standard rules to be followed

Yes.

No Bond.

ln non-aggravated cases when the
mssistræe bclicæg it is ryropri*e. Sêx' Fkase f,ollær standard procedure.
Offenses should be considered aggravated

Yes. PCS< 1 gram if no Prior felonY
cørvictions ard dcfenffi is tøt
homeless.

S€t borld at 935,000.

No Eond
*t at no bord.
Ho Bord llearirq offieer may use hislhcr discretion.
9et ãt no bond.

The hearing officer may lower any bond recommended by the prosecutor in theft cases where there is not risk of flight or in except. circumstances such as need for ,dlalysis or unuzud medical €¡rc$msttr€es, ,rpt for 3(g) cases.
1. iþ PR bonds on tntoxoffenses. 2.
Pb¡se sct bonds accordirg to bond scheduþ on famiþ violence cases after Mag Order is signed.

None

of

any guestforns. I

any bonds lowered at P.C. Ok to

No.
Pkase do not lower bonds or giv€ PR bonds in OWI cases, intox ass¡ult, or kttox manslaughter cases. Please raise bond if defendant is danger to the Public.

No
I

SCJC 0000208

HARRISCO_CourtOrder 001931
000423

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 210 of 212

District Court
208th
209th 228th 230th
232nd 248th 262nd 263rd

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the D¡str¡ct Court BailSchedule, can the hearing officer correct it?

Can the hearing officers grant pretrial bonds?

Would you like the hearing officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant (normal report¡ng, not an absconderl, are the hearing officers to follow the bail schedule

Are there any other instructions for sett¡ng bail in specific types of cases that you would like the hearing officers to follow?

or set at no bond?

Yes: for non-violent state jail and third

ln cases where special circumstances

degree felonies with no prior felony

Follow bond schedule for defendants who are not

cause the hearing officer to determine

Yes

convictions (as recommended by Pre-Trial legally in the Un¡ted States.

Follow the bond schedule

the defendant is a risk to the community,

Services.)

not withstanding the bond schedule,

adjust the bond accordingly.

Yes.

No.

Yes

No

Follow the bail schedule. No.

No Bond.

No.

No bond.

No.

Yes. Non violent state jail and 3rd degree

Yes

first offenders. No crimes of violence or history of violence. DWl, burglaries and all Follow the bond schedule

Follow the bond schedule

Set bonds according to schedule on family violence cases after MOEP is signed.

others refer to the court.

Yes; mandatory probation with no prior

Yes.

criminal history but with confirmed place Follow bond schedule

No bond

No.

to live and phone #.

Yes.

No.

Follow the Judge's Bail Schedule (5:S,OOO¡

Set at no bond

No

Yes.

No.

Follow the schedule

Follow schedule

Feel free to call me with any questions.

Yes.

No.

Yes, refer to the court.

Set at no bond

No.

337th Yes 338th Yes. 339th Yes. 35lst Yes

ln all cases except 3G offenses, DWI 3rd and family violence, if qualified.

Follow the Judge's Bond Schedule currently at 535,000.

Follow bond schedule absent blue warrant.

Yes, in non-violent state jail and third degree felony cases. Hearing officer may not grant pre-trial bonds in DWl-related
cases. Yes. For Non-Violent state ja¡l and 3rd
degree felonies with no prior feolny
convictions (as recommended by Pre-Trial
Services.)

Follow the bail schedule. Follow the bond schedule

Follow the bail schedule. Follow bond schedule.

No.

Follow bond schedule.

Follow bond schedule.

Call or email with any questions
No.
Call or email with questions. Failure to register as sex offender - No bond; Possession of child porn. 530,000.00 (can be raised if on bond, on nrobation or orior I

J-4

SCJC 0000209

HARRISCO_CourtOrder 001932
000424

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 211 of 212

District Court
18sth
208th
20flttr 228ür 23oth 272nd z¡t8ttt

lf the Criminal Law Hearing Officers realize a bond amount is incorrectly set under the Dlstr¡ct Court Bail Schedule, can the hearing officer correct it?
Yes.

Can the hearing officers grant pretrialbonds?
Yes. PCS<1 gram if no prior felony convictions and defendant is not homeless.

Would you like the hearing officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

!f a person is on parole, absent a blue warrant (normal report¡ng, not en absconder!, are the hearing officers to follow the bail schedule or set at no bond?

Are there any other instructions for setting bail in specific types of cases that you would like the hearing officers to follow?

Set bond at S35,0o0

Set at no bond

No.

Yes.

No.

ln extraordinary cases where the defendant is a risk to the community with the bond set according to the bond schedule, then please use your discretion in setting the bond { or high risk of flight).

Yes.

No.

Follow the ba¡l schedule.

No Bond

No

Yes.

No.

No.

No bond

No.

Yes, Unless it was changed by me. Yes.

Refer to Court. Yes; mandatory probation with no prior criminal history but w¡th confirrned place to live and ohone #.

Set at no Bond Follow bond schedule.

Set at no bond.

No.

No bond

No.

Yes.

No

Follow the Judge's Bail Schedule (SaS,OOO¡

Set at no bond

No

262ad Yes.

No.

Follow the schedule

Follow schedule.

Feel free to call me with any questions.

263rd Yes.

No

Yes, refer to the court.

Set at no bond.

No.

337th Yes.
338th Yes. 33!tth Yes. 35lst Yes.

ln all cases except 3G offenses, DWI 3rd and family violence, if qualified.

Follow bond schedule absent blue Follow the Judge's Bond Schedule currently at 535,000. warrant.

Call or emailwith any questions.

Yes, in non-violent state jail and third degree felony cases. Þlearing officer may not grant pre-trial bonds in DW|-related
cases.
Yes. State Jail and Non-3G offenses.

Follow the bail schedule.

Follow the ba¡l schedule

Follow the bond schedule. lf defendant is able to rnake Follow bond schedule bond, send them to Pre-Trial.

No

Follow bond schedule.

Follow bond.schedule.

No.
lf I have set a bond, please do not lower bond without my permission. Faílure to fegister as sex offender - No bond; Possession of child porn. 530,000.00 (can be raised if on bond, on orobation. or orior.l

J-4

SCJC 0000210

HARRISCO_CourtOrder 001933
000425

Case 4:19-cv-00226 Document 32-7 Filed on 03/27/20 in TXSD Page 212 of 212

D¡str¡ct Court
17¡tth

lf the Cr¡m¡nal Law Hearing Officers realize a bond amount is incorrectly set under the District Court Bail Schedule, can the hearing officer correct it?

Can the hearing officers grant pretrialbonds?

Yes.

Yes for non-violent offenses.

Would you like the hearing officers to follow any particular instructions for setting bail in cases where l.C.E. has placed a detainer on the defendant?

lf a person is on parole, absent a blue warrant (normal reporting, not an absconder), are the hearing officers to follow the bail schedule

Are there any otùer instructions for sêtt¡ng bail in speciflc types of cases thet you would like the hearing officers to follow?

or set et no bond?

set bonds, except where the feds have ruled and set hondq

Follow bailschedule.

No, use your discretion

176th Yes.

Yes, lst offender, non-violent offenses.

Follow bond schedule please.

t77th Yes. 178th Yes. 179th Yes.

No

No

Yes. Mandatory probation, no prior criminal h¡story confirmed place to live with telephone. Also, in exceptional circumstances such as need for dialysis or unusual medical círcumstances, not for 3(g) cases.

Follow the current procedure until further not¡ce.

No Bond Follow the bail schedule.

1. Yes for first offender, non-violent cases. 2. For all PCS< 1 as long as no burglaries or No convictions for violent offenses.

Follow the bond schedule.

The hearing officer may lower any bond recommended by the prosecutor in theft cases where there is not risk of flight or in except. circumstances such as need for dialysis or unusual medical circumstances, not for 3(g) cases.
1. No PR bonds on lntox offenses. 2. Please set bonds according to bond schedule on family violence cases after Mag Order is signed.

180th Yes

182nd 183rd

No lowering. OK to raise if appropriate.
Yes.

184th Yes.

No

No Bond.

No.

Standard rules to be followed.

Yes.

No Bond

ln non-aggravated cases when the mag¡strate believes it is appropriate. Sex. Offenses should be considered aggravated

Please follow standard procedure.

No Bond
Set at no bond No 8ond. Hearing officer may use his/her discretion.

None
Call or emailwíth any quest¡ons. I any bonds lowered at P.C. Ok to
No.
Please do not lower bonds or give PR bonds in DWI cases, intox assault, or intox manslaughter cases. Please raise bond if defendant is danger to the public.

J-4

SCJC 0000211

HARRISCO_CourtOrder 001934
000426

 
 Case 4:19-cv-00226 Document 54 Filed on 04/01/20 in TXSD Page 1 of 50

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

DWIGHT RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

Case No. 4:19-cv-00226

STATE INTERVENORS’ RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 4:19-cv-00226 Document 54 Filed on 04/01/20 in TXSD Page 2 of 50
TABLE OF CONTENTS
Table of Authorities ....................................................................................................... ii Introduction ................................................................................................................... 1 Preliminary Injunction Standards ................................................................................ 4 Argument ....................................................................................................................... 5
A. Plaintiffs are unlikely to succeed on the merits. .......................................... 5 1. This Court cannot issue the requested relief of release under ODonnell. .................................................................................................. 5 2. The procedural due process remedy Plaintiffs seek has already been adopted by the County. ...................................................... 7 3. Because each arrestee already receives sufficient process only rational basis review applies, a standard that is easily met. ................. 9
B. Regardless, substantive relief is unavailable. ............................................ 12 1. Plaintiffs cannot plead around the Eighth Amendment to assert an excessive-bail claim as a substantive due process claim........................................................................................................ 12 2. There is no substantive due process right for indigents to obtain affordable bail. ............................................................................ 17 3. Plaintiffs are also unlikely to succeed because this Court lacks subject-matter jurisdiction. .......................................................... 19
C. The Rooker-Feldman doctrine deprives this Court of jurisdiction over a suit challenging past bail orders. ..................................................... 20
D. No named Plaintiff has Article III standing to seek relief based on future bail orders. ................................................................................... 23
E. Any arguments Plaintiffs might offer in response fail............................... 25 F. Releasing felons during a time of public crisis endangers public
safety and, therefore, is not in the public interest. .................................... 28 G. Plaintiffs’ Supplemental Brief Confirms that this Court May Not
Grant Relief.................................................................................................. 34 Conclusion .................................................................................................................... 41 Certificate of Service.................................................................................................... 43
i

Case 4:19-cv-00226 Document 54 Filed on 04/01/20 in TXSD Page 3 of 50
TABLE OF AUTHORITIES
Cases Am. Family Life Assurance Co. of Columbus v. Aetna Life Ins. Co., 446
F.2d 1178 (5th Cir. 1971) ......................................................................................... 36 Ariz. Christ. Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) .................................... 25 Atl. Coast Line R.R. Co. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281 (1970) ............. 21 Austin v. Johnson, 328 F.3d 204 (5th Cir. 2003) .................................................. 14, 15 Benisek v. Lamone, 138 S. Ct. 1942, 1943 (2018) ......................................................... 1 Booth v. Galveston Cty., Tex., No. 3:18-cv-00104, 2019 WL 3714455 (S.D.
Tex. Aug. 7, 2019)....................................................................................................... 9 Brannen v. Willoughby, 257 F.2d 580 (5th Cir. 1958)................................................ 35 Brown v. City of New York, 210 F. Supp. 2d 235 (S.D.N.Y. 1999) ............................. 22 Califano v. Yamasaki, 442 U.S. 682 (1979) ................................................................ 37 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .................................................. 24, 27 Clapper v. Amnesty Int’l, 568 U.S. 398 (2013) ............................................................ 24 Collins v. City of Harker Heights, 503 U.S. 115 (1992) .............................................. 13 Conn v. Gabbert, 526 U.S. 286 (1999) ......................................................................... 13 County of Sacramento v. Lewis, 523 U.S. 833 (1998) ................................................. 13 Cruson v. Jackson Nat’l Life Ins. Co., — F.3d —, 2020 WL 1443531 (5th
Cir. Mar. 25, 2020) ................................................................................................... 37 Ctr. for Biol. Diversity v. U.S. Envt’l Prot. Servs., 937 F.3d 533 (5th Cir.
2019) ................................................................................................................... 24, 25 D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983) ................................ 21, 22, 23 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)................................................. 19 Doyle v. Elsea, 658 F.2d 512 (7th Cir. 1981)................................................................. 9 Ex parte Anderer, 61 S.W.3d 398 (Tex. Crim. App. 2001) .......................................... 11 Ex parte Clark, 537 S.W.2d 40 (Tex. Crim. App. 1976).............................................. 27 Ex parte Sellers, 516 S.W.2d 665 (Tex. Crim. App. 1974) .......................................... 27 Exhibitors Poster Exch., Inc. v. Nat'l Screen Serv. Corp., 441 F.2d 560 (5th
Cir. 1971) .................................................................................................................. 36 Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)................. 21, 23 Frank v. Gaos, 139 S. Ct. 1041 (2019) .................................................................. 20, 26
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Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167 (2000) ................................................................................................................. 26
Gerstein v. Pugh, 420 U.S. 103 (1975) ........................................................................ 26 Graham v. Connor, 490 U.S. 386 (1989) ......................................................... 13, 14, 15 Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567 (2004) ............................... 19 Heckler v. Redbud Hosp. Dist., 473 U.S. 1308 (1985) ................................................ 35 Hodgdon v. United States, 365 F.2d 679 (8th Cir. 1966) ........................................... 16 Hoeme v. Jeoffroy, 100 F.2d 225 (5th Cir. 1938)......................................................... 36 Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992 (5th Cir. 1985) ................... 4 Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826
(2002) ........................................................................................................................ 28 Houston Chronicle Pub. Co. v. City of League City, Tex., 488 F.3d 613 (5th
Cir. 2007) .................................................................................................................. 29 In re Reitnauer, 152 F.3d 341 (5th Cir. 1998)............................................................. 27 Ingram v. Fish, No. 09-204, 2010 WL 3075747 (W.D. Pa. Aug. 5, 2010) .................. 22 John Corp. v. City of Houston, 214 F.3d 573 (5th Cir. 2000) ............................... 14, 15 Jones v. Perez, 790 F. App’x 576 (5th Cir. 2019) ........................................................ 14 Kans. Health Care Ass’n v. Kans. Dep’t of Social Rehab., 31 F.3d 1536
(10th Cir. 1994) ........................................................................................................ 38 Lewis v. Casey, 518 U.S. 343 (1996) ............................................................................ 26 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ........................................................... 38 M.L.B. v. S.L.J., 519 U.S. 102 (1996).......................................................................... 10 Martinez v. Mathews, 544 F.2d 1233 (5th Cir. 1976) ............................................... 4, 5 McGinnis v. Royster, 410 U.S. 263 (1973)......................................................... 9, 10, 12 McNeil v. Cmty. Probation Servs., 945 F.3d 991 (6th Cir. Dec. 23, 2019) ................. 40 Mercury Motor Exp., Inc. v. Brinke, 475 F.2d 1086 (5th Cir. 1973)........................... 35 Morgan v. Fletcher, 518 F.2d 236 (5th Cir. 1975)....................................................... 36 Mounkes v. Conklin, 922 F. Supp. 1501 (D. Kan. 1996)............................................. 22 Norton v. Parke, 892 F.2d 476 (6th Cir. 1989)............................................................ 27 O’Shea v. Littleton, 414 U.S. 488 (1974) ............................................................. passim ODonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018).......................................... passim ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018) ........................... 1, 8, 12, 17 ODonnell v. Harris Cty., Tex., 882 F.3d 528 (5th Cir. 2018)...................................... 10
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ODonnell v. Salgado, 913 F.3d 479 (5th Cir. 2019)...................................................... 2 Planned Parenthood of Houston & Southeast Tex. v. Sanchez, 403 F.3d
324 (5th Cir. 2005) ..................................................................................................... 5 Portuondo v. Agard, 529 U.S. 61 (2000)...................................................................... 13 Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) ......................................... 11, 15, 17 R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941)......................................... 28 Reno v. Flores, 507 U.S. 292 (1993)............................................................................. 17 Rizzo v. Goode, 423 U.S. 362 (1976) ............................................................................ 24 Rose v. Lundy, 455 U.S. 509 (1982)............................................................................. 39 Ross v. Moffitt, 417 U.S. 600 (1974) ............................................................................ 10 Rouse v. Mich., No. 2:17-CV-12276, 2017 WL 3394753 (E.D. Mich. Aug. 8,
2017) ......................................................................................................................... 27 Salazar v. Buono, 559 U.S. 700 (2010........................................................................... 4 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973) ................................. 10 Schilb v. Kuebel, 404 U.S. 357 (1971) ......................................................................... 11 Skinner v. Switzer, 562 U.S. 521 (2011) ............................................................... 21, 22 Smith v. U.S. Parole Comm’n, 752 F.2d 1056 (5th Cir. 1985) ............................... 9, 12 Sorenson v. Raymond, 532 F.2d 496 (5th Cir. 1976) .................................................. 35 Stack v. Boyle, 342 U.S. 1(1951)............................................................................ 11, 16 Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) .................................. 19, 26 Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S.
702 (2010) ................................................................................................................. 13 Stringer v. Whitley, 942 F.3d 715 (5th Cir. 2019)....................................................... 26 Tate v. Short, 401 U.S. 395 (1971) .............................................................................. 17 Unger v. Amedisys Inc., 401 F.3d 316 (5th Cir. 2005) ................................................ 37 United States ex rel. Bowe v. Skeen, 107 F. Supp. 879 (N.D. W.Va.1952) ................. 28 United States v. Cordero, 166 F.3d 334 (4th Cir. 1998) ............................................. 16 United States v. Lanier, 520 U.S. 259 (1997).............................................................. 13 United States v. Mantecon-Zayas, 949 F.2d 548 (1st Cir. 1991) ................................ 16 United States v. McConnell, 842 F.2d 105 (5th Cir. 1988)......................................... 16 United States v. Salerno, 481 U.S. 739 (1987)...................................................... 18, 19 United States v. Setser, 607 F.3d 128 (5th Cir. 2010), aff’d, 566 U.S. 231
(2016) ........................................................................................................................ 15
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United States v. Wright, 483 F.2d 1068 (4th Cir. 1973) ............................................. 16 Valley Forge Christian Coll. v. Americans United for Separation of Church
& State, Inc., 454 U.S. 464 (1982) ........................................................................... 27 Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018) ............................. 9, 10, 16 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ................................................. 37 Washington v. Glucksberg, 521 U.S. 721 (1997) ......................................................... 17 Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .............................................. 5, 29 White v. Carlucci, 862 F.2d 1209 (5th Cir. 1989) ......................................................... 4 White v. Wilson, 399 F.2d 596 (9th Cir. 1968) ............................................................ 16 Whitmore v. Ark., 495 U.S. 149 (1990)........................................................................ 24 Williams v. Ill. 399 U.S. 235 (1970) ............................................................................ 17 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ..................................... 29, 34 Wis. Right to Life, Inc. v. Fed. Election Comm’n, 542 U.S. 1305 (2004) ...................... 1 Yarls v. Bunton, 905 F.3d 905 (5th Cir. 2018). ........................................................... 12 Statutes 28 U.S.C. § 2241........................................................................................................... 28 28 U.S.C. § 2242........................................................................................................... 28 28 U.S.C. § 2254(b)(1)(A) ............................................................................................. 39 42 U.S.C. § 1983........................................................................................................... 28 TEX. CODE CRIM. PROC. ART. 11.24......................................................................... 12, 22 TEX. CODE CRIM. PROC. ART. 16.20(6) .......................................................................... 21 TEX. CODE CRIM. PROC. ART. 17.25............................................................................... 21 TEX. CODE CRIM. PROC. ART. 17.27............................................................................... 21 TEX. CONST. ART. I, § 11 ............................................................................................... 11 U.S. CONST., AMEND. VIII............................................................................................. 13 Other Authorities Charity Nicholson, Dallas County Bail Reform Policies Scrutinized
Following Increase in Homicides, The Texan (Feb. 26, 2020), ............................... 31 Emma Graham Harrison et al., Lockdowns Around the World Bring Rise
in Domestic Violence, Guardian (Mar. 28, 2020), ................................................... 31 Executive Order GA 13, Office of Tex. Governor (Mar. 29, 2020) ............................. 39 Katie Honan, NYPD Officials Say New Bail Law Is Leading to a Crime
Increase, Wall St. J. (Mar. 5, 2020) ......................................................................... 31
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Marissa J. Lang, Domestic Violence Will Increase During Coronavirus Quarantines and Stay-at-Home Orders, Experts Warn, Wash. Post (Mar. 27, 2020) ................................................................................................................... 31
Paul Cassell, Bail Reform in Chicago Appears to Have Increased Crime, Volokh Conspiracy (Feb. 19, 2020) .......................................................................... 30
Paul G. Cassell & Richard Fowles, Does Bail Reform Increase Crime? (Univ. of Utah Coll. of Law, Research Paper No. 349, Mar. 2, 2020) .................... 30
Rules Fed. R. Civ. P. 12(b)(1)................................................................................................. 28 Fed. R. Civ. P. 23(a)-(b) ............................................................................................... 36 Treatises 11A WRIGHT & MILLER, FED. PRAC. & PROC. CIV. § 2948 (3d ed.) .............................. 35 11A WRIGHT & MILLER, FED. PRAC. & PROC. CIV. § 2951 (3d ed.) .............................. 35 7AA WRIGHT& MILLER, FED. PRAC. & P7ROC. CIV. § 1785.2 (3d ed.).......................... 37
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INTRODUCTION Plaintiffs seek to authorize what amounts to a mass release of arrestees— including those charged with dangerous felonies or with a history of criminal violence. Not only does the relief sought violate the Fifth Circuit’s holding in ODonnell v. Harris County, 892 F.3d 147, 163-66 (5th Cir. 2018) (“ODonnell I”), it would upset the status quo by overturning a bail system intended to protect the safety of the general public while still respecting the constitutional rights of those charged with crimes. A preliminary injunction, all by itself, “is an extraordinary remedy never awarded as of right.” Benisek v. Lamone, 138 S. Ct. 1942, 1943 (2018) (per curiam) (quotation omitted). Plaintiffs’ ask the Court to violate the general rule that the “purpose of a preliminary injunction is merely to preserve the relative positions of the parties.” Id. at 1945. And Plaintiffs’ underlying challenge seeking a substantive right to release has already been rejected by the Fifth Circuit. Cf. Wis. Right to Life, Inc. v. Fed. Election Comm’n, 542 U.S. 1305, 1305-06 (2004) (Rehnquist, C.J., in chambers). If a preliminary injunction is appropriate only in a “rare” case, this one is not it. Plaintiffs here ask for relief that the Fifth Circuit already said this Court cannot give. In ODonnell v. Harris County, 892 F.3d 147, 163-66 (5th Cir. 2018) (“ODonnell I”), the Fifth Circuit provided clear guidance about the procedures necessary to satisfy the Constitution in bail proceedings. When this Court provided substantive—not just procedural—relief by ordering mandatory release in certain scenarios, the Fifth Circuit reversed, and instructed the Court to implement the relief the ODonnell I panel ordered. ODonnell v. Goodhart, 900 F.3d 220, 225-26, 228 (5th Cir. 2018) (“ODonnell II”). To stave off challenges just like this one, the Fifth Circuit
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reminded this Court and others that those decisions “bind[] the district courts in this circuit.” ODonnell v. Salgado, 913 F.3d 479, 482 (5th Cir. 2019) (“ODonnell III”). Plaintiffs’ underlying suit seeks to relitigate issues that the Fifth Circuit has already decided.
More fundamentally, this Court lacks subject-matter jurisdiction to entertain it at all. As the parties’ pleadings and discussion at telephonic conferences make clear, Plaintiffs ask this Court to revise or review past bail determinations made by state courts: Namely, they ask this Court to release them and thousands of other felony arrestees even though state courts have set bail and remanded them to custody. As the Rooker-Feldman doctrine instructs, however, this Court lacks jurisdiction to do so. Even if this Court ignores Plaintiffs’ pleas for release from past bail orders and recasts their complaint as seeking equitable relief reforming bail policies for future bail determinations, Plaintiffs’ lack an Article III injury in fact under binding Supreme Court precedent. Far from awarding preliminary injunctive relief, all this Court has power to do is dismiss this suit.
Even ignoring binding Fifth Circuit precedent and a lack of subject-matter jurisdiction, a host of other factors caution against awarding the preliminary relief that Plaintiffs seek. In the realm of equity, the public interest is paramount. Here that factor weighs in support of the State Intervenors—as the chorus of declarations from state and local law enforcement groups confirms.
The Chiefs of Police for Houston, Allen, Arlington, Frisco, Carrollton, Deer Park, Ft. Worth, Frisco, Grand Prairie, Irving, Lewisville, Pearland, and Plano, all
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agree that the relief Plaintiffs seek will harm the public during this pandemic.1 To be
sure, arrestees with a violent history pose an acute risk if released. But as the officials
note, violence is not the only harm the public faces during this crisis in which
individuals are vulnerable, stores are closed, and streets are empty. Ex. 1, Acevedo
Dec.; Exhibit 14, Declaration of Gregory W. Rushin. This Court should not consign
homeowners, businesses, the elderly, and others to their fate by accepting Plaintiffs’
suggestion that, say, burglary is just burglary—especially when law enforcement
resources are already stretched thin in response to the coronavirus. The Director of
the Texas Attorney General’s Law Enforcement Division2, the Director of the
Department of Public Safety3, the President of the Texas Police Chiefs Association4,
the President of the National Narcotic Officers’ Associations’ Coalition5, and Crime
Stoppers of Houston6 (the Nation’s largest victims’ advocacy group) echo the same
theme.
Finally, even if this Court were still inclined to award preliminary relief, local
officials are currently considering measures that might obviate the need for this
Court to act. As discussed on this Court’s most recent telephonic meeting, County
1 Ex. 1 Declaration of Houston Chief of Police Art Acevedo; Ex. 2 Declaration of Allen Police Chief Brian Harvey; Ex. 3 Declaration of Arlington Police Chief Will Johnson; Ex. 4 Declaration of Police Chief Derick Miller; Ex. 5 Declaration of Deer Park Chief of Police Gregg Grigg; Ex. 6 Declaration of Frisco Police Chief David Shilson; Ex. 7 Declaration of Fort Worth Police Chief Edwin Kraus; Ex. 8 March 31, 2020 Letter from Garland Police Department; Ex. 9 Declaration of Daniel Scesney; Ex. 10 Declaration of Irving Police Chief Jeff Spivey; Ex. 11 Declaration of Lewisville Police Chief Kevin Deaver; Ex. 12 Declaration of Pearland Police Chief Johnny Spires; Ex. 13 Declaration of Plano Police Chief Ed Drain.
2 Ex. 15 Declaration of David Maxwell. 3 Ex. 16 Declaration of Director of Department of Public Safety Steven McCraw. 4 Ex. 17 March 31, 2020 Letter from Gene Ellis, President, Texas Police Chiefs Association. 5 Ex. 18 Declaration of Bob Bushman. 6 Ex. 19 Declaration of Andy Kahan.
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Judge Hidalgo is preparing an order that would likely cover the same individuals this Court is inclined to provide relief. The Court was right to observe that “obviously it is preferable” for “politically responsible” state and local authorities to address any problems (real or perceived) rather than a Federal District Court. Taking that route here would not only reinforce important federalism principles but would also avoid other serious problems like this Court’s lack of jurisdiction and its independent inability to award class-wide relief without first certifying a class in compliance with Rule 23(b)’s strictures.
For all these reasons along with those set out below, the State Intervenors respectfully request this Court decline to release these felons and, instead, dismiss this entire action for lack of subject matter jurisdiction.
PRELIMINARY INJUNCTION STANDARDS Injunctive relief “is an extraordinary and drastic remedy, not to be granted routinely, but only when the movant, by a clear showing, carries the burden of persuasion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (quoting Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997v (5th Cir. 1985)). While issuing preliminary injunctive relief is designed primarily to freeze the status quo until a full hearing permits final relief, “[m]andatory preliminary relief . . . goes well beyond simply maintaining the status quo” and is “particularly disfavored.” Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976) (citation omitted). And when altering the status quo may prejudice an important “public interest,” a court “ ‘should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.’ ” Salazar v. Buono, 559 U.S. 700, 714 (2010) (quoting Weinberger v.
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Romero-Barcelo, 456 U.S. 305, 312 (1982)). “Only in rare instances is the issuance of a mandatory preliminary injunction proper.” Martinez, 544 F.2d at 1243..
To obtain preliminary injunctive relief, the applicant must show (1) a substantial likelihood that he will prevail on the merits, (2) a substantial threat that he will suffer irreparable injury if the injunction is not granted, (3) that his threatened injury outweighs the threatened harm to the party whom he seeks to enjoin, and (4) that granting the relief will serve the public interest. Planned Parenthood of Houston & Southeast Tex. v. Sanchez, 403 F.3d 324, 329 (5th Cir. 2005).
ARGUMENT A. Plaintiffs are unlikely to succeed on the merits.
1. This Court cannot issue the requested relief of release under ODonnell.
Plaintiffs allege three constitutional violations to support their request for a temporary restraining order. They argue that procedural and substantive due process require “notice, an opportunity to be heard and to present and confront evidence at a hearing with counsel, and findings on the record by clear and convincing evidence explaining the basis for detention.” ECF No. 32 at p. 23-24.7 And they assert that the Equal Protection Clause provides a substantive right. Id. at p. 25. In sum, Plaintiffs allege that Harris County felony arrestees’ due process and equal protection rights are violated because Defendants do not provide the procedural safeguards necessary to meet constitutional minimums. Additionally, Plaintiffs invoke the COVID-19
7 The cited pagination refers to the CM/ECF page numbering.
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coronavirus pandemic as an emergency that entitles them to unsecured pretrial release en masse. They are wrong at every turn.
First, the procedural remedies Plaintiffs seek in this lawsuit have already been put into place in Harris County as a result of the Consent Decree, ODonnell, et al. v. Harris Cty., Tex., et al., No. 16-cv-1414, (S.D. Tex. Nov. 21, 2019), ECF No. No. 708 (consent decree); see also Memorandum and Opinion Approving the Proposed Consent Decree, ODonnell, et al. v. Harris Cty., Tex., et al., No. 16-cv-1414, 2019 WL 6219933 (S.D. Tex. Nov. 21, 2019) (approving proposed consent decree). Plaintiffs make clear that this case raises the same constitutional issues previously raised in Odonnell. ECF No. 32 at p. 24. Plaintiffs seek the same procedural remedies adopted by this Court in the ODonnell consent decree, but the County has already extended those procedural remedies to felony arrestees. See Exhibit 21, Affidavit of James Leitner. Because the County has already provided ample procedural remedies addressing Plaintiffs’ ODonnell-style claims, they are not substantially likely to succeed in proving their claim asking for what they already have.
Second, because this case mirrors ODonnell, Plaintiffs’ request for substantive relief runs headlong into the Fifth Circuit’s instruction that substantive remedies, like releasing arrestees, is improper. See ODonnell II (“The grant of automatic release smuggles in a substantive remedy via a procedural harm.”). Put plainly, the Fifth Circuit has already rejected Plaintiffs’ requested remedy.
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2. The procedural due process remedy Plaintiffs seek has already been adopted by the County.
This Court presided over the ODonnell litigation for nearly four years, and recently concluded the litigation by approving a consent decree. See Consent Decree, ODonnell v. Harris County, No. 16-cv-1414, ECF No. 708 (S.D. Tex. Nov. 21, 2019) (consent decree); see also ODonnell, et al. v. Harris Cty., Tex., et al., No. 16-cv-1414, 2019 WL 6219933 (S.D. Tex. Nov. 21, 2019) (approving proposed consent decree). The procedural remedies adopted through the consent decree included adoption of Harris County’s Local Rule 9,8 a sweeping recitation of amended bail practices in Harris County. ODonnell v. Harris County, No. 16-cv-1414, ECF No. 708 at 16-24. (S.D. Tex. Nov. 21, 2019). Those procedures easily satisfy the model injunction provided by the Fifth Circuit.
The same bail practices this Court adopted in ODonnell for misdemeanor arrestees have been extended to felony arrestees. Ex. 21, Leitner Aff. (“This probable cause and bail hearing process is the same for the process utilized for misdemeanor defendants who are not released under a General Order Bond.”). The process starts with assignment of counsel, if requested, and interviews with both defense counsel and the Harris County Pretrial Services to gather personal and financial information about the arrestee. Id. at p. 2. Based upon information gathered from the interview and other research, Pretrial Services uses a risk assessment tool to develop a Public
8 Administrative Order Number 2019-01, available online at https://hccla.org/wpcontent/multiverso-files/829_56990d05d6719/AdminOrder-MISD.pdf (last visited Mar. 30, 2020).
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Safety Assessment score (“PSA”). Id. at p. 3. The PSA score ranges from 1-6 on two different scales, and places assigns an arrestee a risk category. Id.
At the probable cause hearing, a hearing officer provides warnings and explains the process to the arrestee. Id. at p. 2. An assistant district attorney then presents the case for finding probable cause. Id. If probable cause is found, the arrestee proceeds to a bail hearing. Id. The bail hearing involves both the assistant district attorney and the assistant public defender for the arrestee. Id. The attorneys for the State and the arrestee, respectively, are given opportunities to present evidence and argument on what amount of bail or other conditions of pretrial release, if any, should be set. Id.
Hearing officers routinely set bonds lower than the amount recommended by the felony bail schedule when an arrestee’s PSA score recommends a lower amount. Id. at p. 3. Hearing officers also routinely set bail in the amount requested by the assistant public defender, which often is lower than the amount recommended by either the felony bail schedule or the arrestee’s PSA score. Id. After setting bail, hearing officers explain their decisions and inform the arrestees that they can seek a bail reduction from the judge presiding over the case. Id.
The procedural remedies currently provided to felony arrestees satisfy the ODonnell requirements of “notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker. ODonnell I, 892 F.3d at 163; see also ODonnell II, 900 F.3d at 227 (“Those who cannot afford the set bail are entitled to an individualized hearing within 48 hours to
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determine whether lowering that bail would be release on sufficient sureties.”). Because Plaintiffs received everything the law requires, there is no likelihood that Plaintiffs can put on a successful case. Indeed, Judge Hanks reached that conclusion in denying a preliminary injunction on felony arrestees’ Fourteenth Amendment claims after Galveston County adopted bail procedures mirroring those that the Fifth Circuit endorsed in ODonnell. See Booth v. Galveston Cty., Tex., No. 3:18-cv-00104, 2019 WL 3714455, at *7-8 (S.D. Tex. Aug. 7, 2019).
3. Because each arrestee already receives sufficient process only rational basis review applies, a standard that is easily met.
Despite Plaintiffs’ claims to the contrary, “[d]etention of indigent arrestees and release of wealthier ones is not constitutionally infirm purely because of the length of detention.” ODonnell II, 900 F.3d at 227. “An Equal Protection Claim that an indigent person spends more time incarcerated than a wealthier person is reviewed for a rational basis.” Id. at 226 (citing Doyle v. Elsea, 658 F.2d 512, 518 (7th Cir. 1981); Smith v. U.S. Parole Comm’n, 752 F.2d 1056, 1059 (5th Cir. 1985); McGinnis v. Royster, 410 U.S. 263, 270 (1973)); see also Walker v. City of Calhoun, 901 F.3d 1245, 1262 (11th Cir. 2018) (“Such scheme does not trigger heightened scrutiny under the Supreme Court's equal protection jurisprudence”).
Heightened scrutiny is applicable only when a bail system includes the automatic imposition of secured bail without meaningful consideration of other alternatives—in other words, an absolute deprivation of a right because of poverty without sufficient procedural safeguards. Walker, 901 F.3d at 1261; ODonnell II, 900 F.3d at 230. That is not the situation here.
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As explained above, Harris County’s bail process does not automatically impose bail and includes the meaningful consideration of alternatives: an initial individual assessment and hearing with the assistance of counsel. See ODonnell I, 882 F.3d at 546-549. Under this process, a poor arrestee suffers no “absolute deprivation” of the benefit of being bailable upon sufficient sureties. Walker, 901 F.3d at 1261-1262. Instead, he “must merely wait some appropriate amount of time to receive the same benefit as the more affluent.” Id.. Therefore, Harris County’s bail process does not trigger heightened scrutiny under the Supreme Court’s equal protection jurisprudence. See M.L.B. v. S.L.J., 519 U.S. 102, 127 (1996) (explaining that wealth-based sanctions are impermissible when they are “not merely disproportionate in impact,” but “[r]ather, they are wholly contingent on one’s ability to pay”); Ross v. Moffitt, 417 U.S. 600, 616 (1974) (explaining that in a proceeding that involves indigents, “[t]he duty of the State . . . is not to duplicate the legal arsenal that may be privately retained by a criminal defendant . . ., but only to assure the indigent defendant an adequate opportunity to present his claims fairly”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24 (1973) (noting that mere diminishment of a benefit was insufficient to make out an equal protection claim: “[A]t least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages”); McGinnis, 410 U.S. at 270 (examining a wealth based system that did not result in an absolute deprivation under rational basis).
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Because Harris County’s bail process does not cause an absolute deprivation and heightened scrutiny is inapplicable, the current bail system must be reviewed only for a rational basis. ODonnell II, 900 F.3d at 226 (applying rational basis review to post ODonnell I bail system “because it is premised solely on inability to afford bail, as distinguished from inability to afford bail plus the absence of meaningful consideration of other possible alternatives”).
Harris County undoubtedly has “a compelling interest in assuring the presence at trial of persons charged with crime.” Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978); Ex parte Anderer, 61 S.W.3d 398, 404-05 (Tex. Crim. App. 2001) (en banc). Harris County may “requir[e] a bail bond or the deposit of a sum of money subject to forfeiture” as a condition of pretrial release in appropriate circumstances. Stack v. Boyle, 342 U.S. 1, 5 (1951); see also TEX. CONST. art. I, § 11.. This use of bail is so “basic to our system of law” that the Texas Constitution specifically allows for release conditioned upon sufficient sureties. Schilb v. Kuebel, 404 U.S. 357, 365 (1971); see also TEX. CONST. art. I, § 11. In carrying out this legitimate interest, Harris County has implemented the same procedural safeguards approved by the Fifth Circuit in ODonnell. For Plaintiffs to succeed on their procedural claim, they must prove not only that the current bail system in Harris County lacks a rational basis, but also that the identical system created by the Fifth Circuit and this Court fails to meet that deferential standard as well—something they simply cannot do.
In light of these procedural safeguards, Plaintiffs’ only remaining argument is that some arrestees, after receiving the benefits of Harris County’s process, may still
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not be able to afford bail. Yet “that is an equal protection claim consistently rejected on rational-basis review.” ODonnell II, 900 F.3d at 227 (citing McGinnis, 410 U.S. at 270; Smith, 752 F.2d at 1059). In fact, ODonnell I “found that the substantive right to release on ‘sufficient sureties’ is ‘not purely defined by what the detainee can afford’ and ‘does not create an automatic right to pretrial release.’ ” ODonnell II, 900 F.3d at 226 (citing ODonnell I, 892 F.3d at 158). In short, indigent arrestees have no absolute right to unsecured pretrial release; they have only the right to procedures that provide notice, individualized consideration of their arguments and evidence for unsecured release, and a reasoned decision by an impartial magistrate. Of course, if any individual arrestee believes that the magistrate’s bail decision was erroneous, he can challenge that decision by seeking a pretrial writ of habeas corpus. See TEX. CODE CRIM. PROC. ART. 11.24.
At bottom, because Harris County has already implemented procedures sufficient to meet the constitutional minimums, Plaintiffs are unlikely to succeed on their claims and the Court should deny the request for injunctive relief.9 B. Regardless, substantive relief is unavailable.
1. Plaintiffs cannot plead around the Eighth Amendment to assert an excessive-bail claim as a substantive due process claim. The gravamen of Plaintiffs’ substantive due process claim is that money bail
in Harris County is being set too high for indigent felony defendants, resulting in their detention where wealthier arrestees would go free, thus infringing their pretrial
9 Because Plaintiffs are already receiving all of the process required under ODonnell this case is also moot, which deprives this Court of subject-matter jurisdiction. Yarls v. Bunton, 905 F.3d 905, 907-08 (5th Cir. 2018)..
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right to liberty. See, e.g., ECF No. 32 at 23. Plaintiffs seek to mandate a rule by which felony arrestees be released under alternative systems of bail. E.g., id. at 26-42. That claim falls squarely in the wheelhouse of the Eighth Amendment, which provides that “[e]xcessive bail shall not be required.” U.S. CONST., AMEND. VIII.
The Supreme Court has foreclosed Plaintiffs’ chosen path. A plaintiff cannot invoke substantive due process to seek relief that can be addressed by more specific constitutional guarantees. Graham v. Connor, 490 U.S. 386, 395 (1989); accord Portuondo v. Agard, 529 U.S. 61, 74 (2000); Conn v. Gabbert, 526 U.S. 286, 293 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998); United States v. Lanier, 520 U.S. 259, 272 n.7 (1997); see also Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 721 (2010) (plurality op.). This accords with the Court’s longstanding “reluctan[ce] to expand the concept of substantive due process.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). That doctrine, after all, has often been treated as an invitation for freewheeling judicial inquiry, with “guideposts for responsible decisionmaking in this unchartered area . . . scarce and open-ended.” Id.
In Graham v. Connor, the Court rejected the approach then employed by the “vast majority of lower federal courts”—a “four-part ‘substantive due process test’ ”— to analyze section 1983 constitutional claims. 490 U.S. at 393. Instead, the Court instructed, the analysis of a claim for which there is “an explicit textual source of constitutional protection” must be guided by that source, “not the more generalized notion of ‘substantive due process.’ ” Id. at 395. In Graham, it was the Fourth Amendment that provided the “explicit textual source of constitutional protection”
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because the claim was one sounding in excessive force. Id. But the Court recognized that the Eighth Amendment could likewise supply the explicit textual source for claims based on individuals’ interactions with the justice system. Id. at 394.
Graham’s holding that courts cannot use substantive due process to enlarge more specific constitutional guarantees remains good law. Indeed, the Fifth Circuit has repeatedly observed that Graham continues to apply when plaintiffs attempt to invoke substantive due process, with its “purpose” being to “avoid expanding the concept of substantive due process where another constitutional provision protects individuals against the challenged governmental action.” John Corp. v. City of Houston, 214 F.3d 573, 582 (5th Cir. 2000); see, e.g., Jones v. Perez, 790 F. App’x 576, 582 (5th Cir. 2019). And it has done so even in the Eighth Amendment context. See, e.g., Austin v. Johnson, 328 F.3d 204, 210 n.10 (5th Cir. 2003).
This approach is fully consistent with ODonnell I. There, the Fifth Circuit observed that “when a constitutional provision specifically addresses a given claim for relief under 42 U.S.C. § 1983, a party should seek to apply that provision directly.” 892 F.3d at 157 (citing Graham, 490 U.S. at 394). The panel observed the formerFifth Circuit’s 1978 en banc decision in Rainwater allowed ODonnell to raise claims of equal protection and procedural due process instead of grounding those claims in the Eighth Amendment. Id. (citing Rainwater, 572 F.2d at 1057). But the explicit textual source rule is concerned with invoking the “more nebulous” substantive due process concept in the face of another concrete textual provision. Jones, 790 F. App’x at 582. Naturally, ODonnell did not—because it could not—conflict with Supreme
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Court precedent on that score. See, e.g., Graham, 490 U.S. at 393-95; John Corp., 214 F.3d at 582; Austin, 328 F.3d at 210 n.10.
So too in Rainwater, which like ODonnell I, did not involve a substantive due process claim. The claims there were based on equal protection and procedural due process. The Rainwater court vacated a panel opinion purporting to apply strict scrutiny to Florida’s bail system, holding that the Equal Protection Clause did not require Florida to adopt a presumption against money bail for indigents. 572 F.2d at 1056. The court then held that so long as there were procedural mechanisms in place that ensured individualized consideration when setting secured money bail, the use of a bail schedule was constitutional. Id., 572 F.2d at 1057.
In any event, although Rainwater binds this Court, it is binding only to the extent that it is not contradicted by “an intervening decision by the Supreme Court,” United States v. Setser, 607 F.3d 128, 131 (5th Cir. 2010), aff’d, 566 U.S. 231 (2016). Thus, to the extent of any conflict between the 1978 decision in Rainwater and the 1989 decision in Graham—to say nothing of later Supreme Court and circuit cases reaffirming the central holding in Graham—Graham controls. Cf. Graham, 490 U.S. at 393 (observing that, at the time of the Court’s decision, the “vast majority of lower federal courts” were inappropriately entertaining claims for substantive due process in addition to or instead of the applicable amendment in the Bill of Rights).
The Fifth Circuit has long recognized that the Eighth Amendment does not provide a right to affordable bail, and the mere inability to pay does not render bail excessive and thus invalid under the Eighth Amendment. See, e.g., United States v.
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McConnell, 842 F.2d 105, 107 (5th Cir. 1988) (“[A] bail setting is not constitutionally excessive merely because a defendant is financially unable to satisfy the requirement”). Other circuits concur. See, e.g., Walker, 901 F.3d at 1258; United States v. Cordero, 166 F.3d 334, at *2 (4th Cir. 1998) (per curiam) (citing United States v. Wright, 483 F.2d 1068, 1070 (4th Cir. 1973)); United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991) (per curiam); White v. Wilson, 399 F.2d 596, 598 (9th Cir. 1968); Hodgdon v. United States, 365 F.2d 679, 687 (8th Cir. 1966)
Moreover, it is well settled that excessive bail claims are subject to review only for reasonableness, not heighted scrutiny. See, e.g., Stack, 342 U.S. at 5 (holding that “excessive” bail under the Eighth Amendment is bail set at a higher figure than the amount reasonably calculated to assure the accused will stand trial). This recognizes the longstanding, legitimate “practice of requiring a bail bond or the deposit of a sum of money subject to forfeiture,” which “serves as additional assurance of the presence of an accused.” Id. Thus, only when bail is “set at a higher figure than an amount reasonably calculated to fulfill this purpose” can any particular bail amount be thought of as “‘excessive’ under the Eighth Amendment.” Id.
Plaintiffs recognize that any Eighth Amendment claim would fail. That is why they are forced to seek substantive relief by relying on the (faulty) assumption that strict scrutiny applies to the incidental detention of arrestees who cannot afford bail. See, e.g., ECF No. 32 at n.72 (suggesting that “heightened” scrutiny is a euphemism for “strict” scrutiny).
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2. There is no substantive due process right for indigents to obtain affordable bail.
Plaintiffs attempt to distinguish ODonnell I from this case by invoking the Equal Protection Clause. ECF No. 44 at p. 5. But that alternative argument ignores that the Fifth Circuit addressed an equal protection claim in ODonnell. In doing so, the court pointed to the same line of cases as relevant to its equal protection and due process analysis, for which it crafted only procedural remedies. 892 F.3d at 161-62 & n.6 (discussing Tate v. Short, 401 U.S. 395, 397-99 (1971); Williams v. Ill. 399 U.S. 235, 241-42 (1970); Rainwater, 572 F.2d at 1057). And ODonnell I held that a limited set of “constitutionally-necessary procedures” would “cure the constitutional infirmities arising” from the failure to take account of indigents’ ability to make bail. Id. at 163. What’s more, the Fifth Circuit subsequently explained that the ODonnell I panel did not extend any substantive relief. See ODonnell II, 900 F.3d at 220 (“The grant of automatic release smuggles in a substantive remedy via a procedural harm.”).
Plaintiffs’ misconstruction of ODonnell I aside, numerous other courts have held that there is no substantive due process right to affordable bail conditions. “Substantive due process analysis,” the Supreme Court has cautioned, “must begin with a careful description of the asserted right.” Reno v. Flores, 507 U.S. 292, 302 (1993). The alleged liberty interest must be “carefully formulat[ed]” and must be “deeply rooted in this Nation’s history and tradition.” Washington v. Glucksberg, 521 U.S. 721, 722 (1997). Plaintiffs’ claimed liberty interest in affordable bail for the indigent is neither.
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In Plaintiffs’ telling, however, Chief Justice Rehnquist’s 1987 opinion for the Court in United States v. Salerno, 481 U.S. 739 (1987) ushered in a sea change in the law, which—for some unexplained reason—lay dormant for three decades. Plaintiffs assert that, in the guise of rejecting a constitutional challenge to provisions in the federal Bail Reform Act allowing for pretrial detention, the Supreme Court actually set a high, substantive bar for the imposition of money bail, focused myopically on defendants’ ability to pay; implicitly mandated strict scrutiny for instances of pretrial wealth-based disparate impact; and invalidated, sub silentio, scores of state bail laws in the process. See ECF No. 32 at 28-31.
Plaintiffs misread Salerno. The Salerno Court was pellucid as to its libertyinterest holding: “[W]e cannot categorically state that pretrial detention offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Salerno, 481 U.S. at 751 (quotations omitted). The defendant there challenged his outright denial of bail under the Bail Reform Act, claiming that that denial violated his interest in pretrial liberty. Id. at 744-45. The Court rejected that argument. While “conced[ing]” “the ‘general rule’ of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial,” the Court recognized that bail decisions fell within the “wellestablished authority of the government, in special circumstances, to restrain individuals’ liberty prior to or even without criminal trial and conviction.” Id. at 749. Thus, in accordance with the Bail Reform Act, federal courts properly consider a multitude of factors when setting or denying bail, including dangerousness to the
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community. Id. at751-52. If the right against pretrial detention without bond is not a fundamental substantive due process liberty interest, then pretrial detention with bond certainly cannot be.
3. Plaintiffs are also unlikely to succeed because this Court lacks subject-matter jurisdiction.
Subject-matter jurisdiction implicates “the courts’ statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998). Because it is “always an antecedent question,” this Court must address subject-matter jurisdiction before addressing anything else. Id. at 101. Jurisdiction is based on the facts at the time Plaintiffs filed their complaint. Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 574 (2004). And Plaintiffs “must demonstrate standing separately for each form of relief sought.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006).
This Court lacks subject-matter jurisdiction for two independent reasons. First, insofar as Plaintiffs seek relief from their past bail hearings through a federalcourt order changing their existing bail determinations, the Rooker-Feldman doctrine bars this suit. Lower federal courts are powerless to revisit individual state-court decisions setting bail. Second, while Rooker-Feldman does not prevent a litigant from challenging a state policy or practice as opposed to a particular state-court decision, Plaintiffs’ challenge to Harris County’s bail practices is based on a future injury that is pure “speculation and conjecture.” O’Shea v. Littleton, 414 U.S. 488, 497 (1974). Plaintiffs therefore lack an Article III injury in fact. And in a putative class action
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like this one, “federal courts lack jurisdiction if no named Plaintiff has standing.”
Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019).
C. The Rooker-Feldman doctrine deprives this Court of jurisdiction over a suit challenging past bail orders.
In their complaint, all three named Plaintiffs admit that they have already
been through bail proceedings, had bail set by state courts, and been remanded to
custody. See Compl., ECF No. 1 at 11-13 (describing past bail proceedings for
Plaintiffs Russell, Pierson, and Ortuno). They ask this Court to award:
a. A declaratory judgment that Defendants violate the Named Plaintiffs’ and Class members’ constitutional rights by operating a system of wealth-based detention that keeps them in jail solely because they cannot afford to pay secured money bail amounts required without findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of that finding; [and]
b. An order and judgment permanently enjoining Defendants from operating and enforcing a system of post-arrest detention that keeps Named Plaintiffs and Class members in jail because they cannot pay a secured financial condition of release required without findings concerning ability to pay, without consideration of or findings concerning nonfinancial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings[.]
Compl., at 42. This prayer reads like a request to have Plaintiffs’ existing bail orders
redetermined—either by reducing the amount of secured bail or ordering unsecured
bail instead. The Court apparently reads Plaintiffs’ request the same way. See Order,
ECF No. 34 at 1 (noting that Plaintiffs seek relief ordering that they be “promptly
released” or have “their current bail status reheard”).
That, of course, is problematic. “[L]ower federal courts possess no power
whatever to sit in direct review of state court decisions.” Atl. Coast Line R.R. Co. v.
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Bhd. of Locomotive Eng’rs, 398 U.S. 281 (1970). The Rooker-Feldman doctrine thus bars a lower federal court from entertaining a suit that “seek[s] federal-court review and rejection of” a state-court decision. Skinner v. Switzer, 562 U.S. 521, 531 (2011). Simply put, Plaintiffs may not “seek review of the . . . application [of Harris County’s bail procedures] in a particular case.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 286 (2005).
D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983), is a classic example. There, the D.C. Court of Appeals refused to admit Marc Feldman, id. at 465-68, and Edward Hickey, id. at 470-72, to the D.C. bar because they had not graduated from ABA-accredited law schools. The would-be lawyers then sued in federal district court, arguing that the D.C. Court’s policy violated federal law and asking the federal court to order the state court to admit them to the bar, or at least permit them to sit for the D.C. bar exam. Id. at 468-73. The Supreme Court held the district court lacked jurisdiction because federal law authorizes only the Supreme Court to review state court decisions. Id. at 486 (citing 28 U.S.C. § 1257). Because Feldman and Hickey “sought review in [federal district court] of the [state court’s] denial of their” requests for bar admission, “the District Court lacked subject matter jurisdiction.” Id. at 482. That was true even though their “challenges allege[d] that the state court’s action was unconstitutional.” Id. at 486.
This principle applies here. State courts have already made bail determinations for Russell, Pierson, and Ortuno, and remanded them to custody. Compl., ECF No. 1 at 11-13; see TEX. CODE CRIM. PROC. ARTS. 16.20(6), 17.25, 17.27.
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Under state law, an arrestee can obtain review of that decision only in state habeas proceedings. See TEX. CODE CRIM. PROC. ART. 11.24; accord Schall v. Martin, 467 U.S. 253, 280-81 (1984). Insofar as the named Plaintiffs ask this Court to order the state courts to revisit those determinations, they ask this “Court to overturn the injurious state-court judgment” rendered as to them. Skinner, 562 U.S. at 531. In other words, this Court “is in essence being called upon to review the state court decision[s]” setting Plaintiffs’ bail. Feldman, 460 U.S. at 482 n.16. That is exactly what RookerFeldman says this Court has no power to do.
What Plaintiffs seek to do here—use § 1983 to obtain class-wide relief from felony arrestees’ existing bail orders—is unprecedented in the Fifth Circuit. But persuasive caselaw from other jurisdictions addresses this exact issue. Courts across the Country recognize that Rooker-Feldman bars a plaintiff from seeking relief that would require a federal district court to revisit a state court’s decision setting bail and remanding him to custody. See, e.g., Ingram v. Fish, No. 09-204, 2010 WL 3075747v, at *4 (W.D. Pa. Aug. 5, 2010) (holding Rooker-Feldman barred suit “essentially asking this Court to conduct a de novo review of the bail order to determine whether it is unconstitutionally excessive and, if so, to order [the state court] to re-set bail at a lesser, more ‘reasonable’ amount”); Brown v. City of New York, 210 F. Supp. 2d 235, 240 (S.D.N.Y. 1999) (holding Rooker-Feldman “bars the Plaintiff’s prayer for declaratory relief” regarding state court bail decision); Mounkes v. Conklin, 922 F. Supp. 1501, 1508-10 (D. Kan. 1996) (holding Rooker-Feldman barred federal court
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jurisdiction to review state court “decisions that have required ‘cash only bonds’ and the condition that the cash must be posted by the accused”).
Because Plaintiffs seek a federal district court decision ordering state courts to “promptly release[]” the Plaintiffs or have their “current bail status reheard,” RookerFeldman bars this suit. D. No named Plaintiff has Article III standing to seek relief based on future
bail orders. Plaintiffs might counter that the Rooker-Feldman doctrine does not prohibit
them from challenging a state-court policy, as opposed to a state-court decision. That much is true. Lower federal courts may entertain a Plaintiff’s challenge to the validity a state-court policy “so long as the plaintiff[] d[oes] not seek review of the [policy’s] application in a particular case.” Exxon Mobil Corp., 544 U.S. at 286; see also Feldman, 460 U.S. at 482-85. So, Plaintiffs will likely argue that they seek a declaration and an injunction ordering Harris County to reform its bail practices going forward—i.e., prospectively and not retroactively. Compl., ECF No. 1 at 42.
But if that is right, then this lawsuit still fails. If the policies that Plaintiffs challenge are untethered from their past application in Plaintiffs’ underlying bail determinations, then those policies could affect Plaintiffs only in the future. But whether those bail policies would ever be applied to Plaintiffs is a purely hypothetical proposition. Plaintiffs must speculate that—at some unknown time—they will again be arrested in Harris County, encounter (allegedly) unlawful bail practices, have secured bail set, and still be unable to afford a bond to secure their release.
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Future injuries, however, must be “certainly impending” to confer Article III standing. Ctr. for Biol. Diversity v. U.S. Envt’l Prot. Servs., 937 F.3d 533, 537 (5th Cir. 2019). The Supreme Court has repeatedly found that future injuries like Plaintiffs’ are insufficient. See, e.g., Clapper v. Amnesty Int’l, 568 U.S. 398 (2013) (future government surveillance); Whitmore v. Ark., 495 U.S. 149 (1990); City of Los Angeles v. Lyons, 461 U.S. 95 (1983) (future chokeholds); Rizzo v. Goode, 423 U.S. 362 (1976) (future mishandling of police misconduct complaints).
But this case does not even require the application of established legal principles to a new context. The Supreme Court has applied these principles in a nearly identical case—one involving indigent Plaintiffs’ challenge to bail procedures. In O’Shea, 414 U.S. 488, a putative class of plaintiffs, who had been subjected to (allegedly) unlawful bail procedures in the past, sued under § 1983 on behalf of “financially poor persons . . . unable to afford bail” for declaratory and injunctive relief requiring changes to bail procedures. Id. at 491-92. Because past bail proceedings were insufficient to justify prospective relief, the plaintiffs necessarily relied on a future injury. Id. at 495-96 . The Supreme Court noted:
[H]ere the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners. . .. Apparently, the proposition is that if respondents proceed to violate an unchallenged law and if they are charged, held to answer, and tried in any proceedings before petitioners, they will be subjected to the discriminatory [bail] practices that petitioners are alleged to have followed. Id. at 496-97. That injury, the Court said, “takes us into the area of speculation and conjecture.” Id. at 497. It was therefore “too remote to satisfy the case-or-controversy requirement and permit adjudication by a federal court.” Id. at 498.
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As in O’Shea, each of the named Plaintiffs has already been subjected to the challenged bail procedures and, in fact, are no longer in custody. Id. at 495-96. As in O’Shea, any relief altering those bail procedures could therefore affect them only in the future. Id. at 496. And as in O’Shea, any such future injury is pure “speculation and conjecture.” Id. at 497. Plaintiffs’ future injury depends on this Court speculating that at some unknown time (1) they will commit criminal acts (2) in Harris County (3) be arrested (4) have secured bail set (5) pursuant to an unlawful policy (6) at amounts they cannot pay (7) because they remain too poor to pay a bondsman. That is not “certainly impending.” Ctr. for Biol. Diversity, 937 F.3d at 537. Concluding otherwise would fly in the face of O’Shea. E. Any arguments Plaintiffs might offer in response fail.
Plaintiffs will likely argue that this Court cannot consider the jurisdictional issues discussed here because it entertained similar challenges in the ODonnell case. They may also suggest that the class-action nature of this case somehow alters the jurisdictional analysis, or that finding a lack of jurisdiction unfairly forecloses all avenues to relief. These arguments fail.
Plaintiffs may argue that the ODonnell case, which adjudicated similar claims, settles the question of subject-matter jurisdiction. But no party—either in this court or in the Fifth Circuit—ever raised the jurisdictional defects identified here. And a jurisdictional defect “neither noted nor discussed” in a prior decision does not permit a court to ignore the limits of subject-matter jurisdiction in a later case. Ariz. Christ. Sch. Tuition Org. v. Winn, 563 U.S. 125, 144-45 (2011). Even “drive-by jurisdictional rulings” in an earlier decision by the Supreme Court itself “have no precedential
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effect.” Steel Co., 523 U.S. at 91. The existence of any latent jurisdictional defects “neither noted nor discussed” in the course of the ODonnell proceedings therefore does not permit this Court to ignore the limits of subject-matter jurisdiction here.
Alternatively, Plaintiffs may argue that the jurisdictional analysis is somehow different because this is a putative class action. That is also wrong. “That a suit may be a class action . . . adds nothing to the question of standing.” Lewis v. Casey, 518 U.S. 343, 357 (1996). Just last year, in a putative class action like this one, the Supreme Court held that “federal courts lack jurisdiction if no named Plaintiff has standing.” Frank, 139 S. Ct. at 1046. Simply put, “if none of the named Plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class.” O’Shea, 414 U.S. at 494. That is why the mootness exception for injuries capable of repetition yet evading review in class action cases, see Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975), “is not implicated” here, Stringer v. Whitley, 942 F.3d 715, 724-25 (5th Cir. 2019). “Standing admits of no similar exception; if a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a federal judicial forum.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 191 (2000). This result is only compounded by the fact that Plaintiffs have made no efforts, outside of filing their initial motion, for well over a year to have this Court certify their putative class.
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Finally, Plaintiffs may argue that this outcome is simply unfair because no one can pursue their claims. Even if that were true, it would not matter. The absence of a party with standing to sue “is not a reason to find standing.” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 489 (1982). In any case, Plaintiffs had other routes open to them. For example, they might have been able to seek money damages based on their past injuries. See Lyons, 461 U.S. at 105. They could have filed their complaint seeking prospective relief after arrest but before their bail proceedings commenced, at which time a future injury might not have been speculative. See O’Shea, 414 U.S. at 495-96. Or they could have challenged their bail orders in state habeas proceedings. The Supreme Court has pointed to state habeas review “on a case-by-case basis” as an adequate mechanism for pressing bail challenges. Martin, 467 U.S. at 280-81. And Texas prisoners routinely seek (and obtain) relief in state court. See, e.g., Ex parte Clark, 537 S.W.2d 40, 42 (Tex. Crim. App. 1976) (reducing bail from $40,000 to $10,000); Ex parte Sellers, 516 S.W.2d 665, 666 (Tex. Crim. App. 1974) (vacating and remanding with instructions to consider evidence of ability to pay).
Federal habeas review, moreover, is a noted exception to the Rooker-Feldman doctrine. In re Reitnauer, 152 F.3d 341, 343 n.8 (5th Cir. 1998). But habeas petitioners must proceed on an individual basis—not as a class. See, e.g., Norton v. Parke, 892 F.2d 476, 478 (6th Cir. 1989); Rouse v. Mich., No. 2:17-CV-12276, 2017 WL 3394753, at *1 (E.D. Mich. Aug. 8, 2017) (“It is improper for different petitioners to file a joint habeas petition.”); United States ex rel. Bowe v. Skeen, 107 F. Supp. 879, 881 (N.D.
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W.Va. 1952) (“Several applicants can not join in a single petition for a writ of habeas corpus.”).
On this Court’s March 31, 2020, conference call, the Court observed that it was “not sure why the[] [Plaintiffs] relied on” 42 U.S.C. § 1983, rather than seeking habeas corpus relief. The previous paragraph suggests the answer: Habeas review provides the only way around the jurisdictional defects that bar this suit, but Plaintiffs’ counsel likely knew they could pursue habeas relief only as individuals in separate habeas petitions. Unwilling to seek relief for individual plaintiffs, Plaintiffs’ counsel took a gamble on a class-action under § 1983 instead. And because Plaintiffs are “the master[s] of the complaint,” Holmes Grp., Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 831 (2002), this Court may not award habeas relief they never asked for, see Compl., ECF No. 1 at 8 (nowhere listing a cause of action under 28 U.S.C. § 2241). In any event, even if this Court could sua sponte treat Plaintiffs’ complaint as a habeas corpus “application,” 28 U.S.C. § 2242, it could not award habeas relief on a class-wide basis, much less on an uncertified class.
Because this Court lacks subject-matter jurisdiction over any of the named Plaintiffs’ claims for relief, it should not only deny injunctive relief, but also dismiss this suit in its entirety. See Fed. R. Civ. P. 12(b)(1). F. Releasing felons during a time of public crisis endangers public safety
and, therefore, is not in the public interest. “The history of equity jurisdiction is the history of regard for public
consequences in employing the extraordinary remedy of the injunction.” R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500 (1941). Accordingly, federal courts often
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consider two factors—the balance of the equities and the public interest—together. See, e.g., Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 26-31 (2008); see also Weinberger, 456 U.S. at 312.
Public safety is a paramount public interest. Winter, 555 U.S. at 23, 25 (holding that public interest in safety and security “plainly outweighs” countervailing environmental interests, “even if plaintiffs have shown irreparable injury”); see also Houston Chronicle Pub. Co. v. City of League City, Tex., 488 F.3d 613, 622 (5th Cir. 2007) (recognizing “public safety” as “a compelling interest at the heart of government’s function”). The requested injunctive relief will imperil public safety.
On March 31, 2020, news broke that Harris County Judge Lina Hidalgo intended to order the release of pre-trial arrestees that the County considered lowrisk. Judge Hidalgo excluded from this list those arrestees previously convicted of a crime that involves physical violence or the threat of physical violence; those currently arrested for a crime that involves physical violence or the threat of physical violence that is supported by probable cause; and those not being held on one or more charges of DWI (3rd or more) or burglary (habitation).
When asked by this Court if they would be satisfied with Judge Hidalgo’s generous proposal, Plaintiffs balked, making it clear that they also wanted the arrestees excluded from the proposed order released. Thus, while they do not want to acknowledge as much, Plaintiffs apparently seek to release violent felons, burglars, and habitual drunk drivers back into our communities during a pandemic. That cannot conceivably be in the public interest.
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What Plaintiffs fail to understand is that unleashing these felons at this critical time endangers public safety, strains already limited police resources, and places victims back in harm’s way. See Ex. 1, Acevedo Dec.; Ex. 2, Harvey Dec.; Ex. 3, Johnson Dec.; Ex. 4, Miller Dec.; Ex. 5, Grigg Dec.; Ex. 6, Shilson Dec.; Ex. 7, Kraus Dec.; Ex. 8, Mar. 31, 2020 Letter from Garland Police Dep’t; Ex. 9, Scesney Dec.; Ex. 10, Spivey Dec.; Ex. 11, Deaver Dec.; Ex. 12, Spires Dec.; Ex. 13, Drain Dec. A recent study conducted by a former federal judge shows that the unsecured pretrial release of arrestees pursuant to bail-reform efforts in Chicago, Illinois has already led to an increase in violent crimes there. See Paul G. Cassell & Richard Fowles, Does Bail Reform Increase Crime? (Univ. of Utah Coll. of Law, Research Paper No. 349, Mar. 2, 2020) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3541091; Paul Cassell, Bail Reform in Chicago Appears to Have Increased Crime, Volokh Conspiracy (Feb. 19, 2020), https://bit.ly/3b3eRm9.
Recent events in Texas confirm what this new study suggests. Just last month, Jacques Dshawn Smith murdered two people one week after being having bail set in Dallas County. Ex. 3, Johnson Dec. ¶ 8. Smith was released on secured bail of $15,000. But this this example highlights the kind of arrestees that Plaintiffs want released into our communities. That is plainly unacceptable, as the Dallas community’s reaction demonstrates. This double homicide has drawn “additional attention to a larger trend in the bail system in Dallas County, which was the subject of very vocal frustration in the Dallas City Council’s Public Safety and Criminal Justice Committee.” Charity Nicholson, Dallas County Bail Reform Policies Scrutinized
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Following Increase in Homicides, The Texan (Feb. 26, 2020), https://perma.cc/A397MUKW; cf. Katie Honan, NYPD Officials Say New Bail Law Is Leading to a Crime Increase, Wall St. J. (Mar. 5, 2020), https://on.wsj.com/2IWFai1.
The threat to public safety is particularly acute for victims of domestic violence. Arrestees that this Court orders released would be required to stay at home under existing shelter-in-place orders. That will expose domestic violence victims—a spouse, a child, an elderly relative—to further violence at the hands of the same attacker. See Ex. 1, Acevedo Dec. ¶ 12; Ex. 19, Kahan Dec. ¶7 ; Ex. 3, Johnson Dec. ¶ 10. That tragic story is already playing out across the world. See Emma Graham Harrison et al., Lockdowns Around the World Bring Rise in Domestic Violence, Guardian (Mar. 28, 2020), https://bit.ly/2xsxyBs; Marissa J. Lang, Domestic Violence Will Increase During Coronavirus Quarantines and Stay-at-Home Orders, Experts Warn, Wash. Post (Mar. 27, 2020), https://wapo.st/2QRVOn4. Domestic violence is a significant driver of homicides. Ex. 1, Acevedo Dec. ¶ 12.
But the risks posed by to the public is not limited to those arrestees with a history for violence. Burglary of Habitation, Burglary of a Building, Burglary of a Motor Vehicle, Unauthorized use of a Motor Vehicle, DWI, Theft, and a multitude of other offenses wreak more havoc on a community than most violent crimes. Ex. 19, Kahan Dec. ¶ 9; Ex. 14, Rushin Dec. ¶ 7. These communities are “being repeatedly victimized by the same offenders who were often released before the paperwork was even filed.” Id. Under Plaintiffs’ requested relief, burglars would be free to roam the streets committing numerous offenses. Since 2015, law enforcement officers in Harris
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County arrested 1,697 individuals who were charged with either a burglary or robbery offense and then released on bond. Ex. 16, McCraw Dec. ¶ 8. Those same 1,697 suspects were arrested and charged with 2,374 new felony crimes committed after their release. Id. Releasing such individuals during the coronavirus pandemic presents a “target rich environment” for burglars to exploit as businesses are closed pursuant to governmental mandates and proprietors are encouraged to stay home with a diminished ability to monitor their closed storefronts. See Ex. 1, Acevedo Dec. ¶ 8.
Likewise, released fraudsters will be presented with new opportunities to prey on Texans, especially the elderly, during this pandemic. Zack Friedman, Beware These Coronavirus Scams, Forbes (Mar. 20, 2020), hhttps://bit.ly2xzJT6B. And habitual DWI offenders certainly endanger the public through intoxicated driving— something that is especially troubling in light of the fact that Houston, Harris County, and Texas already lead the nation in DWI injury and fatal crashes. Ex. 1, Acevedo Dec. ¶ 12.
The requested relief would further threaten public safety by placing additional strain on already limited law enforcement resources and divert them from aiding with the pandemic control efforts. See Id. at ¶ 5; Ex. 3, Johnson Dec. ¶ 3; Ex. 4, Miller Dec. ¶ 3. The risk of this harm is compounded by the likelihood that law enforcement officers will contract COVID-19 by having to apprehend recidivists released from a jail population known to be at risk for having contracted the virus. As of March 29, 2020, 11 Houston Police Department officers have tested positive for COVID-19
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related to their duties, with close to 50 more awaiting test results. Ex. 1, Acevedo Dec. ¶ 6. The general population would likewise face a heightened risk of infection by the hasty mass release requested by Plaintiffs.
The impact is not limited to Houston. Although Pearland is in Harris, Brazoria, and Ft. Bend Counties, 41 percent of arrests there involve arrestees from Houston. Ex. 12, Spires Dec. at ¶ 6. And communities in the Dallas-Fort Worth Metroplex have also fallen victim to gangs that travel from Houston to victimize innocent locals. Ex. 14, Rushin Dec. at ¶ 8.
The Director of Law Enforcement for the Office of the Attorney General (and former Texas Ranger) David Maxwell states that “[t]he State of Texas has a critical problem with apprehending felons across this state on several levels. Most of the local agencies do not have the man power and resources to actively pursue violators as they are consumed with answering the daily crimes being reported and pursuing fugitives that are not showing up for court dates arising out of local charges. To release more criminals back on the streets would only exacerbate an already difficult problem.” Ex. 15, Maxwell Dec. at ¶ 7.
Finally, the requested injunction will disserve the public interest by releasing felony arrestees without proper consideration of the safety, wellbeing, and legal rights of victims. Ex. 11, Deaver Dec. ¶ 9. The mass release of felons without an individualized assessment by a judge and input by victim advocates will undoubtedly put victims at risk and create future victims. Ex. 19, Kahan Dec. ¶ 14. For example, DPS Troopers and Special Agents have arrested 373 robbery suspects in Harris
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County since April 2017 in support of local law enforcement agencies in Harris County at the direction of the Governor. Ex. 16, McCraw Dec. ¶ 7. These 373 robbery suspects belong to 188 robbery crews that were responsible for 620 armed robberies. Id. Members of these robbery crews tend to be career criminals who present a high probability of quickly reoffending upon release. Id. Several of the robbery suspects were on bond at the time of their arrest. Id.
In sum, the State Intervenors have grave concerns about the increased risk of harm to the public and the additional burden on already-strained law enforcement resources. It is no response to say that these “concerns about the preliminary injunction [are] ‘speculative.’” Winter, 555 U.S. at 27. As the Supreme Court has noted, this kind of uncertainty in uncharted waters “is almost always the case when a plaintiff seeks injunctive relief to alter a defendant’s conduct.” Id. Instead, this Court should “defer to [the state] officers’ specific, predictive judgments about how the preliminary injunction” would impact public health, public safety, law enforcement, and State’s criminal justice system. Id. G. Plaintiffs’ Supplemental Brief Confirms that this Court May Not Grant
Relief. Much of what Plaintiffs offer in their supplemental brief hurts them and helps
the State Intervenors. In their supplemental brief, Plaintiffs dial up the rhetoric in an effort to release
thousands of felony arrestees from custody. Suppl. Br. 1, 8 (ECF No. 44). But they endeavor to assure the Court that the emergency relief they seek is “limited” and “temporary” and could easily and quickly be undone. Id. at 1-2.. The supposed
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exigencies, which today are “a matter of life and death,” Id. 8, “could dissipate in short order” only days from now, Id. at 1.
This argument demonstrates the fundamental flaw in Plaintiffs’ request for emergency relief. Even if they otherwise satisfy the preliminary injunction factors, the relief Plaintiffs request is improper because it seeks to deviate from—not preserve—the status quo ante. It is black letter law that a temporary restraining order or a preliminary injunction is designed to preserve the preexisting state of affairs, not bring a new state of affairs into being. See 11A WRIGHT & MILLER, FED. PRAC. & PROC. CIV. §§ 2948, 2951 (3d ed.) (noting “the purpose of the preliminary injunction is the preservation of the status quo” and “[t]he [TRO] is designed to preserve the status quo”); see also Heckler v. Redbud Hosp. Dist., 473 U.S. 1308, 131314 (1985) (Rehnquist, J., in chambers).
Decades of Fifth Circuit precedent establishes this principle. See, e.g, Sorenson v. Raymond, 532 F.2d 496, 498-99 (5th Cir. 1976) (holding an earlier preliminary injunction could not ground collateral estoppel “because the judge in a preliminary injunction hearing seeks only to preserve the status quo”); Mercury Motor Exp., Inc. v. Brinke, 475 F.2d 1086, 1095 (5th Cir. 1973) (noting “[t]he intended function of a preliminary injunction is to preserve the status quo” and affirming district court’s decision denying an injunction because that “would best preserve the status quo”); Brannen v. Willoughby, 257 F.2d 580, 581 (5th Cir. 1958) (per curiam) (noting the “sole function [of a temporary or preliminary injunction] is to preserve the status quo”); Exhibitors Poster Exch., Inc. v. Nat’l Screen Serv. Corp., 441 F.2d 560, 561 (5th
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Cir. 1971) (noting “[t]he purpose of a preliminary injunction is to preserve the status quo”); Hoeme v. Jeoffroy, 100 F.2d 225, 226 (5th Cir. 1938) (noting the effect of granting the requested injunction “would not have been to preserve the status quo pending suit, [but] would have been . . . to destroy it”).
The status quo as of today is that thousands of putative class members are in custody. Plaintiffs admit that they ask to change that status quo by seeking to be released from custody. That simple fact demonstrates why preliminary relief is inappropriate because “[t]he function of a preliminary injunction is merely to preserve the status quo.” Morgan v. Fletcher, 518 F.2d 236, 239 (5th Cir. 1975). But it also demonstrates why Plaintiffs’ suggestion that this Court could easily “revisit” any temporary relief is a false promise. Suppl. Br. 2. If the Court releases thousands of felony arrestees tomorrow, how will it ensure that law enforcement authorities will ever get them back? Because the new status quo that Plaintiffs seek requires a loss of control, this Court could not easily unwind that relief. In this case, therefore, “the status quo, which a preliminary injunction seeks to maintain, would best be preserved by keeping the parties in their present positions.” Am. Family Life Assurance Co. of Columbus v. Aetna Life Ins. Co., 446 F.2d 1178, 1180 n.6 (5th Cir. 1971).
More fundamentally, Plaintiffs have not addressed the impossibility of awarding class-action relief in this procedural posture. This Court cannot award class-wide relief without first certifying a Plaintiff class. See Fed. R. Civ. P. 23(a)-(b). And this Court cannot certify a class without first holding a robust class certification
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hearing. A plaintiff must “affirmatively demonstrate his compliance with” Rule 23, Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348-50 (2011), in order to justify a departure from “the usual rule that litigation is conducted by and on behalf of the individual named parties only,” Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). Just last week, the Fifth Circuit “cautioned that a district court must conduct a rigorous analysis of the rule 23 prerequisites before certifying a class.” Cruson v. Jackson Nat’l Life Ins. Co., — F.3d —, 2020 WL 1443531, at *7 (5th Cir. Mar. 25, 2020).
There is simply no way that this Court could, in compliance with Rule 23, order preliminary injunctive relief for thousands of prisoners two days from now and without formally “ ‘find[ing],’ not merely assum[ing], the facts favoring class certification.” Unger v. Amedisys Inc., 401 F.3d 316, 321 (5th Cir. 2005). That problem is independent of Plaintiffs’ other shortcomings. In other words, even if this Court ignores the Fifth Circuit’s decisions in the ODonnell case, looks past the subjectmatter jurisdiction defects that plague this suit, and finds that Plaintiffs satisfy the preliminary injunction factors, all that this Court would have power to do is award preliminary relief to the three named Plaintiffs. (Of course, the Court could not do even that because as their counsel admitted yesterday, all three were released from custody weeks ago.)
It is true that a court need not certify a class before awarding relief that may incidentally benefit third parties that are not before the court. See 7AA WRIGHT & MILLER, FED. PRAC. & PROC. CIV. § 1785.2 (3d ed.); Kans. Health Care Ass’n v. Kans.
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Dep’t of Social Rehab., 31 F.3d 1536, 1548 (10th Cir. 1994). But this Court’s order demonstrates that is not what is at stake here. See Order, ECF No. 34 at 1 (noting that Pseek relief ordering that they be “promptly released” or have “their current bail status reheard”). Plaintiffs ask this Court to order state courts to revisit their past bail determinations. As already explained above, this Court has no power to do so under the Rooker-Feldman doctrine. But even assuming that problem away, ordering new bail determinations for the named Plaintiffs could not incidentally aid the putative class. Plaintiffs may respond that this Court could award declaratory or injunctive relief directing County officials to alter a policy going forward. That policy might incidentally benefit third parties who may later be subject to bail proceedings. But as already discussed above, Plaintiffs lack Article III standing to seek that relief.
Plaintiffs’ supplemental response essentially admits that they have a separate Article III standing problem. Namely, Plaintiffs admit that the only defendants they sued “have no state-law authority . . . to act at all.” Suppl. Br. 4. Those defendants therefore cannot redress the harm that Plaintiffs fear. Article III standing, however, requires a plaintiff to show that is “ likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (quotation omitted). Plaintiffs’ own pleadings affirmatively demonstrate the opposite. This subject-matter jurisdiction problem is over and above the Rooker-Feldman bar and the lack of an injury in fact detailed above.
Plaintiffs also baldly assert that “there are no other options.” Suppl. Br. 4. As this Court has recognized, that is untrue. Plaintiffs do not allege that they even
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tried to obtain habeas relief for any of the named Plaintiffs. Without trying, it is impossible to know whether state courts are incapable of affording relief. That is precisely why federal habeas review requires state petitioners to exhaust state court remedies before coming to federal court. See 28 U.S.C. § 2254(b)(1)(A); Rose v. Lundy, 455 U.S. 509, 515-19 (1982). Here by contrast, Plaintiffs did the opposite—they ran to federal court seeking an injunction on behalf of 4,000 people without even trying to obtain habeas relief on behalf of a single class representative. If, as Plaintiffs admit, “it is unclear whether, when, or how bail hearings will occur,” Suppl. Br. 5, that is because they have not even tried that route. Plaintiffs cannot turn that vice— their failure to exhaust available state remedies—into a virtue.
The discussion at this Court’s most recent telephonic hearing is a perfect example. County authorities are working to quickly reduce the jail population by providing a one-to-one remedy. At the start of the call, the Court explained that it is not contemplating any relief that is barred by Governor Greg Abbott’s recent executive order. See Executive Order GA 13, Office of Tex. Governor (Mar. 29, 2020). Counsel for Judge Hidalgo confirmed that Judge Hidalgo intends to issue an order to the same effect. Further discussion confirmed that the County Judge’s order “includes those individuals” for whom this Court is contemplating relief and may even “go beyond” them. Recognizing that state and local authorities are potentially remedying the wrongs this Court would remedy, Plaintiffs’ counsel was forced to admit that they do seek the release of violent felony arrestees. The fact that Plaintiffs’ counsel presses
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on while admitting it is “unclear” which individuals may obtain relief from local officials demonstrates their disregard for federalism.
On the merits, Plaintiffs simply ignore ODonnell II when they claim they are entitled to the substantive right to be released. Suppl. Br. 5-6. As noted above, the Fifth Circuit has already rejected that argument. This Court knows the story well. After the Court initially expanded the scope of injunctive relief to include mandatory release in certain scenarios, the Fifth Circuit reversed and ordered the Court to comply with ODonnell I. See ODonnell II, 900 F.3d at 225-26, 228. It held that this Court’s injunction “smuggl[ed] in a substantive remedy” for a non-existent substantive right. Id. at 228. Plaintiffs, apparently realizing that free-standing substantive due process is out of bounds, make a pass at repackaging their claim for substantive relief under the Equal Protection Clause. Suppl. Br. 5. But of course, the Equal Protection Clause was at issue in ODonnell, and the Fifth Circuit rejected it as a basis for substantive relief: “The due process and equal protection relief found sufficient in Odonnell I did not contemplate release, and it follows that such relief is improper.” ODonnell II, 900 F.3d at 228; see also ODonnell I, 892 F.3d at 152, 16163. ODonnell forecloses Plaintiffs’ attempt to wrest substantive relief from the Equal Protection Clause.
Finally, Plaintiffs point to a recent Sixth Circuit decision. Suppl. Br. 7 (citing McNeil v. Cmty. Probation Servs., 945 F.3d 991 (6th Cir. Dec. 23, 2019)). But that case seemingly had none of the subject-matter jurisdiction problems that plague this case. Standing was not even litigated in McNeil, perhaps because some of the named
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Case 4:19-cv-00226 Document 54 Filed on 04/01/20 in TXSD Page 48 of 50 plaintiffs (unlike here) obviously had it: When the complaint was filed, a judge had issued a warrant ordering Indya Hilfort’s arrest and imposing secured bail, but Hilfort had not yet been arrested but remained out on probation. McNeil, 1:18-cv00033, ECF 41 at 63-64, ECF 212 at 3-4. An order enjoining the sheriff, then, would have remedied Hilfort’s certainly impending future injury. (But Plaintiffs have no such injury here.) And it would have encountered no Rooker-Feldman shoal because there, unlike here, the federal court was not asked to revisit the previous bail determination.
CONCLUSION The Court should deny Plaintiffs’ request for preliminary injunctive relief. Indeed, it should dismiss this suit in its entirety for lack of subject-matter jurisdiction.
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Respectfully submitted.

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
ERIC A. HUDSON Special Counsel Special Litigation Unit Texas Bar No. 24059977 Southern District ID: 1000759 Eric.Hudson@oag.texas.gov P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 936-1414 | FAX: (512) 936-0545

DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel Attorney-in-Charge Texas Bar No. 24077727 Southern District No. 2964087 Adam.Biggs@oag.texas.gov
MATTHEW BOHUSLAV Assistant Attorney General Texas Bar No. 1303218 Southern District ID: 1303218 Matthew.Bohuslav@oag.texas.gov

DOMINIQUE G. STAFFORD Assistant Attorney General State Bar No. 24079382 Southern District ID: 3195055 Dominique.Stafford@oag.texas.gov General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667

COUNSEL FOR THE STATE INTERVENORS

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Case 4:19-cv-00226 Document 54 Filed on 04/01/20 in TXSD Page 50 of 50 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been sent by electronic notification through ECF by the United States District Court, Southern District of Texas, Houston Division, on April 1, 2020 to all parties of record.
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel
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Case 4:19-cv-00226 Document 54-1 Filed on 04/01/20 in TXSD Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

DWIGHT RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

Case No. 4:19-cv-00226

EXHIBIT LIST

Exhibit No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
17 18

Description Declaration of Houston Chief of Police Art Acevedo Declaration of Allen Police Chief Brian Harvey Declaration of Arlington Police Chief Will Johnson Declaration of Police Chief Derick Miller (City of Carrollton) Declaration of Deer Park Chief of Police Gregg Grigg Declaration of Frisco Police Chief David Shilson Declaration of Fort Worth Police Chief Edwin Kraus March 31, 2020 Letter from Garland Police Department Declaration of Daniel Scesny (City of Grand Prairie) Declaration of Irving Police Chief Jeff Spivey Declaration of Lewisville Police Chief Kevin Deaver Declaration of Pearland Police Chief Johnny Spires Declaration of Plano Police Chief Ed Drain Declaration of Gregory W. Rushin (City of Plano) Declaration of David Maxwell (Texas Attorney General’s Office) Declaration of Director of Department of Public Safety Steven McCraw March 31, 2020 Letter from Texas Police Chiefs Association Declaration of Bob Bushman (National Narcotic Officers’ Associations’ Coalition)

1

Case 4:19-cv-00226 Document 54-1 Filed on 04/01/20 in TXSD Page 2 of 2

Exhibit No. 19
20
21

Description Declaration of Andy Kahan (Crime Stoppers of Houston) Resolution - Major County Sheriffs of America Affidavit of James Leitner (Harris County District Attorney)

2

Case 4:19-cv-00226 Document 54-2 Filed on 04/01/20 in TXSD Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF HOUSTON CHIEF OF POLICE ART ACEVEDO

1. My name is Art Acevedo. I currently serve as Chief of the Houston Police Department. I have served in this role since November 30, 2016.

2. I lead a department of 5,300 sworn law enforcement officers and 1,000 civilian support personnel. In addition to my role as Chief of Police, I am the President of the Major Cities Chiefs Association (“MCCA”). MCCA is a professional association of Chiefs and Sheriffs representing the largest cities in the United States and Canada. MCCA membership is comprised of Chiefs and Sheriffs of the sixty-nine largest law enforcement agencies in the United States and nine largest in Canada.

3. It is my understanding that the Plaintiffs in this lawsuit are seeking an extraordinary and unprecedented order from this Court to release over 4,000 felons from the Harris County Jail.

4. It is also my understanding that they seek to release all inmates age 55 or older regardless of the crimes for which he or she is charged or consideration of prior criminal history. This specific population includes extremely violent individuals whose release would pose a serious threat to their victims, victims’ families, and the extended community. A representative sample of the crimes and number of individuals charged per category is as follows:

 Murder

16

 Aggravated assault with a deadly weapon

96

 Aggravated assault of a family member

44

Exhibit 1

Case 4:19-cv-00226 Document 54-2 Filed on 04/01/20 in TXSD Page 2 of 4

 Aggravated assault of a peace officer

16

 Aggravated sexual assault of a child under 14

24

 Assault of family member with previous conviction

27

 3rd time DWI

37

 Failure to comply sex offender

21

 Felon in possession of a firearm

16

 Indecent sexual contact with a child

17

5. Based on my training, experience, and understanding of the current circumstances on the ground, I believe that such a mass release of felons would not only fail to serve the public interests, but furthermore make our streets less safe. This would put additional strain on already limited law enforcement resources and divert them from aiding with the pandemic control efforts. This strain will not only be felt in Houston, but also throughout the entire State of Texas and nation because Plaintiffs’ request does not include safeguards for ensuring these suspects and felons remain in Houston after their release.
6. We are in an unprecedented time for our country, state and Harris County. The men and women that serve on the police department here have risked their lives to protect and serve during these trying times. The police department is working on limited resources. As of this draft, 11 Houston Police Department officers have tested positive for COVID-19 related to their duties, with close to 50 more awaiting test results. If Harris County releases high-level offenders from jail, our resources will be stretched even further. We should all be concerned about the wholesale release of individuals charged with violent crimes. There is a high likelihood that some actors that are released will subsequently commit more crimes. We must prevent this from occurring. We will not be able to keep up with demand and the high likelihood of repeat offenses.
7. It is my understanding that low-level, non-violent offenders have already been released from jail and that the jail is already close to empty of these offenders, which only leaves the violent and pervasive offenders. Thousands of persons charged with serious felony offenses remain behind bars and that is appropriate. These are the people that Plaintiffs want to release without a proper judicial risk assessment balancing the alleged risk of harm to them due to the coronavirus versus the risk of harm to public safety if they are released or the consideration of other alternatives like testing and isolation of positive inmates within the jail or the opening of another jail facility.
8. Those who remain are awaiting trial for violent crime or are habitual offenders. These offenders must not be released without a assessment by a judge to ensure that we weigh the risks posed to public safety and security on an individual case-by-case basis. The last thing our community needs are decisions that further exacerbate public anxiety and risk to the people we serve. Releases of persons charged with high-level offenses place the community in grave danger and must be prevented. Violent and habitual offenders (especially burglars) need to remain in quarantine in jail. With many

Exhibit 1

Case 4:19-cv-00226 Document 54-2 Filed on 04/01/20 in TXSD Page 3 of 4
businesses closed due to the Harris County mandated shutdown, the last thing these businesses need is the release of habitual burglars to a target rich environment.
9. There are some public officials who believe no one should be in jail pre-trial. Using the pandemic to advance that agenda is wrong, and counter-productive to legitimate criminal justice reform efforts and public safety.
10. For example, it is my understanding that David Cruz, a man charged with murder, was recently released on a PR bond solely due to the current COVID-19 concerns in the jail population. This is extremely disturbing. Imagine how the victim’s family members and witnesses feel, not to mention the unnecessary anxiety caused to the general public on hearing that murder suspects are being released without proper consideration for its safety. We cannot forget about the plaintiffs that are not in this lawsuit, the victims.
11. As illustrated above, release orders based solely on the amount of bail would place the public at risk. I agree with Plaintiffs that generally people should not be held behind bars simply because of their inability to post a bail. Instead, an assessment of the risk to public safety, risk of reoffending, and risk of flight, should be the determining factors. In Harris County, it is common knowledge that too often magistrates and judges fail to assess these risk factors and arbitrarily assign PR and low bond in cases where the individuals are facing charges for violent crimes, have previous convictions for violent crimes, and/or are habitual offenders.
12. Likewise, releasing felons accused of domestic violence and forcing them under the shelter in place order to stay in their homes with their victim(s) is not only dangerous, but also cruel. This is especially true at this moment in time, when we are experiencing an uptick in domestic violence; sadly, domestic violence is a significant driver of homicides.
13. The danger is not limited to violent offenders. Take for example felony DWI offenses. Putting people accused of habitual drunk driving or intoxication manslaughter on the roads where they are free to drink and drive again places everyone at risk. I find it important to note that our city, county, and state are tragically already national leaders in DWI injury and fatal crashes.
14. In closing, I respectfully urge the Court to require a process which is transparent, includes all of the aforementioned considerations, and also includes these measures: testing for COVID-19 to ensure that we are not spreading the virus unwittingly by releasing infected individuals out of a controlled and isolated environment; assurance of housing for those being released; and appropriate supervision. I would also urge that Harris County review alternatives to a mass release of dangerous persons as requested by the Plaintiffs, such as activating a standalone jail facility for isolation purposes. COVID-19 is not the only infectious disease that afflicts county jails. The type of drastic measures requested by the Plaintiffs should not be granted without first considering other options.
Exhibit 1

Case 4:19-cv-00226 Document 54-2 Filed on 04/01/20 in TXSD Page 4 of 4

I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability.

Date: ____________________

_________________________________ Art Acevedo Houston Police Chief Houston Police Department

Exhibit 1

Case 4:19-cv-00226 Document 54-3 Filed on 04/01/20 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF ALLEN POLICE CHIEF BRIAN HARVEY

1. My name is Brian Harvey. I currently serve as Chief of the Allen Police Department in Collin County, and have served in this role since February 2012.
2. I lead a department of 141 sworn law enforcement officers and 60 civilian support personnel. In addition to my role as Police Chief, I am a past president of the North Texas Police Chiefs Association and currently a Regional Director, Legislative Coordinator and Violent Crime Committee member with the Texas Police Chiefs Association.
3. As the number of coronavirus cases explodes across the nation, an increasing number of police departments around the country are experiencing shortages in staffing and resources, as police ranks become sick with or exposed to the coronavirus. This concerning trend raises the issue of how Texas police agencies may hold steadfast to safeguard their communities, even as the virus spreads among law enforcement officers whose work puts them at increased risk of infection.
4. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons on personal recognizance bonds from the Harris County Jail.

ll Page

Exhibit 2

Case 4:19-cv-00226 Document 54-3 Filed on 04/01/20 in TXSD Page 2 of 3

5. Pursuant to Governor Greg Abbott's executive order issued on March 29th, 2020, I understand that no authority may release any person, who is arrested or previously convicted of a crime that involves physical violence or the threat of physical violence, on personal bond, and I believe low-level, non-violent inmates have already been released from the Harris County Jail, leaving only the violent and pervasive felony offenders.
6. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such releases would strain already limited law enforcement resources and pose a danger to all Texans.
7. Even though this pandemic is unprecedented, the release of potentially dangerous felons at a time when law enforcements agencies are limited in staffing and resources does not appropriately serve the public at large.
8. I believe these felons, if released, would endanger their communities and further stretch the limited resources of police departments, putting a bigger strain on the local population. In my 40 years ofexperience in law enforcement,
I know that the unsecured pretrial release of individuals without any bond
conditions, especially those accused of serious felonies, directly leads to an increase in violent crime within surrounding communities. For example, in February of 2020, Jacques Dshawn Smith murdered two people and injured an infant in the Dallas Fort Worth metroplex, within one week after being released on bail in Dallas County. Similarly, in November of 2019 Damon White was released on a $1,500.00 bond for Violation of Protective Order and Fleeing. The next day in Allen, Texas he was arrested while planning to inflict harm with a weapon on the same victim and is currently in jail for F/3 Stalking with a $550,000.00 bond.
9. Protecting local Texas communities from recidivistic crime is paramount during this time in which members of the public are particularly vulnerable, including the elderly, victims of domestic violence and burglaries, given that food, shelter, and essential items to carry on a normal quality of life, such as vehicles and money, are limited during this rapidly developing pandemic. Priority safety considerations must also be given to the victims and witnesses of these arrested suspects and convicted offenders, since the unrestricted release of these inmates directly jeopardizes their wellbeing.
10.The release of felons, who were arrested or convicted of domestic violence, inevitably forces victims to shelter in place within the same homes as their abusers, leading to dangerous escalations in life-safety issues for a multitude ofvictims as well as their minor children.

2 I Page

Exhibit 2

Case 4:19-cv-00226 Document 54-3 Filed on 04/01/20 in TXSD Page 3 of 3

11. Upon their release, arrested or convicted felons of non-violent offenses, such as burglaries of habitation, building, or vehicle, are provided with a target-rich environment in the Dallas Fort Worth metroplex, since many, if not all, nonessential business operations are presently suspended and unmanned.
12.The general Dallas Fort Worth population is susceptible to new online or telephone scams involving the coronavirus, since residents around the metroplex are currently under sheltering in place orders at home. Released fraudsters are, therefore, presented with new opportunities to prey on these Texans, in particular the elderly, during this epidemic.
13.The personal recognizance bond release of felons from the Harris County Jail, who were arrested or convicted ofeither violent or non-violent crimes, severely compromises the orderly operation of the Texas criminal justice system and wholly contradicts the requirements established by the Code of Criminal Procedure, which mandates bond conditions must be imposed for certain crimes. Such a release also threatens the safety of Texas communities with recidivistic crimes and unjustly disregards the wellbeing of crime victims and witness.
14. For these reasons, I believe releasing felons into the community would not serve the best interest ofthe public in our current environment and endangers the public, further straining already limited resources.

Date: March 31, 2020

~ J BriaA n Harve.y f ~

J I have read the

page(s) of this statement and hereby certify that the

information contained herein is true and correct to the best of my knowledge.

SWORN AND SUBSCRIBED TO BEFORE ME THIS 31st DAY OF MARCH,

2020.

~-

DEBORAH A GOPLIN
Notary ID# 125680896 My Commission E,,pires
May 4, 2022

· ~ rianHb art ey • A ~ ~
b~k.~
Notary Public, State of Texas

3I Page

Exhibit 2

Case 4:19-cv-00226 Document 54-4 Filed on 04/01/20 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

V.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF ARLINGTON POLICE CHIEF WILL JOHNSON

1. My name is Will Johnson. I currently serve as Police Chief of the Arlington Police Department, and I have served in this role since March of 2013.
2. I lead a department of 680 sworn law enforcement officers and 202 civilian support personnel. In addition to my role as Police Chief, I am a subject matter expert for the Department of Justice and an Executive Fellow for the Police Executive Research Forum. I am also the Vice President of the International Association of Chiefs of Police ("IACP"), which is the world's largest professional association for police leaders with more than 30,000 members in over 160 countries, and I serve on the executive board for the Major Cities Chiefs Association which is comprised of the largest police agencies in the United States and Canada.
3. As the number of coronavirus cases explodes across the nation, an increasing number of police departments around the country are experiencing shortages in staffing and resources, as police ranks become sick with or exposed to the coronavirus. This concerning trend raises the issue of how Texas police agencies may hold steadfast to safeguard their communities, even as the virus spreads among law enforcement officers whose work puts them at increased risk of infection.

EXHIBIT 3

Case 4:19-cv-00226 Document 54-4 Filed on 04/01/20 in TXSD Page 2 of 3
4. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons on personal recognizance bonds from the Harris County Jail.
5. Pursuant to Governor Greg Abbott's executive order issued on March 29th, 2020, I understand that no authority may release any person, who is arrested or previously convicted of a crime that involves physical violence or the threat of physical violence, on personal bond, and I believe low-level, non-violent inmates have already been released from the Harris County Jail, leaving only the violent and pervasive felony offenders.
6. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such releases would strain already limited law enforcement resources and pose a danger to all Texans.
7. Even though this pandemic is unprecedented, the release of potentially dangerous felons at a time when law enforcements agencies are limited in staffing and resources does not appropriately serve the public at large.
8. I believe these felons, if released, would endanger their communities and further stretch the limited resources of police departments, putting a bigger strain on the local population. In my 26 years of experience in law enforcement, I know that the unsecured pretrial release of individuals without any bond conditions, especially those accused of serious felonies, directly leads to an increase in violent crime within surrounding communities. For example, in February of 2020, Jacques Dshawn Smith murdered two people and injured an infant in the Dallas Fort Worth metroplex, within one week after being released on bail in Dallas County.
9. Protecting local Texas communities from recidivistic crime is paramount during this time in which members of the public are particularly vulnerable, including the elderly, victims of domestic violence and burglaries, given that food, shelter, and essential items to carry on a normal quality of life, such as vehicles and money, are limited during this rapidly developing pandemic. Priority safety considerations must also be given to the victims and witnesses of these arrested suspects and convicted offenders, since the unrestricted release of these inmates directly jeopardizes their wellbeing.
10. The release of felons, who were arrested or convicted of domestic violence, inevitably forces victims to shelter in place within the same homes as their abusers, leading to dangerous escalations in life-safety issues for a multitude of victims as well as their minor children.
EXHIBIT 3

Case 4:19-cv-00226 Document 54-4 Filed on 04/01/20 in TXSD Page 3 of 3

11. Upon their release, arrested or convicted felons of non-violent offenses, such as burglaries of habitation, building, or vehicle, are provided with a target-rich environment in the Dallas Fort Worth metroplex, since many, if not all, nonessential business operations are presently suspended and unmanned.
12. The general Dallas Fort Worth population is susceptible to new online or telephone scams involving the coronavirus, since residents around the metroplex are currently under sheltering in place orders at home. Released fraudsters are, therefore, presented with new opportunities to prey on these Texans, in particular the elderly, during this epidemic.
13. The personal recognizance bond release of felons from the Harris County Jail, who were arrested or convicted of either violent or non-violent crimes, severely compromises the orderly operation of the Texas criminal justice system and wholly contradicts the requirements established by the Code of Criminal Procedure, which mandates bond conditions must be imposed for certain crimes. Such a release also threatens the safety of Texas communities with recidivistic crimes and unjustly disregards the wellbeing of crime victims and witness.
14. For these reasons, I believe releasing felons into the community would not serve the best interest of the public in our current environment and endangers the public, further straining already limited resources.

, ¢ ;/zo Date:

'2-6

I

EXHIBIT 3

Case 4:19-cv-00226 Document 54-5 Filed on 04/01/20 in TXSD Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226
(Class Action)

DECLARATION OF POLICE CHIEF DERICK MILLER

1. My name is Derick Miller and I am Chief of the Carrollton (Texas) Police Department. I began my career with this department in September 1993 as a police officer and I worked my way through the ranks, serving in almost every aspect of the police department. I was appointed Chief over two years ago. I hold a master's degree in criminology and criminal justice from the University of Texas - Arlington as well as being a graduate of the FBI National Academy, the Senior Management Institute of Policing and the Institute of Law Enforcement Administration. I hold a Master Peace Officer's Certification from the Texas Commission on Law Enforcement.
2. I am in support of the Attorney General's Office and Chief Art Acevedo of the Houston Police Department in vehemently opposing the release of over 4,000 felons from the Harris
County Jail in this lawsuit.
3. Based on my on my training, experience and understanding of the current circumstances on the ground throughout the State, I believe that such a release would strain the already limited law enforcement resources and pose a danger to law-abiding citizens. I believe if released, these felons would endanger their communities and put a bigger strain on the community. The strain will not only be felt in Houston, but also throughout the entire State ofTexas as well as the nation because the request does not include safeguards for ensuring these suspects and felons remain in Houston after their release.
4. I believe that we are in unprecedented times and the men and women serving in the police department are risking their lives to protect and serve during these trying times. If these high-level offenders are released, the current limited resources will be stretched even further, possibly to a breaking point. There is a high probability that some of the inmates
1
EXHIBIT 4

Case 4:19-cv-00226 Document 54-5 Filed on 04/01/20 in TXSD Page 2 of 2

who are released will subsequently commit more crimes. We must prevent this from occurring as we will be unable to keep up with this high likelihood of repeat offenses. 5. I believe the offenders who remain in the jail should not be released without an individual judicial risk assessment balancing the alleged risk of harm to the offender due to COVID19 versus the risk of harm to public safety if released. Moreover, consideration of other alternatives such as testing and isolation ofpositive inmates within the jail or the opening ofanother stand-alone jail facility should be considered before releasing these inmates. 6. I would respectfully urge the Court to require a process which is transparent, includes all of the aforementioned considerations and includes measures for testing inmates for COVID-19 to avoid spreading the virus unwittingly by releasing infected individuals out of a controlled and isolated environment. I would urge the Court to review alternatives to a mass release ofdangerous persons as requested by this lawsuit, such as activating a standalone jail facility for isolation purposes. The type of drastic measures requested by the
Plaintiffs in this lawsuit should not be granted without first considering all other options.

I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability.

~_::·:::=:_D:i•~er=ic=k=M~=i~ll_,e.cr_""_";,_ C __,_______
Chief of Police Carrollton Police Department

March 31, 2020

2 EXHIBIT 4

Case 4:19-cv-00226 Document 54-6 Filed on 04/01/20 in TXSD Page 1 of 4

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaint@,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF DEER PARK CHIEF OF POLICE GREG GRIGG

1. My name is Greg Grigg. I currently serve as Chief of the Deer Park Police Department. I have served in this role since January 5, 2009.

2. I lead a department of 65 sworn law enforcement officers and 32 civilian support personnel. In addition to my role as Chief of Police, I am the President of the Houston Area Police Chiefs Association (HAPCA). HAPC'A is a professional association of representing Chiefs, Sheriff's, Command Staff, and line officers of local city, county, state, federal, college/university, transit police, medical center police, school districts, and special law enforcement agencies from seven (7) counties in the Houston metropolitan area. This organization was formed in 1988.

3. It is my understanding that the Plaintiffs in this lawsuit are seeking an extraordinary and unprecedented order from this Court to release over 4,000 felons from the Harris CountyJail.

4. It is also my understanding that they seek to release all inmates age 55 or older regardless of the crimes for which he or she is charged or consideration of prior criminal history. This specific population includes extremely violent individuals whose release would pose a serious threat to their victims, victims' families, and the extended community. A representative sample of the crimes and number of individuals charged per category is as follows:

• Murder

16

• Aggravated assault with a deadly weapon

96

• Aggravated assault of a family member

44

EXHIBIT 5

Case 4:19-cv-00226 Document 54-6 Filed on 04/01/20 in TXSD Page 2 of 4

• Aggravated assault of a peace officer

16

• Aggravated sexual assault of a child under 14

24

• Assault of family member with previous conviction

27

• 3rd time DWI

37

• Failure to comply sex offender

21

• Felon in possession of a firearm

16

• Indecent sexual contact with a child

17

5. Based on my training, experience, and education, I believe that such a mass release of felons would not only fail to serve the public interests, but furthermore make our streets less safe. This would put additional strain on already limited law enforcement resources and divert them from aiding with the pandemic control efforts. This strain will not only be felt in Houston, but also throughout the entire State of Texas and nation because Plaintiffs' request does not include safeguards for ensuring these suspects and felons remain in Houston after their release.
6. We are in an unprecedented time for our country, state and Harris County. The men and women that serve on the police department here have risked their lives to protect and serve during these trying times. The police department is working on limited resources, and due to our size, and the size of many of the departments represented by HAPCA, a couple of exposures could greatly
reduce our ability to respond to basic calls for service. If Harris County releases high-level offenders from jail, our resources will be stretched even further. We should all be concerned about the wholesale
release of individuals charged with violent crimes. There is a high likelihood that some actors that are
released will subsequently commit more crimes. We must prevent this from occurring. We will not be
able to keep up with demand and the high likelihood of repeat offenses.
7. It is my understanding that low-level, non-violent offenders have already been released from jail, and that the jail is already close to empty of these offenders, which only leaves the violent and pervasive offenders. Thousands of persons charged with serious felony offenses remain behind bars and that is appropriate. These are the people that Plaintiffs want to release without a proper judicial risk assessment balancing the alleged risk of harm to them due to the coronavirus versus the risk of harm to public safety if they are released or the consideration of other alternatives like testing and isolation of positive inmates within the jail or the opening of another jailfacility.
8. Those who remain are awaiting trial for violent crime or are habitual offenders. These offenders must not be released without an assessment by a judge to ensure that we weigh the risks posed to public safety and security on an individual case-by-case basis. The last thing our community needs are decisions that further exacerbate public anxiety and risk to the people we serve. Releases of persons charged with high-level offenses place the community in grave danger and must be prevented. Violent and habitual offenders (especially burglars) need to remain in quarantine in jail. With many

EXHIBIT 5

Case 4:19-cv-00226 Document 54-6 Filed on 04/01/20 in TXSD Page 3 of 4
businesses closed due to the Harris County mandated shutdown, the last thing these businesses need is the release of habitual burglars into a target rich environment.
9. There are some public officials who believe no one should be in jail pre-trial. Using the pandemic to advance that agenda is wrong, and counter-productive to legitimate criminal justice reform efforts and public safety.
10. For example, it is my understanding that David Cruz, a man charged with murder, was recently released on a PR bond solely due to the current COVID-19 concerns in the jail population. This is extremely disturbing. Imagine how the victim's family members and witnesses feel, not to mention the unnecessary anxiety caused to the general public on hearing that murder suspects are being released without proper consideration for its safety. We cannot forget about the plaintiffs that are not in this lawsuit, the victims.
11. As illustrated above, release orders based solely on the amount of bail would place the public at risk I agree with Plaintiffs that generally people should not be held behind bars simply because of their inability to post a bail. Instead, an assessment of the risk to. public safety, risk of reoffending, and risk of flight, should be the determining factors. In Harris County, it is common knowledge that too often magistrates and judges fail to assess these risk factors and arbitrarily assign PR and low bond in cases where the individuals are facing charges for violent crimes, have previous convictions for violent crimes, and/or are habitual offenders.
12. Likewise, releasing felons accused of domestic violence and forcing them under the shelter in place order to stay in their homes with their victim(s) is not only dangerous, but also cruel. This is especially true at this moment in time, when we are experiencing an uptick in domestic violence; sadly, domestic violence is a significant driver of homicides.
13. The danger is not limited to violent offenders. Take for example felony DWI offenses. Putting people accused of habitual drunk driving or intoxication manslaughter on the roads where they are free to drink and drive again places everyone at risk I find it important to note that our city, county, and state are tragically already national leaders in DWI injury and fatal crashes.
14. We must consider the impact emptying the jail will have on those offenders who will consider this a time of King's X. With the policy of emptying the jail where will the police take a violent offender caught in the act? I do not see how we can let all of the violent offenders go to protect their health, and then put more people back in jail. And, it is a certainty offenders will think they can commit more crimes without being held accountable.
15. In closing, I respectfully urge the Court to require a process which is transparent, includes all of the aforementioned considerations, and also includes these measures: testing for COVID-19 to ensure that we are not spreading the virus unwittingly by releasing infected individuals out of a controlled and isolated environment; assurance of housing for those being released; and appropriate supervision. I would also urge that Harris County review alternatives to a mass release of dangerous persons as requested by the Plaintiffs, such as activating a standalone jail facility for isolation purposes. COVID-19 is not the only infectious disease that afflicts county jails. The type of drastic measures requested by the Plaintiffs should not be granted.
EXHIBIT 5

Case 4:19-cv-00226 Document 54-6 Filed on 04/01/20 in TXSD Page 4 of 4

I declare under penalty of perjury that the foregoing statements are true and correct to the best of

my ability.

__J}J_J Date:

'$ I, ,;10;) O

I

&Jetf&:;a/(.~ -£~ -ff.

Chief of Police

V ft

HAPCA President

Deer Park Police Department

EXHIBIT 5

Case 4:19-cv-00226 Document 54-7 Filed on 04/01/20 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

V.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF FRISCO POLICE CHIEF DAVID SHILSON

1. My name is David Shilson. I currently serve as Chief of the Frisco Police Department, and I have served in this role since November 1, 2019.
2. I lead a department of 220 sworn law enforcement officers and 112 civilian support personnel. In addition to my role as Police Chief, I am a member of the International Association of Chiefs of Police(IACP), Texas Police Chiefs Association (TPCA), North Texas Police Chiefs Association (NTPCA), Member of the Texas Municipal Police Officer's Association (TMPA), and member of the Police Executive Research Forum (PERF).
3. As the number of coronavirus cases explodes across the nation, an increasing number of police departments around the country are experiencing shortages in staffing and resources, as police ranks become sick with or exposed to the coronavirus. This concerning trend raises the issue of how Texas police agencies may hold steadfast to safeguard their communities, even as the virus spreads among law enforcement officers whose work puts them at increased risk of infection.
4. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons on personal recognizance bonds from the Harris County Jail.

EXHIBIT 6

Case 4:19-cv-00226 Document 54-7 Filed on 04/01/20 in TXSD Page 2 of 3
5. Pursuant to Governor Greg Abbott's executive order issued on March 29th, 2020, I understand that no authority may release any person, who is arrested or previously convicted of a crime that involves physical violence or the threat of physical violence, on personal bond, and I believe low-level, non-violent inmates have already been released from the Harris County Jail, leaving only the violent and pervasive felony offenders.
6. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such releases would strain already limited law enforcement resources and pose a danger to all Texans.
7. Even though this pandemic is unprecedented, the release of potentially dangerous felons at a time when law enforcements agencies are limited in staffing and resources does not appropriately serve the public at large.
8. I believe these felons, if released, would endanger their communities and further stretch the limited resources of police departments, putting a bigger strain on the local population. In my 20 years of experience in law enforcement, I know that the unsecured pretrial release of individuals without any bond conditions, especially those accused of serious felonies, directly leads to an increase in violent crime within surrounding communities. For example, in February of 2020, Jacques Dshawn Smith murdered two people and injured an infant in the Dallas Fort Worth metroplex, within one week after being released on bail in Dallas County.
9. Protecting local Texas communities from recidivistic crime is paramount during this time in which members of the public are particularly vulnerable, including the elderly, victims of domestic violence and burglaries, given that food, shelter, and essential items to carry on a normal quality of life, such as vehicles and money, are limited during this rapidly developing pandemic. Priority safety considerations must also be given to the victims and witnesses of these arrested suspects and convicted offenders, since the unrestricted release of these inmates directly jeopardizes their wellbeing.
10. The release of felons, who were arrested or convicted of domestic violence, inevitably forces victims to shelter in place within the same homes as their abusers, leading to dangerous escalations in life-safety issues for a multitude of victims as well as their minor children.
11. Upon their release, arrested or convicted felons of non-violent offenses, such as burglaries of habitation, building, or vehicle, are provided with a target-rich
EXHIBIT 6

Case 4:19-cv-00226 Document 54-7 Filed on 04/01/20 in TXSD Page 3 of 3

environment in the Dallas Fort Worth metroplex, since many, if not all, nonessential business operations are presently suspended and unmanned.
12. The general Dallas Fort Worth population is susceptible to new online or telephone scams involving the coronavirus, since residents around the metroplex are currently under sheltering in place orders at home. Released fraudsters are, therefore, presented with new opportunities to prey on these Texans, in particular the elderly, during this epidemic.
13. The personal recognizance bond release of felons from the Harris County Jail, who were arrested or convicted of either violent or non-violent crimes, severely compromises the orderly operation of the Texas criminal justice system and wholly contradicts the requirements established by the Code of Criminal Procedure, which mandates bond conditions must be imposed for certain crimes. Such a release also threatens the safety of Texas communities with recidivistic crimes and unjustly disregards the wellbeing of crime victims and witness.
14. For these reasons, I believe releasing felons into the community would not serve the best interest of the public in our current environment and endangers the public, further straining already limited resources.

.J0;c1/'/JvJ-:;;
Date: ----1-.-,f--------

[Signature]

EXHIBIT 6

Case 4:19-cv-00226 Document 54-8 Filed on 04/01/20 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF FORT WORTH POLICE CHIEF EDWIN KRAUS

1. My name is Edwin Kraus. I currently serve as Chief of the Fort Worth Police Department, and I have served in this role since May, 2019.
2. I lead a department of 1,712 sworn law enforcement officers and 512 civilian support personnel.
3. As the number of coronavirus cases explodes across the nation, an increasing number of police departments around the country are experiencing shortages in staffing and resources, as police ranks become sick with or exposed to the coronavirus. This concerning trend raises the issue of how Texas police agencies may hold steadfast to safeguard their communities, even as the virus spreads among law enforcement officers whose work puts them at increased risk of infection.
4. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons on personal recognizance bonds from the Harris County Jail.
5. Pursuant to Governor Greg Abbott’s executive order issued on March 29th, 2020, I understand that no authority may release any person, who is arrested or previously convicted of a crime that involves physical violence or the threat

EXHIBIT 7

Case 4:19-cv-00226 Document 54-8 Filed on 04/01/20 in TXSD Page 2 of 3
of physical violence, on personal bond, and I believe low-level, non-violent inmates have already been released from the Harris County Jail, leaving only the violent and pervasive felony offenders.
6. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such releases would strain already limited law enforcement resources and pose a danger to all Texans.
7. Even though this pandemic is unprecedented, the release of potentially dangerous felons at a time when law enforcements agencies are limited in staffing and resources does not appropriately serve the public at large.
8. I believe these felons, if released, would endanger their communities and further stretch the limited resources of police departments, putting a bigger strain on the local population. In my twenty-seven years of experience in law enforcement, I know that the unsecured pretrial release of individuals without any bond conditions, especially those accused of serious felonies, directly leads to an increase in violent crime within surrounding communities. For example, in February of 2020, Jacques Dshawn Smith murdered two people and injured an infant in the Dallas Fort Worth metroplex, within one week after being released on bail in Dallas County.
9. Protecting local Texas communities from recidivistic crime is paramount during this time in which members of the public are particularly vulnerable, including the elderly, victims of domestic violence and burglaries, given that food, shelter, and essential items to carry on a normal quality of life, such as vehicles and money, are limited during this rapidly developing pandemic. Priority safety considerations must also be given to the victims and witnesses of these arrested suspects and convicted offenders, since the unrestricted release of these inmates directly jeopardizes their wellbeing.
10. The release of felons, who were arrested or convicted of domestic violence, inevitably forces victims to shelter in place within the same homes as their abusers, leading to dangerous escalations in life-safety issues for a multitude of victims as well as their minor children.
11. Upon their release, arrested or convicted felons of non-violent offenses, such as burglaries of habitation, building, or vehicle, are provided with a target-rich environment in the Dallas Fort Worth metroplex, since many, if not all, nonessential business operations are presently suspended and unmanned.
12. The general Dallas Fort Worth population is susceptible to new online or telephone scams involving the coronavirus, since residents around the
EXHIBIT 7

Case 4:19-cv-00226 Document 54-8 Filed on 04/01/20 in TXSD Page 3 of 3
metroplex are currently under sheltering in place orders at home. Released fraudsters are, therefore, presented with new opportunities to prey on these Texans, in particular the elderly, during this epidemic.
13. The personal recognizance bond release of felons from the Harris County Jail, who were arrested or convicted of either violent or non-violent crimes, severely compromises the orderly operation of the Texas criminal justice system and wholly contradicts the requirements established by the Code of Criminal Procedure, which mandates bond conditions must be imposed for certain crimes. Such a release also threatens the safety of Texas communities with recidivistic crimes and unjustly disregards the wellbeing of crime victims and witness.
14. For these reasons, I believe releasing felons into the community would not serve the best interest of the public in our current environment and endangers the public, further straining already limited resources.

March 31, 2020

Chief Edwin Kraus Fort Worth Police Department

EXHIBIT 7

Case 4:19-cv-00226 Document 54-9 Filed on 04/01/20 in TXSD Page 1 of 2

Garland Police Department
1891 Forest Lane Garland, Texas 75042
972-485-4846

Jeff Bryan Chief of Police

March 31, 2020
TO THE HONORABLE JUDGE LEE H. ROSENTHAL,
I am writing this letter in support of Chief Art Acevedo of the Houston Police Department. It is my understanding that there is a lawsuit pending in the United States District Court Southern District of Texas, Houston Division in Case No. 4:19-cv-00226 (Class Action) seeking to release over 4,000 felons from the Harris County Jail.
Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such release would strain the already limited law enforcement resources and pose a danger to Texans. I believe if released, these felons would endanger their communities that stretch the limited resources of police departments, putting a bigger strain on the community. The strain will not only be felt in Houston. Historically our jurisdiction has been impacted by organized crime crews from Houston and Harris County traveling to our community committing jugging offenses, burglaries and burglaries from motor vehicles, theft offenses, and a wide range of organized criminal activities. The release of inmates in Harris County will ultimately have an adverse impact on our community and throughout Texas, because the request does not include safeguards for ensuring these suspects and felons remain in Houston after their release.
We are in unprecedented times and the men and women serving in the police department have risked their lives to protect and serve during these trying times. Police departments are working on limited resources. If these high-level offenders are released, the resources will be stretched even further. There is a high likelihood that some of the prisoners that are released will subsequently commit more crimes. We must prevent this from occurring. We will not be able to keep up with demand and the high likelihood of repeat offenses.
The offenders that remain in the jail should not be released without an individual judicial risk assessment balancing the alleged risk of harm to the offender due to the Coronavirus versus the risk of
EXHIBIT 8

Case 4:19-cv-00226 Document 54-9 Filed on 04/01/20 in TXSD Page 2 of 2
harm to public safety if they are released or the consideration of other alternatives like testing and isolation of positive inmates within the jail or the opening of another jail facility. We urge the Court to require a process which is transparent, includes all of the aforementioned considerations, and includes measures for testing inmates for COVID-19 to avoid spreading the virus unwittingly by releasing infected individuals out of a controlled and isolated environment. We urge the Court to review alternatives to a mass release of dangerous persons as requested by this lawsuit, such as activating a standalone jail facility for isolation purposes. The type of drastic measures requested by the Plaintiffs in this lawsuit should not be granted without first considering other options. Thank you for your consideration,
Jeff Bryan Chief of Police Garland Police Department
Garland, Texas 1891 Forest Lane Office (972) 205-2011
Email: bryanj@garlandtx.gov
EXHIBIT 8

Case 4:19-cv-00226 Document 54-10 Filed on 04/01/20 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF DANIEL SCESNEY

1. My name is Chief Daniel Scesney, I have been a Texas Peace Officer for approximately nineteen years and currently serve as the Chief of Police for the City of Grand Prairie, Texas.
2. It my understanding that Harris County officials have evaluated inmates and released those offenders whose release without a bond was deemed appropriate. It is also my understanding that the Plaintiffs in this lawsuit are seeking an order requiring the release of the remaining Harris County jail inmates who are habitual offenders awaiting trial and inmates awaiting trial for felony offenses.
3. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such 1·eleases would strain the already limited law enforcement resources and pose a danger to Texans. This pandemic is like nothing we have ever seen before but releasing potentially dangerous felons will not serve the public at large.
4. Every Texas peace officer is charged with the duty of preserving peace within their jurisdiction. As this unprecedented pandemic has limited resources available to first responders, that duty hasn't changed. More first responders are diagnosed with COVID19 every day, yet police officers continue to put

EXHIBIT 9

Case 4:19-cv-00226 Document 54-10 Filed on 04/01/20 in TXSD Page 2 of 3
themselves at risk as they protect and serve the public. I believe if released, these felons would endanger their communities and further stretch the limited resources of police departments, putting a bigger strain on the community.
5. A portion of those inmates who are housed in the jail do not have a home to go to or a job to provide for their basic needs. During this time many hotels have closed or have very limited operations. In addition, many inmates are without the financial resources to afford the other limited housing options, so those inmates who are without homes would likely be living out on the street. This not only increases their community contact and chance of contracting and spreading COVID19, it also increases the chance of those individuals committing offenses to provide for their needs.
6. In addition, law enforcement has continued to see a rise in violent crime over the past month, specifically child abuse and aggravated assault. Many of these are domestic related as families are staying at home in accordance their jurisdiction's orders. The release of inmates, who were arrested for domestic violence and not subject to a protective order, would inevitably place the lives of their victims, including their minor children, at risk as the inmates return home. The release would essentially force those victims to stay in close quarters with their abuser and send the message to the victims that police can't help because the jail has a revolving door. For those inmates who are subject to a protective order preventing them from going home, they would likely be forced to live on the street or violate the protective order which would further place the victim at risk.
7. Releasing "non-violent" habitual offenders such as burglars and fraudsters would also place the public at great risk. As businesses are closed and law enforcement resources are limited, businesses are prime targets for looting and burglary. As departments operate with minimal staffing, responses to violent offenses must take priority over those relating to property. This increases the risk of damage to business owners who are already struggling due to required closures. In addition, members of the public are struggling as layoffs and business closures continue to rise. These circumstances create a perfect environment for seasoned fraudsters to take advantage of innocent citizens who are just trying to survive. In addition, individuals who are facing felony DWI charges due to their prior convictions have shown they are unwilling to stop driving drunk. Not only are a significant number of officers killed every year due to drunk drivers, drunk drivers pose a significant risk to the driving public as they frequently cause crashes. Every time first responders must respond to a vehicle crash, they must come in close contact with a person thereby increasing the risk of exposure and further transmission of COVID19.
EXHIBIT 9

Case 4:19-cv-00226 Document 54-10 Filed on 04/01/20 in TXSD Page 3 of 3
8. Furthermore, approving the plaintiffs request would empower criminals to commit more offenses as it would essentially tell offenders the jail has a revolving door and they can't be held during the pandemic.
9. Finally, the courts have previously ruled that that an individualized assessment should be conducted to determine the appropriate bond, and a pandemic does not change the need for an individualized assessment. Bonds are meant to secure appearance at court. Inmates who do not have ties to the community or who have ties to foreign countries are significantly less likely to comply with an order to appear in the future and more likely to move to other jurisdictions to continue their criminal actions.
10. I believe releasing those inmates for whom probable cause exists to believe they have committed felony offenses into the community without an individualized risk assessment would not serve the best interest of the public in our current environment. On the contrary, it would place countless domestic violence victims at risk of being repeatedly victimized, endanger the public at large, and strain the already limited public safety resources. Date:
EXHIBIT 9

Case 4:19-cv-00226 Document 54-11 Filed on 04/01/20 in TXSD Page 1 of 2

SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

RUSSELL, el al., Plai11tijfs,
v.
HARRIS COUNTY, TE.~AS, et al., Defmda11/s

§

§

§

§

Case No. 4:19-c,•~00226

§

(Class Action)

§

§

§

DECLARATION OF IRVING CHIEF OF POLICE JEFF SPIVEY

1. My name is Jeff Spivey. I currently serve as Chief of the Irving, Texas Police Department. I have served in this capacity since March 2017. Prior to my appointment as Chief of Police, I have served with the Irving Police Department since 1986 in numerous roles, including narcotics investigator and investigator of Crimes against persons.
2. I have read the Declaration of Chief Art Acevedo pertaining to the lawsuit pending in the United States District Court Southern District of Texas, Houston Division in Case No. 4:19-cv-00226 (Class Action) seeking to release over 4,000 felons from the Harris County Jail. I agree with his concerns in all respects for the following reasons.
3. Based on my training, experience, and understanding of the current circumstances throughout the State, I believe that such release would strain the already limited law enforcement resources and pose a danger to Texans. I believe if released, these felons would endanger their communities that stretch the limited resources of police departments, putting a bigger strain on the community.
4. Historically our jurisdiction has been impacted by organized crime crews from Houston and Harris County traveling to our community committing jugging offenses, burglaries and burglaries from motor vehicles, theft offenses, and a wide range of organized criminal activities. Accordingly, the strain will not only be felt in Houston, but also throughout the entire State of Texas and nation because the request does not include safeguards for ensuring these suspects and felons remain in Houston after their release.
5. Apart from concerns ab<:>ut the likely increase in crime if these inmates are released, any inmate presently infected with COVID-19 who is released would greatly contribute to the further spread of the virus throughout the state. These inmates are currently in a controlled and isolated environment where medical care is available. Releasing any inmate without prior testing for the COVID-19 virus would enhance the risk of spread throughout the community, and would also

EXHIBIT 10

Case 4:19-cv-00226 Document 54-11 Filed on 04/01/20 in TXSD Page 2 of 2
place the infected inmate in greater danger because he would not likely have the same access to medical care in the community at this time. 6. The men and women serving all communities in Texas - in law enforcement as well as in health care - are risking their lives and their health protecting and serving during this period. Our police departments are working on limited resources. If these high-level offenders are released, our resources will be stretched even further. 7. In order to protect the citizens ofTexas and to avoid further taxing law enforcement's already strained resources, no offenders remaining in the Harris County jail should be released without an individual judicial risk assessment balancing the alleged risk of harm to the offender due to the Coronavirus against the risk of harm to public safety if they are released. Alternatively, the Court should consider other alternatives, such as testing and isolation of positive inmates within the jail, or opening another jail facility. I am executing this declaration as part of my assigned duties and responsibilities. I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability. Executed in Dallas County, State of Texas, on th
EXHIBIT 10

Case 4:19-cv-00226 Document 54-12 Filed on 04/01/20 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF LEWISVILLE POLICE CHIEF KEVIN DEAVER

1. My name is Kevin Deaver. I currently serve as Chief of the Lewisville Police Department, and I have served in this role since August 2018.
2. I lead a department of 175 sworn law enforcement officers and 81 civilian support personnel. In addition to my role as Police Chief, I am a member of the Texas Police Chiefs Association and the International Association of Chiefs of Police, along with other local civic groups.
3. As the number of coronavirus cases explodes across the nation, an increasing number of police departments around the country are experiencing shortages in staffing and resources, as police ranks become sick with or exposed to the coronavirus. This concerning trend raises the issue of how Texas police agencies may hold steadfast to safeguard their communities, even as the virus spreads among law enforcement officers whose work puts them at increased risk of infection.
4. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons on personal recognizance bonds from the Harris County Jail.

EXHIBIT 11

Case 4:19-cv-00226 Document 54-12 Filed on 04/01/20 in TXSD Page 2 of 3
5. Pursuant to Governor Greg Abbott’s executive order issued on March 29th, 2020, I understand that no authority may release any person, who is arrested or previously convicted of a crime that involves physical violence or the threat of physical violence, on personal bond, and I believe low-level, non-violent inmates have already been released from the Harris County Jail, leaving only the violent and pervasive felony offenders.
6. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such releases would strain already limited law enforcement resources and pose a danger to all Texans.
7. Even though this pandemic is unprecedented, the release of potentially dangerous felons at a time when law enforcements agencies are limited in staffing and resources does not appropriately serve the public at large.
8. I believe these felons, if released, would endanger their communities and further stretch the limited resources of police departments, putting a bigger strain on the local population. In my 32 years of experience in law enforcement, I know that the unsecured pretrial release of individuals without any bond conditions, especially those accused of serious felonies, directly leads to an increase in violent crime within surrounding communities. For example, in February of 2020, Jacques Dshawn Smith allegedly murdered two people and injured an infant in the Dallas Fort Worth metroplex, within one week after being released on bail in Dallas County.
9. Protecting local Texas communities from recidivistic crime is paramount during this time in which members of the public are particularly vulnerable, including the elderly, victims of domestic violence and burglaries, given that food, shelter, and essential items to carry on a normal quality of life, such as vehicles and money, are limited during this rapidly developing pandemic. Priority safety considerations must also be given to the victims and witnesses of these arrested suspects and convicted offenders, since the unrestricted release of these inmates directly jeopardizes their wellbeing.
10. The release of felons, who were arrested or convicted of domestic violence, inevitably forces victims to shelter in place within the same homes as their abusers, leading to dangerous escalations in life-safety issues for a multitude of victims as well as their minor children.
11. Upon their release, arrested or convicted felons of non-violent offenses, such as burglaries of habitation, building, or vehicle, are provided with a target-rich environment in the Dallas Fort Worth metroplex, since many, if not all, nonessential business operations are presently suspended and unmanned.
EXHIBIT 11

Case 4:19-cv-00226 Document 54-12 Filed on 04/01/20 in TXSD Page 3 of 3

12. The general Dallas Fort Worth population is susceptible to new online or telephone scams involving the coronavirus, since residents around the metroplex are currently under sheltering in place orders at home. Released fraudsters are, therefore, presented with new opportunities to prey on these Texans, in particular the elderly, during this epidemic.
13. The personal recognizance bond release of felons from the Harris County Jail, who were arrested or convicted of either violent or non-violent crimes, severely compromises the orderly operation of the Texas criminal justice system and wholly contradicts the requirements established by the Code of Criminal Procedure, which mandates bond conditions must be imposed for certain crimes. Such a release also threatens the safety of Texas communities with recidivistic crimes and unjustly disregards the wellbeing of crime victims and witness.
14. For these reasons, I believe releasing felons into the community would not serve the best interest of the public in our current environment and endangers the public, further straining already limited resources.

Date: __M__a_r_c_h__3_1_,_2_0_2_0_____

_________________________________ [Signature]

EXHIBIT 11

Case 4:19-cv-00226 Document 54-13 Filed on 04/01/20 in TXSD Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4,: 19-cv-00226 (Class Action)

DECLARATION OF PEARLAND CHIEF OF POLICE JOHNNY SPIRES

1. My name is Johnny Spires, I currently serve as Chief of the Pearland Police Department. I have served in this role since June 1, 2017.
2. As Chief for the Pearland Police Department I lead a department of 240 personnel.
3. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons from the Harris County Jail. It is also my understanding that they seek to release all inmates 55 or older, regardless of the crimes for which he or she is charged or consideration of their prior criminal history. This specific population includes extremely violent individuals whose release would pose a serious threat to their victims, victims' families, and the communities at large.
4. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such releases would strain the already limited law enforcement resources and pose a danger to Texans including the citizens of Pearland.
5. This pandemic is like nothing we have ever seen before but releasing potentially dangerous felons cannot serve the public at large.

EXHIBIT 12

Case 4:19-cv-00226 Document 54-13 Filed on 04/01/20 in TXSD Page 2 of 2

6. I believe if released, these felons would endanger their communities that stretch the limited resources of police departments, putting a bigger strain on the community. Although Pearland is in Harris, Brazoria, and Ft. Bend Counties, 41 percent of all our arrests are from Houston. If released, many of these accused will re-offend in our city and further tap our already strained resources.
7. It is my understanding that misdemeanor offenders have already been released and the jail is nearly void of these offenders. It is my belief that these offenders will already create a strain on my Departments resources as many of them will re-offend.
8. It is my belief that a mass release of felons into the community, some of them violent and/or habitual, without an assessment by a judge, will be a detriment to the community. It is also my belief that releasing these felons would further intensify the public's anxiety which is already at a high level due to the COVID19 Pandemic.
9. In closing, I respectfully urge the Court to disallow any release without individual judicial review and if release is approved, to require COVID-19 testing to ensure we are not releasing infected individuals into the public.

-~>.-<--, Date:

-"->~I '_,A~(j,~2=o-

EXHIBIT 12

Case 4:19-cv-00226 Document 54-14 Filed on 04/01/20 in TXSD Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

RUSSELL, et al, Plaintiffs,
V.
HARRIS COUNTY, TEXAS, et al,
Defendants.

§

§

§

§

§

§

Case No. 4:19-cv-00226

§

(Class Action)

§

§

§

§

DECLARATION OF PLANO POLICE CHIEF ED DRAIN
1. My name is Ed Drain. I started my law enforcement career in 1994 with the Plano Police Department. I worked through the ranks and was appointed Assistant Chief in 2006. From June 2015 to September 2015, I served as the Interim Police Chief for the Murphy Police Department, while still employed by the City of Plano. In October 2016, I was appointed as the Police Chief for the Amarillo Police Department. In October 2020, I returned to Plano as the Police Chief.
2. I lead a department of 414 sworn law enforcement officers and 257 civilian support personnel. My job duties consist of leading the department to accomplish our mission statement of providing outstanding police services, in partnership with the community, to maintain a safe environment that contributes to the quality oflife.
3. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons from the Harris County Jail.
4. Based on my training, experience, and understanding of the current circumstances on the ground throughout the State, I believe that such releases would strain the already limited law enforcement resources and pose a danger to Texans.
EXHIBIT 13

Case 4:19-cv-00226 Document 54-14 Filed on 04/01/20 in TXSD Page 2 of 2
5. This pandemic is like nothing we have ever seen before but releasing potentially dangerous felons cannot serve the public at large.
6. I believe ifreleased, these felons would endanger their communities that stretch the limited resources of police departments, putting a bigger strain on the community and the State as a whole as there would not be a requirement that the released prisoners remain in Houston after their release.
7. Even the release of "non-violent" offenders would endanger our communities. Burglaries are violent invasions of people's homes to steal from or assault the owner. With "shelter in place" orders and people being in their homes, the likelihood of violence and confrontation is increased. Additionally, scams related to the pandemic are on the rise, and the release of identity thieves would only further escalate a growing problem.
8. Organized criminal elements form the Harris County area are frequently engaged in illegal activity in other jurisdictions hundreds ofmiles from Harris County. For approximately the last ten years, numerous Asians residents in the City of Plano, have been victimized by an organized criminal element who specialize in burglarizing homes of Asians. In cases where we have been able to arrest suspects involved in these crimes, we usually can trace their origins to the Harris County area.
Over approximately the last five years, we have seen an increase in criminal activity that involves criminals identifying bank customers who have made large cash withdrawals. The criminals follow the victim's vehicle and steal the cash whenever the customer makes a stop. This criminal activity is referred to as "jugging". We consistently discover suspects we arrest for these offenses are from the Harris County area.
During the time I served as the Police Chief in Amarillo, almost all suspects we arrested involved in placing skimmers on gas pumps to steal victims' credit/debit card information, were from the Harris County area.
9. Harris County has the largest county jail in the state. A mass release of felons without an individual assessment by a judge evaluating the risks posed to public safety and security would put communities in Harris County and other jurisdictions across the state in grave danger and must be prevented
I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability.
~~ Signature: Ed Drain Chief of Police Plano, Texas
EXHIBIT 13

Case 4:19-cv-00226 Document 54-15 Filed on 04/01/20 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

V.

§

§

HARRIS COUNTY, TEXAS, et al. ,

§

Defendants.

§

§

§

§

§

Case No. 4: 19-cv-00226 (Class Action)

DECLARATION OF GREGORYW. RUSHIN

1. My name is Gregory W. Rushin. I currently serve as Deputy City Manager over Public Safety for the City of Plano, Texas. Prior to this appointment as Deputy City Manager, I served with the Plano Police Department for nearly 34 years and as Police Chief for approximately the last 18 years. During my time as Police Chief, I held numerous leadership positions in both state and national law enforcement organizations, to include President of the Texas Police Association and an Executive Board Member of the International Association of Chiefs of Police. I am also a former FBI Special Agent that served in the Washington, D.C. Metro Field Office.
2. As Deputy City Manager, I am responsible for the Police Department, Fire Department, Emergency Management, Public Safety Communications, and Animal Services.
3. It is my understanding that the Plaintiffs in this lawsuit are seeking an order to release over 4,000 felons from the Harris County Jail based on the COVID19 outbreak.
4. The Plano Police Department has had four police officers test positive for the COVID-19 virus so far. This has led to the exposure of many other police officers and civilian staff within the department that were required to be

EXHIBIT 14

Case 4:19-cv-00226 Document 54-15 Filed on 04/01/20 in TXSD Page 2 of 3
quarantined. Also, much of our officers and civilian staff time is now being spent on COVID-19 related work, instead of their normal law enforcement functions.
5. Based on my training, experience, and understanding of the current circumstances throughout the State, I believe that such a release would strain the already limited law enforcement resources throughout the State and pose a danger to the citizens of Texas.
6. This pandemic is like nothing we have ever seen before, but releasing potentially dangerous felons will not serve the public at large.
7. The wholesale release of prisoners in this current environment would add a much greater burden to law enforcement. "Non-violent" offenders include those arrested for crimes such as burglary (including burglary of a habitation, building, and vehicle), fraud, felony DWI (3rd or more), and bail jumping. Each of the offenders charged with these offenses may pose a much greater risk than the charge would suggest.
Burglary - Many times burglaries elevate to assaultive crimes when the owner comes home during the crime, or the owner is initially undetected in the home before entry. These offenders create this risk every time they commit a burglary, and cause a loss to victims.
Fraud - Everyone is a target of fraud, but seniors are particularly vulnerable. These crimes can take a senior's life savings and ruin their lives. The age of seniors places them in a higher risk category to COVID-19, so they are asked to stay home and not take risks. This makes for a target-rich environment for fraudsters, at a time where law enforcement is stretched thin.
Felony DWI - These offenders endanger all of us who drive, and those arrested for felony DWI have demonstrated an ongoing and pervasive threat to the safety and property of our community.
Bail Jumping and Failure to Appear - Offenders who fail to abide by a court order demonstrate they must be incarcerated to facilitate the justice process. The initial arrest offelons is dangerous and can take an extraordinary amount of police resources. It poses a significant danger to law enforcement when there is a need to re-arrest these offenders. Releasing felons back into our communities would be extremely detrimental to law enforcement efforts, and would be exacerbated more in our current environment with COVID-19.
EXHIBIT 14

Case 4:19-cv-00226 Document 54-15 Filed on 04/01/20 in TXSD Page 3 of 3

8. Plano is a Dallas suburb, but we do have many felony offenders who travel to our city from Houston, to commit criminal offenses. Two examples we have historically encountered are organized crime groups from Houston. The first group targets Asian households for the purpose of stealing jewelry. The second group targets victims who withdraw large sums of money from local banks and will steal the money from the victim's vehicle or rob the victim after they leave the bank.
9. In conclusion, I believe releasing felons into the community would not serve the best interest of the public in our current environment by endangering the public and straining already limited resources.
I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability.

Date: O? rJ 1 - -i 0

~

"</~

GregoryW.us&n

Deputy City Manager - Public Safety

Plano, Texas

EXHIBIT 14

Case 4:19-cv-00226 Document 54-16 Filed on 04/01/20 in TXSD Page 1 of 2

UNITED STATES DISTRICT CO URT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

RUSSELL, et al., Plaintiffs,
V.
HARRIS COUNTY, TEXAS, et al., Defendants.

§

§

§

§

Case No. 4: 19-cv-00226

§

(Class Action)

§

§

§

DECLJ!1RA.TION OF DAVID MAXWEL.L
1. I, David Maxwell, have served in the ro le of Director o ft he Law Enforcernen1c Divi si on at
the Texas Attorn ey General's Office si nce 2010. I bega1 n my career iri law enforcement in November of 1972 with the TeJ<as Departme?nt of Public Safoty. I s~ient eight years as a Troope r in Harris County, Tel<as, five years as an Invest igator in the Narcotics Division and twenty-five years as a Texas Ranger. This is rny forty-eighth year with the sta te of Texas.
2. My job duties consist of providing assistance to other state and local authorities in conducting complicated criminal investigations and pursuing dangerous fugitives across the St at e of Texas. Our Fugitiv,e Unit was formed in 2003 and has to th is date arrested over 12,000 dangerous fugitive:s. Our experience? has taught us that t hese iridividuals conti nue to victimize the cit izens of Texas while they remain f ree on our streets avoid ing apprehension. Ou r first duty is to be the voice of the victims in Texas and act as their advocat e. I don't take this responsibility lightly.
3. The men and women who work for me are passionate in prot ecting the citi2E!ns of Texas by arresting thes1:! f ugitives. The Fugitive Unit routinely arrests on average from 100 to 150 fugit ives a month.
of 4. To release serious felons back onto the streets Te:x~1s without an individualized
assessment of their risk by a judge would be a huge injustic e, a strain on al1ready taxed law enforcement resources, and endanger law enforce:ment, i:!specia lly those t asked w ith apprehending absconding fugitives.
5. We are living in an increasing violent world as police officers. Many o·f t hese fugit ives tha t we pursue are using deadly force to avoid apprehe:nsion rnori:! often than anytime I have seen during my career.
EXHIBIT 15

Case 4:19-cv-00226 Document 54-16 Filed on 04/01/20 in TXSD Page 2 of 2
6. Prior to Decemb1:!r 2018 no officer with the Texas Attorn ey General's Office had bee n wounded in the line of duty by dead ly force!. While !P ursuing a fug itive in the Houston area with the Harris County Sheriff's Office t he arreist t eam was ambushed by the fugit ive wou nding our Captain and a Deputy Sheriff. Capta1in Hensley was shot nine times by the fugitive and the Deputy was shot in his right hand, shattering his hand. Captain Hensley has recovered from his wounds and is back to work.
7. The State of Texas has a critical problem with apprehending fe lons across th is state on several levels. Most of the local agencies do not hav1:! the man power and resources t o actively pursue violators as they are consumed wit h answering th1~ daily cirirnes be ing reported and pursui ng fugitives that are not showing up for court dates arising o ut of local charges. To release more criminals back on the street s wo uld only exacerbate an already difficult problem .
8. Based on my forty-eight years of experience, I firmly beli,:!ve tha t the release, of in mates would not be in the public inter,est. SIGN ED th is 31st day of March, 2020.
DAVID MAXWELL Director of the La1w Enfo rcement Division Office of the Attorney General of Texas
EXHIBIT 15

Case 4:19-cv-00226 Document 54-17 Filed on 04/01/20 in TXSD Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

V.

§

§

HARRIS COUNTY, TEXAS, et al. ,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF DIRECTOR OF DEPARTMENT OF PUBLIC SAFETY STEVEN MCCRAW
1. My name is Steven McCraw, I currently serve as the Director of the Texas Department of Public Safety. I have served in this role since August 2009. I began my law enforcement career with DPS in 1977 as a Trooper in the Texas Highway Patrol and later as a DPS Narcotics Agent. In 1983, I became a Special Agent in the Federal Bureau of Investigation and served in Dallas, Pittsburgh, Los Angeles, Tucson, San Antonio, and Washington, DC. In 2004 I retired as an Assistant Director from the FBI to become the Texas Homeland Security Director in the Office of the Governor where I served for five years.
2. The mission of the Texas Department of Public Safety is to protect and serve Texas and as Director and Colonel for the Department, I am responsible for all department operations and personnel throughout the state.
3. Texas faces the full spectrum of threats to public safety and has limited law enforcement resources at the local, state and federal level to protect people and property from harm. The current COVID-19 pandemic has further diminished law enforcement capacity throughout the state at a time when more law enforcement resources are needed to address crime.
4. Major urban areas in the state have experienced an increase in violent crime over the last year including serial robberies conducted by crews or small units of gang members. Armed robberies are a significant problem in Harris County. Takeover-style robberies in which armed gangs storm into businesses occupied by the public for the purposes of robbing the business and customers have been
EXHIBIT 16

Case 4:19-cv-00226 Document 54-17 Filed on 04/01/20 in TXSD Page 2 of 2
especially concerning. As a result, Governor Abbott directed DPS to assign DPS Special Agents, Troopers, Analysts and Aircraft to provide direct support to local law enforcement agencies in Harris County in order to reduce the number of gang-related takeover robberies and other violent crimes threatening public safety.
5. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felony arrestees from the Harris County Jail.
6. Based on my training, experience, and understanding of the current circumstances in Harris County and throughout the State, I believe that such releases would strain the already limited law enforcement resources and pose an increased danger to Texans.
7. For example, DPS Troopers and Special Agents have arrested 373 robbery suspects in Harris County since April, 2017 in support oflocal law enforcement agencies in Harris County at the direction of the Governor. These 373 robbery suspects belonged to 188 robbery crews that were responsible for 620 armed robberies. Members of these robbery crews tend to be vocational criminals who present a high probability of quickly reoffending upon release. Several of the robbery suspects described in the paragraph were on bond at the time of their arrest.
8. I believe releasing felony arrestees into the community undermines public safety in the best of circumstances, but doing so during a pandemic is particularly dangerous. DPS officers are involved heavily in responding to the public health crisis. For example, DPS officers are involved in the enforcement of Executive Orders issued by the Governor in response to the pandemic. Additionally, law enforcement agencies in Texas have seen commissioned officers become unavailable for service because of illness and the need to selfisolate after exposure to the coronavirus. As law enforcement expends resources to support the public health response, our ability to address the new crimes that will be committed by released felons becomes more limited. The current crisis presents an especially dangerous moment to release felony arrestees into our communities.

Date: Q3 ~ 3 \ - dffiC>

~ C. -nJ (} ~
Steven McCraw Director Texas Department of Public Safety

EXHIBIT 16

Case 4:19-cv-00226 Document 54-18 Filed on 04/01/20 in TXSD Page 1 of 2

Case 4:19-cv-00226 Document 54-18 Filed on 04/01/20 in TXSD Page 2 of 2 EXHIBIT 17

Case 4:19-cv-00226 Document 54-19 Filed on 04/01/20 in TXSD Page 1 of 3

United States District Court, Southern District of Texas,
Houston Division

RUSSELL, et al., Plaintiffs,

v.

Case No. 4:19-cv-00226

(Class Action)

HARRIS COUNTY,TEXAS, et al.,

Defendant.

___________________________________________________________________

Declaration of Bob Bushman, President of the National Narcotic Officers'

Associations' Coalition

___________________________________________________________________

1. I am Bob Bushman, President of the National Narcotic Officers' Associations' Coalition (NNOAC). Our membership consists of State Narcotic Officers Associations and partner organizations across the United States, representing about 55,000 law enforcement officers, including the Texas Narcotic Officers Association. The NNOAC vigorously opposes the wholesale release of inmates from the Harris County jail, or any other jail or correctional facility, in response to the COVID-19 pandemic. The NNOAC believes that Government's obligation to protect citizens from violent criminals is just as vital as it is to protect our citizens from pandemic disease.

2. While the NNOAC agrees that there may be some low level arrestees posing minimal risks to the public that may be released, that is not true for the many violent and habitual offenders who have committed serious crimes, victimizing many of our citizens. Offenders do not find their way into our jails accidentally. They have violated laws which have been designed to protect our citizens and our communities. Many jurisdictions have already released offenders that they have identified as low level, non-violent offenders. Most of those remaining in the jails are violent criminals and habitual offenders.

EXHIBIT 18

Case 4:19-cv-00226 Document 54-19 Filed on 04/01/20 in TXSD Page 2 of 3
3. The NNOAC believes that there must be a transparent risk assessment process for determining which offenders pose substantial, harmful risks to the community. Those offenders must be evaluated on an individual, case-by-case basis. Offenders that have committed crimes of violence, including drug trafficking, those who are habitual offenders, and those who are likely to fail to appear for subsequent court proceedings and hearings, must remain incarcerated to protect the public.
4. Wholesale releases of violent criminals and repeat offenders have the potential to cause more harm than the COVID-19 virus itself. For, unlike the COVID-19 virus from which many of those infected will recover, many crime victims never recover from the injuries, death and addiction inflicted by the violent criminals, drug traffickers and the habitual offenders that do not respect or obey our laws, and who prey upon our citizens to support their criminal livelihoods. Those violent and repeat offenders must not be released.
5. Current release guidelines often require offenders to be supervised by probation officers and to participate in alternative programs such as specialty courts and drug treatment programs. Given the current efforts by federal, state and local entities to slow the spread of the COVID-19 virus, it is simply unworkable to add more offenders to court supervision and other programs that are already at capacity, and where effectiveness and oversight is diminished by decreased personal interaction between program providers, staff and the offenders, all of whom are required to comply with social distancing practices and possible quarantines.
6. Due to the growing demands on law enforcement and first responder services by the rapidly expanding COVID-19 infections, the release of violent criminals and recidivists will add an unnecessary burden to an already overwhelmed public safety system. As the COVID-19 virus continues to spread throughout our country, it must be a priority for law enforcement agencies to be available to assist with pandemic issues. Releasing large numbers of dangerous criminals and repeat offenders into the communities will needlessly divert law enforcement agencies and their officers from availability for pandemic response in their communities.
EXHIBIT 18

Case 4:19-cv-00226 Document 54-19 Filed on 04/01/20 in TXSD Page 3 of 3
7. The NNOAC urges the Court to deny the plaintiffs' petition to release violent and repeat offenders on a broad scale basis, and instead, to implement a risk assessment process to ensure that offenders being considered for release do not include those offenders who are violent criminals, habitual offenders or flight risks, and, that such offenders remain incarcerated in the best interests of public safety and protecting our citizens. Further, that Harris County be directed to explore alternatives that will allow for continued incarceration of such offenders in an environment that will also provide for measures to help prevent and slow the spread of the COVID-19 virus within the inmate population.
These statements are true and correct to the best of my ability.

Date: March 31, 2020

Bob Bushman, President
on behalf of the National Narcotic Officers' Associations' Coalition

EXHIBIT 18

Case 4:19-cv-00226 Document 54-20 Filed on 04/01/20 in TXSD Page 1 of 3

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

§

RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

§

§

§

§

Case No. 4:19-cv-00226 (Class Action)

DECLARATION OF Andy Kahan
1. My name is Andy Kahan, I currently serve as Director of Victim Services and Advocacy for Crime Stoppers of Houston. I have served in this role since June 2018. Prior to that I was the Victim Advocate for the Mayor of Houston and the Houston Police Department from 1992-2018. During my tenure I have enacted over 20 Legislative Bills to enhance victims’ rights and public safety. I have been recognized for my work as a Victim Advocate from the United States Department of Justice-Office for Victims of Crime as the first recipient of The Ronald Reagan Public Policy Award. I have also been the recipient of The Foundation for Improvement for Justice Award, The National Office of Victim Assistance Office-The Marlene Young Distinguished Leadership Award and The National Organization of Parents of Murdered Children Allied Professional Award.
2. My primary job responsibilities at Crime Stoppers are to assist victims of crime navigate through the criminal justice system, advocate on their behalf in regards to parole reviews and bring attention to unsolved cases utilizing Crime Stoppers tip line.
3. It is my understanding that the Plaintiffs in this lawsuit are seeking an order releasing over 4,000 felons from the Harris County Jail.
4. Crime Stoppers focus is on public safety, justice and the rights of crime victims. During the COVID-19 crisis regarding the potential ‘compassionate’ release of thousands of accused offenders not once has there been any input sought by the powers to be from victim service providers and or advocates regarding the rights of crime victims and how such a massive release would no doubt jeopardize their safety in a myriad of ways.

EXHIBIT 19

Case 4:19-cv-00226 Document 54-20 Filed on 04/01/20 in TXSD Page 2 of 3
5. I believe that such releases would have a harmful effect on victims and in particular domestic violence victims who have courageously sought and received protective orders only to discover the offender has been released on a PR bond. You can’t imagine the emotional turmoil a majority of our law-abiding citizens are undergoing as a result of this national pandemic only to be compounded with the potential release of thousands of felons.
6. The Texas Code of Criminal Procedure Chapter 56 Article 56.02 titled Crime Victims Rights specifically states (a) (2) the right to have a magistrate take the safety of the victim and or their family into consideration as an element in fixing the amount of bail for the accused in addition to the right to be informed by the District Attorney’s Office of relevant court proceedings. A mass release would no doubt potentially violate the above and place an undoable burden on the criminal justice system to try to enforce Crime Victims Rights as per the Texas Code of Criminal Procedure.
7. Releasing offenders who have been charged with cases directly implicated in Domestic Violence will undoubtably and inevitably result in re-victimization for segments of our population. The Montgomery County District Attorney’s Office reports an approximately 35% increase in Domestic Violence cases filed in March 2020 compared to March 2019. No doubt the rise may be due to increased stress and more access to victims by offenders.
8. Crime Stoppers has uncovered numerous examples of Felony Violent Offenders being released on PR Bonds within the last week. In some cases, offenders were already on PR Bonds for other cases, yet were inexplicably granted another PR Bond. One case was an offender charged with Murder that was released on a PR Bond strictly due to fear of contacting COVID-19. Adam Campuzano was granted a Felony PR Bond for Felon in Possession of a Weapon (firearm) and Evading Arrest on March 23. Believe it or not he was already on a PR Bond for Harboring a Runaway Child and has 3 prior Felony Convictions of which 2 resulted in being sent to prison. Chaison Turner was granted Deferred Adjudication for Assault with Bodily Injury. While on deferred probation he was granted a PR Bond for Carrying a Handgun in January 2020. He was again given a PR Bond March 20th, for Aggravated Assault of a Peace Officer. Somehow, he still remains on Deferred Adjudication for Assault with Bodily Injury. Other examples can be provided upon request.
9: The definition of non-violent offender needs to be clarified. Burglary of a Habitation, Burglary of a Building, Burglary of a Motor Vehicle, Unauthorized use of a Motor Vehicle, DWI, Theft and a multitude of other offenses wreck more havoc on a community than most violent crimes. Several months ago, an overflow room of business owners packed a Heights neighborhood meeting with police officials complaining about being repeatedly victimized by the same offenders who were often released before the paperwork was even filed. By releasing offenders who are classified as ‘Non-Violent’ would be simply to invite more victimization of the law-abiding public.
10: Crime Stoppers is of the firm believe a mass release of felons from prison would continue to wreak havoc on our community, especially considering the turmoil all of us are under based upon COVID-19. During the past year, Felony District Court Judges have taken the
EXHIBIT 19

Case 4:19-cv-00226 Document 54-20 Filed on 04/01/20 in TXSD Page 3 of 3
Misdemeanor Bond Reform of which we totally support and have used the Federal Court decision to grant PR Bonds to repeat felons who in some cases have continued their criminal career. Some of these decisions have led to the death of our citizens. We are respectfully requesting on behalf of our constituents, i.e. the public that a mass release of felons will simply endanger lives and put us all at risk. 11: We firmly believe elected District Judges should be able to look at each case in their domain to determine suitability for release back to the community. To remove discretion is not in the interest of public safety and certainly not in the best interest of those who have been victimized by offenders now considered for release by this edict. 12: Crime Stoppers of Houston mission is to solve and prevent serious crime in Harris County in partnership with residents, media and law enforcement. We are the nations largest and most successful public safety/crime prevention non-profit nationally. We strongly believe the mass release of felons back into the community, especially under the current circumstances would not be in the best interest of public safety. 13: The community is already on edge about the prospect of looters and becoming a victim of a crime of opportunity (burglars (habitation, building, and vehicle) fraudsters). Releasing these type of offenders will only increase the anxiety of the community possibly creating tragic “stand your ground” situations. 14: A mass release of felons without an assessment by a judge and input by victim advocates will undoubtedly put victims at future risk and will create future victims. I declare under penalty of perjury that the foregoing statements are true and correct to the best of my ability.
Andy Kahan Director of Victim Services and Victim Advocacy Crime Stoppers of Houston 713-923-5601
EXHIBIT 19

Case 4:19-cv-00226 Document 54-21 Filed on 04/01/20 in TXSD Page 1 of 1
Major County Sheriffs of America RESOLUTION
Regarding the Release of Inmates During the COVID-19 National Emergency
WHEREAS, the Major County Sheriffs of America (MCSA) is a professional law enforcement association of the largest elected sheriffs’ offices representing counties or parishes with 500,000 population or more, representing over 100 million Americans; and WHEREAS, MCSA is dedicated to preserving the highest integrity in law enforcement, corrections, and the elected Office of the Sheriff; and WHEREAS, the COVID-19 pandemic is affecting significantly the lives and routines of everyone in the United States including sheriffs’ office personnel and incarcerated individuals; and WHEREAS, MCSA members operate our nation’s largest correctional facilities and have undertaken protocols to ensure the safety and health of those who are incarcerated, the safety and health of our staff, and the safety of the general public; and WHEREAS, certain advocacy organizations have called for policy changes at the local, state, and federal levels to allow for broad release of inmates to prevent COVID-19 spread in correctional facilities; and WHEREAS, overly broad release policies in response to the current pandemic fail to consider the safety of the public; and WHEREAS, when a determination is made to release individuals from jail, it is important to consider individualized treatment plans that assist individuals reentering communities with medical, mental health, housing and workforce needs; THEREFORE, BE IT RESOLVED, that the Major County Sheriffs of America opposes broad inmate release policies in response to COVID-19 which fail to consider the safety of the public, and BE IT FURTHER RESOLVED, that MCSA supports a thoughtful approach to examine whole jail populations and make release determinations on a case-by-case basis that includes consideration of an individual’s conviction for violent crime offenses or arrest based on probable cause for violent crime offenses; BE IT FURTHER RESOLVED, that MCSA supports close collaboration among local officials to include law enforcement, prosecutors, and the courts to establish clear and transparent policies in response to the COVID-19 pandemic that considers the health and safety of the entire community.
4/1/2020
EXHIBIT 20

Case 4:19-cv-00226 Document 54-22 Filed on 04/01/20 in TXSD Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

DWIGHT RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

Case No. 4:19-cv-00226

ORDER DENYING PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER AND PRELIMINARY INJUNCTION

Before the Court is Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction. After consideration of the motion and all responses thereto, the Court is of the opinion that the motion does not have merit and should be DENIED.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction is DENIED.

SIGNED on this the ______ day of _________________, 2020.
LEE H. ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE

Case 4:19-cv-00226 Document 56 Filed on 04/01/20 in TXSD Page 1 of 4

COUNTY OF HARRIS

§

§

STATE OF TEXAS

§

AFFIDAVIT BEFORE ME, the undersigned authority, personally appeared James Leitner, who upon being duly sworn, deposed and stated as follows:

My name is James Leitner. I am over eighteen years of age, of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated, which are true and correct.

I am a lawyer in good standing with the State Bar of Texas, licensed since May 9, 1975. I am an assistant district attorney employed by the Harris County District Attorney's Office, currently assigned to serve as the Chiefofthe Intake Bureau. I have been in this position since January of 2017 and am very familiar with the current practices for screening of criminal charges and the manner in which bail is set by Harris County criminal law hearing officers ("hearing officers") in felony cases in Probable Cause Court.

I provide the following overview of the current procedures in which hearing officers set bail in Harris County.

All defendants charged with felony offenses in Harris County, Texas are brought before a hearing officer for a determination ofprobable cause and a bail hearing, all ofwhich is video and audio-recorded and has been for approximately ten years. This probable cause and bail hearing process is the same for the process utilized for misdemeanor defendants who are not released under a General Order Bond ("GOB").

Prior to an appearance in Probable Cause Court, if a hearing officer pulls a case for Early Presentment, a hearing officer may release a felony defendant either on a finding of''No Probable Cause," ifthe facts provided in the District Attorney Intake Management System ("DIMS") summary are not sufficient to support probable cause, or on a personal recognizance bond ("PR bond") at the discretion of the hearing officer

1

Exhibit 21

Case 4:19-cv-00226 Document 56 Filed on 04/01/20 in TXSD Page 2 of 4
based on his or her review of the DIMS summary and all available information provided to them about the defendant by Harris County Pretrial Services.
Prior to the recorded Probable Cause Court hearing, both Pretrial Services and an assistant public defender interview the defendant. The Harris County Public Defender's Office represents all misdemeanor defendants and felony defendants ifthey consent to representation by the Public Defender. The Pretrial Services interview with the defendant gathers both financial and personal information about the defendant in order to assist the hearing officer in the determination of the appropriate bond in a given case and how much a defendant can afford towards the bail amount that is ultimately set. The assistant public defender interview with the defendant yields more personal information about the defendant, such as his or her ties to the community and familial/social/educational/ occupational information, all of which the assistant public defender then presents orally to the hearing officer during the bail hearing.
At the Probable Cause hearing itself, the hearing officer reads all of the defendants their legal warnings and explains how the hearing will be conducted. Part of this presentation includes an explanation that the proceedings are being recorded and that defendant can appeal any decision made by the hearing officer at the Probable Cause hearing to the sitting judge in the court where their case is assigned.
Once the warnings are given and the process explained, the hearing officer calls each defendant's case individually for the presentation of probable cause by an assistant district attorney ("ADA"). The ADA provides factual information sworn to by the arresting/investigating officer in order for a finding of probable cause to be made. If there is a finding ofNo Probable Cause, the hearing ends for that defendant and the defendant is released unless there are additional holds. If the hearing officer finds probable cause, the hearing officer then conducts a bail hearing.
During the bail hearing, the hearing officer gives both the ADA and the assistant public defender an opportunity to argue the appropriate type and amount of bail for the particular defendant. When requesting a
2
Exhibit 21

Case 4:19-cv-00226 Document 56 Filed on 04/01/20 in TXSD Page 3 of 4
specific amount of bail and whether to oppose or not oppose a PR bond, the hearing officer permits the ADA to argue the facts of the case as provided in the statement of probable cause; the defendant's local, state, and federal criminal history, ifany; and any concerns for the safety ofany specific victim and public safety generally. The hearing officer also permits the ADA to file and urge any motions regarding the amount of bail and any conditions of bail that the ADA feels is necessary to ensure the safety of any specific victim and the public general, and to assure the defendant's appearance in court. In tum, the assistant public defender presents the information he or she obtained during the above-described interview with the defendant.
Although there is a felony bail schedule issued by the District Court judges in Harris County, the most recent of which went into effect August 22, 201 7, the majority of the hearing officers routinely set bonds lower than the amount recommended by the schedule per the defendant's score on the Public Safety Assessment ("PSA").
The PSA is a tool used by Pretrial Services to attempt to predict the likelihood of a defendant to reoffend and to appear in court. The PSA uses an algorithm to generate a score of 1-6 on two different scales, New Criminal Activity (''NCA") and Failure to Appear ("FTA"). Each score places a defendant into one of three risk categories: below-average (1-2), average (3-4) or above-average (5-6). The felony bail schedule then assigns an amount for all felonies below first degree for each range.
In a large number of cases, the hearing officer will either set the bail amount as requested by the assistant public defender or at an amount lower than what the felony bail schedule recommends for that particular defendant's offense and PSA score.
After setting the bail amount and making the determination whether a PR bond will be granted, most of the hearing officers will provide some type of an explanation as to their decision. If a PR bond is denied, the hearing officer again advises the defendant that the sitting judge in the court where their case is assigned has the final say as to the type and amount of bail to be set in their case.
3
Exhibit 21

Case 4:19-cv-00226 Document 56 Filed on 04/01/20 in TXSD Page 4 of 4
SWORN TO AND SUBSCRIBED before me on this the 31st day of March, 2020.
,,,t~~'t::,,,. JEAN DELGADO LEIJA
ff(:.-4~>:~% ~~ ••••• c,<'.~ Notary Public, State of Texas
,..,,iRt;t,," ;"{·•,1'{,,,,~~~ Comm . Expires 12-05-2020 Notary ID 130920869
4 Exhibit 21

 
 Case 4:19-cv-00226 Document 53-1 Filed on 04/01/20 in TXSD Page 1 of 4

GOVERNOR GREG ABBOTT

March 29, 2020

FLED IN ThE OFFE OF THE SECRETARY OF STATE
S 3° PM:YCLOCK

The Honorable Ruth R. Hughs Secretary of State State Capitol Room 1E.8 Austin, Texas 78701

Secretary of State

Dear Secretary Hughs:

Pursuant to his powers as Governor of the State of Texas, Greg Abbott has issued the following:
Executive Order No. GA-13 relating to detention in county and municipal jails during the COVID-19 disaster.

The original executive order is attached to this letter of transmittal.

Respectfully submitted,
S
to the Governor

Attachment

Posi OFFICE Box 12428 AusTIN, TEXAS 78711 512-463-2000 (VoICE) DIAL 7-1-1 foR RELAY SERVICES

Case 4:19-cv-00226 Document 53-1 Filed on 04/01/20 in TXSD Page 2 of 4
xrcufhir rbrr
BY THE GOVERNOR OF THE STATE OF TEXAS
Executive Department Austin, Texas March 29, 2020
EXECUTIVE ORDER GA13
Relating to detention in county and municipaljails during the COVID-19 disaster.
WHEREAS, I, Greg Abbott, Governor of Texas, issued a disaster proclamation on March 13, 2020, certifying under Section 418.014 of the Texas Government Code that the novel coronavirus (COVID- 19) poses an imminent threat of disaster for all counties in the State of Texas; and
WHEREAS, the Commissioner of the Texas Department of State Health Services has determined that COVID-19 represents a public health disaster within the meaning of Chapter 81 of the Texas Health and Safety Code; and
WHEREAS, I have issued numerous executive orders and suspensions of Texas laws in response to the COVID-19 disaster, aimed at protecting the health and safety of Texans and ensuring an effective response to this disaster; and
WHEREAS, the jail population in Texas presents unique challenges in mitigating against and responding to the spread of COVID- 19; and
WHEREAS, my office has worked with the Texas Commission on Jail Standards and with state and local officials to address these challenges while ensuring public safety for all Texans; and
WHEREAS, several counties are now reportedly considering the broad-scale release of arrested or jailed individuals as a result of COVID-19, including potentially those who have ccmmitted felonies, in order to reduce the size of the jail population; and
WHEREAS, such releases from county or municipal jails of those charged with, convicted of, or having a history of offenses involving physical violence or threats of physical violence would not only gravely threaten public safety, but would also hinder efforts to cope with the COVID-19 disaster; and
WHEREAS, a statewide standard is needed to avoid disparate release policies or practices that may endanger the public safety of Texans; and
WHEREAS, the Texas Judicial Council has recently reminded judges that individuals who pose a significant risk to the community or the victim, or who present a significant risk of flight, should be detained, and Texas judges are legally required and oath-bound to determine bail on an individualized basis after considering the factors mandated by
FILESDECIRNETTHAEROYFOFFICSETAOTP T
O’CLOCK
MAR 29 2020

Case 4:19-cv-00226 Document 53-1 Filed on 04/01/20 in TXSD Page 3 of 4

Governor Greg Abbott March 29, 2020

Executive Order GA-13 Page 2

Article 17.15 ofthe Texas Code ofCriminal Procedure, which does not include the option of releases based solely on concerns or fears surrounding COVID-19; and
WHEREAS, the “governor is responsible for meeting ... the dangers to the state and people presented by disasters” under Section 418.011 of the Texas Government Code, and the legislature has given the governor broad authority to fulfill that responsibility; and
WHEREAS, under Section 418.0 12, the “governor may issue executive orders hav[ingJ the force and effect of law;” and
WHEREAS, under Section 4 18.016(a), in addition to the other powers given, the “governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business ... if strict compliance with the provisions would in any way prevent, hinder, or delay necessary action in coping with a disaster;” and
WHEREAS, under Section 4 18.017(a), the “governor may use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster;” and
WHEREAS, under Section 4 18.018(c), the “governor may control ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area.”
NOW, THEREFORE, I, Greg Abbott, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas, do hereby order the following on a statewide basis effective immediately:
Article 17.03 of the Texas Code of Criminal Procedure, and all other relevant statutes and rules relating to personal bonds, are hereby suspended to the extent necessary to preclude the release on personal bond of any person previously convicted of a crime that involves physical violence or the threat of physical violence, or of any person currently arrested for such a crime that is supported by probable cause. I hereby order that no authority should release on personal bond any person previously convicted of a crime that involves physical violence or the threat of physical violence, or any person currently arrested for such a crime that is supported by probable cause.
Article 17.15 1 of the Texas Code of Criminal Procedure is hereby suspended to the extent necessary to prevent any person’s automatic release on personal bond because the State is not ready for trial.
Article 15.21 of the Texas Code of Criminal Procedure is hereby suspended to the extent necessary to prevent any person’s automatic release on personal bond because the jail of the county where the offense is alleged to have been committed does not take charge of the arrested person before the 11th day after the date the person is committed to the jail of the county in which the person is arrested.
Article 42.032 of the Texas Code of Criminal Procedure, and all other relevant statutes and rules, are hereby suspended to the extent necessary to preclude the grant of commutation of time for good conduct, industry, and obedience to achieve the release of any person who has previously been convicted of or is currently
FILESDECIRNETTHAEROYFOFIFCSETOAFTETHE O’CLOCK
MAR 2 92020

Case 4:19-cv-00226 Document 53-1 Filed on 04/01/20 in TXSD Page 4 of 4

Governor Greg Abbott March 29, 2020

Executive Order GA-13 Page 3

serving a sentence for a crime that involves physical violence or the threat of physical violence. I hereby order that no authority should grant the commutation of time for good conduct, industry, and obedience to achieve the release of any person who has previously been convicted of or is currently serving a sentence for a crime that involves physical violence or the threat of physical violence. This provision does not preclude the accumulation of credit for good conduct, industry, and obedience during the pendency of this executive order.
Article 42.035 of the Texas Code of Criminal Procedure is hereby suspended to the extent necessary to preclude any release of a person to an electronic monitoring program, rather than being confined in the jail, if the person has previously been convicted of or is currently serving a sentence for a crime that involves physical violence or the threat of physical violence.
Sections 418.1015(b) and 418.108 of the Texas Government Code are hereby suspended to the extent necessary to preclude any county judge or mayor of a municipality, or any emergency management director, from releasing persons under any circumstances inconsistent with this order.
Provided, however, that nothing herein shall prevent the lawful exercise of authority by a county criminal court judge, district judge, or appellate judge in considering release on an individualized basis for health or medical reasons, provided that proper notice is given to the district attorney and an opportunity for hearing is given.
This executive order shall remain in effect and in full force until modified, amended, rescinded, or superseded by the governor.
Given under my hand this the 29th day of March, 2020.

ATTES

Y:

R THR.HUGHS Secretary of State

FILED IN THE OFFICE OF THE SECRETARY OF STATE
— !,3c ‘fr O’CLOCK
MAR 2 92020

 
 Case 4:19-cv-00226 Document 53 Filed on 04/01/20 in TXSD Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION REGARDING EXECUTIVE ORDER GA 13

Governor Abbott’s Executive Order GA 13, issued on Sunday, March 29, violates the

Equal Protection and Due Process Clauses of the U.S. Constitution because it purports to suspend

various laws and to suspend state judicial powers in order to prohibit individualized consideration

of non-financial release of many pretrial arrestees. See Ex. A. The text of the Order purports to

block release of presumptively innocent individuals even if state judges conclude that there is no

individualized basis for their pretrial detention—but only for those who cannot pay. The order thus

permits release of any and all arrestees, including those charged with the most serious offenses, as

long as they are required to pay money, but would remove the power of state judges on an

individualized basis to even consider non-financial release for many arrestees. The result is the

automatic pretrial detention of the indigent without any individualized process—exactly what the

Fifth Circuit recently struck down in ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018).

Plaintiffs seek emergency relief enjoining Defendants from enforcing the Order against

them until a full hearing on the matter can be held. Plaintiffs seek this relief only as to the narrow

portion of the Order that purports to bar state judges from making individualized determinations.

1

Case 4:19-cv-00226 Document 53 Filed on 04/01/20 in TXSD Page 2 of 11
I. The Terms of the Executive Order On Sunday, March 29, 2020, Texas Governor Greg Abbott issued Executive Order GA 13, purporting to suspend various state laws that protect federal and state constitutional rights. The Order also purports to bar local officials and the state judiciary from enforcing those state or federal rights and to bar state court judges from making individualized determinations of pretrial release.1 The relevant effect of the Order in this case is that the Order purports to require anyone currently charged with a crime involving “violence” and anyone with a prior conviction at any time in the past for a crime involving “violence” (regardless of the current charge), to pay secured money bail as a condition of pretrial release regardless of any individualized proceedings or findings by a state court judge. See Dkt. 39-1. The Order does not define or give guidance for different local officials or judges across the state to determine what categories would be encompassed by the term “violence,” and indications are that implementation of different views of this vague term would be chaotic and unpredictable.2 Regardless of this uncertainty, the language of the Executive Order encompasses broad categories of people, including, for example, any person arrested for the most minor non-violent offense (say, simple drug possession) who was convicted three decades ago of a qualifying offense (say,
1 The relevant text of the Order, Dkt. 39-1, is as follows: • Article 17.03 of the Texas Code of Criminal Procedure, and all other relevant statutes and rules relating to personal bonds, are hereby suspended to the extent necessary to preclude the release on personal bond of any person previously convicted of a crime that involves physical violence or the threat of physical violence, or of any person currently arrested for such a crime that is supported by probable cause. I hereby order that no authority should release on personal bond any person previously convicted of a crime that involves physical violence or the threat of physical violence, or any person currently arrested for such a crime that is supported by probable cause. • Article 17.151 of the Texas Code of Criminal Procedure is hereby suspended to the extent necessary to prevent any person’s automatic release on personal bond because the State is not ready for trial.
2 Wildly disparate understandings of similar terms in federal sentencing guidelines and statutes have necessitated an entire wing of federal court and Supreme Court common law jurisprudence and the creation of “the categorical approach,” even though those federal provisions offer more narrowing guidance than the Executive Order.
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misdemeanor battery), or any presumptively innocent person with no prior criminal record at all who is currently arrested for the first time on unproven allegations.
For all of the people in these broad categories, the Executive Order requires their pretrial detention if they cannot pay for release because it purports to suspend state laws authorizing state courts to release people on “personal bonds” after individualized hearings.3 The Order further purports to make such pretrial detention indefinite by suspending relevant speedy trial provisions of Texas law that ordinarily would require release of a person if the state is not ready for trial. Preliminary data from Defendants suggest that this language is being read by the District Attorney to block the release of a significant percentage of the Plaintiff class without monetary payment. Crucially, the Executive Order would invalidate even Judge Ritchie’s March 20 Order, Dkt. 32-6, requiring prompt release of people charged with a small number of the least serious offenses that the parties discussed with this Court at the March 29, 2020 hearing.
Moreover, the Executive Order purports to bar each of the more than twenty state court judges in Harris County who hear felony cases (and all local, state, and county judges who hear all types of cases across Texas) from making individualized determinations based on state and federal law that arrested individuals may be safely released on non-financial conditions of release.
To be clear, the Governor’s edict suspends these laws and judicial powers only to the extent they allow for release of the indigent. The Order would allow the release of anyone who can pay, no matter what threat local police believe the person to pose, but bar the release of similarly situated people who cannot pay, even if a state judge determines on an individualized basis that
3 A personal bond is an unsecured bond that allow a person to be released without making an up-front payment if the person agrees to pay an amount of money if the person does not appear.
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the person cannot afford to purchase release but poses no safety or flight risk, or that less restrictive
conditions would meet the government’s interest in court appearance or community safety.4
Blocking state judges from releasing the indigent after making individualized judicial
determinations of danger and flight risk is not only unconstitutional, but dangerous. What the
Governor appears to have intended was to block blanket release on personal bond by local
governments (not state judges) based on the COVID-19 pandemic of people otherwise validly
detained—that kind of blanket release order had been contemplated by local Harris County
officials and others around Texas.5 The actual language of the Order, however, not only bars that
kind of blanket release, but it bars the state judiciary from considering and ordering release even
after individualized consideration—an unprecedented threat to the federal Constitution.
The Order suspending constitutional rights is therefore projected to dramatically expand
local jail populations at a time when the medical and scientific community is concluding that
widespread death and disease can only be averted by doing the opposite.6 The Order came on the
4 The Order asserts that state judiciary somehow supports the suspension of its own powers. But the order omits the portion of the Texas Judicial Council’s March 26 Guidance that encourages judges to consider “the health risks to arrestees and their families and communities, and the burdens on communities from increased detentions,” and reminds judges to “[d]etermine bail on an individualized determination for each defendant consider the factors set out in [Texas Code of Criminal Procedure Article 17.15].” Court Operation Guidance, Issued 3/26/2020, https://www.txcourts.gov/media/coronavirus-covid-19-court-operation-guidance/ 5 Even that kind of more limited order would have flagrantly violated the Texas Constitution, which nowhere gives the Governor the power to limit the power of the judiciary or to suspend criminal laws that protect constitutional rights let alone to suspend the Texas Constitution, which is the effect of the Executive Order's prohibition on personal bonds for specific categories of people. See Tex. const. art. 1 § 11. This is not the forum for litigating the separate state-law illegalities in the Order, although some Texas judges immediately announced that they would not comply with it. See Ryan Autullo, Statesman, Abbott order limits efforts to prevent coronavirus spread in jails, judges say (March 31, 2020), https://www.statesman.com/news/20200331/abbott-order-limits-efforts-to-prevent-coronavirus-spread-injails-judges-say. 6 See Dkt. 32-1 at 7 (letter from Texas physicians stating, “If we wait, or simply perform half measures, we will have an absolute disaster on our hands.”); id. at 6 (“An outbreak would case a surge of hospital referrals, which would overwhelm a system that is not equipped for a surge[.]”); id. at 5 (letter from Dr. Esmaeil Porsa, M.D., MPH, and CEO of Harris Health, stating that even a “limited outbreak of COVID-19 in the Harris County Jail has the potential to overwhelm our already overburdened hospital system,” and “could leave many vulnerable people in our community without access to care”); Dkt. 32 at 1–2 (public statement by Sheriff Gonzalez that the jail has limited medical services, and COVID-19 will “spread like wildfire” once it hits (which is has)); see also, e.g., Ex. B (In re: Covid-10 Pandemic, No. ADM2020-00428, Order of the Supreme Court of Tennessee at Nashville (Mar. 25, 2020)); Ex. C (Memorandum
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same day that this Court expressed grave concern about the situation and encouraged the parties to work as quickly as possible to avert disaster at the Harris County jail and purports to remove the individualized tools that state judges and County officials might have used to do so.
II. Argument A. Standard of Review
A preliminary injunction is warranted if the movant demonstrates: “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Janvey v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011); Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009). The same factors apply to a Motion for Temporary Restraining Order. Whole Woman’s Health v. Paxton, 265 F. Supp. 3d 813, 818 (W.D. Tex. 2017). Plaintiffs satisfy each of these requirements.
B. Plaintiffs Are Likely to Succeed on the Merits The Executive Order suspending state laws and suspending individualized judicial powers violates several federal Constitutional requirements: (1) that no individual’s fundamental bodily liberty be deprived prior to trial unless pretrial detention is necessary for public safety or to prevent flight from prosecution; (2) that no individual may be detained prior to trial solely because the person cannot make a monetary payment, and (3) that all pretrial detention determinations be individualized and made after appropriate safeguards.7 The latter two of these principles were the entire basis of the Fifth Circuit recent unanimous decision affirming this Court’s holdings on the
from Chief Justice Beatty of the Supreme Court of South Carolina to Magistrates, Municipal Judges, and Summary Court Staff, RE: Coronavirus (Mar. 16, 2020)); Ex. D (Michigan Governor Gretchen Whitmer Executive Order 202029 (COVID-19) (Mar. 29, 2020)). 7 The Order flagrantly violates other provisions of state law and the Texas Constitution not addressed in this lawsuit.
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same issues in ODonnell. 892 F.3d at 160 (explaining that the “constitutional defect in the process
afforded was the automatic imposition of pretrial detention on indigent misdemeanor arrestees”);
id. at 163 (requiring a “case-by-case evaluation of a given arrestees’ circumstances,” and “notice,
an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision
by an impartial decisionmaker”). And each of these three federal constitutional principles has been
extensively briefed by Plaintiffs in their existing application for a Temporary Restraining Order
and Preliminary Injunction, which they incorporate here, see Dkt. 32, Dkt. 44.
A few examples illustrate the application of the Order:
• Under the order, any person charged with possession of less than 1 gram of cocaine, who has a twenty-year-old conviction for misdemeanor threats, will be prohibited from receiving non-financial release. If the person cannot pay, the person will be detained, even if a state judge holds a hearing and determines on an individualized basis that the person poses no danger to the community and no risk of flight.
• A person charged with felony assault based only on probable cause, who has no prior convictions, will be required to pay secured money bail as a condition of release no matter what any state judge determines. If the person cannot pay, the person will be detained—even if a judicial officer concludes at an individualized hearing that alternative non-financial conditions of release would be sufficient to serve the government’s interests in public safety and court appearance.
• The Order would permit the automatic and immediate release, pursuant to a secured bail schedule, of any person accused of sexual assault, even if the person had prior convictions for sexual assault, so long as the person could pay, and without any individualized judicial hearing at all.
The Order thus requires, as a categorical matter, pretrial detention for certain groups of
arrestees, contrary to ODonnell. See 892 F.3d at 160, 163. It will require the detention of people
who could be safely released pending trial on less-restrictive conditions, even as similarly situated
people with access to cash will go free. It will do all of this regardless of what any state judge
concludes at an individualized hearing.
To summarize, Plaintiffs’ constitutional claims have both substantive and procedural
aspects. See, e.g., Dkt. 32 at 22–24; Washington v. Harper, 494 U.S. 210, 220 (1990) (explaining
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the interaction between claims that share substantive and procedural aspects). Substantively, Plaintiffs’ claims flow from two lines of precedent. First, equal protection and due process forbid jailing a person solely because of her inability to make a payment. ODonnell v. Harris County, 892 F.3d 147, 161 (5th Cir. 2018); Bearden v. Georgia, 461 U.S. 600, 665 (1983); Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978); Frazier v. Jordan, 457 F.2d 726, 728 (5th Cir. 1972). Second, due process protects a “fundamental” right to pretrial liberty. United States v. Salerno, 481 U.S. 739, 750 (1987). The two substantive constitutional rights at issue cannot be infringed unless the government demonstrates that wealth-based pretrial detention is necessary to protect public safety or prevent flight from prosecution. Procedurally, the Constitution requires the government to provide individualized safeguards to protect the accuracy of the substantively required determinations. Harper, 494 U.S. at 228; ODonnell, 892 F.3d at 157.
The Executive Order evades the findings and safeguards required for pretrial detention. The Supreme Court has held: “In our society liberty is the norm, and detention prior to trial . . . is the carefully limited exception.” United States v. Salerno, 481 U.S. 739, 755 (1987). But the automatic, categorical detention of many impoverished people required by the Order is not an “exception” at all, let alone a “carefully limited” one. As Plaintiffs explained in their prior briefing, the Arizona Supreme Court and en banc Ninth Circuit have repeatedly struck down on due process grounds much more narrowly focused laws requiring categorical pretrial detention. Dkt. 32 at 29.
The Court need not reach most of Plaintiffs’ arguments to bar the enforcement of the Order to the extent it removes individualized discretion from state judges to consider non-financial release and order such release where appropriate. Although this case involves issues broader than ODonnell, this automatic detention of the indigent that resulted from the failure to exercise judicial discretion was already at the core of ODonnell.
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The Executive Order includes an exception clause that allows consideration of release “on an individualized basis for health or medical reasons.” Dkt. 39-1 at 4. This provision does not save its constitutionality, and further exacerbates the procedural due process violation implicated by the Order. This provision purports to prohibit release of people who pose no danger or flight risk if there is not an “individualized,” “health or medical” reason to release them, even if a judge holds an individualized hearing and concludes that their pretrial detention serves no government interest and that the state law, Texas Code of Criminal Procedure art. 17.15 factors do not warrant a secured bond. That is the exact violation alleged in this case and found in ODonnell. And it does so only for the poor. Again, the exact violation alleged in both cases. If interpreted as written, this clause would therefore prevent release of people the U.S. Constitution requires be released and prevent state judges from applying and weighing the factors listed in Article. 17.15, if an individualized weighing of those factors required release without monetary payment. This is exactly what the Texas Judicial Council just admonished state judges against. See supra note 4.
Further, the Order would then place on presumptively innocent pretrial detainees the burden to prove that there was some “individualized” reason relating to “health or medical” issues that they must be released. If the person could not prove that they had some special health or medical reason requiring their release, they would be detained regardless of individualized finding that they should not be detained under either state or federal law. And, moreover, in Harris County, even prior to the pandemic, people detained could not obtain such an individualized hearing for two to four weeks. Dkt. 32-4 at 8–9. The Constitution requires the government always to bear the burden that detention of presumptively innocent people is justified.
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For all of the reasons set forth in Plaintiffs’ first Motion for Temporary Restraining Order and Preliminary Injunction, see Dkt. 32, and supplemental brief, Dkt. 44, Plaintiffs are likely to succeed on the merits of this Motion. Plaintiffs fully incorporate that briefing herein.
C. Plaintiffs Face Irreparable Harm, and the Balance of Harms and Public Interest Weigh in Their Favor
Plaintiffs have extensively briefed the enormous and ongoing irreparable harm flowing from their continued pretrial detention at a facility exploding in contagion without necessary medical supplies, and why the public interest and balance of harms weigh strongly in their favor. See Dkt. 32, 44. Plaintiffs fully incorporate their briefing herein. Plaintiffs therefore seek an injunction prohibiting the County and Sheriff from enforcing the Order against them.
III. Conclusion Plaintiffs move this Court for a temporary restraining order prohibiting enforcement of the Executive Order as applied to Plaintiffs insofar as the Order is interpreted to bar state judges from making individualized determinations that non-financial conditions of release are appropriate. This relief will preserve the status quo of existing state law and provide some chance of preserving the existing status quo of Plaintiffs’ physical health and lives pending full briefing on this Motion and expedited hearing in front of this Court, for which Plaintiffs request an expedited briefing schedule.

Date: April 1, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com

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Case 4:19-cv-00226 Document 53 Filed on 04/01/20 in TXSD Page 10 of 11

1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Mimi Marziani Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 Meagan T. Harding Texas State Bar No. 24080179 Southern District No. 3365526 Texas Civil Rights Project 405 N Main St, Suite 716 Houston, TX 77002 Phone: 512-474-5073 ext 118 liyah@texascivilrightsproject.org mimi@texascivilrightsproject.org meagan@texascivilrightsproject.org

Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100

10

Case 4:19-cv-00226 Document 53 Filed on 04/01/20 in TXSD Page 11 of 11 CERTIFICATE OF SERVICE
I certify that on April 1, 2020 a true and correct copy of this document properly was served on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas Procedures for Electronic Filing.
/s/ Elizabeth Rossi Elizabeth Rossi
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IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE
IN RE: COVID-19 PANDEMIC ______________________
No. ADM2020-00428 ______________________

03/25/2020

ORDER CONTINUING SUSPENSION OF IN-PERSON COURT PROCEEDINGS AND EXTENSION OF DEADLINES
On March 13, 2020, in response to the COVID-19 pandemic, the Chief Justice of the Tennessee Supreme Court declared a state of emergency for the Judicial Branch of Tennessee government and activated a Continuity of Operations Plan for the courts of Tennessee. See Tenn. Const. Art. VI, § 1; Tenn. Code Ann. §§ 16-3-501 to 16-3-504 (2009); Moore-Pennoyer v. State, 515 S.W.3d 271, 276-77 (Tenn. 2017); Tenn. Sup. Ct. R. 49. This state of emergency constitutes a “disaster” for purposes of Tenn. Sup. Ct. R. 49 and Tenn. Code Ann. § 28-1-116. In light of ongoing concerns, the Tennessee Supreme Court hereby continues the suspension of in-person court proceedings and the extension of deadlines as set forth in this order. We again emphasize that the local and state courts of the State of Tennessee are open and will remain open under all circumstances, subject to the provisions of this order.
Under the constitutional, statutory, and inherent authority of the Tennessee Supreme Court, we adopt the following provisions. All in-person proceedings in all state and local courts in Tennessee, including but not limited to municipal, juvenile, general sessions, trial, and appellate courts, shall be suspended from the close of business on Friday, March 13, 2020, through Thursday, April 30, 2020, subject to the exceptions below.
Exceptions to this suspension of in-person court proceedings include, but are not limited to:
 Proceedings necessary to protect constitutional rights of criminal defendants, including bond-related matters, preliminary hearings for incarcerated individuals, and plea agreements for incarcerated individuals
 Proceedings related to relief from abuse, including but not limited to orders of protection
 Proceedings related to statutory order of protection hearings after entry of an ex parte order as necessary to satisfy any due process concerns

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 Proceedings related to emergency child custody or visitation orders  Proceedings related to the voluntary surrender of parental rights  Settlements involving a minor or a person with a disability  Department of Children’s Services emergency matters related to child safety,
placement, permanency, or federal funding for children in foster care  Proceedings related to petitions for temporary injunctive relief  Proceedings related to emergency mental health orders  Proceedings related to emergency protection of elderly or vulnerable persons  Proceedings directly related to the COVID-19 public health emergency  Other exceptions as approved by the Chief Justice
The presiding judge or the designee of the presiding judge of each judicial district is authorized to determine the manner in which in-person court proceedings for the exceptions listed above are to be conducted. Other exceptions to the suspension of in-person court proceedings must be approved by the Chief Justice. Any permitted in-court proceedings shall be limited to attorneys, parties, witnesses, security officers, and other necessary persons, as determined by the trial judge. Judges and their staff shall ensure that social distancing and other such measures are strictly observed. For purposes of implementing procedural matters during this time, the provisions of Rule 18(c) of the Rules of the Tennessee Supreme Court are suspended to allow judges to issue general orders.
Judges are charged with the responsibility of ensuring that core constitutional functions and rights are protected. Additionally, court clerks are charged with ensuring that court functions continue. See Tenn. Code Ann. §§ 18-1-101 (2009); 18-1-105 (Supp. 2019). Nevertheless, all judges and court clerks should minimize in-person contact by utilizing available technologies, including alternative means of filing, teleconferencing, email, and video conferencing.
Any Tennessee state or local rule, criminal or civil, that impedes a judge’s or court clerk’s ability to utilize available technologies to limit in-person contact is suspended through Thursday, April 30, 2020. See, e.g., Tenn. R. Civ. P. 43.01. With respect to plea agreements for non-incarcerated individuals, this suspension expressly applies to those provisions of Tenn. R. Crim. P. 11 which otherwise would require the proceeding to be in person in open court. See, e.g., Tenn. R. Crim. P. 11(b)(1) and (2), 11(c)(2)(A).
The presiding judge or the designee of the presiding judge of each judicial district shall develop a written plan to affirmatively address issues regarding the incarceration of nonviolent offenders in furtherance of efforts to reduce the jail population, including but not limited to bond reductions or eliminations, deferred sentences, and suspended sentences. The presiding judge or the designee of the presiding judge of each judicial district shall submit its plan to the Administrative Office of the Courts by the close of

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business on Monday, March 30, 2020, absent an extension granted by the Chief Justice.
Judges’ offices and court clerks’ offices may limit in-person contact with the public during the period of suspension, but must remain functional. If it becomes necessary to close judges’ or court clerks’ physical offices during the period of suspension, these offices shall remain accessible by telephone, email and fax to the extent possible during regular business hours. If available, drop boxes should be used for conventionally filed documents.
This order expressly encourages and does not prohibit court proceedings by telephone, video, teleconferencing, email, or other means that do not involve in-person contact. This order does not affect courts’ consideration of matters that can be resolved without in-person proceedings. Although some non-emergency matters will need to be rescheduled, judges are to continue to resolve matters that do not require in-person court proceedings. Court clerks are to work cooperatively and at the direction of the presiding judge of each judicial district to fulfill the clerks’ obligation to facilitate continuing court function.
Deadlines set forth in court rules, statutes, ordinances, administrative rules, or otherwise that are set to expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through Wednesday, May 6, 2020. Statutes of limitations and statutes of repose that would otherwise expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through Wednesday, May 6, 2020. See Tenn. Code Ann. § 28-1-116 (2017). Deadlines, statutes of limitations, and statutes of repose that are not set to expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are not extended or tolled by this order.
With regard to notarizing documents at this time, attorneys and judges are encouraged to utilize the “Online Notary Public Act,” Tenn. Code Ann. § 8-16-301, et seq., and the regulations promulgated by the Secretary of State at Sec. of State, Tenn. R. and Reg. 1360-07-03-.01. Additionally, with regard to court filings, declarations under penalty of perjury may be used as an alternative to a notary.
Given the increasing economic issues caused by this pandemic, no judge, clerk, or other court official shall take any action to effectuate an eviction, ejectment, or other displacement from a residence during the effective dates of this order based upon the failure to make a rent, loan, or other similar payment absent extraordinary circumstances as determined by a judge in a court of competent jurisdiction. Nothing in this order affects the obligations, terms, or conditions for payment under existing contracts. Judges also are encouraged to work with court clerks and local law enforcement to develop policies severely limiting or eliminating any new garnishments during this time.

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Orders of protection and temporary injunctions that would otherwise expire during the period from Friday, March 13, 2020, through Tuesday, May 5, 2020, are hereby extended through Wednesday, May 6, 2020.
This order applies statewide to all courts and court clerks’ offices except administrative courts within the Executive Branch and federal courts and federal court clerks’ offices located in Tennessee.
Under the terms of this order, the courts of Tennessee remain open, consistent with the Judicial Branch’s obligation to mitigate the risks associated with COVID-19. Judges should work with local law enforcement and other county officials to ensure that, to the extent possible, courthouses remain accessible to carry out essential constitutional functions and time-sensitive proceedings.
This order is intended to be interpreted broadly for protection of the public from risks associated with COVID-19.
It is so ORDERED. FOR THE COURT:
_________________________ Jeffrey S. Bivins, Chief Justice
CooLbG (LAI< _________________________
Cornelia A. Clark, Justice
cka.04, oze,_ _________________________
Sharon G. Lee, Justice
_________________________ Holly Kirby, Justice
_________________________ Roger A. Page, Justice

3/31/2020

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Court News ...

The Supreme Court of South Carolina

DONALD W. BEATTY CHIEF JUSTICE

POST OFFICE BOX 3543 SPARTANBURG, SOUTH CAROLINA 29304-3543

MEMORANDUM

TO:

Magistrates, Municipal Judges, and Summary Court Staff

FROM: RE: DATE:

Chief Justice Beatty Coronavirus March 16, 2020

As the number of coronavirus cases has increased in South Carolina, and a state of emergency has been declared, the South Carolina Judicial Branch continues to consider all aspects of court operations.

As the situation continues to develop, we will provide further information and direction if and when circumstances so warrant. In the meantime, please review the following directives for your courts.

All jury trials are postponed. Non-jury trials and other hearings may continue to be held, but only attorneys, their clients, and necessary witnesses will be allowed to appear. All roll calls and any other large gatherings such as traffic court are cancelled until further notice. If you deem it necessary to curtail operations beyond the scope of this memorandum, courthouses should remain available for the following critical functions:
Acceptance of filings and payments (including bonds) Emergency hearings (including, but not limited to: restraining orders, orders of protection, bond revocation/modification, and vacating of bench warrants) Transmission of necessary information to SLED and/or NCIC Compliance with the Financial Accounting Order Any person charged with a non-capital crime shall be ordered released pending trial on his own recognizance without surety, unless an unreasonable danger to the community will result or the accused is an extreme flight risk. Bench warrants for failure to appear shall not be issued at this time. At a minimum, bond hearings should be held at least once per day. The court shall continue to conduct probable cause determinations if a defendant is arrested and incarcerated on a Uniform Traffic Ticket. The bond court shall continue to unseal bench warrants, or inform defendants of right to counsel and new court dates, and vacate bench warrants. Victim's rights must be upheld. A victim advocate/notifier must be available for bond hearings. If a defendant has been in jail as a pre-trial detainee for the maximum possible sentence, the court shall convert the bond to a personal recognizance bond and release the defendant. Court dates may be rescheduled as is necessary and prudent. To the extent possible and circumstances warrant, hearings that can be held by video may be held remotely. Telephonic hearings may be held remotely as a last resort. Counties/municipalities with orders in place whereby the Chief Magistrate may appoint magistrates to serve as municipal judges should do so as necessary if the current municipal judge(s) becomes unable to hold court. If a magistrates court temporarily closes, there should be adequate signs posted directing persons to the nearest other magistrates court(s) within the county where filings and payments may be

https://www.sccourts.org/whatsnew/displaywhatsnew.cfm?indexID=2461

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tendered. The court should include this information on its voicemail and website/social media if possible. The courts must maintain a 24-hour judge on-call schedule and provide it to jails and law enforcement. Amend the schedule as necessary.

The SCJB's Crisis Management Team will continue to monitor this situation and provide further information as received. We remain committed to the safety of the state court system and to the public. Thank you for your assistance in implementing these measures.

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Case 4:19-cv-00226 DocumeWnhtitm5e3r--4ExecFuitliveedOrodenr 200420/0-219 /(2CO0ViInD-1T9X) SD Page 1 of 6
OFFICIAL WEBSITE OF MICHIGAN.GOV

THE OFFICE OF
GOVERNOR GRETCHEN WHITMER



WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-29 (COVID-19)

EXECUTIVE ORDER

No. 2020-29

Temporary COVID-19 protocols for entry into Michigan Department of Corrections facilities and transfers to and from Department custody;
temporary recommended COVID-19 protocols and enhanced early-release authorization for county jails, local lockups, and juvenile detention centers
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identi ed in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.

On March 10, 2020, the Michigan Department of Health and Human Services identi ed the rst two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under
 section1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act,
1976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.

The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and e ect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may

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promulgate reasonable orders, rules, and regulations as he or she considers necessary to

protect life and property or to bring the emergency situation within the a ected area under

control.” MCL 10.31(1).

To mitigate the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders who work at or are incarcerated in prisons, county jails, local lockups, and juvenile detention centers across the state, it is reasonable and necessary to implement limited and temporary COVID-19-related protocols and procedures regarding entry into facilities operated by the Michigan Department of Corrections and transfers to and from the Department’s custody; to recommend limited and temporary COVID-19-related protocols and measures for county jails, local lockups, and juvenile detention centers; and to temporarily suspend certain rules and procedures to facilitate the implementation of those recommendations.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. The Michigan Department of Corrections (the “Department”) must continue to implement risk reduction protocols to address COVID-19 (“risk reduction protocols”), which the Department has already developed and implemented at the facilities it operates and which include the following:

a. Screening all persons arriving at or departing from a facility, including sta , incarcerated

persons, vendors, and any other person entering the facility, in a manner consistent with

guidelines issued by the Centers for Disease Control and Prevention (“CDC”). Such

screening includes a temperature reading and obtaining information about travel and any

contact with persons under investigation for COVID-19 infection.



b. Restricting all visits, except for attorney-related visits, and conducting those visits without physical contact to the extent feasible.

c. Limiting o -site appointments for incarcerated persons to only appointments for urgent or emergency medical treatment.

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d. Developing and implementing protocols for incarcerated persons who display symptoms

of COVID-19, including methods for evaluation and processes for testing, noti cation of

the Department of Health and Human Services (“DHHS”), and isolation during testing,

while awaiting test results, and in the event of positive test results. These protocols should

be developed in consultation with local public health departments.

e. Notifying DHHS of any suspected case that meets the criteria for COVID-19 through communication with the applicable local public health department.

f. Providing, to the fullest extent possible, appropriate personal protective equipment to all sta as recommended by the CDC.

g. Conducting stringent cleaning of all areas and surfaces, including frequently touched surfaces (such as doorknobs, handles, light switches, keyboards, etc.), on a regular and ongoing basis.

h. Ensuring access to personal hygiene products for incarcerated persons and correctional sta , including soap and water su cient for regular handwashing.

i. Ensuring that protective laundering protocols are in place.

j. Posting signage and continually educating on the importance of social distancing, handwashing, and personal hygiene.





k. Practicing social distancing in all programs and classrooms—meaning a distance of at least six feet between people in any meeting, classroom, or other group.

Minimizing crowding, including interactions of groups of 10 or more people, which may include scheduling more times for meal and recreation to reduce person-to-person contact.

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2. To mitigate the risk of COVID-19 spreading in county jails, strict compliance with the

capacity and procedural requirements regarding county jail overcrowding states of

emergency in the County Jail Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq.,

is temporarily suspended. While this order is in e ect, all actions that would be authorized

under the CJOA in the event of a declaration of a county jail overcrowding state of

emergency are authorized and shall remain authorized without regard to any reduction in

jail population or any other such limitations on the duration of authorization imposed by

the CJOA.

3. Anyone authorized to act under section 2 of this order is strongly encouraged to consider early release for all of the following, so long as they do not pose a public safety risk:

a. Older people, people who have chronic conditions or are otherwise medically frail, people who are pregnant, and people nearing their release date.

b. Anyone who is incarcerated for a tra c violation.

c. Anyone who is incarcerated for failure to appear or failure to pay.

d. Anyone with behavioral health problems who can safely be diverted for treatment.

4. E ective immediately, all transfers into the Department’s custody are temporarily suspended. Beginning seven (7) days from the e ective date of this order, and no more
 than once every seven (7) days, a county jail or local lockup may request that the director
of the Department determine that the jail or lockup has satisfactorily implemented risk reduction protocols as described in section 1 of this order. Upon inspection, if the director of the Department determines that a county jail or local lockup has satisfactorily implemented risk reduction protocols, transfers from that jail or lockup will resume in accordance with the Department’s risk reduction protocols. The director of the Department may reject transfers that do not pass the screening protocol for entry into a facility operated by the Department.

5. Parole violators in the Department’s custody must not be transported to or lodged in a county jail or local lockup unless the director of the Department has determined that such

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county jail or local lockup has satisfactorily implemented risk reduction protocols as

described in section 1 of this order.

6. The State Budget O ce must immediately seek a legislative transfer so that counties may be reimbursed for lodging incarcerated persons that would have been transferred into the Department’s custody if not for the suspension of transfers described in section 4 of this order.

7. Juvenile detention centers are strongly encouraged to reduce the risk that those at their facilities will be exposed to COVID-19 by implementing as feasible the following measures:

a. Removing from the general population any juveniles who have COVID-19 symptoms.

b. Eliminating any form of juvenile detention or residential facility placement for juveniles unless a determination is made that a juvenile is a substantial and immediate safety risk to others.

c. Providing written and verbal communications to all juveniles at such facilities regarding COVID-19, access to medical care, and community-based support.

d. To the extent feasible, facilitating access to family, education, and legal counsel through electronic means (such as telephone calls or video conferencing) at no cost, rather than through in-person meetings.





8. Unless otherwise directed by court order, for juveniles on court-ordered probation, the use of out-of-home con nement for technical violations of probation and any requirements for in-person meetings with probation o cers are temporarily suspended.

9. This order is e ective immediately and continues through April 26, 2020 at 11:59 pm.

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Given under my hand and the Great Seal of the State of Michigan.

MICHIGAN.GOV HOME ADA MICHIGAN NEWS POLICIES
COPYRIGHT 2020 STATE OF MICHIGAN

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Case 4:19-cv-00226 Document 53-5 Filed on 04/01/20 in TXSD Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

PROPOSED ORDER

The Plaintiffs’ Motion for Temporary Restraining Order is GRANTED. Defendants are

temporarily enjoined from enforcing Executive Order GA 13 against the Plaintiffs Class to the

limited extent that the Executive Order purports to remove the authority of state judges to order

release of Plaintiffs on personal bonds in their judicial discretion.

This temporary Order is valid for a limited period of 14 days or until further order of the

Court, and the Court’s ruling is subject to change based on a more fully developed record at the

preliminary injunction proceedings.

Ordered this ___ day of _______________, 2020.
__________________________________ Hon. Lee H. Rosenthal District Judge

 
 Case 4:19-cv-00226 Document 66 Filed on 04/06/20 in TXSD Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

PLAINTIFFS’ RESPONSE TO THE COURT’S QUESTIONS

On Friday, April 3, the Court instructed all parties to respond to three questions by 9 a.m.

on Monday, April 6. Plaintiffs’ responses are set forth below, after this general status update.

The Sheriff is no longer processing for release from the jail anyone who was ordered

released pursuant to County Judge Lina Hidalgo’s April 1 emergency evacuation order. Ex. A

(Hidalgo Order). Administrative Judge Ritchie ordered the Sheriff to disregard the Hidalgo order

and threatened to hold the Sheriff in contempt if the Sheriff continued releasing individuals

pursuant to Judge Hidalgo’s order, i.e. those with no “violent” charge or criminal history who

could not pay their secured bond. Ex. B (Ritchie April 3 Order). As a result, the multi-stakeholder

process that was underway at the time the Parties appeared before this Court on Friday, April 3, has been completely shut down since that hearing ended.1

The need for relief from this Court is even more urgent than it was when Plaintiffs filed

their motion for Temporary Restraining Order on March 27, ten days ago. The Parties continue to

1 In any event, only a few hundred people likely would have been released pursuant to Judge Hidalgo’s order because of the limitations placed by the Governor’s Executive Order, leaving many people detained in violation of their equal protection and due process rights and in grave danger.
1

Case 4:19-cv-00226 Document 66 Filed on 04/06/20 in TXSD Page 2 of 7
work toward an agreed proposed order and will advise the Court prior to the hearing scheduled for tomorrow if the Parties are able to reach agreement.
The Court’s Questions 1. Are the usual releases proceeding, including those that factor in the risks
of continued detention as well as of release? It is unclear what the Court means by “usual releases.” People detained in the jail pretrial are being released via the following procedures. First, the Sheriff is preparing to release people on personal bonds who fall within the offense categories set forth in Judge Ritchie’s April 2 First Amended General Order Bond for Certain Offenses. Ex. C (Ritchie April 2 General Order). In an email on April 5, the Sheriff explained that a list of 60 people detained in the jail who are currently charged with one of the listed offenses had been generated. That list of people will be reviewed by the District Attorney’s Office (“DAO”) to determine how many of them has a potentially disqualifying criminal history consistent with the Executive Order. There is no timeline for the DAO to complete its review of the people on that list, or for people eligible for release to be released. As reported to the Court on April 3, when previous lists have been generated, such as the list of those detained in the jail on “nonviolent” charges (which was generated in response to Judge Hidalgo’s April 1 emergency order), the DAO has objected to about 7 of every 8 people. If that ratio holds true, then only about eight (8) people would be released pursuant to Judge Ritchie’s April 2 General order. Second, people who are detained in the jail could seek release in their individual cases. However, the Governor’s Executive Order and Judge Susan Brown’s email interpreting the Order, Ex. D (Brown email), purport to deny judges the authority to order, and the Sheriff the authority to enforce, personal bonds for people arrested for, or previously convicted of, “violent” offenses,
2

Case 4:19-cv-00226 Document 66 Filed on 04/06/20 in TXSD Page 3 of 7
a term which is not defined in the Governor’s Order.2 Thus, any member of the Plaintiff class who
cannot afford to pay secured money bail and who the Governor has prohibited from release on a
personal bond will be kept in jail no matter what individualized judicial proceedings are held.3
Moreover, as explained in Plaintiffs’ complaint and in Plaintiffs’ subsequent TRO request, any
Plaintiff class member who is not categorically barred from release by the Governor’s order, and
who seeks release, will nevertheless be required to wait, typically, at least two to four weeks before
they could be afforded an adversarial bail hearing under scheduling practices that have prevailed
since Hurricane Harvey in 2017. Ex. E (Declaration of Chief Public Defender Alex Bunin) ¶¶ 2–
7; Dkt. 32-4 ¶¶ 48–59. Even then, the hearings are not constitutionally adequate because they do
2 On March 30, 2020 at 6:04 p.m., Judge Susan Brown, the regional presiding administrative judge and formerly a Harris County Criminal District Court Judge, sent an email to Judge Herb Ritchie, as well as staff attorneys who support the Harris County judges and other judges in her administrative district, explaining the Executive Order. She asked the recipients of the email to “forward [the email] to all of your judges handling criminal cases as soon as possible.” Ex. D. Judge Brown explained that the Executive Order prohibits release on personal bonds for people charged with, or previously convicted of, “violent” offenses, except in cases involving “a health or medical reason after a hearing with notice to the DA.” Id. The email states:
We have been advised that the executive order suspends 17.03 and orders that no authority, including judges, may release a person who has a previous conviction for a crime involving physical violence or the threat of physical violence or is charged with a crime involving physical violence or the threat of physical violence on a PR bond. That said, the judge may grant a PR bond if the court finds on an individualized basis a health or medical reason after a hearing with notice to the DA. This would preclude a blanket order for release which many counties use on a regular basis. Please be mindful that the order does not allow magistrates, j[ustices of the] p[eace][], county judges or anyone else to make this determination. Id. (emphasis in the original).
3 The Attorney General filed the Executive Order in this case on Sunday, March 29. See Dkt. 39. Nevertheless, five days later, the Attorney General was unable to tell this Court whether that order purports to suspend the judicial authority of judges to issue personal bonds after individualized consideration and, if so, under what circumstances. The Court asked the Attorney General to clarify the intended effect of the Order on judicial officers’ authority to release certain categories of people on unsecured bond after arrest.
In response to that directive, the Attorney General filed an “Advisory” on Friday afternoon, which did not explicitly answer the most important question posed by the Court, though it appears to confirm Plaintiffs’ and Judge Brown’s interpretation of the order as categorically prohibiting the release of people who cannot afford to pay secured money bail on the basis of their charge and/or criminal history. See Dkt. 61. The first paragraph of the Advisory states that the Executive Order permits judges to conduct “individualized assessments” for all arrestees, but does not mention judges’ authority to release people on personal bonds after such individualized assessment. That, of course, was the question that needed to be clarified. The second and third paragraphs state that a judge can release “any arrestee” on “secured bail,” and that judges can grant “personal recognizance bonds” to any arrestee “for health or medical reasons” following notice to the District Attorney and opportunity for the prosecutor to be heard. Plaintiffs would welcome further clarification from the Attorney General on this question.
3

Case 4:19-cv-00226 Document 66 Filed on 04/06/20 in TXSD Page 4 of 7
not result in the findings, or consist of the safeguards, required for a valid order of pretrial detention. Dkt. 32-4 ¶¶ 48–59
2. Does Judge Ritchie’s Order change what we were told during the telephone hearing earlier today, April 3, 2020, about individualized judicial determinations on release conditions, including the timeline for decisions by those judicial officers who have authority to set bond conditions and order release on financial or nonfinancial conditions?
Judge Ritchie’s April 3 order changes most of what the Court was told on Friday. After Judge Ritchie’s threat to hold the Sheriff in contempt if he continued to release medically vulnerable and nonviolent detainees, the Sheriff stopped all releases pursuant to the County Judge’s order and pursuant to the multi-stakeholder process the Court heard about in detail. That process is now shut down on threat of contempt.
However, nothing about Judge Ritchie’s April 3 Order changes the undisputed facts in the record: for years, it has taken two to four weeks for a person to have an opportunity for an adversarial bail hearing before a district judge. See Ex. E ¶¶ 2–7; Dkt. 32-4 ¶¶ 48–59. As a matter of policy, the “docket” the District Attorney described at the hearing on Friday is not typically an appearance at all by the detained person, let alone the type of individualized bail hearing the Constitution requires be provided before a person can be lawfully detained. Ex. E ¶ 2–7.4 Prior to the Governor’s Executive Order, some of the felony judges were issuing personal bonds in chambers (or from home) without individualized hearings. They did so on the basis of representations of counsel that their clients should qualify for release, and, more recently, on the basis of the Sheriff’s requests to release people who are medically vulnerable and pose no threat to public safety if released. However, pursuant to local policy and practice, for people who remain detained after arrest, adversarial bail hearings do not occur for weeks or months—if they ever
4 The District Attorney’s Office now admits that “[w]hether and when the state district courts will conduct these individualized bail hearings is a question that the District Attorney’s Office cannot answer.” Dkt. 64 at 4.
4

Case 4:19-cv-00226 Document 66 Filed on 04/06/20 in TXSD Page 5 of 7
occur. Ex. E ¶¶ 2–7; Dkt. 32-4 ¶¶ 48–59. In fact, publicly available dockets show that the first opportunity for an adversarial hearing is currently routinely being scheduled for May or June 2020, five to eight weeks or longer from the person’s arrest. Ex. F (Declaration of Cole Lautermilch) ¶ 4; Ex. C ¶¶ 2, 5, 6 (Bunin Declaration).
3. How does Judge Ritchie’s Order impact the two pending temporary restraining order motions?
Judge Ritchie’s Order along with the other recent events in Harris County have made federal court relief even more urgent, and reveal that local officials are incapable of providing Plaintiffs with relief on a timetable that will protect their important constitutional rights and avert a public health disaster. The jail is still overcrowded, several days behind the exponential explosion in infections that large jails in Chicago and New York are now experiencing. On Rikers, prisoners are now being paid $6 per hour to dig their own graves.5 Plaintiffs are still detained pretrial without receiving constitutionally adequate bail hearings and without any finding at any point that any government interest is served by their ongoing pretrial detention. They are still at grave risk of contracting a serious illness and dying because they cannot protect themselves from contracting COVID-19. Because they do not have money, they are unable to do any of the things that have been urged by the CDC and all public health officials. There is no adequate relief available to them other than from this Court.6
5 See Hannah Uebele, Mass Graves Are Being Dug By Rikers Island Prisoner (Apr. 2, 2020), https://www.wgbh.org/news/national-news/2020/04/02/mass-graves-are-being-dug-by-rikers-island-prisoners. 6 In addition to the three questions posed to all Parties, the Court asked Plaintiffs’ counsel to report on the status of named Plaintiff Johnnie Pierson. Mr. Pierson has been detained in the Harris County Jail since March 6, 2020. Ex. C (Bunin Declaration) ¶ 8. He would be released if he could pay two secured bail amounts, totaling $50,000. Id. Mr. Pierson was identified by the Sheriff’s Office as a person eligible for release pursuant to County Judge Hidalgo’s order. Id. ¶ 9. Relying on the Governor’s Executive Order, the District Attorney’s Office objected to releasing him because of a prior, “violent” conviction. Id. ¶ 10. As of Sunday, April 5, 2020, Mr. Pierson was still detained in the Harris County Jail. Court records previously showed that he had a court setting scheduled for Monday, April. 6. However, this weekend, the court changed the setting to May 18, 2020. Online court records also show that there has been no adversarial, individualized bail hearing since he was taken into custody on March 6. Id. ¶ 11.
5

Case 4:19-cv-00226 Document 66 Filed on 04/06/20 in TXSD Page 6 of 7

Date: April 6, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Mimi Marziani Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 Meagan T. Harding Texas State Bar No. 24080179 Southern District No. 3365526 Texas Civil Rights Project 405 N Main St, Suite 716 Houston, TX 77002 Phone: 512-474-5073 ext 118 liyah@texascivilrightsproject.org mimi@texascivilrightsproject.org meagan@texascivilrightsproject.org

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100

Of course, Mr. Pierson’s current status of being detained in jail is not required for the propriety of the transitory class vindicating its rights, because the equal protection and due process claims the named Plaintiffs made in this case have never become moot. See Gerstein v. Pugh, 420 U.S. 103, 111 n.11 (1975). The named Plaintiffs represent an ongoing transitory class of people who are arrested and subject to the enforcement of unconstitutional bail policies and practices that violate their equal protection and due process rights. A defendant cannot defeat a transitory class by repeatedly making changes to policies that then require a new named Plaintiff to represent the same transitory class seeking relief against the same constitutional violations each time the practices enforced change in any way. Here, the transitory class continues to challenge Defendants’ bail practices, including the enforcement of bail orders that continue to violate equal protection and due process in all of the same material ways. ODonnell reflects this simple point: although the bail policies applied to Harris County misdemeanor arrestees changed throughout the litigation, the new policies still violated the same constitutional rights that the named Plaintiffs and the transitory class they represented originally sought to vindicate, and the policy changes did not defeat the ability of the class to seek relief. See, e.g., ODonnell v. Harris Cty., 251 F. Supp. 3d 1052, 1112, 1089 (S.D. Tex. 2017) (noting post-filing changes in policy to which named Plaintiffs were not subject); ODonnell v. Harris Cty., 321 F. Supp. 3d 763, 766 (S.D. Tex. 2018) (tailoring amended preliminary injunction to Defendants’ changed policies).
6

Case 4:19-cv-00226 Document 66 Filed on 04/06/20 in TXSD Page 7 of 7 CERTIFICATE OF SERVICE
I certify that on April 6, 2020 a true and correct copy of this document properly was served on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas Procedures for Electronic Filing.
/s/ Elizabeth Rossi Elizabeth Rossi
7

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Case 4:19-cv-00226 Document 66-1 Filed on 04/06/20 in TXSD Page 9 of 14
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Case 4:19-cv-00226 Document 66-2 Filed on 04/06/20 in TXSD Page 1 of 2
Harris Countv Criminal District Court Trial Division Onoen To DtsnEGARD DtRncrlvE BY Hnnnls CouNrv Junce
On April l, 2020, Hanis County Judge Lina Hidalgo issued an Order, the purpose of which was
to release certain prisoners presantly housed in the Harris County Jail.
FINDINGS OF FACT The Court makes the following Findings of Fact:
.I Most of the inmates in the Harris County Jail are defendants charged with felony offenses, whose
cases are assigned to one of the 22 Felony District Courts, each of which independently lawfully sit and exercise exclusive jurisdiction in such matters in this County;
2. The Felony District Court having jurisdiction over an inmate in the Harris County Jail has
properly and lawfully set bail for that defendant's cause of action; and
3. Any Order issued by the County Judge of Harris County Texas to any Harris County agancy,
pertaining to bonds and/or release of felony prisoners or probationers assigned to a proper Court of felony jurisdiction is ultra vires, VOID ON ITS FACE and of NO FORCE AND EFFECT. See Guerra v. Garza,987 S.W.2d 593 (Tex. Crim. App. 1999); and
4. Only the State District Judges of the 22 Felony District Courts of Harris County, Texas have
exclusive constitutional and statutory jurisdiction over all felony cases assigned to their
respective courts, including, but not limited to, the setting, raising and/or denial ofbonds in any and all ofsaid Courts, or the incarceration or release ofprobationers under supervision from said felony courts.
ORDER
THEREFORE, IT IS ORDERED and DECREED that the Sheriffof Harris County, Texas, as well as Harris County Pre-Trial Services Agency and the Harris County Community Supervisions and Corrections Departrnent, SHALL IGNORE and WHOLLY DISRECARD any order and/or directive
from the Harris County Judge regarding the issuance of felony Pre-Trial Bonds or Personal
Recognizance Bonds or any other order of release, as the same purports to affect felony inmates or probationers now in custody of the Harris County Sheriff or the Harris County Community Corrections
Onupn ro DTsREGARD DrREcrrvE By Hannts Counrv Juncp Page I of2

Case 4:19-cv-00226 Document 66-2 Filed on 04/06/20 in TXSD Page 2 of 2

and Supervision Department, and under the lawful jurisdiction of one of the 22 Harris County State District Courts.

IT IS FURTHER ORDERED that Pre-Trial Services Agency shall not prepare nor submit to
the Sheriff of Harris County, Texas any bonds or other orders of release at the direction of the County Judge of Harris County, Texas which affect, or purport to affect or release any Harris County inmate held for or charged with any felony offense;

IT IS FITRTIIER ORDERED that the Harris County Community Corrections and Supervision Department shall igrrore any and all orders from the Harris County Judge which affect or purport to
affect any felony probationer incarcerated in the Harris County Jail or any other facility in which he or she may be housed pursuant to an Order ofa Felony District Court; and

IT IS FURTHER ORDERED that the Harris County Sheriff shall ONLY release a felony
inmate in accordance with and pursuant to a valid Bond or other Order of Release signed by a State District Judge of Harris County, Texas, or by a proper court Order from a Court of Appeals or the Texas Court of Criminal Appeals or by a federal court with lawful jurisdiction of a particular Harris County
inmate or inmates.

TIIIS ORDER IS EFFECTIVE IMMEDIATELY" EACH VIOLATION OF THIS ORDER MAY RESULT IN CRIMINAL CONTEMPT OF COURT PENALTIES, WHICH MAY INCLUDE UP
TO SIX MONTHS' CONFINEMENT IN JAIL AS WELL AS A POSSIBLE FINE NOT TO
EXCEED $s00.00.

n /,'33 SIGNED this 3rd day of April, 2020 at

.m.

Herb Ritchie Administrative Judge Harris County District Courts Trying Criminal Cases

Ononn ro DrsnEcnRo DrnecrrvE By HnRRts CouNrv Juuct
Page 2 of 2

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Case 4:19-cv-00226 Document 66-4 Filed on 04/06/20 in TXSD Page 1 of 1
From: Brown, Judge Susan (DCA) <susan_brown@justex.net> Sent: Monday, March 30, 2020 6:04 PM To: Ritchie, Judge Herb (DCA); Teachey, Lisa (DCA); Wells, Ed (CCL); Mullinix, Brenda; Ellisor, John; Wallace, Toni; Grady, John; jgilbert@brazoria-county.com; jeremyw@brazoriacounty.com; Randy M. Clapp; Craig Estlinbaum Cc: Lance Long (attorneylancelong@gmail.com) Subject: Update on Gov. Abbott’s Executive Order. Sorry it’s long
Please forward to all of your judges handling criminal cases as soon as possible.
All, Due to the questions about the recent Executive Order regarding PR bonds the presiding judges participated in a zoom call with OCA this afternoon. We have been advised that the executive order suspends 17.03 and orders that no authority, including judges, may release a person who has a previous conviction for a crime involving physical violence or the threat of physical violence or is charged with a crime involving physical violence or the threat of physical violence on a PR bond.
That said, the judge may grant a PR bond if the court finds on an individualized basis a health or medical reason after a hearing with notice to the DA. This would preclude a blanket order for release which many counties use on a regular basis.
Please be mindful that the order does not allow magistrates, jps, county judges or anyone else to make this determination.
This order includes both misdemeanors and felonies. I would also remind you that this applies only to offenses that involved violence or threat of violence or folks who have a conviction for such.
I just wanted everyone to be aware as my earlier email gave so what different information. I hope this clears up any questions, but please feel free to email or call if needed,
Susan Brown Presiding Judge 11th Administrative Judicial Region 301 Fannin Houston, Texas 832-927-6600

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Case 4:19-cv-00226 Document 66-6 Filed on 04/06/20 in TXSD Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

DECLARATION OF COLE LAUTERMILCH

1. My name is Cole Lautermilch. I am an investigator for Civil Rights Corps.

2. On April 3, 2020, Senior Attorney Elizabeth Rossi requested that I and my colleague, Arjun Malik, who is an Investigative and Research Fellow at Civil Rights Corps, review the electronic case files for criminal cases recently filed in Harris County to determine how long a person arrested must wait for an adversarial hearing before a criminal district court judge.

3. I reviewed online case records for numerous cases filed on March 31, April 1, and April 2, involving a person who, at the time Mr. Malik or I retrieved the record, was required to pay secured money bail to be released, was not subject to any other apparent “holds,” was detained in the jail, and whose case was active.

4. Through my review, I identified approximately 20 cases in which the next court appearance was scheduled for sometime between May 6 and June 23, 2020. In each of these cases, a Preliminary Assigned Court Appearance (“PACA”) had been set within three calendar days of arrest, and there were no other scheduled appearances between the PACA and the court appearance scheduled for May or June.

5. In making these observations, Mr. Malik and I engaged in the following process.

a. We used the Harris County District Clerk electronic records website, hcdistrictclerk.com, to search for public electronic records of criminal cases filed on March 31, April 1, or April 2, 2020, in Harris County.
b. We limited our search to active cases in which the person arrested was still detained in the Harris County Jail.

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c. We identified people in custody who were required to pay secured money bail as a condition of release and who were not subject to any other apparent “holds.”
d. For a subset of cases described in Paragraph 5(c), I observed the dates of each person’s arrest, Preliminary Assigned Court Appearance (“PACA”), and next scheduled court appearance to identify approximately 20 in which the next court appearance was scheduled for May or June.
6. Mr. Malik and I used the “Print All” function to generate and preserve electronic copies of the online case records, as they existed at the time we viewed them, for each of the cases referenced in Paragraph 4 above.

I declare under penalty of perjury that the foregoing is true and correct to the best of my ability

_________________________ NAME

_0_4_/_0_6_/2__0_2_0_______________ DATE

2

 
 Case 4:19-cv-00226 Document 67 Filed on 04/06/20 in TXSD Page 1 of 34

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

DWIGHT RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants,

§

§

STATE OF TEXAS, et al.,

§

Intervenor-Defendants.

§

Case No. 4:19-cv-00226

STATE INTERVENORS’ RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION REGARDING EXECUTIVE ORDER GA 13

Case 4:19-cv-00226 Document 67 Filed on 04/06/20 in TXSD Page 2 of 34
INTRODUCTION Plaintiffs’ demand for emergency relief moves far beyond their complaint in this matter and therefore, unsurprisingly, beyond their standing to obtain such relief, because the individual Plaintiffs have not suffered any injury from Executive Order GA 13 (“GA 13”).1 Plaintiffs are also asking this Court to interpret a state statute that has not been determined by any Texas state court. And their fundamental premise, that there is some constitutional right to a personal bond is simply wrong as a matter of law. Over a year ago, Plaintiffs filed this action to challenge Harris County’s bail processes. Governor Abbott’s recently-issued GA 13 is unrelated. Plaintiffs do not have roving authority over all aspects of the Harris County bail system and all changes in Texas bail law. And Plaintiffs have no standing to seek forward-looking relief to remedy a hypothetical future injury. O’Shea v. Littleton, 414 U.S. 488 (1974). Plaintiffs simply cannot enjoin an emergency order that they were never subject to in the first place. What’s more, sovereign immunity bars this Court from awarding relief against the State Intervenors. And binding Supreme Court precedent obligates this Court to abstain here because state courts have not yet had the opportunity to interpret GA 13 or to determine the scope of its application.
1 As explained in the State Intervenors’ response to the first emergency motion, Plaintiffs have made no effort in well over a year to certify a class. As a result, any analysis of the underlying claims must be limited to the named-Plaintiffs.
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Finally, Plaintiffs will not succeed on the merits. There is simply no fundamental right to a personal bond. The State created that interest and may suspend it—or even take it away altogether. And the Governor’s police powers— which are at a zenith during a public health crisis and include the ability to control the movement of citizens and suspend statutes—easily defeat Plaintiffs’ constitutional claims.2
For all these reasons, this Court should deny Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction Regarding Executive Order GA 13.
BACKGROUND I. Governor Abbott issues GA 13.
As the Chief Executive Officer of the State of Texas, Governor Abbott is charged with “meeting the dangers to the state and people presented by disasters.” TEX. CONST. ART. IV, § 1; TEX. GOV. CODE § 418.011. To meet this weighty task, the Legislature provided sitting governors with extremely broad powers. See TEX. GOV. CODE. § 418.001, et seq. These powers include the ability to suspend statutes; issue executive orders carrying the force and effect of law; control ingress, egress, movement of persons, and occupancy of premises; and even to take public and private property. Id. at §§ 418.012; 418.016–418.018.
On March 29, 2020, Governor Abbott used his lawfully-vested authority and issued GA 13. Ex. 1. This emergency order’s purpose was to protect the public and maintain the rule of law during the unprecedented threat posed by COVID-19. Id.
2 The State Intervenors’ response (ECF No. 54) to Plaintiffs’ last motion for emergency relief (ECF No. 32) applies with equal force to the instant motion.
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This order prevents magistrates from releasing, on solely their own recognizance, large numbers of arrestees charged with violent crimes or who had a prior conviction for such offenses. Id. Specifically, GA 13 suspends Texas Code of Criminal Procedure Art. 17.03’s personal bond provisions, and all other related statutes, in order to:
preclude the release on personal bond of any person previously convicted of a crime that involves physical violence or the threat of physical violence, or of any person currently arrested for such a crime that is supported by probable cause. Id. GA 13’s effect is that personal bonds are temporarily unavailable for violent arrestees unless, after an individualized assessment, a judge determines that release is justified for a health or medical reason. Id. GA 13 does not preclude judges from conducting individualized assessments of arrestees using the specific factors provided in article 17.15 of the Texas Code of Criminal Procedure. See generally id. Governor Abbott issued GA 13 to respond to a real and meaningful COVID-19related threat to Texans. See id. Many advocates appear to believe that no arrested defendants—even the most potentially dangerous persons charged with violent felonies—should be placed in jail during the COVID-19 crisis. As a result of the concerns regarding COVID-19 spreading in jails, the personal bond process was being misused to release potentially dangerous individuals back into the public. In some instances, this has continued to occur even after the issuance of GA 13. A stark example is Arrestee A3 whom was arrested for Assault Family Violence Strangulation. See Ex. 2. The State alleged that Arrestee A assaulted his victim on
3 Where possible pseudonyms will be used for pretrial arrestees that are not already publicly known or parties to this action. State Intervenors have attempted to redact non-essential information
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March 26, which caused her to flee their residence. Id. When the victim returned on March 28, he started a verbal altercation with her and damaged some home valuables. Id. He then became more aggressive and pushed her. The victim tried to leave, and Arrestee A grabbed her by the neck. Id. When the victim told him to let her go, Arrestee A placed her in a choke hold and she began to gasp for air, losing her breath. Id. This assault was observed by a witness on FaceTime. Id. Arrestee A was released on personal bond over the prosecutor’s objection. Ex. 3.
Another example is Arrestee B. Officers observed Arrestee B sitting in the middle of the street. Ex. 4. They determined that Arrestee B was under the influence of PCP and attempted to arrest him for impeding the use of a roadway. Id. He resisted attempts to lift him from the street and place him in handcuffs. Id. When police officers attempted to place him in handcuffs, he turned his head and spit into an officer’s face. Id. Despite having many prior convictions, including aggravated sexual assault of a child and assault of a family member, Arrestee B was also released on a personal bond over the State’s objection. Ex. 5; Ex. 6; Ex. 7.
Violent felons caught with firearms have also been receiving personal bonds without any stated health or medical reason. On December 2, 2019, Humble Police Department officers were following Arrestee C’s car when he stopped, turned on his emergency flashers, and exited the vehicle to talk to the officers. Ex. 8. The officers determined that Arrestee C was intoxicated and detained him for driving while intoxicated. Id. During an inventory of the car, they found a loaded pistol in a console
from exhibits that could lead to identification. Unredacted versions will be made available upon request from the Court or the other parties.
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compartment on the driver’s side floorboard. Id. Arrestee C has numerous prior convictions, including making a terroristic threat and two assaults of a family member. Ex. 9. Despite the seriousness of his criminal history and his current charges (Felon in Possession of a Weapon and felony Driving While Intoxicated), Arrestee C was also granted a personal bond—again without input from the prosecutor. Ex. 10.
Judges are considered “highly visible symbols of government under the rule of law.” Johnson v. Johnson, 948 S.W.2d 835, 840 (Tex. App.—San Antonio1997) (citing Tex. Code Jud. Conduct, Preamble (1993)). The possible abuse of personal bonds to release potentially violent felons, especially without any individualized inquiry, could have dangerous ramifications in the months ahead as the State struggles with the unprecedented danger posed by COVID-19. Governor Abbott, using his lawfullyvested authority, issued GA 13 to respond to this real and meaningful threat to the public. II. Plaintiffs were never subject to GA 13 and each received all the process
required by ODonnell. During the April 3, 2020 telephone conference, Plaintiffs’ counsel were unable
to provide basic information about the Plaintiffs, including whether they were still in custody, the nature of their crimes, and whether they were ever subject to GA 13. To clarify the matter, the State Intervenors provide the following information about the Plaintiffs.
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A. Plaintiff Joseph Ortuno Plaintiff Ortuno is currently charged with aggravated assault with a deadly weapon and selling ecstasy, which is categorized as a Penalty Group 2 controlled substance. TEX. PENAL CODE § 481.103(a)(1). He has been out of jail for over a year. On November 25, 2018, a complaining witness was doing a drug deal with Ortuno when they decided to discontinue the deal. Ex. 11. Ortuno (later identified by a photograph) shot at the complainant’s departing car, damaging the complainant’s front and rear windshields. Id. Minutes later, Ortuno and others drove by the complainant’s home and shot at the house several times before speeding off. Id. On January 17, 2019, Houston Police spotted Ortuno and two other men sprinting to a car in an area known for narcotics and gang activity. Id. The car sped away and entered the freeway without signaling. Id. During the high-speed pursuit that followed, two guns were thrown out of the car which were later recovered. Id. After police apprehended Ortuno, they found Xanax, ecstasy, and marijuana in his backpack, individually wrapped in bags for easy distribution. Id. For his aggravated assault and drug dealing, Ortuno was charged by felony complaint. Ex. 12. His original recommended bail amount was $888,888. Ex. 13. After an individualized assessment, the hearing officer deviated from the bail schedule and set Ortuno’s bail at $30,000. Id. The bail order includes a written reason for not allowing a personal bond. Id. And the order shows that Ortuno was represented by counsel, completed a financial affidavit, and had that affidavit considered in lowering his bail. Id.
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On April 4, 2019, Ortuno made his $30,000 bail and has been free since. Ex 14. GA 13—issued nearly a year after Ortuno made bail—never prevented Ortuno from obtaining pretrial release.
B. Plaintiff Dwight Russell Plaintiff Russell was charged with felony DWI; went through a bail process compliant with ODonnell; and has already pleaded guilty and been released. On January 19, 2019, Department of Public Safety officers conducted a traffic stop on Russell. Ex. 15. There was an open beer in the car. Id. Russell failed field sobriety tests. Id. Russell was charged by felony complaint on January 19, 2019 for a third or subsequent DWI offense. Ex. 16. After a hearing, his bond was set at $25,000. Ex. 17. His bond order shows that he had an individualized assessment, he was represented by counsel, his financial affidavit was considered, and the hearing officer noted the reason why a personal bond was denied. Id. Russell entered an agreed plea of guilty to misdemeanor DWI and was sentenced to a one-year confinement in the Harris County Jail. Ex. 18. Russell was released from jail approximately ten months before GA 13 was issued. C. Plaintiff Johnnie Pierson Plaintiff Pierson appears to be currently in jail. But this is only because he keeps getting arrested while out on bond and because his probation is in the process of being revoked. Pierson has been arrested numerous times since January 18, 2019 for selling crack cocaine. Ex. 19. In each instance he received all the process required under
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ODonnell. Ex. 20. And twice Pierson was able to post a surety bond and secure his release. Ex. 21.
On November 21, 2019, he was placed on four years deferred adjudication probation. Ex. 22. However, on March 5, 2020, a motion revoking Pierson’s probation was filed. Id. On March 9, 2020, bond was set on his case at $25,000. Ex. 23.
GA 13 is not preventing Pierson from obtaining unsecured pretrial release. Instead, Pierson remains in jail because he has repeatedly violated the conditions of his bond and probation. And based on his charges and criminal history GA 13 is inapplicable.
ARGUMENT I. The Court lacks jurisdiction over this motion because it does not relate
to the underlying complaint. Plaintiffs’ instant motion for emergency relief fails at the outset. A request for
preliminary injunctive relief must grow out of the underlying complaint that created the action. Federal courts have jurisdiction to hear “Cases” (or “Controversies”), U.S. Const. art. III, § 2, cl. 1, and a party commences a case “by filing a complaint,” Fed. R. Civ. P. 3. If a party in an existing case seeks relief unrelated to the complaint, then it effectively asks the court to entertain a case that has not commenced. Because Plaintiffs’ “motion raises issues different from those presented in the complaint, the court has no jurisdiction over the motion.” Adair v. England, 193 F. Supp. 2d 196, 200 (D.D.C. 2002).
The Supreme Court applied this rule in De Beers Consolidated Mines v. United States, 325 U.S. 212 (1945). There the United States sued various companies and
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individuals for alleged violations of federal antitrust laws and sought to enjoin them from engaging in anticompetitive activity in the future. Id. at 215, 219. At the same time, the United States also filed a motion for a preliminary injunction asking the district court to enjoin the defendants from transferring any property outside of the United States. Id. That would ensure defendants had assets available to satisfy any judgment the court might later issue on the merits. Id. The Supreme Court held the United States had no power to seek—and the district court had no power to award— the preliminary injunction because “[i]t is not an injunction in the cause, and it deals with a matter lying wholly outside the issues in the suit.” Id. at 220 (emphasis added). DeBeers is not limited to the antitrust context. “This suit, as we have said, is not to be distinguished from any other suit in equity.” Id. at 222 (emphasis added). Federal courts across the Country consistently apply this rule in cases that (like this one) involve underlying claims brought under 42 U.S.C. § 1983.4
One simple question demonstrates why this motion fails: If Plaintiffs won the underlying suit based on the pleadings in their complaint, would they necessarily have won the relief they seek in this motion? Pac. Radiation Oncology, LLC, 810 F.3d 631, 636-37 (9th Cir. 2015). The answer is no. In their complaint, Plaintiffs sought a declaration and an injunction against Harris County and its Sheriff based on
4 See, e.g., Colvin v. Caruso, 605 F.3d 282, 299-300 (6th Cir. 2010); Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010); Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam). They apply the same rule in other contexts as well. See, e.g., Pac. Radiation Oncology, LLC v. Queen’s Med. Ctr., 810 F.3d 631, 635-36 (9th Cir. 2015); Omega World Travel, Inc. v. Trans World Airlines, 111 F.3d 14, 16 & n.2 (4th Cir. 1997); Kaimowitz v. Orlando, 122 F.3d 41, 43 (11th Cir. 1997) (per curiam); Stewart v. INS, 762 F.2d 193, 198-99 (2d Cir. 1985); Imagine Medispa, LLC v. Transformations, Inc., 999 F. Supp. 2d 862, 868 (S.D. W.Va. 2014); Pinson v. U.S. Dep’t of Justice, 74 F. Supp. 3d 283, 290 (D.D.C. 2014).
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allegedly defective bail procedures. ECF No. 1 at 42. That complaint nowhere requested an injunction against the enforcement of the Governor’s executive order. Nor could it have, as GA 13 did not yet exist. Plaintiffs first requested this distinct relief in the instant motion more than one year after filing their underlying complaint. ECF No. 53 at 9; Colvin, 605 F.3d at 287 (motion filed two months after complaint was unrelated). So even if Plaintiffs succeed in obtaining a declaration that the County defendants are violating the Constitution and an injunction enjoining them from doing so, those remedies would say nothing about GA 13. Whether GA 13 is constitutional is “unrelated to any supposed violation of” the Constitution by Harris County. DeBeers, 325 U.S. at 222.
It does not matter that the complaint and this motion, in a broad sense, involve the same general issue of bail. Colvin v. Caruso is a good example. Colvin, an inmate, sued prison officials for interruptions, mistakes, and other deficiencies in the administration of the prison’s kosher food program. 605 F.3d at 287-88. After Colvin filed his complaint, prison officials removed him from the kosher food program, and Colvin sought a preliminary injunction ordering officials to reinstate him. Id. at 299. Both pleadings sought relief related to the prison’s kosher food program. But the Sixth Circuit nevertheless concluded Colvin’s motion “was improper because he did not bring his wrongful-removal claim in his original complaint.” Id. at 300.
Finally, granting the preliminary injunction here in no way “enable[s] or aid[s]” this Court in giving the relief Plaintiffs ultimately request in the underlying complaint. United States ex rel. Rahman v. Oncology Assoc., 198 F.3d 489, 498 (4th
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Cir. 1999). In fact, it would do the opposite. Suppose the Court declines to enjoin GA 13. In that scenario, some violent felony arrestees would continue being held until this Court renders judgment on the merits. If the Court ordered their release at final judgment, they could be released at that time. But suppose Court enjoins GA 13 until it is able to render a judgment. Those violent felony arrestees may be released before this Court is ever able to reach a decision. Oddly, Plaintiffs’ request inhibits this Court’s ability to render an ultimate judgment in the underlying action.
The mere fact that Plaintiffs filed a federal lawsuit does not entitle them to enjoin an Executive Order they were never subjected to. Plaintiffs may respond that this Court’s equitable powers are expansive enough to evade these legal niceties, but the Supreme Court has rejected attempts to circumvent the limits of equity jurisdiction in the name of whatever is most “practical or efficient.” Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 321 (1999). “This expansive view of equity must be rejected.” Id. II. Even if this motion relates to the original Complaint, this court lacks
jurisdiction over the entire action. Regardless of the above, Plaintiffs’ motion must fail because, as the State
Intervenors previously argued, this Court lacks subject-matter jurisdiction over the case. The Court should therefore dismiss the suit. Fed. R. Civ. P. 12(b)(1).
This Court lacks jurisdiction for two independent reasons. First, insofar as Plaintiffs seek relief from their past bail hearings through a federal court order changing their existing bail determinations, the Rooker-Feldman doctrine bars suit. Lower federal courts are powerless to revisit (or order state courts to revisit)
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individual state-court decisions setting bail. Second, while Rooker-Feldman does not prevent a litigant from challenging a state policy or practice as opposed to a particular state-court decision, Plaintiffs’ challenge to Harris County’s bail practices is based on a future injury that is pure “speculation and conjecture.” O’Shea, 414 U.S. at 497. Plaintiffs therefore lack an Article III injury in fact. In a putative class action like this one, “federal courts lack jurisdiction if no named Plaintiff has standing.” Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019).
The State Intervenors’ arguments on these points, see ECF No. 54 at 19–28, continue to apply here because the original complaint is the benchmark against which this Court assesses subject-matter jurisdiction. See Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 574 (2004). And this Court “has a duty of making further inquiry as to its own jurisdiction.” In re Gee, 941 F.3d 153, 159 (5th Cir. 2019) (per curiam). The Fifth Circuit recently found that a failure to observe that duty presented extraordinary circumstances justifying a writ of mandamus ordering the district court to address “obvious” jurisdictional defects. Id. at 160, 170.
The defects are obvious here too. State courts have already made bail determinations for Plaintiffs, remanded them to custody, and released them. ECF No. 1 at 11-13; see TEX. CODE CRIM. PROC. ARTS. 16.20(6), 17.25, 17.27. Insofar as Plaintiffs ask this Court to order the state courts to revisit those determinations, they ask this “Court to overturn the injurious state-court judgment” rendered as to them. Skinner v. Switzer, 562 U.S. 521, 531 (2011). In other words, this Court “is in essence being called upon to review the state court decision[s]” setting Plaintiffs’ bail. D.C. Court of
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Appeals v. Feldman, 460 U.S. 462, 482 n.16 (1983). Put simply, the Court cannot order the release of (or reassessment of bail for) a felony arrestee who has already had bail set and been remanded to custody without violating the Rooker-Feldman doctrine. See, e.g., Ingram v. Fish, No. 09-204, 2010 WL 3075747, at *4 (W.D. Pa. Aug. 5, 2010); Brown v. City of New York, 210 F. Supp. 2d 235, 240 (S.D.N.Y. 1999); Mounkes v. Conklin, 922 F. Supp. 1501, 1508-10 (D. Kan. 1996).
Even Plaintiffs seem to recognize this obvious Rooker-Feldman problem. Presumably that is why they walked back from any backward-looking theory of relief during the Court’s April 3 teleconference. For the very first time, Plaintiffs’ counsel attempted to disclaim any interest in having Plaintiffs (or any putative class member for that matter) released from custody or having their existing bail status redetermined. Plaintiffs, he said, seek only constitutionally adequate bail hearings going forward. Yet, the April 3 telephonic hearing focused on release or reassessment for individuals who have already been subjected to the challenged procedures: How many felony arrestees have already been released? How many will be released in the short term? Who is eligible for release under GA 13?
Plaintiffs admittedly seek injunctive relief to redress a future injury. That injury, however, is not “certainly impending.” Ctr. for Biol. Diversity v. U.S. Envt’l Prot. Servs., 937 F.3d 533, 537 (5th Cir. 2019). Because, each Plaintiff had already been subjected to the Harris County bail procedures they challenge here when they filed their complaint, and because any backward-looking relief ordering a state court reassess an existing bail decision is out of bounds, Plaintiffs could be injured by the
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County’s bail procedures only the next time they are arrested. In other words, Plaintiffs’ future injury depends on this Court speculating that at some future time (1) they will commit criminal acts (2) in Harris County (3) be arrested (4) have secured bail set (5) pursuant to an unlawful policy (6) at amounts they cannot pay (7) because they remain too poor to pay a bondsman. The Supreme Court rejected that theory of injury in O’Shea, 414 U.S. at 496-98.
At the April 3 teleconference, Plaintiffs’ counsel revealed that he was unsure about the named Plaintiffs’ current custodial status.5 But to be clear, whether the named Plaintiffs are currently in custody is irrelevant to the standing inquiry. At the time Plaintiffs filed their complaint, any challenge to Harris County’s procedures was already premised on a future injury. That is why this Court’s suggestion that the capable-of-repetition-yet-evading-review exception to mootness could save Plaintiffs’ case is wrong. The Court seems to suggest that Plaintiffs’ subsequent release did not strip the district court of jurisdiction because they were in custody when their original complaint was filed. The crucial point for standing purposes, however, is that Plaintiffs had already been subjected to the bail procedures they challenge at the time they filed this lawsuit. They were never subject to GA 13.
The Fifth Circuit made a similar point several months ago in Stringer v. Whitley, 942 F.3d 715 (5th Cir. 2019). The plaintiffs there sought injunctive and declaratory relief requiring Texas to change its voter registration system. Based on the existing system, plaintiffs were unable to vote in the 2014 elections. Id. at 719.
5 Nor did he know the details of their current charges or prior convictions, threshold issues that determine whether they are even covered by GA 13 at all.
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But they had successfully registered to vote by the time they filed suit. Id. The policy they challenged therefore could affect them only in a future election if they moved again and had to re-register. Id. at 721-22. Plaintiffs nevertheless argued “they have standing because their claims are capable of repetition, yet evading review.” Id. at 724. The Fifth Circuit disagreed: Because the plaintiffs lacked standing at the time their complaint was filed, the mootness exception “is not implicated.” Id. at 725.
There is nothing novel about Stringer’s holding. The Supreme Court said the same thing decades ago. Standing and mootness are two entirely different things. Mootness permits an exception for injuries capable of repetition yet evading review. Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975). But “[s]tanding admits of no similar exception; if a plaintiff lacks standing at the time the action commences, the fact that the dispute is capable of repetition yet evading review will not entitle the complainant to a federal judicial forum.” Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 191 (2000). “That a suit may be a class action . . . adds nothing to the question of standing.” Lewis v. Casey, 518 U.S. 343, 357 (1996).
On the day they filed their complaint, all three named Plaintiffs had already been through bail proceedings, had bail set by state courts, and been remanded to custody. See ECF No. 1 at 11-13 (describing past bail proceedings for Plaintiffs Russel, Pierson, and Ortuno); cf. supra II A-C (detailing that Plaintiffs received process meeting the minimums of ODonnell). Because Harris County’s (allegedly) unlawful bail policies could affect them only at some future time, Plaintiffs lacked
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Article III standing to seek injunctive relief reforming those procedures going forward
on day one.
III. Sovereign immunity bars Plaintiffs’ requested relief. In their motion, Plaintiffs ask this Court to “enjoin[] Defendants from
enforcing” GA 13. ECF No. 53 at 1; see also id. at 9 (“Plaintiffs move this Court for a
temporary restraining order prohibiting enforcement of the Executive Order as
applied to Plaintiffs.”). But they are not entirely clear about whom they wish this
Court to enjoin.
To the extent Plaintiffs seek to enjoin the State Intervenors from enforcing
GA 13 their efforts run headfirst into sovereign immunity. The State retains its
immunity from suit even after intervening because it immediately asserted that this
Court lacks jurisdiction. See, e.g., Calif. v. Deep Sea Research, Inc., 523 U.S. 491, 496-
97 (1998); Mo. v. Fiske, 290 U.S. 18, 24-25 (1933); cf. Okla.ex rel. Edmondson v. Pope,
516 F.3d 1214, 1215-16 (10th Cir. 2008) (citing 28 U.S.C. § 2403 and FED. R. CIV. P.
5.1). The Governor and the Attorney General are likewise immune from suit because
they appear in their capacities as state officials.6 Edelman v. Jordan, 415 U.S. 651,
663 (1974).
6 Plaintiffs may argue that sovereign immunity has been waived because of the intervention. This argument misses that sovereign immunity consists of two distinct immunities: immunity from suit and immunity from liability. See Meyers ex rel. Benzing v. Texas, 410 F.3d 236 (5th Cir. 2005), reh’g denied with opinion 454 F.3d 503 (2006), cert. denied 550 U.S. 917 (2007); Kelley v. Papanos, No. H-11-0626, 2012 U.S. Dist. LEXIS 8071, at *11-12 (S.D. Tex. Jan. 24, 2012) (holding that the state may continue to “assert its state sovereign immunity as defined by Texas law as a defense” to the claims removed to federal court); Bonillas v. Harlandale Indep. Sch. Dist., 832 F. Supp. 2d 729, 737 (W.D. Tex. 2011) (“The Fifth Circuit has held that there is a distinction between immunity from suit in federal court, which a state may waive by removal to federal court, and immunity from liability”); Delaney v. Miss. Dep’t of Pub. Safety, No. 3:12CV229TSL-MTP, 2013 U.S. Dist. LEXIS 9600, at *11– 14 (S.D. Miss. Jan. 24, 2013)(same); Pathria v. Univ. of Tex. Health Sci. Ctr., No. SA-12-CV-388, 2013 U.S. Dist. LEXIS 10795, at *3–4 (W.D. Tex. Jan. 23, 2013); In re Supreme Beef Processors, Inc., 468
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The Supreme Court has carved out a narrow exception to sovereign immunity where “a federal court commands a state official to do nothing more than refrain from violating federal law.” Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 255 (2011). That means the officer “must have some connection with the enforcement of the act.” Ex parte Young, 209 U.S. 123, 157 (1908). What has come to be known as the Ex parte Young doctrine is therefore subject to two limits relevant here: (1) The state officer must enforce the challenged statute and (2) a court may not order that officer to take official acts.
Even when an official has authority to enforce a statute, the plaintiff seeking to invoke Ex parte Young must show that official “is likely to [do] so.” City of Austin v. Paxton, 943 F.3d 993, 1002 (5th Cir. 2019). Plaintiffs have not alleged that the Governor or the Attorney General can enforce GA 13—much less that they are likely to do so. And because Plaintiffs have not shown that either official is tasked with enforcing the executive order, this motion merely and impermissibly seeks to “mak[e] [either official] a party as a representative of the state.” Young, 209 U.S. at 157.
Assuming the Governor and the Attorney General have the authority to enforce GA 13 and are likely to exercise it, this Court could not order either of them to affirmatively exercise official power. Ex parte Young is about “prevent[ing] [a state officer] from doing that which he has no legal right to do.” Id. at 159. By acting ultra vires, so the theory goes, the official loses his official status with respect to that act and can be ordered to stop. Id. at 159–60. But ordering him to take “affirmative” action intra vires is premised on the idea that he retains his “official or representative
F.3d 248, 257–58 (5th Cir. 2006) (Higginbotham, J., concurring) (explaining Meyers). Even assuming sovereign immunity from suit has been waived, which it has not, sovereign immunity from liability is still intact and, therefore, makes Plaintiffs unlikely to succeed on the merits.
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character.” Id. at 160. Accordingly, “a suit may fail” if a party requests relief that “cannot be granted by merely ordering the cessation of the conduct complained of but will require affirmative action by the sovereign.” Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949); see also United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 548 (10th Cir. 2001) (“Because this requested relief would require us to order federal officials to take various forms of affirmative action and affect the disposition of sovereign property, the suit does not fall within the ultra vires doctrine.”).
Here, it would not be enough for this Court to order the Governor or the Attorney General to merely stop enforcing GA 13. State and local judges have an independent obligation to comply with state law, and the Governor’s executive orders “have the force and effect of law.” TEX. GOV’T CODE § 418.012. To afford Plaintiffs effective relief, then, this Court would need to order the officials to take some kind of “affirmative action,” like ordering the Governor to withdraw the executive order. But withdrawing the executive order would have significance only as an official act. Because this Court would be ordering the Governor “to satisfy the court decree only by acting in an official capacity” sovereign immunity bars such relief. Zapata v. Smith, 437 F.2d 1024, 1026 (5th Cir. 1971) (emphasis added). IV. Federal abstention doctrines bar this Court from awarding the
requested equitable relief. Plaintiffs complain that “[t]he Order does not define or give guidance for
different local officials or judges across the state to determine what categories would be encompassed by the term ‘violence,’ and indications are that implementation of
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different views of this vague term would be chaotic and unpredictable.” ECF No. 53 at 2. Throughout this Court’s most recent teleconference on April 3, 2020, the parties and the Court discussed questions regarding GA 13’s sweep. Does it prevent judges from conducting individualized hearings? May judges release for health-related reasons individuals who would otherwise be kept in custody? May they release others as well? Plaintiffs suggest this confusion bolsters their motion. But it is more accurate to say that a lack of clarity prevents the Court from providing relief.
It is undisputed that the instant motion seeks equitable relief. See ECF No. 53 at 1, 9. The “common-law background” of federal courts’ equity jurisdiction, however, obligates them to abstain from awarding equitable relief in certain cases. New Orleans Public Serv., Inc. v. New Orleans, 491 U.S. 350, 359 (1989). Abstention remains “the exception, not the rule.” Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800, 813 (1976). But the Supreme Court has required abstention in a variety of circumstances, see Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716– 17 (1996) (collecting examples), two of which are pertinent here.
First, the Supreme Court has instructed federal courts to abstain where an antecedent question of state law would obviate the need to address a federal constitutional question, R.R. Comm’n v. Pullman Co., 312 U.S. 496, 500 (1941), or would at least “significantly modify” the federal analysis, Lake Carriers Ass’n v. MacMullan, 406 U.S. 498, 512 (1972).
Plaintiffs here assert constitutional claims: They allege violations of the Due Process Clause (U.S. Const. amend. XIV, § 1) and Equal Protection Clause (U.S.
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Const. amend. XIV, § 1). See ECF No. 53 at 1, 5. But if state law establishes that GA 13 does none of the things Plaintiffs fear—either because it prevents the creation of a state-created liberty interest or because it continues to permit release for certain violent arrestees—then this Court may not need to decide those constitutional questions at all. GA 13 clearly strips covered arrestees of their state-created liberty interest. Infra Part V.A. But GA 13 is one week old, and the Texas courts have yet to interpret the order’s scope. See Lake Carriers Ass’n, 406 U.S. at 511 (Michigan law “has not been construed in any Michigan court”); Reetz v. Bozanich, 397 U.S. 82, 86 (1970) (Alaska constitutional provisions “have never been interpreted by an Alaska court”). GA 13’s application is “uncertain.” Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984).
Second, the Supreme Court has instructed federal courts to observe a general “doctrine of nonintervention” in state proceedings. See, e.g., Middlesex Cty. Ethics Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432-35 (1982) (state bar disciplinary proceedings); Judice v. Vail, 430 U.S. 327, 334-35 (1977) (state contempt proceedings); Huffman v. Pursue, Ltd., 420 U.S. 592, 604-05 (1975) (state nuisance proceedings); Younger v. Harris, 401 U.S. 37, 54-55 (1971) (state criminal proceedings). Federal courts must abstain where (1) “an ongoing state judicial proceeding” (2) “implicate[s] important state interests” and (3) offers “adequate opportunity” to “raise constitutional challenges.” Middlesex Cty. Ethics Comm’n, 457 U.S. at 432.
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State Intervenors believe there are ongoing state court proceedings that involve the question Plaintiffs seek to press here. See, e.g., State v. Jones, Dustin Cause No. 2285846, 2297288 (Harris County Court at Law 16). That question undoubtedly implicates important state interests. The rules governing bail are “in aid of and closely related to criminal statutes,” Huffman, 420 U.S. at 604, and Texas has an “interest in administering [its own] criminal justice system[] free from federal interference,” Kelly v. Robinson, 479 U.S. 36, 49 (1986). Moreover, any question regarding the Governor’s power to issue GA 13 implicates the State’s authority to formulate policy in the face of a pandemic ravaging the State. Infra Part V.C. It is difficult to imagine a greater “offense” to state authority than a federal court’s interference with (1) the State’s management of its own criminal justice system (2) in the midst of a public health crisis. Huffman, 420 U.S. at 604. This Court should abstain—even though the state court proceedings commenced after Plaintiffs filed this suit. Hicks v. Miranda, 422 U.S. 332, 348-49 (1975). V. Plaintiffs also cannot enjoin GA 13 because they have not satisfied the
preliminary injunction factors. Aside from the threshold problems discussed above, Plaintiffs are not entitled
to the relief they seek for at least 3 reasons. First, Plaintiffs cannot succeed on the merits of their claims given the Fifth Circuit’s decision in ODonnell. Second, they likewise cannot meet the significant burden needed to mount a facial challenge to GA 13. Third, Supreme Court precedent gives Governor Abbott broad power to protect Texans and, as a result, his decision to issue GA 13 is entitled to significant deference.
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For these reasons plus those already set out in the response to Plaintiffs’ first motion, this Court should deny the requested relief.
A. Plaintiffs are unlikely to succeed on their due process and equal protection claims given the Fifth Circuit’s decision in ODonnell.
At the outset, Plaintiffs misunderstand the preliminary injunction analysis. They argue they “are likely to succeed on the merits of this Motion.” ECF No. 53 at 9. Accordingly, they devote most of their briefing to whether GA 13 is constitutional. Id. at 5-9. But that is the wrong “merits” question. The first preliminary injunction factor is concerned with the merits of the underlying action. See, e.g., Munaf v. Geren, 553 U.S. 674, 690-91 (2008) (holding preliminary injunction analysis was concerned with “the merits of the underlying habeas petition”); Walgreen Co. v. Hood, 275 F.3d 475, 478 (5th Cir. 2001) (holding plaintiff “does not have a substantial likelihood of success on the merits of its underlying claim”).
Plaintiffs’ fixation on the entirely different question of GA 13’s constitutionality only confirms that their motion seeks relief that is not related to their underlying complaint. Supra Part I. Because the proper question here is the same one the parties have already briefed—i.e., whether Harris County’s bail procedures violate the Constitution as pleaded in the complaint—the State Intervenors reincorporate by reference their earlier arguments on that question. See ECF No. 54 at 5-18, 40.
Even if the relevant question were whether Plaintiffs are likely to succeed on their (unpleaded) claim that GA 13 is unconstitutional, the clear answer would still be no. By temporarily suspending the operation of state statutes that authorize
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unsecured pretrial release, GA 13 precludes the existence of the liberty interest that grounds Plaintiffs’ due process and equal protection claims.
Notwithstanding Plaintiffs’ claims to the contrary, the Fifth Circuit’s decision in ODonnell did not recognize a substantive federal right to be free from wealth-based detention. ODonnell v. Harris County, 892 F.3d 147, 163 (5th Cir. 2018) (“ODonnell I”). To the contrary, the Fifth Circuit recognized that “there is no such . . . fundamental substantive due process right.” ODonnell v. Goodhard, 900 F.3d 220, 228 (5th Cir. 2018) (“ODonnell II”). Instead, the Fifth Circuit concluded that “Texas state law create[d]” the right at issue, which “weighs the detainees’ interest in pretrial release and the court’s interest in securing the detainee’s attendance.” ODonnell I, 892 F.3d at 158 (emphasis added). And “[h]aving found a state-created interest,” id. (emphasis added), the Court considered what procedures the federal Constitution requires States to provide in order to protect that interest, id. at 158–59.
Because the interest at issue in that case and this one is a creature of “Texas state law,” not a federal constitutional entitlement, the State may take away what it gives. And it may do so without running afoul of the U.S. Constitution.
A related example is a criminal defendant’s right to appeal under state law, for which the Supreme Court has developed numerous precedents protecting the constitutional rights of indigent defendants. Like the rights asserted by Plaintiffs here, those rights arise under the Due Process and Equal Protection Clauses. See, e.g., Griffin v. Illinois, 351 U.S. 12, 20 (1956) (barring state rule requiring indigents
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to purchase a trial transcript for appeal); Burns v. Ohio, 360 U.S. 252, 258 (1959) (barring state rule requiring indigents to pay filing fee to docket an appeal); Douglas v. California, 372 U.S. 353, 357–58 (1963) (requiring State to furnish indigent defendant with appellate counsel); Evitts v. Lucey, 469 U.S. 387, 396 (1985) (requiring appointed appellate counsel to be constitutionally effective).
But these due process and equal protection rights safeguard a state-created interest: For instance, criminal defendants have no federal constitutional right to appeal. McKane v. Durston, 153 U.S. 684, 687 (1894). A criminal defendant’s right to appeal is either “a creature of a federal statute” or “of state statute[].” United States v. Bergrin, 885 F.3d 416, 419 (6th Cir. 2018) (Sutton, J.).
So, while an indigent criminal defendant is entitled to effective counsel on appeal, Evitts, 469 U.S. at 396, a State may take away the underlying right to which the federal protection attaches. In other words, Texas could eliminate altogether the right to appeal that criminal defendants currently enjoy under Texas law. If it did, that would not infringe the due process and equal protection rights indigent defendants possess when appeal is available. So too here. Texas may suspend (or eliminate altogether) the statutory provisions that allow arrestees to be released on unsecured bond. By doing so, it has not infringed the federal due process and equal protection rights that mandate certain procedures when that state-created right exists.
Nor can an absolute right to a personal bond be found in the Texas Constitution’s “sufficient sureties” provision. This provision creates two important
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rights for defendants. First is the right to have one’s bail determined based on a balancing of the individual’s “interest in pretrial freedom” against “the court’s interest in assurance.” ODonnell I, 892 F.3d at 158. ODonnell I & II found that an individualized bail hearing based on the factors enumerated inquired by TEX. CODE CRIM. PROC. ART. 17.15 satisfies this right. See ODonnell I, 892 F.3d at 158; ODonnell II, 900 F.3d at 226-27. Second is the right to be free from excessive bail or to otherwise be free from having bail imposed “as an instrument of oppression.” Ex parte Smith, No. 09-06-104 CR, 2006 WL 1511480, at *1 (Tex. App. May 31, 2006); see also Tex. Const. Art. 1, § 13.
But the Texas Constitution’s “sufficient sureties” provision does not imbue defendants with an absolute right to a personal bond. ODonnell II appeared to foreclose any such interpretation when it explained that “‘sufficient sureties’ is ‘not purely defined by what the detainee can afford’ and does not create an automatic right to pretrial release.’” ODonnell II, 900 F.3d at 226 (quoting ODonnell I, 892 F.3d at 158).
Plaintiffs overlook this fatal flaw in their motion. They make no attempt to explain how a liberty interest in personal bonds was created or where it can be found. Plaintiffs are asking this Court to be the first ever to find that the Texas Constitution requires personal bonds. Plaintiffs’ four-page analysis vastly undersells the unprecedented nature of their request and provides no meaningful guidance on the issue. See ECF No. 53 at 5–9.
25

Case 4:19-cv-00226 Document 67 Filed on 04/06/20 in TXSD Page 27 of 34
Faulkner v. Gusman, No. CIV.A. 13-6813, 2014 WL 1876213 (E.D. La. May 9, 2014), is instructive. In Faulkner, the plaintiff argued that a Louisiana statute prohibiting recognizance bonds violated, among other things, the Fourteenth Amendment’s Due Process Clause. Id. at *1–2. The district court rejected this argument, concluding that the challenged statute “does not deprive defendants of their interest in pretrial release, because it does not require judges to set bond in any amount that is likely to prevent defendants from obtaining pretrial release.” Id. at *3.
The court explained that Louisiana law (like Texas law) directed judges to consider specific enumerated factors, which included the defendant’s ability to pay, when setting the amount of bail. Id. Thus, a defendant “may argue that the statutory factors favor a low or nominal money bond” and, “[i]f the judge agrees, she may set bond in an amount the defendant can satisfy, be it a hundred dollars or ten dollars or even ten cents.” Id. In short, the difference between being released on personal recognizance and being released on a ten-cent bond did not meaningfully impact any constitutionally-protected liberty interest. See id. at *4 (describing the alleged deprivation as “minimal, if not non-existent”). The court further explained that the plaintiff’s due process claim also could not survive a Mathews v. Eldridge balancing test in light of: (1) the minimal deprivation of liberty attributable to the challenged statute; (2) the minimal risk of erroneous deprivation of that interest given judges’ ability to set nominal money bonds as they see fit; and (3) the “‘great leeway’ given to
26

Case 4:19-cv-00226 Document 67 Filed on 04/06/20 in TXSD Page 28 of 34
governments in ‘protect[ing] public health and safety.’” Id. at *4-6 (quoting Bevis v. City of New Orleans, 686 F.3d 277, 281 (5th Cir. 2012)) (alteration in original).
The Faulkner plaintiff, like the Plaintiffs here, tried to extract an absolute right to release on a defendant’s recognizance from the Fifth Circuit’s decision in Pugh v. Rainwater,572 F.2d 1053 (5th Cir. 1978). Id. at *6; ECF No. 53 at 7. The court rejected this argument, explaining that Pugh’s refusal “to invalidate a Florida bail rule that did not include a presumption against money bonds” was not tantamount to a holding “that state bail schemes must make personal recognizance bonds available in all categories of cases.” Id. Likewise here, Plaintiffs cannot establish a constitutionally-protected interest in obtaining release on personal bond.
B. Plaintiffs fall far short of establishing a facial challenge to GA 13.
Because Plaintiffs do not (and cannot) argue that GA 13 is unconstitutional as applied to them (because they were never subject to it), their challenge amounts to a facial attack on the order. Yet facial challenges are “disfavor[ed]” and pose a “daunting burden” to the challenger. Roy v. City of Monroe, 950 F.3d 245, 251–52 (5th Cir. 2020) (quotations omitted). To prevail, Plaintiffs “must establish that no set of circumstances exists under which the [Order] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).
Plaintiffs cannot meet that high bar. For instance, various types of arrestees may be refused bail altogether under the Texas Constitution and Code of Criminal Procedure. See, e.g., Tex. Const. Art. I, § 11 (carving out capital offenses); TEX. CONST. ART. I, § 11a (“Denial of Bail After Multiple Felonies”); TEX. CODE CRIM. PROC. ART.
27

Case 4:19-cv-00226 Document 67 Filed on 04/06/20 in TXSD Page 29 of 34
17.152 (“Denial of Bail for Violation of Certain Court Orders or Conditions of Bond in a Family Violence Case”); TEX. CODE CRIM. PROC. ART. 17.153 (“Denial of Bail for Violation of Condition of Bond Where Child Alleged Victim”). The challenged portion of GA 13—which generally prohibits personal bonds for certain arrestees without health or medical reasons—has no effect on those persons that are not entitled to release on bail at any amount, let alone on a personal bond. Clearly, GA 13 is valid in those circumstances. Thus, Plaintiffs’ facial challenge fails because they have not, and cannot, establish that no set of circumstances exists under which the Order would be valid.
C. Supreme Court precedent gives Governor Abbott broad power to protect Texans and, as a result, his decision to issue GA 13 is entitled to significant deference.
The State’s police power to protect its citizens from the unprecedented threat posed by COVID-19 trumps the minimal theoretical deprivations at issue in Plaintiffs’ instant motion. And the State’s decisions on how best to protect its citizens from the unprecedented threats posed by COVID-19 are entitled to great deference.
The Supreme Court recognizes that a State “has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Mass., 197 U.S. 11, 27-28 (1905). In that case, the Supreme Court upheld a Massachusetts law requiring compulsory smallpox vaccinations against due process and equal protection challenges. Id. at 25–26, 30. The plaintiff argued mandatory vaccination infringed his liberty and was unnecessary to combat a localized smallpox outbreak. The Supreme Court disagreed: The State had concluded those measures were “necessary in order to protect the public health and secure the public safety,”
28

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and federal courts could not “usurp the functions of another branch of government” by second-guessing that conclusion. Id. at 28. The Supreme Court further explained that the health of a State’s people are “in the first instance[] for that [state] to guard and protect” and that a court should only invade this authority “when it is plainly necessary to do so in order to enforce the law.” Id. at 38.
Three years earlier, the Supreme Court had similarly recognized States’ sweeping power in the area of combatting “the spread of contagious or infectious diseases.” Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380, 378 (1902). In that case, Louisiana’s Board of Health (pursuant to a statutory grant of authority) restricted travel into the State and prevented a French ship from landing. Id. at 384–85. A French corporation and a French citizen sued, alleging Louisiana had violated the Due Process Clause, Equal Protection Clause, Commerce Clause, and treaties with France and Italy. Id. at 385, 387, 393, 397. The Supreme Court rejected every challenge, noting that the States’ power “to enact and enforce quarantine laws for the safety and protection of the health of their inhabitants” was “beyond question.” Id. at 387.
Here, Chapter 418 of the Texas Government Code furnishes the sitting Governor with sweeping authority to protect the public from disasters like COVID19, which presents an “imminent threat of widespread or severe damage, injury, or loss of life.” TEX. GOV’T CODE § 418.004(1). That authority includes the power to declare a state of disaster; to use all available resources of state government and of political subdivisions that are reasonably necessary to cope with a disaster;” to control
29

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ingress and egress to and from a disaster area and the movement of persons and the occupancy of premises in the area; and to suspend the operation of certain laws. See id. at §§ 418.014, 418.016(a), 418.017(a), 418.018(c).
On March 13, 2020, Governor Abbott invoked this authority and declared a state of disaster in response to the spread of COVID-19. See Proclamation, Office of Tex. Governor (March 13, 2020).7 In GA 13, Governor Abbott recognized that COVID19 “represents a public health disaster Chapter 81 of the Texas Health and Safety Code.” Ex. 1. He further concluded that broad-scale release of arrestees “would not only gravely threaten public safety, but would also hinder efforts to cope with the COVID-19 disaster.” Id. Police Chiefs from thirteen different cities agree with Governor Abbott on both scores. See ECF No. 54 at 2–3 n.1. To fulfill his goal of protecting Texans, Governor Abbott made personal bonds temporarily unavailable for violent arrestees unless, after an individualized assessment, a judge determines that such a bond is justified for a health or medical reason.
Plaintiffs disagree with that policy approach. The fact that they continue to press for the release of violent felony arrestees—the only ones affected by GA 13— underscores the State Intervenors’ arguments regarding the public interest and balance of the equities. See ECF No. 54 at 28-34. Plaintiffs may believe that letting violent felony arrestees roam the streets during a pandemic is good for the public. But Governor Abbott—the individual actually tasked with making such
7 A copy of this Proclamation is publicly available at the following location: https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_proclamation_IMAGE_03-132020.pdf.
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determinations—has a different view. And “[i]t is no part of the function of [this Court] to determine which [method] [i]s likely to be the most effective for the protection of the public against disease.” Jacobson, 197 U.S. at 30. As a result, Governor Abbott’s decision on how to protect Texans from the historic-level threat posed by COVID-19 is entitled to great deference. Over a century’s-worth of binding and persuasive precedents support this conclusion.8
CONCLUSION The Court should dismiss this suit in its entirety for lack of subject-matter jurisdiction. FED. R. CIV. P. 12(b)(1). At the very least, it should deny Plaintiffs’ additional request for preliminary injunctive relief.
8 See, e.g., Moyer v. Peabody, 212 U.S. 78, 85 (1909) (“When it comes to a decision by the head of the state upon a matter involving its life, the ordinary rights of individuals must yield to what he deems the necessities of the moment.”); Smith v. Avino, 91 F.3d 105, 109 (11th Cir. 1996) (“[G]overning authorities must be granted the proper deference and wide latitude necessary for dealing with [an] emergency . . . .”), abrogated on other grounds by Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998); United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971) (finding that judicial review of an executive’s emergency measures “must be limited to a determination of whether the [executive’s] actions were taken in good faith and whether there is some factual basis for his decision that the restrictions he imposed were necessary to maintain order”); United States v. Ferguson, No. 1:07-CR70, 2007 WL 4146319, at *5 (E.D. Tex. Nov. 16, 2007) (“Cases have consistently held that it is a proper exercise of police power to respond to emergency situations with temporary curfews that might curtail the movement of persons who otherwise would enjoy freedom from restriction.”); Hickox v. Christie, 205 F. Supp. 3d 579, 584 (D.N.J. 2016); (“The State is entitled to some latitude, however, in its prophylactic efforts to contain what is, at present, an incurable and often fatal disease.”); People ex rel. Barmore v. Robertson, 302 Ill. 422, 427 (1922) (“Generally speaking, what laws or regulations are necessary to protect public health and secure public comfort is a legislative question, and appropriate measures intended and calculated to accomplish these ends are not subject to judicial review.”).
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Respectfully submitted.

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
ERIC A. HUDSON Special Counsel Special Litigation Unit Texas Bar No. 24059977 Southern District ID: 1000759 Eric.Hudson@oag.texas.gov P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 936-1414 | FAX: (512) 936-0545

DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel Attorney-in-Charge Texas Bar No. 24077727 Southern District No. 2964087 Adam.Biggs@oag.texas.gov
MATTHEW BOHUSLAV Assistant Attorney General Texas Bar No. 1303218 Southern District ID: 1303218 Matthew.Bohuslav@oag.texas.gov

DOMINIQUE G. STAFFORD Assistant Attorney General State Bar No. 24079382 Southern District ID: 3195055 Dominique.Stafford@oag.texas.gov General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667

COUNSEL FOR THE STATE INTERVENORS

32

Case 4:19-cv-00226 Document 67 Filed on 04/06/20 in TXSD Page 34 of 34 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been sent by electronic notification through ECF by the United States District Court, Southern District of Texas, Houston Division, on April 6, 2020 to all parties of record.
/s/ Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel
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Case 4:19-cv-0022R6EPDOoRcTumINeGntO6F7F-2ICEFRileNdAoRn R04A/T06IV/2E0 in TXSD

Harris County Sheriff`s Office

Victim

Offense

ASSAULT

POCaAge 1 of 2
2003-09236
Date / Time Reported
Sat 03/28/20 13:37

THE INFORMATION BELOW IS CONFIDENTIAL - FOR USE BY AUTHORIZED PERSONNEL ONLY

Scene Summary

The scene is commonly known as the

apartments located at

.

Drive is a public access roadway that extends north and south for vehicular travel within

Harris County, Texas. The apartments are situated on the west side of the roadway and faces east. Building # is

positioned on the east side of the complex, unit # is a multi-level townhome and front door faces west.

The complainant is light complexioned and there were visible markings on the neck area of her person. The complainant did state she felt pain during the assault.

The weather was cloudy and visibility was good due to daytime hours.

Investigative Narrative

On Saturday, March 28, 2020, I, Deputy C. J. Sutton, Unit #41E60, was on patrol in north Harris County, Texas. At

approximately 1338 hours, I was dispatched to

in reference to an Assault call for

service.

The call slip stated the following.

REF`D FROM HPD/ REP ADV SHE WAS FACETIME W/ FRIEND AND BOYFRIEND STARTED CHOCKING FRIEND.

Upon my arrival to the location, I attempted to make contact with the residents, but there was no answer at the front door. I was then advised per Harris County dispatch the complainant wanted to meet at another location for her safety. I contacted the complainant via cellular phone and was advised she was assaulted and was able to leave afterwards.

The complainant who was later identified as

, advised she was assaulted by

the defendant 2 days ago at the same location and he was not arrested see case (

.

advised she

believed the defendant was not going to be arrested today based on the assault prior to today`s incident. I continued

to knock at the door as being advised by

the defendant informed her there was someone knocking at the

door.

advised the defendant was inside the residence and he would definitely run out of the back door if the

opportunity presented itself.

agreed to return to the original location to open the door so that contact with the

defendant was possible.

I continued to knock at the door and finally a black male answered and identified himself as

. I

instructed the male to raise his shirt up for safety precaution, which he did so and then I advised him I was detaining

him based on some alleged accusations. The male was placed in handcuffs and then escorted to my marked patrol

vehicle where he was placed in the rear seat. I advised the male I would speak with him after I talked to

who

arrived to the scene.

Reporting Officer: SUTTON, C. J. R_CS3NC

Draft Only Printed By: ALVEAR_CHRISTINA,

03/29/20 04:06:4

Page 4

Case 4:19-cv-0022R6EPDOoRcTumINeGntO6F7F-2ICEFRileNdAoRn R04A/T06IV/2E0 in TXSD

Harris County Sheriff`s Office

Victim

Offense

ASSAULT

POCaAge 2 of 2
2003-09236
Date / Time Reported
Sat 03/28/20 13:37

THE INFORMATION BELOW IS CONFIDENTIAL - FOR USE BY AUTHORIZED PERSONNEL ONLY

stated the following.

advised due to the prior incident she was staying with a friend and the defendant contacted her asking her to

return today.

arrived to the location and the defendant began arguing with her about not returning and then

bumped her with his shoulder causing her to break a glass which belonged to her and she became upset.

stated she selected 3 shirts belonging to the defendant and tossed them down the stairs on the first floor.

stated the defendant turned around and placed his hands around her throat for a brief moment and then slid

his arm around her neck placing her in a rear choke hold.

states, "HE CHOKED ME TO THE POINT I

COULD NOT BREATHE."

stated she was "GASPING FOR AIR FOR 2 MINUTES, WHILE

ATTEMPTING TO GET OUT OF THE CHOKE HOLD."

stated during the altercation her friend,

FaceTime her and she answered the phone,

observed the assault and called 911.

advised she did not feel safe calling 911 because nothing occurred the last time she called and now she got

assaulted again. I advised

I was not present during the last incident but I would contact the District Attorney

Office and inform them of the incident.

Cypress Creek Medic #51 arrived on the scene for precautionary reasons based on the statements and observed

injuries.

was observed with blood on her legs and the defendant was bleeding on the right arm. The

defendant stated he reinjured his arm while jumping the Iron Gate going to the store.

The defendant was afforded the opportunity to provide a statement of the incident. The defendant advised nothing physically occurred other than a booty bump. The defendant stated everything was verbal and he at no time placed his hands or arms around her neck.
provided me with a Harris County written statement form which was completed and signed, a Harris County Family Violent Packet, and a strangulation form was completed. See all attachments in the E-Files section.

I also contacted on her phone (Facetime) and was afraid for

via cellular phone who advised she observed the assault and called 911.

I contacted the Harris County District Attorney Office and spoke to ADA T. Alfred, who after hearing the facts of the case accepted the Felony charge on the defendant.

The defendant was advised the medics were going to check his vital signs for precautionary and he began to display combative behavior, ramming his head into the flexi-glass of the cage in the rear of the marked patrol vehicle. The defendant was removed from the rear seat and he began to strike his head against the back window of the patrol vehicle. The defendant was then escorted to the ground and assisted with his head to prevent him from causing more injury to himself. While taking preventive measures Cypress Creek medic #51 was advised to sedate the defendant due to his irate behavior. Deputy A. Brown, Unit #40M14 assisted with gaining control of the defendant. See supplement report.

The defendant was transported by medic #51 to Houston North West hospital for further evaluation where he was seen by a doctor and later released pending the current charges.

Affter receiving his discharged documents, the defendant was transported to the Joint Processing Center where he was booked and released into the custody of the jail staff.

Reporting Officer: SUTTON, C. J. R_CS3NC

Draft Only Printed By: ALVEAR_CHRISTINA,

03/29/20 04:06:4

Page 5

Case 4:19-cv-00226 Document 67-3 Filed on 04/06/20 in TXSD Page 1 of 1

CertifiedDocumentNumber:90090775-Page1of2

Case 4:19-cv-00226 Document 67-4 Filed on 04/06/20 in TXSD Page 1 of 2
HOUSTON POLICE DEPARTMENT
WITNESS STATEMENTS: ====================
None at this time.

REPORTEE STATEMENT: ====================
The reportee that flagged down officers did not stay on scene.

SCENE DESCRIPTION: =================

The listed location is inside the city limits of Houston, Texas and is inside Harris

County, Texas. The listed location is a block number along the east/west street S

Blvd. The nearest cross street is the north/south street

, which is

east of the listed location.

Officers observed a male, later identified as Suspect

, sitting in the middle of

the eastbound lanes of

Blvd., on the south side of the street. We observed

Sergeant Calhoun with Precinct 5 Constables, along with a civilian, talking to Suspect

and trying to get him to stand up. Suspect

was completely stiff in his

entire body, his fists were tightly clenched, and his eyes were wide open with a blank

stare. Officers attempted to speak with Suspect

, but only noises were coming out

of his mouth. Officer Segura shined a flashlight in Suspect

's eyes and we both

immediately saw that his pupils were pinpoint in size, which officers know from prior

training and experience to be indicative that a person is under the influence of PCP. In

addition, officers observed Suspect

with resting nystagmus in his eyes, another

indicator of a person high on PCP, that officers know from prior training and experience.

Suspect

resisted arrest and spit on me while trying to detain him (see Officer's

Actions for details).

Once Suspect

was detained, Officer Segura and I smelled a strong chemical odor

coming from Suspect

's person. Officer Segura and I have smelled PCP on numerous

occasions in the course of our duties and we know that PCP has a strong chemical smell.

OFFICER'S ACTIONS: =================

Officer Segura and I were patrolling a high crime, high narcotic area and were flagged

down by the anonymous reportee (he did not stay on the scene) and he advised us that

there was a male running in the middle of

Blvd. The reportee stated that he

was driving down

Blvd and almost hit the male in the road with his vehicle.

Officer Segura and I turned the corner at

Way and

Blvd. we observed a

male, later identified as Suspect

, sitting in the middle of the eastbound lanes

of

Blvd., on the south side of the street. We stopped our marked patrol

vehicle near Suspect

and initiated our emergency red and blue lights to indicate

to Suspect

that police were on scene.

We observed Sergeant Calhoun with Precinct 5 Constables, along with a civilian, talking

to Suspect

and trying to get him to stand up. Suspect

was completely

stiff in his entire body, his fists were tightly clenched, and his eyes were wide open

with a blank stare. Officers attempted to speak with Suspect

, but only noises

were coming out of his mouth. Officer Segura shined a flashlight in Suspect

's

Report Officer
160193 / KELLEY, A

Printed At
04/02/2020 14:48

Page 6 of 9

Case 4:19-cv-00226 Document 67-4 Filed on 04/06/20 in TXSD Page 2 of 2

HOUSTON POLICE DEPARTMENT

19403220

eyes and we both immediately saw that his pupils were pinpoint in size, which officers

know from prior training and experience to be indicative that a person is under the

influence of PCP. In addition, officers observed Suspect

with resting nystagmus

in his eyes, another indicator of a person high on PCP, that officers know from prior

training and experience.

Officer Segura and I made the determination to detain Suspect

for impeding the

use of the roadway and for officer safety purposes, due to the unpredictable and violent

nature of persons intoxicated on PCP. I then requested for back-up units. When officers

went to detain Suspect

, he resisted arrest. While resisting arrest, Suspect

turned to me, took a deep inhale in, and spit on my face (see Response to

Resistance section for details on the resisting and the spitting incident).

Once Suspect

was detained, we had to lift him up and place him onto the sidewalk

to get him out of the middle of the roadway. Officers continued to keep Suspect

on the ground, but ensured he was laying on his side to prevent asphyxiation. Officers

positively identified Suspect

by his Texas Identification Card. Officer Segura

and I attempted to search Suspect

's persons for any weapons and/or contraband and

we did not locate any. We both searched his person due to officer safety reasons.

I requested HFD to the scene, along with a supervisor. HFD engine 68 arrived on scene to

ensure Suspect

was medically cleared. They determined that Suspect

would

need to be transported to the hospital due to his

.

Sergeant Rose arrived on scene and was advised of the incident. Sergeant Rose authorized

us to request for resisting arrest charges on Suspect

, along with Harassment of a

Public Servant. I contacted DA Intake and spoke with ADA Ortiz. I requested ADA Ortiz to

accept charges for Harassment on a Public Servant and Resisting Arrest, and if not

Resisting Arrest, then Interfering with Public Duties. ADA Oritz accepted charges for

Harassment on a Public Servant and declined charges for Resisting Arrest and/or

Interfering with Public Duties. ADA Ortiz advised that the reason she declined Resisting

Arrest and Interfering with Public Duties is because the probable court judges would

throw out the charge and get angry with DA Intake for accepting either one.

I conducted a standard persons' check on Suspect

and he returned with one warrant

hit for a City of Houston municipal warrant. Due to the RMS servers being down, I

contacted City Warrant Verification and they confirmed one verified City of Houston

municipal warrant on Suspect

.

************************** RESPONSE TO RESISTANCE **************************
Report Officer
160193 / KELLEY, A

Printed At
04/02/2020 14:48

Page 7 of 9

Case 4:19-cv-00226 Document 67-5 Filed on 04/06/20 in TXSD Page 1 of 3

CertifiedDocumentNumber:23031019-Page1of2

Case 4:19-cv-00226 Document 67-5 Filed on 04/06/20 in TXSD Page 2 of 3

CertifiedDocumentNumber:23031019-Page2of2

Case 4:19-cv-00226 Document 67-5 Filed on 04/06/20 in TXSD Page 3 of 3

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 2, 2020

Certified Document Number:

23031019 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-6 Filed on 04/06/20 in TXSD Page 1 of 3

-Page1of2

CertifiedDocumentNumber:

Case 4:19-cv-00226 Document 67-6 Filed on 04/06/20 in TXSD Page 2 of 3

-Page2of2

CertifiedDocumentNumber:

Case 4:19-cv-00226 Document 67-6 Filed on 04/06/20 in TXSD Page 3 of 3

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 2, 2020

Certified Document Number:

22565109 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-7 Filed on 04/06/20 in TXSD Page 1 of 1

ge1of2

CertifiedDocumentNumber:

Case 4:19-cv-00226 Document 67-8 Filed on 04/06/20 in TXSD REPORTING OFFICER NARRATIVE

Humble Police Department

Victim
Society

Offense
UNLAWFUL POSSESSION OF FIREARM

Page 1 of 1
OCA 19-005726
Date / Time Reported
Mon 12/02/2019 19:31

THE INFORMATION BELOW IS CONFIDENTIAL - FOR USE BY AUTHORIZED PERSONNEL ONLY

INTRODUCTION:

ON THIS DATE, 12/02/2019 AT APPROXIMATELY 1931 HOURS, I, OFFICER OLVERA #131, AND OFFICER LANDRUM #167 WERE CONTACTED BY OUR SUPERVISOR, SGT MARTIN #107, WHO ADVISED HE OBSERVED A SUSPICIOUS VEHICLE IN THE HOME DEPOT PARKING LOT LOCATED AT 20360 US HWY 59, HUMBLE, HARRIS COUNTY, TEXAS.

I OBSERVED THE SUSPICIOUS VEHICLE, A BLACK 2015 NISSAN ALTIMA BEARING THE PAPER TAG

NUMBER

, TRAVEL FROM ONE END OF THE PARKING LOT TO THE OTHER AND BEGIN TO

TURN ONTO THE US HWY 59 NORTH BOUND SERVICE ROAD WHEN THE VEHICLE STOPPED BEFORE

ENTERING THE ROADWAY.

THE WEATHER WAS CLEAR AND WARM, VISIBILITY WAS GOOD DUE TO THE NIGHT TIME

ARTIFICIAL LIGHTING. UPON ARRIVAL I MADE CONTACT WITH THE DRIVER,

, WHO

ADVISED HE HAD APPROXIMATELY ONE ALCOHOLIC BEVERAGE APPROXIMATELY 8 HOURS

BEFORE OPERATING HIS MOTOR VEHICLE AND WAS OBSERVED TO HAVE AN OPEN CONTAINER OF

BEER IN THE CENTER CONSOLE.

AFTER FURTHER INVESTIGATION I FOUND THE SUSPECT TO BE INTOXICATED TO THE DEGREE HE LOST THE NORMAL USE OF HIS MENTAL AND/OR PHYSICAL FACULTIES AND THEREFORE, WAS SUBSEQUENTLY ARRESTED FOR DRIVING WHILE INTOXICATED.

THE PASSENGER,

, WAS FOUND TO HAVE 4 HUMBLE WARRANTS AND WAS

SUBSEQUENTLY ARRESTED FOR SUCH. DURING AN INVENTORY OF THE SUSPECT VEHICLE A

LOADED GLOCK 23 WAS LOCATED IN A CONSOLE COMPARTMENT LOCATED ON THE RIGHT

DRIVER SIDE FLOORBOARD. BOTH SUSPECTS WERE THEN ARRESTED FOR UNLAWFUL

POSSESSION OF A FIREARM (FELON) DUE TO BOTH HAVING FELONY CONVICTIONS ON THEIR

CRIMINAL HISTORY.

SCENE:
HOME DEPOT HAS A PHYSICAL ADDRESS OF 20360 US HWY 59 AND IS LOCATED INSIDE THE INCORPORATED CITY LIMITS OF HUMBLE, HARRIS COUNTY, TEXAS.
UPON ARRIVAL OFFICERS SMELLED A STRONG ODOR OF ALCOHOL AND MARIJUANA EMITTING FROM THE VEHICLE. DURING AN INVENTORY AN OPEN CONTAINER OF BEER WAS LOCATED IN THE SUSPECT VEHICLE`S CENTER CONSOLE.

EVIDENCE:

1.) BLOOD KIT 2.) GLOCK 23 SERIAL NUMBER BCKY436 3.) (14) 40. CAL ROUNDS OF AMMUNITION 4.) GLOCK 23 MAGAZINE

Reporting Officer: OLVERA, A. R_CS3NC

Printed By: 267, PDWKST84 01/29/2020 13:50

Page 3

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 1 of 11

-Page1of2

CertifiedDocumentNumber:

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 2 of 11

-Page2of2

CertifiedDocumentNumber:

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 3 of 11

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 2, 2020

Certified Document Number:

70698706 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 4 of 11

-Page1of1

CertifiedDocumentNumber:

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 5 of 11

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 2, 2020

Certified Document Number:

53029274 Total Pages: 1

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 6 of 11

CertifiedDocumentNumber: 127 -Page1of2

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 7 of 11

CertifiedDocumentNumber: 127

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 8 of 11

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 2, 2020

Certified Document Number:

53127555 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 9 of 11

-Page1of2

CertifiedDocumentNumber:

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 10 of 11

-Page2of2

CertifiedDocumentNumber:

Case 4:19-cv-00226 Document 67-9 Filed on 04/06/20 in TXSD Page 11 of 11

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 2, 2020

Certified Document Number:

39416731 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-10 Filed on 04/06/20 in TXSD Page 1 of 1

-Page1of2

CertifiedDocumentNumber:

Case 4:19-cv-00226 Document 67-11 Filed on 04/06/20 in TXSD Page 1 of 2

HOUSTON POLICE DEPARTMENT

148986418

Aggravated Assault Investigation

Case Synopsis:

On the 25th day of November, 2018, Patrol Officers responded to an alleged Aggravated

Assault With a Deadly Weapon in the

block of

in Houston, Harris

County, Texas

. Officer Stavinoha assigned to

ol Division

generated the original report. In his report, Officer Stavinoha reported the Complainant

and her friends attempted to make a drug transaction with the listed Suspect. During

negotiation, the Complainant stated she did not like how the situation looked, so she

told her friend to drive off. The Complainant stated as they were driving off, the

Suspect shot at them several times shattering the back window of the vehicle. The

Complainant stated she and her friends drove to her house and parked the vehicle. As they

were standing outside the house, the Suspect then drove up and shot several times

striking the house and vehicles at the location. Officer Stavinoha reported he canvassed

the area and located evidence that may assist with this investigation. He also reported

he collected video surveillance footage, and a possible photo of the Suspect. Officer

Stavinoha reported he tagged those items in the Houston Police Department Property Room

for safe keeping.

Follow up investigation:

On the 19th day of December, 2018, I conducted a criminal history check on all parties involved in this investigation by using all accessible law enforcement databases. I placed this information with the case file.

Criminal History Check

Complainant was found to be clear of wants / warrants at this time

Witness was found to be clear of wants / warrants at this time

Witness was found to be clear of wants / warrants at this time

Report Officer
156678 / VINCENT, E S

Printed At
04/03/2020 14:25

Page 2 of 3

Case 4:19-cv-00226 Document 67-11 Filed on 04/06/20 in TXSD Page 2 of 2

HOUSTON POLICE DEPARTMENT

7507019

Officer Beveridge and I observed the suspicious activity and multiple traffic violations. After Officer Beveridge saw the suspicious plate hit in an Agg. Robbery report supplemented the same day 1-17-19, we advised other Officers with MW CST to come to our location before we initiated the traffic stop in case the vehicle fled. I intiated lights and sirens around 10500 US 59 S Fwy and the vehicle motioned to exit Bissonnet St exit. Officer Beveridge and I activated our city issued BWC's. Once exiting the suspect vehicle began to accelerate at a high rate of speed south. Officer Beveridge began to call the chase and the vehicle cut through the parking lot of a strip center along Wilcrest and the US 59 S service Rd. The vehicle fled northbound on Wilcrest eluding several vehicles and running multiple red lights along Wilcrest northbound. The suspect vehicle almost struck several pedestrian vehicles crossing through the intersection and nearly missing them going at excess speeds of 100+mph. The suspect vehicle continued to flee and we stayed close to the vehicle until hitting a bump at the intersection of Bissonnet / Wilcrest.
Our police vehicle began to lose speed and the suspect vehicle was able to pull away to where it was difficult to see the back lights. The suspect vehicle then made a sharp turn eastbound along Bexley Dr. I had to U-turn my police vehicle back into the neighborhood where we last saw the suspect vehicle. Officer Garza and Nguyen, 91G30 advised that 4 suspects were observed sprinting WB from 8500 Maplecrest Dr. Officer Garza and Nguyen were able to chase down and gain custody of suspect-Joseph Ortuno who was wearing a black backpack. Inside the backpack multiple narcotics were found inside (Xanax, Ecstacy, and Marijuana all individually wrapped). Through my knowledge and experience and in the way the items were packaged and appeared, they were intended for selling. Often drug dealers separate and make individual narcotics bagged for sale for small denominations of bills. See Officer Cole's supplement for further details. The suspect was placed in a shop while Officers quickly made a perimeter around the area. Where the suspects were last seen running from was when we discovered the suspect vehicle to be parked and unoccupied.
FOX and K-9 arrived on our scene and assisted in the search for the other outstanding suspects. I assisted K-9 Officer Ortiz but we were unable to locate the other suspects. Officers then regrouped near the suspect vehicle and searched the vehicle for evidence. We located several items in which were tagged as evidence. While on scene, I advised CRU Officers to head to the registered owner address before they spoke with the mother of the PS#2 and PS#3. I was able to learn that the registered owner of the vehicle left the vehicle with her 2 sons to whom she gave the keys too the night of 1-17-19. She advised those Officers that her sons had not yet returned home and that they were the only occupants. It was also later learned that the suspects had thrown firearms from the vehicle. The firearms were recovered and 1 was found to be confirmed stolen (See Officer Byland's supplement).
Officers were later able to confirm the identities of the possible suspects through multiple pictures found from within the vehicle (see Officer Bylands supplement for evidence tagged). I notified Sgt. K. Li of vehicle pursuit. While on scene, I got a time check for a dead body camera from NW Dispatch. I contacted DA intake relaying the facts of the case. ADA Kelley-Henry accepted charges for PCS w/ Intent to Deliver PG2 on the suspect-Ortuno. We took custody of the suspect and the narcotics. The narcotics were then given to Officer Cole to tag. After the scene was completed and the search was called off, I arranged to interview the suspect-Ortuno to see if he would speak. He invoked his right to counsel and the interview was terminated (see suspect statements below).
Officer Beveridge and I then transported and booked the suspect-Ortuno into SE jail. I completed the DIMS and this original report. Officer Beveridge is completing the supplement to the Agg. Robbery investigation. Further follow up will be conducted by MW CST Officers.
***GANG AFFILIATION***

Report Officer
151123 / JARBOE, C V

Printed At
04/03/2020 14:52

Page 9 of 11

Case 4:19-cv-00226 Document 67-12 Filed on 04/06/20 in TXSD Page 1 of 5

CertifiedDocumentNumber:83478267-Page1of2

Case 4:19-cv-00226 Document 67-12 Filed on 04/06/20 in TXSD Page 2 of 5

CertifiedDocumentNumber:83478267-Page2of2

Case 4:19-cv-00226 Document 67-12 Filed on 04/06/20 in TXSD Page 3 of 5

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

83478267 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-12 Filed on 04/06/20 in TXSD Page 4 of 5

CertifiedDocumentNumber:834 483 -Page1of1

Case 4:19-cv-00226 Document 67-12 Filed on 04/06/20 in TXSD Page 5 of 5

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

83494839 Total Pages: 1

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-13 Filed on 04/06/20 in TXSD Page 1 of 3
Pgs-2
OTRREP (999-
OTPCIH (998-
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Case 4:19-cv-00226 Document 67-13 Filed on 04/06/20 in TXSD Page 2 of 3

CertifiedDocumentNumber:83498844-Page2of2

Case 4:19-cv-00226 Document 67-13 Filed on 04/06/20 in TXSD Page 3 of 3

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

83498844 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-14 Filed on 04/06/20 in TXSD Page 1 of 2

CertifiedDocumentNumber:84676588-Page1of2

Case 4:19-cv-00226 Document 67-14 Filed on 04/06/20 in TXSD Page 2 of 2

CertifiedDocumentNumber:84676587-Page1of

Case 4:19-cv-00226 Document 67-15 Filed on 04/06/20 in TXSD Page 1 of 1

Case 4:19-cv-00226 Document 67-16 Filed on 04/06/20 in TXSD Page 1 of 2

CertifiedDocumentNumber:83500847-Page1of1

Case 4:19-cv-00226 Document 67-16 Filed on 04/06/20 in TXSD Page 2 of 2

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

83500847 Total Pages: 1

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-17 Filed on 04/06/20 in TXSD Page 1 of 3
Pgs-2
OTRREP (999-
OTPCIH (998-
OTMSW (999OTFAF (998-
OTCMIF (999)

CertifiedDocumentNumber:83500673-Page1of2

Case 4:19-cv-00226 Document 67-17 Filed on 04/06/20 in TXSD Page 2 of 3

CertifiedDocumentNumber:83500673-Page2of2

Case 4:19-cv-00226 Document 67-17 Filed on 04/06/20 in TXSD Page 3 of 3

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

83500673 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-18 Filed on 04/06/20 in TXSD Page 1 of 3
Pgs-2
TOXE (996DISENT (999DIJDG (999)

CertifiedDocumentNumber:84266376-Page1of2

Case 4:19-cv-00226 Document 67-18 Filed on 04/06/20 in TXSD Page 2 of 3

CertifiedDocumentNumber:84266376-Page2of2

Case 4:19-cv-00226 Document 67-18 Filed on 04/06/20 in TXSD Page 3 of 3

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

84266376 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-19 Filed on 04/06/20 in TXSD Page 1 of 6

CertifiedDocumentNumber:83494828-Page1of1

Case 4:19-cv-00226 Document 67-19 Filed on 04/06/20 in TXSD Page 2 of 6

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

83494828 Total Pages: 1

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-19 Filed on 04/06/20 in TXSD Page 3 of 6

CertifiedDocumentNumber:8 31 81-Page1of1

Case 4:19-cv-00226 Document 67-19 Filed on 04/06/20 in TXSD Page 4 of 6

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

85631681 Total Pages: 1

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-19 Filed on 04/06/20 in TXSD Page 5 of 6

CertifiedDocumentNumber:8 41 48 -Page1of1

Case 4:19-cv-00226 Document 67-19 Filed on 04/06/20 in TXSD Page 6 of 6

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

87417487 Total Pages: 1

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-20 Filed on 04/06/20 in TXSD Page 1 of 9
Pgs-2
OTRREP (999-
OTPCIH (998-
OTMSW (999-
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CertifiedDocumentNumber:83511617-Page1of2

Case 4:19-cv-00226 Document 67-20 Filed on 04/06/20 in TXSD Page 2 of 9

CertifiedDocumentNumber:83511617-Page2of2

Case 4:19-cv-00226 Document 67-20 Filed on 04/06/20 in TXSD Page 3 of 9

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

83511617 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-20 Filed on 04/06/20 in TXSD Page 4 of 9
Pgs-2
OTRREP (998-
OTPCIH (998-
OTMSW (999OTFAF (997-
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CertifiedDocumentNumber:856328 2-Page1of2

Case 4:19-cv-00226 Document 67-20 Filed on 04/06/20 in TXSD Page 5 of 9

CertifiedDocumentNumber:856328 2-Page2of2

Case 4:19-cv-00226 Document 67-20 Filed on 04/06/20 in TXSD Page 6 of 9

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

85632842 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-20 Filed on 04/06/20 in TXSD Page 7 of 9

CertifiedDocumentNumber:87 2 271-Page1of2

Case 4:19-cv-00226 Document 67-20 Filed on 04/06/20 in TXSD Page 8 of 9

CertifiedDocumentNumber:87 2 271-Page2of2

Case 4:19-cv-00226 Document 67-20 Filed on 04/06/20 in TXSD Page 9 of 9

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

87420271 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-21 Filed on 04/06/20 in TXSD Page 1 of 2

CertifiedDocumentNumber:83678656-Page1of2

Case 4:19-cv-00226 Document 67-21 Filed on 04/06/20 in TXSD Page 2 of 2

CertifiedDocumentNumber:857 1 -Page1of2

Case 4:19-cv-00226 Document 67-22 Filed on 04/06/20 in TXSFDiledP2a0gMe a1rcohf065P3:24
MarilynBurgess-DistrictClerk HarrisCounty
Pgs-2 OTMAJ (001)

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Case 4:19-cv-00226 Document 67-22 Filed on 04/06/20 in TXSD Page 2 of 6

CertifiedDocumentNumber:89751300-Page2of2

Case 4:19-cv-00226 Document 67-22 Filed on 04/06/20 in TXSD Page 3 of 6

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

89751300 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-22 Filed on 04/06/20 in TXSFDiledP2a0gMe a4rcohf065P3:24
MarilynBurgess-DistrictClerk HarrisCounty
Pgs-2 OTMAJ (001)

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Case 4:19-cv-00226 Document 67-22 Filed on 04/06/20 in TXSD Page 5 of 6

CertifiedDocumentNumber:8975129 -Page2of2

Case 4:19-cv-00226 Document 67-22 Filed on 04/06/20 in TXSD Page 6 of 6

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

89751294 Total Pages: 2

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-23 Filed on 04/06/20 in TXSD Page 1 of 2

CertifiedDocumentNumber:89804370-Page1of1

Case 4:19-cv-00226 Document 67-23 Filed on 04/06/20 in TXSD Page 2 of 2

I, Marilyn Burgess, District Clerk of Harris County, Texas certify that this is a true and correct copy of the original record filed and or recorded in my office, electronically or hard copy, as it appears on this date. Witness my official hand and seal of office this April 3, 2020

Certified Document Number:

89804370 Total Pages: 1

Marilyn Burgess, DISTRICT CLERK HARRIS COUNTY, TEXAS

In accordance with Texas Government Code 406.013 electronically transmitted authenticated documents are valid. If there is a question regarding the validity of this document and or seal please e-mail support@hcdistrictclerk.com

Case 4:19-cv-00226 Document 67-24 Filed on 04/06/20 in TXSD Page 1 of 1

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

DWIGHT RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants.

§

Case No. 4:19-cv-00226

ORDER DENYING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION REGARDING EXECUTIVE ORDER GA 13

Before the Court is Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction Regarding Executive Order GA 13. After consideration of the motion and all responses thereto, the Court is of the opinion that the motion does not have merit and should be DENIED.
IT IS THEREFORE ORDERED that Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction is DENIED.

SIGNED on this the ______ day of _________________, 2020.

LEE H. ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE

 
 Case 4:19-cv-00226 Document 104 Filed on 04/09/20 in TXSD Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

PLAINTIFFS’ NOTICE OF NEW AUTHORITY

Plaintiffs file this Notice to alert the Court to a case decided today by the Nevada Supreme

Court, which sets forth the substantive findings and procedural safeguards the federal Constitution

requires be provided at an individualized bail hearing to justify an order of detention. See Exhibit

A (Valdez-Jimenez v. Frye, No. 76417 (Apr. 9, 2020)). The ruling is fully consistent with and

affirms Plaintiffs’ legal arguments in this case. See Dkt. 32 (Plaintiffs’ Motion for Temporary

Restraining Order).

Date: April 9, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Mimi Marziani Mimi Marziani (Pro Hac Vice)

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002

Case 4:19-cv-00226 Document 104 Filed on 04/09/20 in TXSD Page 2 of 3

Texas State Bar No. 24091906 Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 Meagan T. Harding Texas State Bar No. 24080179 Southern District No. 3365526 Texas Civil Rights Project 405 N Main St, Suite 716 Houston, TX 77002 Phone: 512-474-5073 ext 118 liyah@texascivilrightsproject.org mimi@texascivilrightsproject.org meagan@texascivilrightsproject.org

Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100

Case 4:19-cv-00226 Document 104 Filed on 04/09/20 in TXSD Page 3 of 3
CERTIFICATE OF SERVICE I certify that on April 9, 2020 a true and correct copy of this document properly was served on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas Procedures for Electronic Filing.
/s/ Elizabeth Rossi Elizabeth Rossi

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136 Nev., Advance Opinion 2.0
IN THE SUPREME COURT OF THE STATE OF NEVADA

JQSE VALDEZ-JIMENEZ, Petitioner, vs. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE MARK B. BAILUS, DISTRICT JUDGE, Respondents,
and THE STATE OF NEVADA, Real Party in Interest.
AARON WILLARD FRYE, Petitioner, vs. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE JERRY A. WIESE, DISTRICT JUDGE, Respondents,
and THE STATE OF NEVADA, Real Party in Interest.

No. 76417
FILED
APR 0 9 2f320
No. 76845

Original petitions for writs of mandamus challenging district court orders denying pretrial motions to reduce or vacate bail.
Petitions denied.
Darin F. Imlay, Public Defender, and Nancy M. Lemcke and Christy L. Craig, Deputy Public Defenders, Clark County; Civil Rights Corps and Charles Lewis Gerstein, Alec George Karakatsanis, and Olevia Boykin, Washington, D.C., for Petitioners.
zy-1315-2=

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Aaron D. Ford, Attorney General, Carson City; Steven B. Wolfson, District Attorney, and Alexander G. Chen and Krista D. Barrie, Chief Deputy District Attorneys, Clark County, for Real Parties in Interest.
Armstrong Teasdale LLP and Tracy A. DiFillippo, Las Vegas, for Amicus Curiae American Bail Coalition. Law Office of Franny Forsman and Franny Forsman, Las Vegas, for Amicus Curiae National Law Professors of Criminal, Procedural, and Constitutional Law.
Law Office of Lisa Rasmussen and Lisa Rasmussen, Las Vegas, for Amicus Curiae Social Scientists.
BEFORE THE COURT EN BANC.
OPINION By the Court, HARDESTY, J.:
We are asked to consider what process is constitutionally required when a district court sets bail in an amount that the defendant cannot afford, resulting in pretrial detention. Though the bail issue is moot because petitioners have been convicted and are no longer subject to pretrial detention, we nevertheless elect to reach the issue because it is a matter of public importance and is capable of repetition but evading review.
The right to reasonable bail is gt.iaranteed by the Nevada Constitution for individuals who commit offenses other than capital offenses or first-degree murder. Bail serves the important function of allowing a defendant to be released pending trial while at the same time ensuring that he or she will appear at future proceedings and will not pose
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a danger to the community. When bail is set in an amount the defendant cannot afford, however, it deprives the defendant of his or her liberty and all its attendant benefits, despite the fact that he or she has not been convicted and is presumed innocent. To safeguard against pretrial detainees sitting in jail simply because they cannot afford to post bail, we conclude that the following due process protections are constitutionally required.
A defendant who remains in custody following arrest is constitutionally entitled to a prompt individualized determination on his or her pretrial custody status. The individualized determination must be preceded by an adversarial hearing at which the defendant is entitled to present evidence and argument concerning the relevant bail factors. The judge must consider the factors set forth in NRS 178.4853 and may impose bail only if the State proves by clear and convincing evidence that it is necessary to ensure the defendant's presence at future court proceedings or to protect the safety of the community, including the victim and the victim's family. If the district court determines that bail, rather than nonmonetary conditions, is necessary, the judge must consider the defendant's financial resources as well as the other factors set forth in NRS 178.498 in setting the amount of bail, and the judge must state his or her reasons for the bail amount on the record. Accordingly, we elect to entertain the writ petitions, but we deny the petitions because there is no relief we can provide to petitioners.
FACTS AND PROCEDURAL HISTORY Petitioners Aaron Frye and Jose Valdez-Jimenez were arrested and charged with felony offenses. Bail was set for each petitioner in the justice court. Rather than proceed by criminal complaint in the justice court, the State obtained an indictment from a grand jury. Upon the
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indictment returns, the district court set bail in the amount requested by the State. For Frye, bail was set in the amount of $250,000 based on the States representation that he was already in custody on that amount, and for Valdez-Jimenez, bail was set in the amount of $40,000, the amount on which he was in custody in another case. Neither petitioner was present at the indictment return. Each petitioner was later arraigned in district court and subsequently filed a motion to vacate or reduce the bail amount. In their motions, petitioners contended that the bail amounts were excessive and that the bail process violated their right to due process and equal protection. Relying on United States v. Salerno, 481 U.S. 739 (1987), they argued that setting bail in an amount they could not afford was tantamount to a detention order, and therefore, before the district court could set such bail, it was required to hold an adversarial hearing at which it considered their financial ability to pay and the State proved that bail was the least restrictive means of ameliorating any risk of flight or danger to the community.
The district court held hearings on the motions and denied them. In denying Fryes motion, the district judge, who was not the judge who set bail on the indictment warrant, indicated that its role was limited to determining whether the bail amount was an abuse of discretion:
Bond was previously set by a competent judge. I don't find there was any abuse of discretion. In order to assure the defendant is present in court and to protect the community, and the other things that are considered under the various statutes dealing with the amount of bond, I don't find that an amount of $250,000 is unreasonable. The district court added, "The only thing that's before me today is whether or not the $250,000 bail that was set by a different judge was wrong; okay.
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I can't find that it was wrong. Would I have imposed the same amount of bail? I don't know."
The district judge who considered and denied Valdez-Jimenez's motion found that Nevada's statutory scheme, and not Salerno, controlled and required that good cause be shown before an accused could be released without bail. The judge stated that, in denying the motion, he had considered the statutory factors for release with bail and without bail, but the judge did not discuss those factors or otherwise explain the basis for the bail amount.
Both defendants filed a petition for a writ of mandamus in this court challenging the bail process and decisions. We elect to consolidate these petitions for disposition. Cf. NR.AP 3(b)(2).
DISCUSSION We elect to entertain the petitions for a writ of mandamus
A writ of mandamus is appropriate "to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station or to control an arbitrary or capricious exercise of discretion." Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (footnote omitted). Because a writ of mandamus is an extraordinary remedy, it is within our complete discretion whether to consider it. Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 (2008). Writ relief is generally available only in "cases where there is not a plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170.

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"We note that Frye's petition is entitled alternatively as a petition for a writ of habeas corpus, but in light of this opinion, the request for habeas relief is denied.
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Since filing their petitions, both Frye and Valdez-Jimenez have pleaded guilty and are no longer subject to pretrial detention. The State therefore contends that the petitions should be denied because the issues have been rendered moot. However, petitioners contend that the constitutional issues raised by their bail proceedings are important and will likely arise again but evade review. We agree with petitioners.
As a general rule, this court will decline to hear a moot case. See Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010). That general rule comports with our duty "to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles of law which cannot affect the matter in issue before it." NCAA v. Univ. of Nev., 97 Nev. 56, 57, 624 P.2d 10, 10 (1981). Therefore, "a controversy must be present through all stages of the proceeding, and even though a case may present a live controversy at its beginning, subsequent events may render the case moot." Personhood Nev., 126 Nev. at 602, 245 P.3d at 574 (citations omitted).
Even where a case is moot, however, this court "may consider it if it involves a matter of widespread importance that is capable of repetition, yet evading review." Id. The party seeking to overcome mootness must prove "that (1) the duration of the challenged action is relatively short, (2) there is a likelihood that a similar issue will arise in the future, and (3) the matter is important." Bisch v. Las Vegas Metro. Police Dep't, 129 Nev. 328, 334-35, 302 P.3d 1108, 1113 (2013).
The issues presented here are within the exception to the mootness doctrine. First, given the time restraints inherent in criminal cases, most bail orders are short in duration and the issues concerning bail
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and pretrial detention become moot once the case is resolved by dismissal, guilty plea, or trial.2 See Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975) ("Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted.").
As to the second requirement—"a likelihood that a similar issue will arise in the future"—we take this opportunity to clarify that this does not necessitate the similar issue to recur with respect to petitioners personally. As the dissent highlights, federal law requires "a reasonable expectation that the same complaining party will be subjected to the same action again" in order to satisfy the capable-of-repetition-yet-evadingreview exception to the mootness doctrine. United States v. Sanchez-Gomez,
U.S. „ 138 S. Ct. 1532, 1540 (2018) (emphasis added). But Nevada courts are not bound by the federal standard for determining mootness. See State v. Glusrnan, 98 Nev. 412, 418, 651 P.2d 639, 643 (1982) (recognizing that it is within this court's inherent discretion "to consider issues of substantial public importance which are likely to recur," despite any intervening events that have rendered the matters moot). And our jurisprudence has implicitly rejected "the same complaining party"

SUPREME COURT OF
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2The dissent disagrees and cites several decisions by this court to argue that challenges to bail proceedings do not evade review. But the dissent ignores that two of the cases were resolved on mootness grounds because the defendant had already been released, see Black v. Eighth Judicial Dist. Court, Docket No. 76472 (Order Denying Petition, Sept. 14, 2018); Sherard v. Eighth Judicial Dist. Court, Docket No. 76398 (Order Denying Petition, Sept. 14, 2018), and the other case involved the district court's application of bail statutes and not the more complicated constitutional questions raised here, see Cameron v. Eighth Judicial Dist. Court, 135 Nev. 214, 445 P.3d 843 (2019).
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requirement, instead focusing on whether the issues raised by the party are likely to recur under similar circumstances. See, e.g., Solid v. Eighth Judicial Dist. Court, 133 Nev. 118, 120, 393 P.3d 666, 670 (2017) (reviewing petitioner's challenge to his criminal trial where, although his conviction rendered the issue moot, the same issue was likely to recur in other criminal trials); Haney v. State, 124 Nev. 408, 410-11, 185 P.3d 350, 352 (2008) ("Although our ruling in this case will not benefit Haney directly because his sentence has expired, we nonetheless address the legal questions presented because they are capable of repetition, yet evading review."); Miller v. State, 113 Nev. 722, 724 n.1, 941 P.2d 456, 458 n.1 (1997) (noting that defendants sentencing claims warranted review even if "moot because they challenge an activity that is capable of repetition yet evades review"); Binegar v. Eighth Judicial Dist. Court, 112 Nev. 544, 548, 915 P.2d 889, 892 (1996) (concluding that though petitioner's claim was moot, review was appropriate because the issue of the constitutionality of the statute was capable of repetition).
The dissent's strict reliance on federal law ignores our precedent defining the contours of our mootness exception.3 Though the

3We are not unique in allowing this "capable of repetition" factor to be met even where the issue is not likely to recur with respect to the same complaining party. See, e.g., In re Webb, 440 P.3d 1129, 1131 (Cal. 2019) (addressing bail issue, which was moot as to the defendant, because it was an important issue likely to recur); Dutkiewicz v. Dutkiewicz, 957 A.2d 821, 828 (Conn. 2008) (recognizing mootness exception where there is "a reasonable likelihood that the question presented in the pending case will arise again in the future, and that it will affect either the same complaining party or a reasonably identifiable group for whom that party can be said to act as surrogate (internal quotation marks omitted)); State v. Mercedes, 183 A.3d 914, 924 (N.J. 2018) (reviewing moot pretrial detention issue that

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dissent suggests that our three-factor test in Bisch presents an inexplicable departure from the federal mootness exception, our jurisprudence reveals that Bisch did not alter our capable-of-repetition-yet-evading-review exception to the mootness doctrine but rather delineated the three factors that must be met. See, e.g., Traffic Control Servs., Inc. v. United Rentals Nw., Inc., 120 Nev. 168, 171-72, 87 P.3d 1054, 1057 (2004) (recognizing the exception applies when the duration of the challenged action is "relatively short" and there is a "likelihood that a similar issue will arise in the future); State v. Washoe Cty. Pub. Def., 105 Nev. 299, 301, 775 P.2d 217, 218 (1989) (explicitly recognizing the "capable of repetition, yet evading review" exception to address an important question of law). And while the dissent urges us not to apply our capable-of-repetition exception as set forth in Bisch, the dissent fails to provide any compelling reason for departing from our long-standing precedent. See Miller v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008) ("[U]nder the doctrine of stare decisis, we will not overturn [precedent] absent compelling reasons for so doing. Mere disagreement does not suffice." (footnotes omitted)).
To reiterate, the second factor of the mootness exception requires that the question presented is likely to arise in the future with respect to the complaining party or individuals who are similarly situated to the complainant. We conclude that petitioners have satisfied this
was "'capable of repetition in countless detention hearings yet may evade review if other defendants plead guilty before similar challenges can be resolved"); Saunders v. Hornecker, 344 P.3d 771, 775 (Wyo. 2015) (addressing challenge to bail where defendant had already been convicted because the issue was capable of repetition with respect to other defendants).
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requirement. Petitioners have provided documents from other criminal cases in which defendants have raised similar arguments before the justice court or district court about the process of setting bail. Because the constitutional issues concerning the inquiries and findings required for setting bail are relevant in many criminal cases, they will arise in the future.4
Finally, petitioners have demonstrated that these are issues of widespread importance, as they affect many arrestees and involve the constitutionality of Nevada's bail system. Deciding these issues would provide guidance to judges who are responsible for assessing an arrestee's custody status. Because the petitions raise legal questions of first impression and statewide importance that are likely to recur in other cases, we choose to consider the issues on the merits. See Archon Corp. v. Eighth Judicial Dist. Court, 133 Nev. 816, 822-23, 407 P.3d 702, 708 (2017) (permitting advisory mandamus "to address the rare question that is likely of significant repetition prior to effective review, so that our opinion would assist other jurists, parties, or lawyers" (internal quotation marks

SUPREME COURT OF
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4The dissent also contends that the questions raised in the petitions are unlikely to recur because Clark County has recently established an "Initial Appearance Court" and has also modified its bail and pretrial release procedures in response to the COVID-19 pandemic. While Clark County's Initial Appearance Court is laudable and a significant step toward addressing an arrestee's custody status in a timely manner, it applies solely to the Eighth Judicial District and is not available to all arrestees. And, any court order that was entered to address the pandemic is temporary in nature and would not permanently alter the process for pretrial release. The dissent further points out that the Legislature recently formed an interim committee to study and report on pretrial detention. Though legislative amendments warrant consideration, the issue here is whether the legislation as it exists today comports with constitutional requirements.
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omitted)). Furthermore, we conclude that a writ of mandamus is the appropriate vehicle for raising these issues, as petitioners have no other adequate remedy. See NRS 34.160; NRS 34.170. The constitutionality of the bail process
Petitioners challenge the process by which bail is set following an indictment. Petitioners argue that Nevada's statutory bail scheme and the district court's imposition of money bail in an amount they could not pay denied them substantive and procedural due process and equal protection under the Nevada and United States Constitutions. Petitioners argue that because unaffordable bail is equivalent to a pretrial detention order, and the liberty interest of an arrestee is a fundamental right, they were entitled to an adversarial hearing at which the State demonstrated that the amount of bail was necessary to further the States interests—i.e., to ensure the defendant's appearance in court and to protect the safety of the community. They contend that because Nevada's current statutory scheme for pretrial release makes money bail the presumption, requires the defendant to show good cause for release on nonmonetary conditions, and lacks procedural safeguards, it is unconstitutional. We review each of these contentions in turn.
Bail in an amount greater than necessary to ensure the defendant's appearance and the safety of the community is unconstitutional
Typically, a pretrial release decision is a matter within the sound discretion of the trial court. See In re Wheeler, 81 Nev. 495, 500, 406 P.2d 713, 716 (1965). However, the issues raised by the petitioners involve the meaning or applicability of constitutional provisions, which present questions of law we review de novo. Manning v. State, 131 Nev. 206, 20910, 348 P.3d 1015, 1017-18 (2015).

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Article 1, section 7 of the Nevada Constitution creates a right to bail before conviction: "All persons shall be bailable by sufficient sureties; unless for Capital Offenses or murders punishable by life imprisonment without possibility of parole when the proof is evident or the presumption great." Article 1, section 6 of the Nevada Constitution proscribes excessive bail, which we have explained means that "Nail must not be in a prohibitory amount, more than the accused can reasonably be expected under the circumstances to give, for if so it is substantially a denial of bail." Ex parte Malley, 50 Nev. 248, 253, 256 P. 512, 514 (1927) (quoting 6 C.J. Bail § 222 (1916)), rejected on other grounds by Wheeler, 81 Nev. 495, 406 P.2d 713. Thus, under our constitution, individuals such as petitioners, who are accused of committing noncapital, non-first-degree-murder offenses, have a right to bail in a reasonable amount. See id.; Wheeler, 81 Nev. at 498-99, 406 P.2d at 715.
The amount of bail that is reasonable will depend on the circumstances of the individual. However, because the right of an individual to reasonable bail before trial is a fundamental one, see Salerno, 481 U.S. at 750 (describing "the individual's strong interest in liberty" as "fundamentar), bail must not be in an amount greater than necessary to serve the States interests. As the United States Supreme Court said, "This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Stack v. Boyle, 342 U.S. 1, 4 (1951) (citation omitted); see also Salerno, 481 U.S. at 755 ("In our society liberty is the norm, and detention prior to trial . . . is the carefully limited exception.").
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The purpose of bail in Nevada is twofold: to ensure "the presence of one charged at all times when demanded," Malley, 50 Nev. at 253-55, 256 P. at 514, and to protect the community, including the victim and the victim's family, see Nev. Const. art. 1, § 8A(1)(c) (requiring consideration of the safety of the victim and the victim's family in setting bail). Thus, the right to release before trial is conditioned on adequate assurance that the defendant will appear at all court proceedings and that he or she will not be a danger to other persons. Accordingly, for bail to be reasonable, it must relate to one of these two purposes—to ensure the appearance of the accused at all stages of the proceedings or to protect the safety of the victim and the community. Otherwise, it will necessarily be excessive in violation of the Nevada Constitution's bail provisions.
Our conclusion that bail may be imposed only where necessary to ensure the defendant's appearance or to protect the community is also mandated by substantive due process principles. Because bail may be set in an amount that an individual is unable to pay, resulting in continued detention pending trial, it infringes on the individual's liberty interest. And given the fundamental nature of this interest, substantive due process requires that any infringement be necessary to further a legitimate and compelling governmental interest. Cf. Salerno, 481 U.S. at 746, 750 (stating that a government action violates substantive due process when it "interferes with rights implicit in the concept of ordered liberty" (internal quotation marks omitted)); Bearden v. Georgia, 461 U.S. 660, 668-69 (1983) (holding that due process and equal protection principles preclude a court from ordering a person incarcerated for failing to pay a fine or restitution "through no fault of his own" without first "considering whether adequate alternative methods of punishing the defendant are available). Thus, to
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comport with substantive due process, bail must be necessary to further the States compelling interests in bail—that is, to prevent the defendant from being a flight risk or a danger to the community.
Having established the substantive inquiries the district court must make in assessing a defendant's custody status before trial, we now turn to the procedural requirements attendant to that decision.
An individualized bail hearing must be held within a reasonable time after arrest for defendants who remain in custody
Petitioners challenge the procedure for setting bail following the return of an indictment. Nevada's statutes provide that upon return of an indictment, the district court may fix the amount of bail in the arrest warrant, NRS 173.155, and the arrested person shall be brought promptly before a magistrate for the purpose of admission to bail, NRS 173.195. Though petitioners contend that they should have been present and a hearing should have been held before bail was set in the arrest warrant, none of the cases they cite require such a conclusion. Rather, the United States Supreme Court decisions on which petitioners rely do not suggest that a hearing must be held before any detention can occur. See, e.g., Salerno, 481 U.S. at 747 (stating that an arrestee is entitled to "a prompe hearing under the federal Bail Reform Act). Furthermore, courts generally have recognized that an initial bail amount may be set pursuant to a standardized bail schedule, as long as the accused is given the opportunity soon after arrest to have an individualized determination where the accused's financial ability to pay is considered. See, e.g., Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018), cert. denied, U.S. , 139 S. Ct. 1446 (2019); ODonnell v. Harris Cty., 892 F.3d 147 (5th Cir. 2018); see also In re Humphrey, 228 Cal. Rptr. 3d 513, 540-41 (Ct. App. 2018), appeal pending, 417 P.3d 769 (Cal. 2018). Petitioners provide no authority
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requiring an adversarial hearing to be held before bail can be set in an arrest warrant. Thus, we conclude that the district court's initial bail setting in the post-indictment arrest warrant did not run afoul of the Nevada or United States Constitutions.
We recognize, however, that an accused is entitled to a prompt individualized hearing on his or her custody status after arrest. Generally, such a hearing occurs at the initial appearance, or arraignment. Though "[t]here is no statutory designation of a specific time within which an arraignment shall be held after the arrest of an accused under an indictment," this court presumes that an arraignment will be conducted within "a reasonable time." Tellis v. Sheriff of Clark Cty., 85 Nev. 557, 55960, 459 P.2d 364, 365 (1969). We have explained that one of the primary reasons for a speedy arraignment is to protect the defendant's "right to due process of law and to assure that he is not left to languish in jail." Id. at 559, 459 P.2d at 365. Accordingly, we stress that where a defendant remains in custody following indictment, he or she must be brought promptly before the district court for an individualized custody status determination.5 We next address what procedures are constitutionally required in making such a determination.

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5The State asserts that petitioners already received an individualized hearing in justice court, implying that they were not entitled to an individualized hearing in the district court. However, the bail proceedings and amount set in the justice court do not alleviate the need for an individualized determination in the district court following indictment. See Cameron, 135 Nev. at 216, 445 P.3d at 844 (noting that the district court is "not constrained by the justice court's bail determinatioe when a case is transferred to the district court as a result of a grand jury indictment and is not bound over from the justice court).

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Heightened procedural due process requirements apply when bail is set in an amount the defendant cannot afford
Petitioners contend that the current statutory bail scheme lacks sufficient procedural protections to ensure that bail is necessary and not excessive. In determining what procedural due process requires, it is helpful to review the process for setting bail in Nevada. In doing so, we stress that for many individuals who are arrested, bail will not be necessary. Where the defendant presents little to no flight risk or danger to the community, release on personal recognizance or nonmonetary conditions will likely be appropriate, in which case bail in any amount would be excessive. On the other hand, where the defendant has an extensive history of failing to appear for court proceedings and few ties to the community, bail will likely be necessary.
In order to determine whether bail is necessary, the district court should consider first whether, given the individual circumstances of the defendant, including his or her character and ties to the community, his or her criminal history, and the nature of and potential sentence for the alleged offenses, release on personal recognizance or subject to nonmonetary conditions would be sufficient to reasonably ensure the purposes of bail are met. See NRS 178.4853 (setting forth factors for the district court to consider in determining what pretrial release conditions should be imposed). If so, then no bail should be set, as any amount of bail would be excessive. But if, after a consideration of all of the relevant factors, the court finds that no combination of nonmonetary conditions would be sufficient to reasonably ensure the defendanes appearance or the safety of the community, then the court must determine the amount of bail that is necessary. For this determination, the court must take into consideration the defendant's financial resources as well as the other factors relevant to

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the purposes of bail. See NRS 178.498 (setting forth factors to consider in setting the amount of bail). Though there is no constitutional requirement that bail be in an amount the defendant can afford to pay, see Malley, 50 Nev. at 253-55, 256 P. at 514 (stating "a mere inability to procure bail in a certain amount does not of itself make such amount excessive"), consideration of how much the defendant can afford is essential to determining the amount of bail that will reasonably ensure his or her appearance and the safety of the community.
Petitioners challenge to this bail process focuses on the situation where the court imposes bail in an amount that is beyond the defendant's ability to pay, resulting in the defendant remaining in jail before trial. Relying heavily on Salerno, 481 U.S. 739, they argue that because bail in an amount a person cannot afford has the same result as a detention order, it necessitates heightened procedural due process protections.
In Salerno, the United States Supreme Court upheld the constitutionality of pretrial detention provisions in the Bail Reform Act of 1984, which allowed a federal court to detain an individual if no release conditions would reasonably ensure the safety of the community. Under those provisions, a judicial officer could order an arrestee detained only after holding "a full-blown adversary hearing," at which the defendant had the right to be represented by counsel and present evidence and the government proved by clear and convincing evidence "that no conditions of pretrial release can reasonably assure the safety of other persons and the community," and the judicial officer stated his or her findings of fact in writing. Id. at 742, 750. The Supreme Court found that the Bail Reform Act was constitutional because it was "narrowly focuse[dr on the
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government's overwhelming interest in crime prevention and provided extensive procedural safeguards, particularly the State's burden of proof by clear and convincing evidence. Id. at 750-51.
We agree with petitioners that when bail is set in art amount that results in continued detention, it functions as a detention order, and accordingly is subject to the same due process requirements applicable to a deprivation of liberty. Procedural due process requires that any government action depriving a person of liberty must I3e implemented in a fair manner." See id. at 746. We conclude that to ensure the accuracy of the court's bail assessment and to comport with procedural due process, additional procedural safeguards are necessary before bail may be set in an amount that results in continued detention. We find several protections identified by Salerno in the federal Bail Reform Act to be of particular importance in safeguarding against erroneous de facto detention orders. See United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991) (holding that a court may impose a financial condition the defendant cannot meet but, in such a situation, the court "must satisfy the procedural requirements for a valid detention order"); Hernandez v. Bennett-Haron, 128 Nev. 580, 587, 287 P.3d 305, 310 (2012) (stating that this court looks to federal precedent for guidance in determining what procedures satisfy due process).
First, as we stated earlier, when the State requests bail to be set following an indictment, the defendant is entitled to a prompt individualized hearing on his or her custody status. At the hearing, the defendant shall have the right to be represented by counsel and shall be afforded the right to testify and present evidence. See McCarty v. State, 132 Nev. 218, 222-24, 371 P.3d 1002, 1005-06 (2016) (discussing defendant's
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right to counsel at an initial appearance and during critical stages). Second, given the important nature of the liberty interest at stake, the State has the burden of proving by clear and convincing evidence that no less restrictive alternative will satisfy its interests in ensuring the defendant's presence and the community's safety. See Foucha v. Louisiana, 504 U.S. 71, 81 (1992) (holding that a state's confinement scheme for individuals found to be not guilty by reason of insanity violated due process because it did not provide for an adversarial hearing at which the State proved by clear and convincing evidence that the individual presented a danger to the community); Santosky v. Kramer, 455 U.S. 745, 756 (1982) ("This Court has mandated an intermediate standard of proof—`clear and convincing evidence'—when the individual interests at stake in a state proceeding are both 'particularly important and 'more substantial than mere loss of money.'" (quoting Addington v. Texas, 441 U.S. 418, 424-25 (1979))). And third, the district court must make findings of fact and state its reasons for the bail decision on the record. Transcribed oral findings will satisfy this requirement as long as those findings provide a sufficient basis for the decision. Cf. United States v. Sesma-Hernandez, 253 F.3d 403, 405-06 (9th Cir. 2001).
Lastly, we consider petitioners' constitutional challenge to NRS 178.4851(1), which requires a showing of "good cause" before a person may be released without bail.6 We agree that this "good cause" requirement to
6NRS 178.4851(1) states: Upon a showing of good cause, a court may release without bail any person entitled to bail if it appears to the court that it can impose conditions on the person that will adequately protect the health, safety and welfare of the community and ensure that the person will appear at all times and places ordered by the court.
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release a person on nonmonetary conditions undermines the constitutional right to nonexcessive bail, as it excuses the court from considering less restrictive conditions before determining that bail is necessary. Furthermore, it effectively relieves the State of its burden of proving that bail is necessary to ensure the defendant's appearance or protect the community. Accordingly, we conclude that the "good cause requirement in NRS 178.4851(1) is unconstitutional. Because the remaining portion of the statute may be given legal effect and accords with the legislative intent that an individual may be released without bail if other nonmonetary conditions are sufficient, the "good cause" language may be severed from NRS 178.4851(1). See Cty. of Clark v. City of Las Vegas, 92 Nev. 323, 336-37, 550 P.2d 779, 788 (1976) (setting forth the severability test).
CONCLUSION When bail is set at an amount greater than necessary to serve the purposes of bail, it effectively denies the defendant his or her rights under the Nevada Constitution to be "bailable by sufficient sureties" and for bail not to be excessive. Thus, bail may be imposed only where it is necessary to reasonably ensure the defendant's appearance at court proceedings or to protect the commimity, including the victim and the victim's family. Because of the important liberty interest at stake when bail has the effect of detaining an individual pending trial, we hold that a defendant who remains in custody after arrest is entitled to an individualized hearing at which the State must prove by clear and convincing evidence that bail, rather than less restrictive conditions, is necessary to ensure the defendant's appearance at future court proceedings or to protect the safety of the community, and the district court must state

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its findings and reasons for the bail decision on the record. Because petitioners in these cases are no longer subject to pretrial detention, we deny these petitions for writs of mandamus.

We concur:

Hardesty

J. Parra guirre

4 LQ

J.

Stiglich

Cadish

Silver

aAD J.

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•

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PICKERING, C.J., concurring in part and dissenting in part: This court should deny these writ petitions as moot, without
venturing an unconstitutionally advisory opinion on legal issues that cannot affect the parties to this case. The Nevada Constitution separates the powers of Nevada government into three departments, "the Legislative,—the Executive and the Judicial," and provides that "no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others." Nev. Const. art. 3, § 1(1). "Judicial Power is the authority to hear and determine justiciable controversies." Galloway v. Truesdell, 83 Nev. 13, 20, 422 P.2d 237, 242 (1967) (emphasis and internal quotation omitted). Once a controversy becomes moot, it is no longer justiciable. Personhood Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010). Without a justiciable controversy, the power of the court to pronounce on the law ends: "Mlle duty of every judicial tribunal is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles of law which cannot affect the matter in issue before it." Nat'l Collegiate Athletic Ass'n v. Univ. of Nev., 97 Nev. 56, 57, 624 P.2d 10, 10 (1981).
Both Valdez-Jimenez and Frye pleaded guilty in 2019. They are in prison, serving the sentences of imprisonment their judgments of conviction imposed. Petitioners confinement pursuant to their judgments of conviction renders their challenge to the bail proceedings by which they had been confined—pretrial—moot and nonjusticiable. Compare United States v. Sanchez-Gomez, U.S. „ 138 S. Ct. 1532, 1540-41 (2018) (holding defendants' challenge to their pretrial custody restraints moot and nonjusticiable because their guilty pleas ended their pretrial custody), with

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ItAti

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United States v. Salerno, 481 U.S. 739, 744 n.2 (1987) (holding that case

remained justiciable where the defendant remained confined pursuant to

the pretrial detention order he challenged); but see id. at 758 (questioning

majority's justiciability determination given the defendant's conviction on

another charge) (Marshall, J., dissenting).

Because this court cannot grant relief to Valdez-Jimenez or

Frye with respect to their now-terminated pretrial confinement, it should

deny their petitions as moot. See, e.g., Black v. Eighth Judicial Dist. Court,

Docket No. 76472, at 1* (Order Denying Petition, Sept. 14, 2018) (denying

writ petition challenging bail proceeding as moot since "petitioner is no

longer in custody and fails to demonstrate that this issue is capable of

repetition yet evading review"); Sherard v. Eighth Judicial Dist. Court,

Docket No. 76398 (Order Denying Petition, Sept. 14, 2018) (same); accord

Valdez-Jimenez v. Lombardo, Case No. 2:19-cv-00581-RFB-VCF (Order

Granting Motion to Dismiss (ECF Nos. 25, 27) and Dismissing Action, D.

Nev., June 26, 2019) (dismissing as moot Valdez-Jimenez's parallel federal

writ proceeding challenging his pretrial bail proceedings after he pleaded

guilty and was incarcerated on his judgment of conviction).

The law makes an exception to mootness for disputes that are

capable of repetition yet evading review. But, to guard against the judicial

exercise of generally applicable executive and legislative power, the

capable-of-repetition mootness exception has strict limits. It applies "only

if (1) the challenged action is in its duration too short to be fully litigated

prior to its cessation or expiration, and (2) there is a reasonable expectation

that the same complaining party will be subjected to the same action again."

Sanchez-Gomez,

U.S. at , 138 S. Ct. at 1540 (emphasis added)

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(internal quotation omitted). The test is conjunctive—both standards must be met—and these petitions do not satisfy either.
In-custody defendants in Nevada have, as recently as last year, litigated pretrial-bail-proceeding challenges to appellate conclusion before release or incarceration mooted the bail dispute. See Cameron v. Eighth Judicial Dist. Court, 135 Nev. 214, 445 P.3d 843 (2019) (mandating that the district court reconsider and explain its decision, following an indictment return, to increase bail beyond the amount the justice court had set on the original criminal complaint); In re Application of Wheeler, 81 Nev. 495, 500, 406 P.2d 713, 716 (1965) (holding that the district court did not abuse its discretion in denying the defendant's release on bail in a murder case). The challenged action thus is not "in its duration too short to be fully litigated prior to its cessation or expiration." Sanchez-Gomez, U.S. at , 138 S. Ct. at 1540. And, for Valdez-Jimenez and Frye to face the same action again, they would have to serve their prison sentences, be released, reoffend, and again be arrested, jailed, and subjected to the same bail procedures they challenge. For policy reasons, courts do not presume future criminal conduct in applying the capable-of-repetition mootness exception. Compare Lane v. Williams, 455 U.S. 624, 632-33 n.13 (1982) (concluding that case was moot where the challenged parole revocation could not "affect a subsequent parole determination unless respondents again violate state law, are returned to prison, and become eligible for parole"), with SanchezGomez , U.S. at , 138 S. Ct. at 1541 (in analyzing mootness, courts "assume[ ] that [litigants] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduce) (second alteration in original) (internal quotation omitted). See Spencer v. Kemna, 523 U.S. 1, 17-18 (1998) (holding that
3

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"Mlle capable-of-repetition doctrine applies only in exceptional situations" such that petitioner's challenge to his parole revocation was moot and nonjusticiable) (internal quotation omitted).
Quoting Bisch v. Las Vegas Metropolitan Police Department, 129 Nev. 328, 334-35, 302 P.3d 1108, 1113 (2013), the majority offers a stripped-down statement of the capable-of-repetition mootness exception. It suggests that, to overcome mootness, it is enough "that (1) the duration of the challenged action is relatively short, (2) there is a likelihood that a similar issue will arise in the future, and (3) the matter is important." Majority op., supra, at 6 (emphasis added) (internal quotation omitted). As precedent, Bisch is questionable for two reasons. First, Bisch does not acknowledge much less explain its departure from the federal caselaw on the capable-of-repetition exception, which this court has endorsed and followed for years. See, e.g., Stephens Media, LLC v. Eighth Judicial Dist. Court, 125 Nev. 849, 858, 221 P.3d 1240, 1247 (2009) (applying the United States Supreme Court's capable-of-repetition mootness exception to resolve a Nevada case) (citing Neb. Press Ass'n v. Stuart, 427 U.S. 539, 546-47 (1976)); Langston v. State, Dep't of Motor Vehicles, 110 Nev. 342, 344, 871 P.2d 362, 363 (1994) (same) (citing S. Pac. Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498 (1911), and DeFunis v. Odegaard, 416 U.S. 312 (1974)). Second, Bisch's reformulation of the capable-of-repetition mootness exception is dictum—although Bisch's employer had removed her disciplinary write-up from her file by the time she appealed, the discipline carried collateral consequences so "an actual controversy still exist[ed] for us to decide. Bisch, 129 Nev. at 335, 302 P.3d at 1113.
More fundamentally, the Bisch version of the capable-ofrepetition exception does not provide adequate separation-of-powers
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guardrails—especially since the judiciary is applying the standard to itself, with no other checks or balances. Relying on the interests of nonparties to save a case from mootness exponentially expands what is meant to be a very narrow exception. Nonparties with similar interests exist outside almost every case this court decides. Yet, the "judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally." Warth v. Seldin, 422 U.S. 490, 499 (1975) (emphasis added). Replacing the requirement that "the same [complained ofl action" be likely to repeat, Sanchez-Gomez, U.S. at , 138 S. Ct. at 1540 (emphasis added), with a mere "likelihood that a similar issue will arise in the future," Bisch, 129 Nev. 334-35, 302 P.3d at 1113, invites judicial review of questions that did not and cannot affect the parties to the original dispute, which the separation of powers doctrine forbids. Compare Degraw v. Eighth Judicial Dist. Court, 134 Nev. 330, 334, 419 P.3d 136, 140 (2018) (denying as moot an extraordinary writ petition where "interpreting the statute in the requested manner when it is unclear whether this issue is likely to reoccur in the future would render any opinion advisory at bese), with Personhood, 126 Nev. at 602, 245 P.3d at 574 ("This court's duty is not to render advisory opinions but, rather, to resolve actual controversies by an enforceable judgment.").
To be clear: I agree with my colleagues as to the importance of prompt and constitutionally conducted pretrial detention and release decisions. But Valdez-Jimenez's and Fryes bail proceedings took place in Clark County's justice and district courts in 2018. In January of 2019, Clark County established its Initial Appearance Court, which revamped the County's pretrial custody and bail determination procedures, reportedly resulting in defendants appearing and having their custody and bail status
5
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reviewed in a matter of hours. See Clark County, Nevada, News Releases, In the Face of Increased Bookings, Inmates Move through Streamlined Judicial System Faster (Feb. 24, 2020). And effective July 1, 2019, the Nevada Legislature created an interim committee to examine and recommend legislation relating to the pretrial release of defendants in criminal cases to the 2021 Nevada Legislature. Senate Concurrent Resolution No. 11, 80th Leg. (Nev. 2019).1 These measures, combined with the changes wrought by the judicial and executive branches in the face of the COVID-19 pandemic, mean that, to the extent the record in this case frames the issues the court addresses,2 those issues do not exist in the same form today.
Cases seeking extraordinary writ relief are fully subject to mootness and justiciability constraints. Sanchez-Gomez, U.S. at ,

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1Senate Concurrent Resolution No. 11 directs the interim committee to examine and recommend changes to existing statutes concerning, among other matters, "Mlle timeliness and conduct of hearings to consider the pretrial release of defendants," "Mlle circumstances under which defendants should be released on their own recognizance," and "[t]he imposition of monetary bail as a condition of pretrial release and the considerations relating to the setting of the amount of any monetary bail."
2Va1dez-Jimenez and Frye did not include the record of their bail proceedings in justice court in the appendices to their writ petitions, so we cannot say precisely how Clark County's establishment of its Initial Appearance Court in 2019 would affect what they experienced in 2018. While the indictment returns in district court started new criminal cases, that did not render irrelevant the bail proceedings had in justice court on Valdez-Jimenez's and Frye's initial charges. Cf. Cameron, 135 Nev. at 215, 445 P.3d at 844 (holding that the district court properly considered justice court bail proceedings in setting bail post-indictment-return and abused its discretion in later increasing the bail amount without explaining its departure from the amount the justice court originally set).
6
.11,57Tt

Case 4:19-cv-00226 Document 104-1 Filed on 04/09/20 in TXSD Page 28 of 28 138 S. Ct. at 1540; Mesagate Homeowners' Ass'n v. City of Fernley, 124 Nev. 1092, 1097, 194 P.3d 1248, 1251 (2008). With an incomplete record, parties whom our judgment cannot affect, and the changes that have occurred and are occurring in Nevada's bail procedures since the petitioners 2018 bail proceedings, I would deny their petitions as moot. To do otherwise raises serious "concern about the proper—and properly limited—role of the courts in a democratic society." Warth, 422 U.S. at 498. , C.J.
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 Case 4:19-cv-00226 Document 112 Filed on 04/11/20 in TXSD Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

NOTICE OF TEMPORARY RESTRAINING ORDER AGAINST EXECUTIVE ORDER GA 13

Plaintiffs write to alert the Court that Governor Abbott’s Executive Order GA 13 (Dkt.

53-1) has been temporarily enjoined in Texas state civil district court as an unconstitutional

infringement on judicial power by the Executive under Texas law.

On April 8, 2020, the Sixteen County Criminal Court at Law Judges in Harris County, the

Texas Criminal Defense Lawyers Association, Capital Area Private Defender Service, Austin

Criminal Defense Lawyers Association, and NAACP Texas sued Governor Greg Abbott and

Attorney General Ken Paxton, seeking to enjoin enforcement of Executive Order GA 13, which

purports to prohibit judges from issuing personal bonds to certain categories of people arrested in

Texas. On April 10, 2020, the District Court of Travis County, Texas, 459th Judicial District, held

oral argument on Plaintiffs’ Motion for Temporary Restraining Order (“TRO”) and issued a TRO,

enjoining Defendants “from enforcing Executive Order GA-13 against judges.” Exhibit 1

(Temporary Restraining Order & Order Setting Hearing for Temporary Injunction). In an

accompanying letter, the court confirmed that, even in times of crisis, judges have a “legal

obligation to balance the interests of the public, individuals accused, but not convicted of criminal

Case 4:19-cv-00226 Document 112 Filed on 04/11/20 in TXSD Page 2 of 3

offenses, and the victims of those alleged offenses,” that “[t]his exercise of judicial discretion falls squarely within the purview of the judicial brach,” and that it cannot “be taken away [] by the executive branch.” Exhibit 2.

Date: April 11, 2020

Respectfully Submitted,

/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Mimi Marziani Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 Texas Civil Rights Project 405 N Main St, Suite 716 Houston, TX 77002 Phone: 512-474-5073 ext 118 liyah@texascivilrightsproject.org mimi@texascivilrightsproject.org

/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100

CERTIFICATE OF SERVICE

I certify that on April 11, 2020 a true and correct copy of this document properly was served

on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas

Procedures for Electronic Filing.

/s/ Elizabeth Rossi Elizabeth Rossi

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 Case 4:19-cv-00226 Document 122 Filed on 04/14/20 in TXSD
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

Page 1 of 29
United States District Court Southern District of Texas
ENTERED
April 14, 2020
David J. Bradley, Clerk

DWIGHT RUSSELL, et al.,
Plaintiffs, VS. HARRIS COUNTY, TEXAS, et al.,
Defendants.

§

§

§

§

§

§

CIVIL ACTION NO. H-19-226

§

§

§

§

MEMORANDUM AND ORDER

Individuals arrested in Harris County, Texas, for felony charges are usually brought to the

Harris County Jail to wait for hearings and trials. Those who can post the money bond usually

imposed under a preset bail schedule do so. Those who cannot, because they are too poor to post

the bond premium, wait. First, they wait for counsel to be appointed, then for opportunities to seek

release on a personal bond with no upfront payment. In this lawsuit, three plaintiffs allege that

many indigent arrestees are in jail because they were denied a pretrial personal bond and cannot

make the upfront payment on a financial bond. They would, they argue, be released without delay

if they could make the bond payment. They argue that Harris County provides an inadequate

process for individually assessing who can meet the requirements for safe release on a personal

bond. They claim due process and equal protection violations from wealth-based detention before

formal bail hearings. The plaintiffs asserted these claims before the coronavirus and pandemic

produced the national emergency now facing the country.

The plaintiffs urge that approximately 4,000 felony arrestees, not convicted of the charged

offense, are kept in the densely packed Harris County Jail for weeks or months longer than those

able to post a bond. They incur the costs of prolonged pretrial detention, including job loss,

Case 4:19-cv-00226 Document 122 Filed on 04/14/20 in TXSD Page 2 of 29
eviction, a greater likelihood of pleading guilty, and a higher chance of receiving a harsher sentence. Now they face a greater risk of exposure to, or exposing others to, the coronavirus. COVID-19 raised and changed the stakes.
In the crowded Jail, social distancing and adequate sanitation are hard to maintain. There are daily arrivals of new arrestees with a variety of underlying health and medical issues, likely including COVID-19. Those with the disease risk infecting other arrestees, as well as the deputies and employees who guard them, feed and care for them, and who then go home, potentially to infect their own families and communities.
These motions and opinion are not directly about prison conditions or whether public health is best served by releasing which arrestees. They are instead about the process and timing of individualized hearings to determine whether a particular pretrial felony arrestee can be dismissed on a personal bond. The plaintiffs ask this court to authorize the Harris County Sheriff to release many felony arrestees, who have not had a trial or been convicted, and cannot post the upfront payment based on bail-schedule amounts, if they do not promptly get formal, individualized, evidentiary hearings to determine whether they could be safely released on a personal bond. The plaintiffs also ask this court to overturn as unconstitutional part of Governor Greg Abbott’s Executive Order GA-13, which limits state district judges’ discretion to issue personal bonds during the COVID-19 crisis. That Order was one of several issuing from those with authority to set and implement policies to meet the COVID-19 crisis in our state’s jails and prisons. The Harris County Commissioners Court Judge and the State Administrative Judge both issued orders that attempt, in different ways, to expedite the release of pretrial, not convicted, low-level, nonviolent felony arrestees from the Harris County Jail on personal bonds to safely reduce the Jail population.
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State and local policymakers agree that the Harris County Jail population must be reduced, but they disagree on how to safely do so. A federal district court asked to wade into policy and political disagreements among State and County elected officials is in risky territory. There is no good, clearly safe, constitutionally, and jurisdictionally right solution to many of the short-term problems and disagreements the pandemic has made so acute. And when, as here, these disagreements appear to have been somewhat resolved, at least to the extent necessary to achieve a workable, voluntary process for the safe release of appropriate pretrial, not convicted, arrestees within the present pandemic constraints, that is a powerful reason for a federal court to decline to intervene through the blunt instrument of a temporary restraining order.
After careful consideration of the motions, the State intervenors’ responses, the parties’ arguments in the many teleconferences, the applicable law, the views of the interested nonparties, the sparse record, and the court’s limited authority, the court denies the plaintiffs’ motions for temporary restraining orders. The court is not issuing any definitive ruling on the merits. That comes later, on a fuller record.
This is neither an easy nor good solution. It is simply the best one this court can devise from the law and the facts that constrain its authority. The good news, however, is that it reflects the commendable, though still halting, progress made by the parties and interested nonparties in safely reducing the Harris County Jail population during this dangerous time.
The reasons for these decisions are set out below. I. Background
When this lawsuit was filed in January 2019 to challenge Harris County’s bail procedures for pretrial felony arrestees, the world was different. The three plaintiffs, Dwight Russell, Johnnie Pierson, and Joseph Ortuno claimed that they and others felony arrestees not yet convicted of a
3

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crime were detained pending trial because they were too poor to post any financial bond, while those presenting the same kind and degree of risk factors but who were able to pay were routinely promptly released.
The plaintiffs brought a class action suit against Harris County and Sheriff Ed Gonzalez under 42 U.S.C. § 1983. (Docket Entry No. 1). They alleged that the County’s system of setting bail for indigent felony arrestees violated their equal protection and due process rights under the Fourteenth Amendment of the United States Constitution. (Id. at 6). The plaintiffs advised the court that the suit raised issues similar to ODonnell v. Harris County, No. H-16-1414 (S.D. Tex. 2016), which challenged bail policies and practices for misdemeanor arrestees. (Id. at 7). The parties in Russell moved to stay, first pending the resolution of ODonnell, and then to try to have the responsible policymakers resolve this case. (Docket Entry Nos. 14, 24). The efforts continued until they were upended by the COVID-19 pandemic and national emergency.
As the Fifth Circuit recently recognized, “our nation faces a public health emergency caused by the exponential spread of COVID-19, the respiratory disease caused by the novel coronavirus SARS-CoV-2.” In re Abbott, No. 20-50264, 2020 WL 1685929, at *2 (5th Cir. Apr. 7, 2020). On March 13, 2020, the President of the United States declared a national state of emergency and the Governor of Texas declared a state of disaster. Id. (citing Proc. No. 9994, 85 Fed. Reg. 15,337, 2020 WL 1272563 (Mar. 13, 2020); Tex. Proc. of Mar. 13, 2020, https://gov.texas.gov/uploads/files/press/DISASTER_covid19_disaster_proclamation_IMAGE_0 3-13-2020.pdf). Less than a week later, the Texas Health and Human Services Executive Commissioner declared a public health disaster because the virus “poses a high risk of death to a large number of people and creates a substantial risk of public exposure because of the disease’s
4

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method of transmission and evidence that there is community spread in Texas.” Id. (citing Tex. Proc. of Mar. 19, 2020, https://gov.texas.gov/uploads/files/press/DECLARATION_of_public_ health_disaster_Dr_Hennerstedt_03-19-2020.pdf).
On March 11, Harris County Commissioner’s Court Judge Lina Hidalgo, the County’s chief executive, issued an emergency declaration, and on March 24, entered a stay-at-home order for the County. The Office of the County Engineers ordered the closure of all but four County Criminal Courtrooms and all but eight District Courtrooms within the Criminal Justice Center on any given day. (Docket Entry No. 32-10). The order also prohibited more than 10 people in any gathering except “as determined constitutionally necessary by a Judge.” (Id.).
This lawsuit is one of a growing number around the country challenging whether due process guarantees are met in this unprecedented intersection of the pandemic with mass incarceration. As the coronavirus spread, public health officials warned that the Harris County Jail, the third largest in the nation, threatened to become a hotbed of contagion. (See Docket Entry Nos. 32-1, 32-2). The densely packed Jail and shortage of supplies make social distancing and hygienic practices impractical. (Id.) The predicted result is widespread infection, not only among arrestees and inmates, but also for the deputies and police officers who arrest and guard them, and the employees and contractors who care for them. These deputies, officers, and employees leave the jail every day and, if infected, will unwittingly infect their own families and others. (Id.). The public health officials urged Harris County promptly to identify and implement ways to reduce the Jail population to protect the entire community. (Id.).
Harris County is not unique. Prisons and jails throughout the country—federal, state, and local—have faced similar challenges and demands to safely reduce jail and prison populations, while keeping those who should be detained behind bars. The Harris County Jail was quickly
5

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identified as a potential threat to the community at large. On March 20, 2020, even before the scale and severity of the virus was fully appreciated, several doctors wrote to the County Board of Commissioners, the Sheriff, the Criminal District Court Judges, and the County Courts at Law to describe the risks and offer policy suggestions to ensure the safety of those detained and working in the Jail. (Docket Entry No. 32-1). Also, on March 20, Harris County Administrative Judge Herb Ritchie, who oversees the State Criminal District Courts in Harris County, ordered the Sheriff to process the immediate release of anyone currently detained or booked into the Harris County Joint Processing Center for one of 20 felony charges if the person was not already on felony probation and felony deferred adjudication, or did not have another warrant, hold, or pending felony charge. (Docket Entry No. 32-6).
On March 27, the plaintiffs moved for the first of two temporary restraining orders in light of the emergency. (Docket Entry No. 32). The plaintiffs asked for a 14-day “emergency order . . . requiring Defendants not to enforce pretrial detention orders against Plaintiff class members unless they provide constitutionally adequate bail proceedings.” (Docket Entry No. 32 at 4). Counsel for the plaintiffs informed the court that there were approximately 4,400 pretrial felony arrestees currently detained because they could not pay the financial conditions of their release. (Docket Entry No. 37). Of those arrestees, approximately 1,000 allegedly remained in the Jail only because they could not afford to pay a bondsman $350 or less. (Id.). The parties alleged that only 38 arrestees were eligible for release under Judge Ritchie’s March 20, 2020, Order. (Id.).
The State of Texas, Governor of Texas, and Attorney General of Texas moved to intervene. (Docket Entry No. 38). The court granted the motion after the plaintiffs indicated they were not opposed. (Docket Entry Nos. 45, 46). The court also sought the views of interested nonparties, including the Harris County District Attorney. The State intervenors responded to the March 27
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motion for a temporary restraining order, arguing that the procedural relief requested was already in place, no substantive relief was available, and that the federal court lacked subject-matter jurisdiction to grant the requested relief. (Docket Entry No. 54).
The Governor issued Executive Order GA-13 on March 29, prohibiting the release on a personal bond of any individual currently arrested or previously convicted of a felony involving physical violence or a threat of physical violence. (See Docket Entry No. 39-1). The only exception is for an arrestee who, after an individualized hearing, is able to show that he or she is particularly vulnerable because of underlying health or medical conditions and issues. (Id.).
On April 1, the plaintiffs asked this court for a second temporary restraining order against enforcement of Executive Order GA-13’s provisions that bar state judges from making individualized determinations that nonfinancial conditions of release are appropriate for pretrial arrestees accused or previously convicted of violent offenses who do not have particular health or medical reasons for release. (Docket Entry No. 53 at 9). Shortly thereafter, the Harris County misdemeanor court judges and several civil-rights and criminal defense organizations sued in in a Texas state court to invalidate the Executive Order. See Tex. Crim. Def. Laws. Ass’n v. Abbott, No. D-1-GN-20-002034, 261st District Court of Travis County, Texas (Apr. 8, 2020). The state court judge granted the motion, enjoining the Executive Order until April 24, but the Texas Supreme Court promptly stayed that ruling. (See Docket Entry Nos. 112, 113).
Also on April 1, County Judge Hidalgo entered an order “intended to be consistent with [Governor Abbott’s Executive Order] in all respects.” (Docket Entry No. 66-1). Judge Hidalgo instructed Sheriff Gonzalez to “take immediate steps to reduce and control the occupancy of the Harris County Jail system . . . by ceasing to enforce orders” to detain arrestees accused of purely
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nonviolent offenses, who have not previously been convicted of crimes involving physical violence or the threat of physical violence, among other conditions. (Id.).
The Sheriff began to comply with Judge Hidalgo’s order and released a small number of arrestees, but stopped on April 3 after receiving a conflicting order from Administrative Judge Herb Ritchie, who supervises the state felony criminal district judges in Harris County. (Docket Entry No. 66-2). Judge Ritchie ordered the Sheriff and local criminal justice agencies to disregard Judge Hidalgo’s order or be held in criminal contempt of court. (Id.). Only approximately 14 arrestees were released before Judge Ritchie’s order halted the efforts. (Docket Entry No. 65 at 2; Docket Entry No. 86 at 2; Docket Entry No. 98 at 13). Judge Ritchie also issued an April 2 order, consistent with Executive Order GA-13, for the immediate release of eligible pretrial felony arrestees, expanding the prior list of 20 low-level felony offenses eligible for release to almost 50 offenses, as long as they did not involve the use or threat of physical violence. (Docket Entry No. 66-3).
In a matter of a few days, then, the Sheriff “faced three conflicting orders from three different officials,” and the “already slow machinery of jail release ground to a halt. But the health crisis respects no orders. The virus cares not for the turf wars of government.” (Docket Entry No. 65 at 3). The Sheriff turned to this court to “cut the Gordian knot that currently impedes [him] from acting.” (Id. at 3–4).
The court held a number of long hearings by teleconference with the parties and representatives of relevant stakeholders, including the Harris County District Attorney, and made several requests for advisories to supplement the factual record and clarify the complex legal arguments involving federalism, jurisdiction, abstention, exhaustion, and separation of powers. The parties also updated the court on the current conditions at the Jail. As of April 13,
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the Sheriff reported that the Jail held 7,474 individuals, of whom 6,051 were pretrial arrestees not convicted of the crime, and of whom 1,192 remained in jail on nonviolent offense charges.
Also as of April 13, 50 Jail detainees and 71 Harris County Sheriff’s Office staff members had tested positive for COVID-19. The Sheriff reported that “dozens more” inmates with symptoms were awaiting results, and that 1,689 arrestees had been separated from the main Jail population as a form of quarantine because of their exposures to someone who had tested positive. While the Sheriff reported that no detainee is in serious condition, everyone recognizes that with each passing day, as more tests are administered, the number of arrestees with positive results is likely to grow. II. The Legal Standard
A court may grant a temporary restraining order or preliminary injunction only if the movant shows: “(1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction is not issued, (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted, and (4) that the grant of an injunction will not disserve the public interest.” Jones v. Tex. Dep’t of Criminal Justice, 880 F.3d 756, 759 (5th Cir. 2018) (per curiam) (quoting Byrum v. Landreth, 566 F.3d 442, 445 (5th Cir. 2009)). The party seeking injunctive relief must meet all four requirements. Jordan v. Fisher, 823 F.3d 805, 809 (5th Cir. 2016) (quoting Bluefield Water Ass’n v. City of Starkville, 577 F.3d 250, 253 (5th Cir. 2009)). III. The Record on the Processes in Place
The plaintiffs allege that the County’s system of setting bail for indigent felony arrestees violates their equal protection and due process rights under the Fourteenth Amendment of the United States Constitution. (Docket Entry No. 1). The plaintiffs describe the County’s bail
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procedures as follows, relying largely on the declarations of Harris County’s Chief Public Defender, as well as publicly available court docket information.
• Based on the offense charged, arrestees are either required to remain in custody until a hearing officer, not a district judge, determines the conditions of release at a probable cause hearing, or they are assigned a predetermined amount of money for release. (Docket Entry No. 32 at 7–8). If an arrestee cannot pay that predetermined amount, he remains detained until a hearing. (Id. at 8). The first postarrest hearing, called a magistration, Article 15.17 hearing, bail hearing or probable cause hearing, is slated to occur within 48 hours of arrest. (Id. at 9).
• Before the pandemic, the first individualized formal court appearance in which an arrestee can raise bail issues and present evidence allegedly did not occur for two to four weeks after requested. Even then, according to the plaintiffs, some “felony judges [did] not provide for an adversarial bail hearing on the record at that time.”1 (Id. at 13–14). The plaintiffs contend that to have an evidentiary hearing on the necessity of pretrial detention, an arrestee’s “lawyer usually must file a motion and then schedule a court proceeding for a later date. . . . A hearing on the motion will likely not occur for more than a week after the motion is filed.” (Id. at 14).
• According to the plaintiffs, during the COVID-19 pandemic, individualized bail hearings are rarely occurring and greatly delayed. (Docket Entry No. 74-1 at 3). They allege that these hearings are routinely scheduled for months after defense attorneys request them, in part because of restrictions on court facilities. (Docket Entry No. 32 at 14.; see also Docket
1 The plaintiffs allege that these hearings were delayed because of a shortage of courtrooms following Hurricane Harvey in 2017. (Docket Entry No. 74-1 at 2–3).
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Entry No. 74-1 at 4). They allege that no video or teleconferencing technology is yet in place to ensure that individualized bail hearings can occur in keeping with social distancing practices. (Docket Entry No. 74-1 at 3). While they acknowledge that some district judges are holding informal “hearings,” in which personal bond requests may be granted, the plaintiffs allege that this is not a constitutionally adequate hearing because “because the arrested individual is not present, there is no record, there are no findings entered, and there are no legal or evidentiary standards articulated.” (Id. at 4). These limits matter only if no personal bond is issued after an informal hearing occurs. At the request of the court, the Harris County District Attorney appeared as a nonparty and provided information on the current pretrial processes. (Docket Entry Nos. 64, 72, 90, 115). The District Attorney also solicited the views of the Harris County district judges, and Administrative Judge Ritchie provided additional information. (Docket Entry Nos. 90, 95). The Harris County District Attorney provided a different picture of the facts on the ground. (Docket Entry No. 72). According to the District Attorney: • Arrestees are brought before a hearing office for an initial bail hearing within 48 hours of arrest.2 (Id. at 2). The District Attorney described an initial appearance before a district judge that is held “typically the next business day,” but admitted that this practice “has been disrupted by displacement of the felony courts due to Hurricane Harvey in 2017.” (Id. at 2 n.2). The District Attorney alleges that “[i]n most cases, the state district judges
2 The plaintiffs argue that some of the factual disagreements between the parties exist because the District Attorney and county judges characterize the initial appearance before a hearing officer as a “bail hearing” and therefore can allege that arrestees receive a bail hearing within 48 hours of arrest. (Docket Entry No. 74-1 at 2). As explained above, the plaintiffs argue that this initial appearance is not constitutionally adequate.
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will hear and rule upon motions for pretrial release or lower bonds in very short order after a motion or request is made by the defense counsel.” (Id. at 2–3). • The District Attorney disagrees with the plaintiffs’ allegations, arguing that “upon request from a defendant, the state district judges will expedite an evidentiary bail hearing to take place within days – not weeks – of the request.” (Id. at 3). On April 8, the County district judges advised the court that: • They were “capable of conducting evidentiary bail hearings with witness testimony and other evidence within days of notice of a defendant’s filing of such request, and provided Harris County allocates sufficient courtroom space.” (Docket Entry No. 90 at 4). The judges admitted that current restrictions on courtroom use “may hinder [their] efforts.” (Id. at 4 n.1). On April 9, Judge Ritchie informed the court that: • The State district felony judges “do not lack the technology to conduct hearings with all parties and witnesses and court reporters appearing remotely.” (Docket Entry No. 95 at 5). He advised that “[a]ll empirical evidence points to the fact that State District Felony Judges are working diligently to reduce the jail population while protecting the rights of the accused, the safety of potential victims, and the community as a whole.” (Id. at 4). In the meantime, lawyers have repeatedly expressed reluctance to come to the courthouse for any hearing. They too emphasize the need to rely on technology for all hearings, with the lawyers, judges, and defendants remotely present. This court lacks a full record. It is worth noting that the misdemeanor bail litigation had eight days of evidentiary hearings before a preliminary injunction issued. The record facts here change every day, throughout the day. This makes it difficult to make findings adequate to support
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the tailored, effective, and safe relief that these plaintiffs seek. Although these concerns often would not prevent granting a temporary restraining order—which may be granted without notice to the opposing party on the basis of less information than the court has now—caution here is required given the complex and dynamic factual situation and uniquely fraught circumstances.
Local officials have worked diligently to create a process for identifying and expeditiously releasing certain indigent arrestees accused of nonviolent crimes, devising a process that complies with the limitations of the Governor’s order, Judge Ritchie’s orders, and Judge Hidalgo’s order. The Sheriff, the County Justice Administration Department, and the state district judges have compiled and circulated lists of pretrial arrestees potentially eligible for release on personal bonds to the relevant stakeholders, namely the District Attorney and the Public Defender’s Office. (Docket Entry No. 64 at 2; Docket Entry No. 66 at 2; Docket Entry No. 72 at 3; Docket Entry No. 92 at 5; Docket Entry No. 107 at 2; id. at n.2; Docket Entry No. 111-1 at 3). Sometime between March 28 and April 1, the Sheriff generated the largest list of 1,470 arrestees, including 125 who were deemed especially medically vulnerable. (Docket Entry No. 64 at 2–3; Docket Entry No. 107 at 2; id. at n.1; Docket Entry No. 111-1 at 3–4; Docket Entry No. 115 at 2). This list was originally created under Judge Hidalgo’s order that Judge Ritchie in turn ordered disregarded, but officials have continued to use the list consistent with Judge Ritchie’s new directive. (See Docket Entry No. 115 at 3). On April 4, the Justice Administration Department created another list of 534 arrestees under Judge Ritchie’s April 2 Order, but subsequently cut the number down to 60. (Docket Entry No. 64 at 3). The state district judges provide other lists “almost daily” to courtroom prosecutors. (Docket Entry No. 107 at 2 n.2).
The District Attorney reviews the lists and objects to specific arrestees, mostly because an arrestee’s criminal history disqualifies him or her under the orders of the Governor, Judge Ritchie,
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and Judge Hidalgo. As of April 13, the District Attorney continues to object to the release of 1,066 out of 1,470 arrestees. (Docket Entry No. 115 at 2). The Public Defender’s Office reviews these objections and challenges many of them, though public defenders represent only a “fraction” of pretrial arrestees and therefore cannot speak for—or request a formal bail hearing for—“the vast majority” of those who receive prosecutorial objections. (Docket Entry No. 111-1 at 3, 5). No party has informed the court that the lists are being quickly electronically distributed to the numerous private and court-appointed defense attorneys in Harris County.
Arrestees whose release the District Attorney opposes may request a formal, evidentiary, individualized bail-hearing. Those whose release draws no objection will be released promptly without a hearing unless “there is a unique or specific matter that needs to be addressed with the defendant prior to the Judge signing the bond.” (Docket Entry No. 92 at 5). It is not clear from the record what would constitute a “unique or specific matter” or how often such matters arise.
Significant obstacles initially hampered the efficient implementation of the list-based release policy, but at least some of those obstacles appear to have been overcome. First, there was confusion among stakeholders after Judge Ritchie’s April 3 order voided Judge Hidalgo’s April 1 order to release certain arrestees. According to the Sheriff, “[t]he already slow machinery of jail release ground to a halt.” (Docket Entry No. 65 at 3). Even as officials have pressed on with listbased releases since then, in compliance with Judge Ritchie’s orders, the Sheriff reports that “communication among the stakeholders and with the felony judges has been spotty at best.” (Docket Entry No. 86 at 1). The District Attorney states that the Sheriff’s list of 1,470 arrestees was created on March 28, but not delivered to prosecutors until April 1, “and thus did not include changes in custody status from creation of [the] list to delivery.” (Docket Entry No. 107 at 2 n.1). The list included some arrestees “who were no longer in custody, some subject to holds and
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ineligible for release, and some [who had] current violent [charges] and prior violent criminal histories,” making them ineligible for release on a personal bond under the Governor’s Executive Order, Judge Ritchie’s orders, and Judge Hidalgo’s order. (Id.). “The list even included some defendants where bond had been revoked or forfeited by the District Court for various reasons.” (Id.; see also Docket Entry No. 92 at 5–6). The District Attorney explains that “[m]uch time has been spent culling individuals who should never have been on the lists in the first place, requiring work by prosecutors on a twenty-four-hour basis.” (Docket Entry No. 92 at 6). Judge Ritchie reported that the state district judges were kept out of the process and did not receive any lists until April 8, 2020. (Docket Entry No. 95 at 3). That omission appears to have been rectified.
The Public Defender’s Office reports that the process of seeking pretrial release orders during the pandemic is complicated for many reasons, including: “[m]any defense attorneys are unable or unwilling to appear in court”; “[m]any inmates are not being brought to court because they are in quarantine”; “[n]o standard procedures exist for interacting remotely with the court”; “[s]ignificant confusion exists within the defense bar regarding how or when to appear in court, and how or when to reach a judge”; and “[s]ignificant confusion exists regarding how to accommodate attorney-client communications for those in custody who appear at a remote proceeding.” (Docket Entry No. 111-1 at 3). And again, public defenders do not represent “the vast majority” of people who prosecutors object to releasing and cannot request formal bail hearings for those individuals.
Both the Public Defender’s Office and the District Attorney’s Office have accused each other of communication breakdowns on the District Attorney’s objections and the Public Defender’s challenges to some of those objections. (See, e.g., id.). The Public Defender’s Office claims that it has difficulty responding to prosecutorial objections based on an arrestee’s criminal
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history because the Public Defender’s Office does not have access to the same criminal history data as the prosecutors do. (Id. at 5). The Chief Public Defender and District Attorney also disagree about what offenses are “violent.” (Id. at 4).
Despite these hurdles, as of April 13, this process has resulted in the pretrial release of 372 arrestees from the Sheriff’s list of 1,470. (Docket Entry No. 115 at 2). Another 32 individuals whose release on personal bond the District Attorney does not oppose remain in custody. (Id.). The other 1,066 arrestees on the Sheriff’s list have objections from the District Attorney, and may request a formal individualized hearing. (Id.). The District Attorney has pledged to review 311 arrestees for release on personal bonds who are not on the Sheriff’s list. (Id. at 3). From April 1 through April 8, 998 arrestees were released through the pretrial process that predates the pandemic (i.e., the process unrelated to the lists), though hundreds of new arrestees arrive each day. (Docket Entry No. 58 at 36; Docket Entry No. 92-2).
All fear that current processes are releasing too few arrestees relative to new arrivals to stop the virus from spreading in the Jail. Between April 1 and April 12, the Jail’s population of felony pretrial arrestees decreased by only 133 people out of over 5,400. Harris County Jail Population Statistics, https://charts.hctx.net/dr00226. A warning of what may lie ahead comes from the Cook County Jail in Chicago, one of the largest in the nation, which as of April 8 was the biggest COVID-19 hot spot in the United States. See Timothy Williams and Danielle Ivory, Chicago’s Jail Is Top U.S. Hot Spot as Virus Spreads Behind Bars, N.Y. TIMES (Apr. 8, 2020), https://www.nytimes.com/2020/04/08/us/coronavirus-cook-county-jail-chicago.html. Delays in releases heighten the risk of a Jail-wide outbreak. But releasing those who cannot safely be released—whether because of risks of new offenses, particularly crimes involving physical violence, or risks of nonappearance—is of equal concern.
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This court is concerned about creating harm by granting a temporary restraining order that disrupts the parties’ commendable efforts under difficult circumstances to address the COVID-19 crisis in the Jail, and that will require judges and others to do what simply cannot be done as fast as desired. IV. The Case Law
The case law responding to the pandemic is scant and conflicting. Courts around the country have taken different approaches to, and reached different conclusions on, challenges to detention in the face of this crisis. The facts are unusual and as a result, the case law is of limited help.
This case does not, like many, involve a federal-court challenge to a federal jail or prison facility, on either the conditions of confinement (including medical care) or on the duration of confinement and conditions of pretrial release. See, e.g., Coronel v. Decker, No. 20-cv-2472 (AJN), 2020 WL 1487274 (S.D.N.Y. Mar. 27, 2020) (granting a temporary restraining order requiring four detainees’ release under 28 U.S.C. § 2241 in part because “[an immigration-court bond] hearing weeks from now may be no relief at all, because Petitioners may contract COVID19 in the interim and face serious health consequences—including death”); Zhang v. Barr, No. 20cv-331 (C.D. Cal. Mar. 27, 2020) (granting a habeas petitioner in immigration detention an expedited bond hearing, noting that “delay in determining Petitioner’s release exposes him to unnecessary risk [in light of the pandemic]”); Calderon Jimenez v. Wolf, No. 18-cv-10225, Docket Entry No. 507-1 (D. Mass. Mar. 26, 2020) (ordering a single habeas petitioner’s release from immigration detention on bail in light of the pandemic); Basank v. Decker, No. 20-cv-2518 (AT), 2020 WL 1481503 (S.D.N.Y. Mar. 26, 2020) (granting a temporary restraining order under § 2241 requiring the release of one detainee from immigration custody); Castillo v. Barr, No. 20-cv-605,
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Docket Entry No. 32 (C.D. Cal. Mar. 27, 2020) (ordering two habeas petitioners to be released from immigration detention under a temporary restraining order because of COVID-19); Arana v. Barr, No. 19-cv-7924 (PGG) (DCF) (S.D.N.Y. Mar. 27, 2020) (magistrate judge’s report and recommendation recommending “that, due to extraordinary circumstances brought about by the COVID-19 outbreak, which has apparently reached the jail where [the habeas] Petitioner is being detained, and by which he may be particularly seriously impacted as a result of underlying medical conditions, [the] Petitioner be ordered released from [immigration] custody pending his bond hearing”).
Nor does this case pose a direct federal-court challenge to the conditions of confinement in a state or local facility, such as the medical and health steps in the jail or prison to reduce and address infection and illness. See, e.g., Mays v. Dart, No. 20-cv-2134 (N.D. Ill. Apr. 9, 2020) (granting a limited temporary restraining order requiring certain coronavirus-related safety measures at the Cook County Jail in Chicago, but denying most requests for relief, including a putative subclass’s request to be transferred to a safer facility or other form of custody); Swain v. Junior, No. 20-cv-21457-KMW (S.D. Fla. Apr. 7, 2020) (granting in part a temporary restraining order requiring increased coronavirus protections at Metro West Detention Center in Miami-Dade County); Plata v. Newsom, No. 4:01-cv-01351-JST (N.D. Cal. Apr. 4, 2020) (denying California prisoners’ motion before a three-judge Prison Litigation Reform Act panel to require COVID-19related releases, but suggesting that relief may be available at single-judge courts).
Given how this case differs from other COVID-19 litigation, the court is operating on uncertain legal terrain with limited guidance. In the related case challenging Harris County’s misdemeanor bail system, the Fifth Circuit illuminated the scope of indigent pretrial arrestees’ constitutional rights in the bail context. The Fifth Circuit held that “the County’s mechanical
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application of [its] secured bail schedule without regard for the individual arrestee’s personal
circumstances” violated arrestees’ rights to procedural due process and equal protection of the
laws under the U.S. Constitution. ODonnell v. Harris Cty., 892 F.3d 147, 163 (5th Cir. 2018).
The Fifth Circuit’s multiple opinions in that litigation provide important direction even though this
proceeding concerns felony arrestees and it is unclear whether the Fifth Circuit’s holdings apply
in equal force to the pretrial felony arrestees the Russell plaintiffs want to represent. For the
purposes of this opinion, the court proceeds as if they do.
The Fifth Circuit began with the procedural due process inquiry, which has two steps. “The
first question asks whether there exists a liberty or property interest which has been interfered with
by the State; the second examines whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Id. at 157 (quoting Meza v. Livingston, 607 F.3d 392, 399 (5th Cir.
2010)). The Fifth Circuit explained that Texas law, including the Texas Constitution, “creates a
right to bail that appropriately weighs the detainees’ interest in pretrial release and the court’s interest in securing the detainee’s attendance.”3 Id. at 157–58. The Fifth Circuit held that bail
decisions that serve as de facto detention orders on arrestees who cannot afford to pay “must reflect
a careful weighing of the individualized factors set forth by both the state Code of Criminal
3 The right has limited state constitutional exceptions. Bail may be denied in capital cases; when a felony arrestee has two previous felony convictions (“the second conviction being subsequent to the first”); when an arrestee is accused of a felony committed “while on bail for a prior felony for which he has been indicted”; when an arrestee with a previous felony conviction is charged with a felony involving the use of a deadly weapon; when an arrestee is “accused of a violent or sexual offense committed while under the supervision of a criminal justice agency . . . for a prior felony”; when an arrestee is accused of an offense—not only a felony—involving family violence and has had his bail “revoked or forfeited for a violation of a condition of release . . . related to the safety of a victim of the alleged offense or to the safety of the community”; and when an arrestee is charged with violating a protective order in a family violence case. TEX. CONST. art. I, §§ 11, 11a, 11b, 11c. All of these exceptions, aside from the capital-case exemption, require a hearing before bail may be denied. Id. The Fifth Circuit noted that the scope of the exceptions “has been carefully limited by state courts.” ODonnell, 892 F.3d at 158 (citing Ex parte Davis, 574 S.W.2d 166, 169 (Tex. Crim. App. 1978)).
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Procedure and Local Rules.” Id. at 158. These factors include the arrestee’s ability to pay, the charge, victim and community safety, and the need to “give reasonable assurance” that the defendant will appear. Id. at 153; TEX. CODE. CRIM. PROC. art 17.15. As the Fifth Circuit put it, “magistrates may not impose a secured bail solely for the purpose of detaining the accused.” ODonnell, 892 F.3d at 158.
The Fifth Circuit clarified that there is no “fundamental substantive due process right to be free from any form of wealth-based detention.” Id. at 163 (emphasis added); ODonnell v. Goodhart, 900 F.3d 220, 225 (5th Cir. 2018). But the court held that “the automatic imposition of pretrial detention on indigent misdemeanor arrestees” violated federal due process and equal protection doctrine. Goodhart, 900 F.3d at 224 (quoting ODonnell, 892 F.3d at 160, 163). The proper remedy was individualized hearings in which impartial magistrates must “specifically enunciate their individualized, case-specific reasons” for imposing bail, including unaffordable bail. Id. (quoting ODonnell, 892 F.3d at 160). The Fifth Circuit also required notice of the hearing and “an opportunity to be heard and submit evidence within 48 hours of arrest.” ODonnell, 892 F.3d at 163.
On equal protection, the Fifth Circuit applied heightened scrutiny to the treatment of misdemeanor arrestees in ODonnell because “the inability to afford bail was coupled with the lack of meaningful considerations of alternatives.” Goodhart, 900 F.3d at 226–27. The Fifth Circuit held that rational-basis review applies when indigent arrestees claim simply that they are detained longer than wealthier arrestees. Id. at 226–28. Even under this deferential standard, the court stated that the consequences of prolonged pretrial detention—an increased likelihood of pleading guilty, receiving a longer sentence, and suffering the ruinous social consequences of incarceration—cannot be imposed on misdemeanor arrestees simply because they are too poor to
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pay bail. Id. at 227–28. The Fifth Circuit held that consequences are “critical” to the constitutional analysis of whether indigent arrestees may be held for longer than wealthier detainees before a bail hearing. Id. The court ruled that it was permissible to hold indigent misdemeanor arrestees for 48 hours before their individualized bail hearings because arrestees detained for that amount of time “do not face the same dire prospects of ‘bear[ing] the brunt’ of a lengthy pretrial incarceration caused by an unconstitutional bail system.” Id. at 228. An individualized hearing after 48 hours was “sufficient to cure the automatic imposition of bail.” Id.
This court also looks to the guidance from the Fifth Circuit in In re Abbott, No. 20-50264, 2020 WL 1685929, at *6 (5th Cir. Apr. 7, 2020), which directs courts to defer to state actions taken in times of emergency, even if they infringe on individual constitutional rights. The Fifth Circuit affirmed the standard laid out in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 31 (1905), which provides that judicial review is only available:
if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law. Id. at *6. The court recognizes that the plaintiffs’ March 27 motion for a temporary restraining order does not involve a statute, order, or other decision that was enacted to combat the COVID-19 crisis, and therefore Jacobson is not clearly implicated. But the court takes note of the deference required to state and local actors in the face of the crisis, and examines the Harris County stakeholders’ responses to the crisis with that in mind. V. Putting It Together, For Now The plaintiffs argued that in light of COVID-19, they and other poor pretrial felony arrestees are denied an adequate opportunity to challenge their potentially unconstitutional wealth-
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based detentions, but the current record evidence is not enough to support granting either of the temporary restraining orders they seek. Yes, there have been delays between when an arrestee: (1) is denied release on a personal bond; (2) then is denied release in an informal hearing with a hearing officer that the district judges have stated, and the plaintiffs have acknowledged, are provided within a few days after arrest; and when the arrestee (3) actually has a formal individualized hearing after counsel requests one.4 Yet despite the numbers of people involved, and the impact of the virus and stay-at-home orders on the bar, the bench, the District Attorney and Public Defender’s Offices, the Sheriff’s Office, and Harris County, new processes to consider eligible arrestees for expedited release have been hammered out, put in place, and are slowly but surely being implemented.
The district judges are working hard under post-Hurricane Harvey courtroom space constraints that predated, but are made much worse by, the pandemic. This court cannot safely order judges to have more hearings with more in-person participants than social distancing limits permit. The judges are also operating under constraints of resources and personnel made much worse by the pandemic. They are working on getting the technology—much of which is available—in place to hold remote hearings, and ensure that the judges and others are trained in its use. This court cannot devise relief that would fairly and safely result in more technology being put into place faster for more judges, or for them to become adept in using it on a specific schedule. The record shows that all stakeholders are working to have the necessary formal, individualized evidentiary hearings on releasing pretrial arrestees on personal bonds to take place within days after defense counsel requests them, in an adequate and safe manner, in keeping with the County’s emergency operations order and the risks of the COVID-19 pandemic.
4 A lawyer is appointed approximately one business day after an indigent arrestee requests counsel. (Docket Entry No. 72 at 2).
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According to Judge Ritchie’s April 9, 2020, letter, “[i]n the Harris County State District Courts, hearings can be set generally within days of request, even under the current conditions, depending on the complexity of coordinating witnesses, the availability of courtroom space, and the ability to comply with public health measures to avoid spreading COVID-19.” (Docket Entry No. 95 at 5 (emphasis added)).
The court does not find that the record disproves the plaintiffs’ claims, but rather that the sparse, conflicting accounts do not support awarding the extraordinary relief the plaintiffs seek. To prevail, the plaintiffs must satisfy all four temporary-restraining-order factors: a substantial likelihood of success on the merits, irreparable harm, the balance of equities, and the public interest. Fisher, 823 F.3d at 809. The court assumes, but does not decide, that the plaintiffs have shown a substantial likelihood of success on the merits of the claim that, in the circumstances of the pandemic and with the added risks of detention that result, the delay in getting formal individualized hearings for indigent arrestees—a delay that those able to post bond can avoid—is unconstitutional. It is undisputed that arrestees who must wait in jail for a bail hearing for as long as the plaintiffs allege face irreparable harm from contracting the coronavirus. But the court less easily assumes that the plaintiffs have met their burden of showing that the relief sought is in the public interest. Granting temporary relief and allowing the alleged lengthy detention both present risks. There is the threat of releasing on a personal bond those who should not be released because of risks such as not only failure to appear, but also of new offenses. On the other hand, there is the risk that if they are detained in tight jail conditions, they may have a greater likelihood of being infected or infecting others, as well as the risks of the collateral consequences of prolonged wealthbased detention (e.g., job loss and an increased sentence) and constitutional violations.
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The court cannot find that the present record, sparse and fast-changing as it is, meets the plaintiffs’ burden to show that it is in the public interest to grant the relief sought, or that denying it will disserve the public interest. This is particularly true because it is not clear that local officials could implement any remedy more effective than the current processes they are trying to execute and improve. A temporary restraining order backed by the threat of contempt might even create confusion and fear that would disrupt current efforts and make matters worse. These concerns apply not only to the public interest factor, but also to the balance of equities. Both factors weigh against granting a temporary restraining order.
The recent support for releasing pretrial felony arrestees accused of nonviolent offenses in Harris County supports the court’s conclusion. In the few weeks since the plaintiffs first moved for a temporary restraining order, the County stakeholders have devised and executed a process to ensure that those who might safely be released on personal bonds are identified for the District Attorney to review. Those whose release the District Attorney does not oppose (or initially opposed but then agrees to) are slated for release and are being released, although it needs to be faster. This process has resulted in 372 releases as of April 13. (Docket Entry No. 115 at 2). Those whose release is opposed can request a formal evidentiary hearing before a Harris County district judge for an individualized bail determination. The judges are working hard to provide this formal hearing quickly. They have informed the court that these hearings will proceed, even during the current state of emergency. The court cannot find on this record that in this time of crisis, federal-court intervention in fraught and rapidly evolving County affairs is required, safe,
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or would at this time materially improve the processes under way.5 C.f. In re Abbott, 2020 WL 1685929, at *1 (citing Jacobson, 197 U.S. at 29).
The court denies the plaintiffs’ March 27 motion, without prejudice. The plaintiffs may reurge their claims if the laudable efforts local officials are making to expedite formal individualized bail hearings and safe releases on personal bonds fail. The plaintiffs may also move to lift the stay and proceed with class certification and a motion for a preliminary injunction, which may be granted if they can prove their entitlement to relief on a fuller record. VI. The April 1, 2020, Motion for a Temporary Restraining Order
Nor have the plaintiffs shown a sufficient likelihood of success on the merits of their challenge to the Governor’s Executive Order GA-13. A key issue is abstention. “[U]nder the Pullman doctrine, a federal court should abstain from exercising its jurisdiction ‘when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.’” Nationwide Mut. Ins. Co. v. Unauthorized Prac. of Law Comm., 283 F.3d 650, 652 (5th Cir. 2002) (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)). Pullman abstention is appropriate when a case involves “(1) a federal constitutional challenge to state action and (2) an unclear issue of state law that, if resolved, would make it unnecessary for [the court] to rule on the federal constitutional question.” Id. at 653. “To satisfy the second prong, there must be an uncertain issue of state law that is ‘fairly susceptible’ to an interpretation that would render it unnecessary for [the court] to decide the federal constitutional questions in a case.” Id. (citing Baran v. Port of Beaumont Navigation Dist., 57 F.3d 436, 442
5 Another part of the plaintiffs’ requested relief is problematic. The plaintiffs request that the court define “violent offense.” (Docket Entry No. 75-1 at 2; Docket Entry No. 96 at 5). But federal courts have struggled for years to determine which state offenses are “violent.” See Johnson v. United States, 135 S. Ct. 2551, 2555–56 (2015) (collecting cases applying the definition of “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)). A quick and temporary fix is not the appropriate answer here.
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n.29 (5th Cir. 1995)). Finally, in addition to those factors, “the district court must assess the totality of the circumstances presented by a particular case, considering the rights at stake and the costs of delay pending state court adjudication.” Baran, 57 F.3d at 442.
The court finds that Pullman abstention is appropriate. To begin, there is a pending statecourt lawsuit challenging the Executive Order that raises questions about novel, uncertain issues of state law. See Tex. Crim. Def. Laws. Ass’n v. Abbott, No. GN-20-002034, 459th District Court of Travis County, Texas (Apr. 8, 2020), complaint available at https://www.aclutx.org/sites/default/files/eo_petition_2020.4.8._comms.pdf). The state-court plaintiffs include the Harris County misdemeanor court judges and several civil rights and criminal defense organizations. They argue that the Executive Order exceeds the Governor’s authority under the Texas Constitution and the Texas Disaster Act of 1975. Id. at ¶¶ 34–35. The complaint notes that the case appears to be one of first impression because, “[u]ntil now, no Texas Governor has invoked the Disaster Act to purport to suspend provisions of the Code of Criminal Procedure.” Id. at ¶ 48. For their part, the State intervenors emphasize that “Texas courts have yet to interpret the [Governor’s] order’s scope.” (Docket Entry No. 67 at 21).
On April 10, 2020, the judge in the state-court case temporarily enjoined the enforcement of the Executive Order, though the Texas Supreme Court stayed that decision the following day. (Docket Entry Nos. 112–13). The state litigation may make it unnecessary for this court to rule on whether the Executive Order violates the U.S. Constitution.
The state case will also illuminate the federal constitutional inquiry because the Fifth Circuit’s analysis of indigent arrestees’ due process rights in the bail context turns on a statecreated liberty interest, which the Executive Order purports to limit. ODonnell, 892 F.3d at 157– 58; (Docket Entry No. 67 at 21); see Harris Cty. Comm’rs Ct. v. Moore, 420 U.S. 77, 84 (1975)
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(“Among the cases that call most insistently for abstention are those in which the federal constitutional challenge turns on a state statute, the meaning of which is unclear under state law. If the state courts would be likely to construe the statute in a fashion that would avoid the need for a federal constitutional ruling or otherwise significantly modify the federal claim, the argument for abstention is strong.”). The Fifth Circuit in ODonnell focused on the right to bail on “sufficient sureties” under Texas law rather than “a fundamental substantive due process right to be free from any form of wealth-based detention,” which “is [not] in view.” ODonnell, 892 F.3d at 158, 163. Because “[d]ue process and equal protection principles converge” in cases involving “the treatment of indigents in our criminal justice system,” Bearden v. Georgia, 461 U.S. 660, 664–65 (1983), the state court’s resolution of the state law issues may also impact the federal equal protection analysis. The extent to which relevant Fifth Circuit precedent focuses on Texas law supports abstention until Texas courts have resolved whether the Executive Order validly limited the state liberty interest during the pandemic.
The plaintiffs in this case respond that this court need not abstain because the Executive Order’s violation of federal rights is clear no matter how the state litigation turns out. (Docket Entry No. 88 at 10–11 n.5). This contention does not refute that the relevant state law is uncertain and will impact any argument in this court.
A better argument against abstention may be that “the costs of delay pending state court adjudication” are intolerable given the risk that, as the plaintiffs argue, the Executive Order violates federal rights, threatens indigent arrestees’ lives, and jeopardizes efforts to prevent COVID-19 from engulfing the Harris County Jail and spreading throughout the Houston region. See Baran, 57 F.3d at 442. The court takes this concern seriously, and recognizes the critical constitutional, health, and public safety interests the plaintiffs invoke as reasons for swift federal action.
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But delicate considerations of federalism and separation of powers support abstention in this complex, rapidly evolving situation. The Executive Order is not permanent. This dispute involves a dizzying array of government actors with different interests, policies, and legal positions. This court is in the middle of, as Sheriff Gonzalez puts it, “turf wars”6 between the State of Texas, America’s third-largest county, the County Sheriff, the District Attorney, the Chief Public Defender, state felony judges, and the state-court plaintiffs, including the Harris County misdemeanor judges, who are challenging the same Executive Order that the plaintiffs in this case seek to enjoin. Because the state courts are well positioned to provide expedited review of the Executive Order, this court should, and will, stay out of the fray for now.
Moreover, on the current, limited record, in the emergency circumstances presented, it is best to leave sensitive policy and political decisions on crafting procedures to accomplish the shared goal of safely reducing the Jail population to elected and appointed officials. “Turf wars” allow different interests and views to be heard and addressed on the ground, by those who must actually implement the policies and procedures. The court does not want to disrupt the laudable existing efforts to address the crisis. Disrupting a process that strives to recognize the different interests and concerns is an added risk of intruding with a temporary restraining order that is backed by the threat of contempt.
The County’s current response is consistent with the Executive Order, respecting the Executive Order’s limitation on which pretrial felony arrestees are eligible for release on a personal bond absent a health or medical reason.
6 (Docket Entry No. 65 at 3). 28

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VII. Conclusion This case is far from easy. There are risks no matter what this court decides. Institutions
charged with safeguarding the public and upholding the Constitution have an extraordinary and difficult task, made more difficult and more consequential during this pandemic. Mindful of the sparse record and of this court’s own limited authority, the court has done its best to balance the constitutional and public safety interests at stake.
The court has not addressed, much less foreclosed, the substantive issues on the merits. Those remain open to be decided on a motion for a preliminary injunction. And, as noted, the court is not foreclosing any party or interested nonparty from raising additional issues or substantially different facts that this pandemic continues to produce. But for now, the plaintiffs’ temporary restraining order motions, (Docket Entry Nos. 32, 53, 75), are denied without prejudice.
On Tuesdays and Fridays by 5:00 p.m., starting April 17, 2020, the parties and interested nonparties must continue to provide the court with information on: (1) the number of pretrial felony arrestees unable to pay a secured bond who have been released on a personal bond with no remaining disputes preventing that release; (2) the number who remain in pretrial custody because they are unable to pay a secured bond and whose release on a personal bond is challenged by the District Attorney; (3) the population of felony pretrial arrestees in the Harris County Jail; (4) the length of delays before individualized formal bail hearings after such hearings are requested; and (5) the number of arrestees and workers in the Jail who have positive COVID-19 test results and the number with pending test results.
SIGNED on April 14, 2020, at Houston, Texas.
_______________________________ Lee H. Rosenthal
Chief United States District Judge
29

 
 Case 4:19-cv-00226 Document 140 Filed on 05/06/20 in TXSD Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

NOTICE OF FILING OF FIRST AMENDED COMPLAINT WITH NEW PARTIES

Plaintiffs hereby provide Notice of Filing of Plaintiffs’ First Amended Class Action

Complaint, Exhibit 1, as a matter of course under Rule 15(a)(1)(A). Attached to this Notice as

Exhibit 2 is a document showing, in redline edits, the changes made to Plaintiffs’ originally filed

Complaint. These differences are limited to: (1) the addition of two named Plaintiffs and proposed Class Representatives, who meet all of the Rule 23 criteria;1 and (2) the addition of facts regarding

Governor Abbott’s Executive Order GA-13. All other allegations have remained unchanged. Rule

15 is an appropriate vehicle for adding named Plaintiffs. Jackson v. N.A.A.C.P., 575 Fed. Appx.

256, 260 (5th Cir. 2014) (citing Bibbs v. Early, 541 F.3d 267, 275 n. 39 (5th Cir. 2008)); Aircraft

Holding Solutions, LLC v. Learjet, Inc., 2018 WL 6696350, at *1 n.2 (N.D. Tex. Dec. 20, 2018).

Date: May 6, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com

1 On April 13, 2020, Jason Callicotte filed a Motion to intervene. Dkt. 119. Plaintiffs believe the Court should defer ruling on the Motion to Intervene until after Plaintiffs’ Motion for Class Certification, Dkt. 11, has been fully briefed and decided because Mr. Callicotte would be a member of the Rule 23(b)(2) transitory class.
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Case 4:19-cv-00226 Document 140 Filed on 05/06/20 in TXSD Page 2 of 3

Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Liya Brown Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 mimi@texascivilrightsproject.org Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 liyah@texascivilrightsproject.org Peter Steffensen Texas State Bar No. 24106464 Southern District No. 3327006 peter@texascivilrightsproject.org Texas Civil Rights Project 2202 Alabama Street Houston, TX 77004 Telephone: 512-474-5073 ext. 118

Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100

2

Case 4:19-cv-00226 Document 140 Filed on 05/06/20 in TXSD Page 3 of 3 CERTIFICATE OF SERVICE
I certify that on May 6, 2020 a true and correct copy of this document properly was served on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas Procedures for Electronic Filing.
/s/ Elizabeth Rossi Elizabeth Rossi
3

Case 4:19-cv-00226 Document 140-1 Filed on 05/06/20 in TXSD Page 1 of 48

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

DWIGHT RUSSELL,

)

JOHNNIE PIERSON,

)

JOSEPH ORTUNO,

)

CHRISTOPHER CLACK,

)

MAURICE WILSON

)

)

On behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

SHERIFF ED GONZALEZ,

)

)

Defendants.

)

____________________________________)

Case No. 4:19-cv-00226 (Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

FIRST AMENDED CLASS ACTION COMPLAINT

I. Introduction

1. This case is about Harris County’s jailing some of its poorest people, charged with

felonies, because they cannot afford to make a monetary payment.

2. Harris County previously used access to cash to make release-and-detention

decisions in the County’s misdemeanor bail system. In 2016, certain of undersigned counsel filed

a lawsuit against the County, the Sheriff, the misdemeanor judges (who were added later), and the

Hearing Officers. Following a nearly two-week evidentiary hearing in March 2017, the Court

struck down Harris County’s misdemeanor bail policies, finding that the policies violated Equal

Protection and Due Process, coerced guilty pleas, and disproportionately affected people of color.

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Case 4:19-cv-00226 Document 140-1 Filed on 05/06/20 in TXSD Page 2 of 48
The Court issued a preliminary injunction that led to the release of more than 13,000 people who otherwise would have been illegally detained.
3. In 2018, a slate of candidates ran for election to the misdemeanor courts on a platform acknowledging the devastating consequences of the County’s decades-long policy of detaining poor misdemeanor arrestees after arrest for days and weeks, and promising to work with the Plaintiffs’ counsel and other stakeholders to reform the system and end the misdemeanor lawsuit. All of the candidates won; all of the incumbent judges who had resisted the lawsuit were removed by the voters. On January 17, 2019, after the newly elected judges took office, all of the misdemeanor judges promulgated a new rule that will dramatically change the misdemeanor bail system. It was the result of intensive conversations with class counsel, the District Attorney, the Sheriff and his command staff, and the Public Defender. The rule requires the initial release decision in misdemeanor cases to be made on the basis of the offense charged. Most arrestees— approximately 85%—will automatically qualify for release on unsecured bonds (requiring a payment only if the person willfully misses court and the bond is subsequently forfeited). Only people arrested for a few select offenses will be required to appear before a judge within 48 hours, at which time they may also qualify for release on unsecured bonds or with other appropriate conditions tailored to a specific, identified risk. This rule will give effect to the Supreme Court’s requirement that detention prior to trial must be the “carefully limited exception,” and will reverse the years-long practice of detaining 40% of misdemeanor arrestees throughout the duration of their cases.
4. Reforms to Harris County’s misdemeanor pretrial detention system came after numerous county officials spoke out against the system’s unequal treatment of people who are
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poor. Sheriff Ed Gonzalez, though a necessary defendant in the misdemeanor case and in this one,
has stated:
The County’s widespread detention of arrestees because they are too poor to pay arbitrary amounts of money is a waste of public resources and actually undermines public safety . . . . I believe that the current operation of the money bail system, including the Sheriff’s active participation in that system, violates the United States Constitution . . . . A person’s access to money should not be a determining factor in whether he or she is jailed or released after arrest and pending trial.1
District Attorney Kim Ogg, who is not a defendant in either case but has been a strong voice for
reform of the County’s misdemeanor bail policies, has stated:
It is our position that bail reform is necessary and long overdue. Holding un-adjudicated misdemeanor offenders in the Harris County Jail solely because they lack the money or other means of posting bail is counterproductive to the goal of seeing that justice is done. We do not want to be complicit in a system that incentivizes presumptively innocent people to plead guilty merely to expedite their release from custody. We do not want to administer punishment before the defendant has been adjudicated. It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time. These secure beds and expensive resources should be prioritized for the truly dangerous offenders and “flight risks” who need to be separated from the community.2
5. For people charged with felonies, however, the practice of conditioning release on
access to money persists: arrestees charged with felonies are released from custody almost
immediately if they can make a predetermined payment of money to the County while arrestees
1 Meagan Flynn, Incoming Sheriff Ed Gonzalez Declares Bail System Unconstitutional, Houston Press (Nov. 29, 2016), https://www.houstonpress.com/news/incoming-sheriff-ed-gonzalez-declares-bail-system-unconstitutional8984569; see also Michael Hardy, In Fight Over Bail’s Fairness, Sheriff Joins the Critics, New York Times (Mar. 9, 2017), https://www.nytimes.com/2017/03/09/us/houston-bail-reform-sheriff-gonzalez.html?module=inline (quoting Sheriff Gonzalez saying “When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately [B]lack and Hispanic, that’s not a rational system.”); Cameron Langford, Texas Sheriff Among Critics of His Own Bail System, Courthouse News (Mar. 9, 2017), https://www.courthousenews.com/texas-sheriff-among-critics-bail-system/ (quoting Sheriff Gonzalez’s testimony in federal court, in which he stated, “When we look at equal protection, in my opinion it should be equal protection for everyone, but statistically speaking it doesn’t bear that out. When I see that many of the people inside the jail, on any given day an average of 9,000, are just poor and can’t bond out, and I look at racial disparities, disproportionally communities of color, then that’s very concerning to me.”). 2 Position Statement of District Attorney Kim Ogg About Bail Bond Litigation Pending in the United States District Court, Case No. 4:16-cv-1414, ECF 206 (Mar. 3, 2017).
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who are too poor to purchase their liberty remain in jail solely because of their poverty. As a result of these policies and practices, more than half of the people arrested for felony offenses remain detained for the entire duration of their case until its disposition.3 Many of the lowest level arrestees are then released on the day of conviction.
6. The felony bail system in Harris County raises the same legal issues as the misdemeanor system, has the same devastating consequences for impoverished arrestees, is similarly coercive of guilty pleas, and is even more costly to the system, in part, because felony arrestees constitute approximately 77% of the jail population on any given day. The felony system demands analogous reforms: ending the use of the secured bail schedule to make the initial release decision and ensuring that anyone detained prior to trial is afforded the substantive findings and procedural protections the Constitution requires to protect against an erroneous deprivation of the right to bodily liberty—the most important right protected by the Constitution, other than the right to life itself.
7. Approximately twelve percent of the felony pretrial population in the Harris County Jail consists of people whose most serious charge is a “state jail” felony. State jail felonies are the least serious class of felony charges in the Texas criminal legal system. They consist mostly of non-violent offenses and, in many instances, they are simply misdemeanor offenses enhanced by prior misdemeanor convictions.
8. Almost 70% of all felony arrestees are charged with non-violent offenses.4 The most common charge for all felony arrestees is drug possession, which is the most serious charge

3

Harris

County

Pretrial

Services,

2017

Annual

Report

16

(2017),

https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf (showing that non-violent felony arrests

account for 68.9% of all felony arrests).

4 Harris County Pretrial Services, supra note 3, at 21.

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for 26.8% of felony arrestees.5 Only 8.6% of all felony arrestees are released on an unsecured bond.6 Money bail is required as a condition of release for the overwhelming majority of felony arrestees, meaning that these arrestees are eligible for release, but will be released only if they can make an up-front monetary payment. Those who are too poor to pay must stay in jail cells.
9. This mass detention caused by arrestees’ inability to access money has devastating consequences for arrested individuals, for their families, and for the community. Pretrial detention of presumptively innocent individuals causes them to lose their jobs and shelter, interrupts vital medication cycles, worsens mental health conditions, makes people working to remain sober more likely to relapse, and separates parents and children. It exposes people to dangerous overcrowding, violence, and infectious disease at the jail. It coerces guilty pleas and results in longer sentences. In part because arrest and detention for any period of time destabilizes a person’s life, even a couple of days in pretrial detention makes a person more likely to commit crimes in the future. It also costs Harris County tens of millions of dollars every year—money that could be invested in systems that provide support to people suffering from addiction, housing instability, mental health issues, and poverty, instead of a system that research shows actually exacerbates those conditions.
10. Between 2009 and the present, 125 people died in the Harris County Jail awaiting trial,7 including a woman this month who committed suicide while being detained due to her inability to pay $3,000 money bail. She was granted a personal bond an hour after she was found hanging.8
5 Id. 6 Id. at 17. 7 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019. 8 Keri Blakinger, Harris County jail inmate dies by suicide days after misdemeanor arrest, Houston Chron. (Jan. 16, 2019) https://www.chron.com/news/houston-texas/article/Harris-County-jail-inmate-dies-by-suicide-days13538819.php.
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11. Named Plaintiffs Christopher Clack and Maurice Wilson are currently being detained in the Harris County Jail because they cannot afford the monetary payment required for their release. Mr. Clack is required to pay $17,500 to be released. And Mr. Wilson is required to pay $10,000 to be released. Dwight Russell, Johnnie Pierson, and Joseph Ortuno were detained when the initial Complaint was filed on January 21, 2019.9 Mr. Russell was required to pay a $25,000 secured bail amount to be released. Mr. Pierson was required to pay $15,000 to be released. Mr. Ortuno was required to pay $30,000 to be released. Because of their poverty, each of the Plaintiffs is (or was) confined to a Harris County jail cell. In none of their cases did a judicial officer make any finding concerning ability to pay, the availability of alternative non-financial conditions of release, or the need to detain them to serve any government interest. Moreover, none of the Plaintiffs was afforded the procedural safeguards required to ensure the accuracy of any decision to detain them pretrial.
12. On behalf of the many other arrestees subjected to Harris County’s unlawful and ongoing post-arrest wealth-based detention scheme, the Plaintiffs challenge in this action the use of secured money bail to detain only the most impoverished felony arrestees. Harris County’s wealth-based felony pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution.
13. By and through their attorneys and on behalf of themselves and all others similarly situated, Plaintiffs seek an injunction against Defendants’ wealth-based post-arrest policies and practices and a declaration that Defendants cannot employ a system of pretrial detention based solely on access to money by imposing and enforcing secured financial conditions of pretrial release without factual findings on the record, after adequate procedural safeguards to ensure the
9 Each of the original named Plaintiffs was subsequently released after the lawsuit was filed.
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accuracy of the findings, either (1) that the person can afford to pay the amount required for release or (2) that, although the person cannot afford it and will be detained, pretrial detention is necessary because every less-restrictive alternative condition is inadequate to meet a specific, compelling government interest in court appearance or community safety.
II. Related Litigation 14. In accordance with Local Rule 5.2, Plaintiffs advise the Court of related litigation
that is currently pending: ODonnell v. Harris County, Case No. 4:16-cv-1414 (S.D. Tex. 2016), in the United States District Court for the Southern District of Texas, Houston Division. ODonnell raises the same legal claims and challenges materially identical bail policies and practices as applied to people arrested for misdemeanor offenses. This lawsuit is a companion case to ODonnell; the claims pled here could have been added to ODonnell itself by way of an amended Complaint.
III. Nature of the Action10 15. It is the policy and practice of Defendants to detain all felony arrestees who are
eligible for release unless they pay a monetary sum. The amount of money required is initially determined by a generic schedule and is subsequently set by Hearing Officers at arrestees’ probable cause hearings, during which the Hearing Officers fail to make the findings required by the Constitution, and the County fails to provide the procedural protections required to ensure the accuracy of any decision that results in a person’s pretrial detention. It is the policy and practice of the Harris County Sheriff to require these payments as a condition of release without a judicial officer having made a finding either that the person can afford to pay the amount or that detention
10 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.
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is necessary to serve any government interest. This practice results in the systemic detention of those arrestees who are too poor to pay. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants’ post-arrest detention scheme based on access to money.
Jurisdiction and Venue 16. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 17. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 18. Dwight Russell is a 61-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subjected to Defendants’ wealth-based post-arrest detention practices. 19. Johnnie Pierson is a 51-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices. 20. Joseph Ortuno is an 18-year-old teenager who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices. 21. Christopher Clack is a 46-year-old man who lives in Houston. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealthbased post-arrest detention practices.
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22. Maurice Wilson is 36-year-old man who lives in Houston. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based postarrest detention practices.
23. Defendant Harris County is a municipal corporation organized under the laws of the State of Texas. The County, through the judges who are its final policymakers for promulgating bail procedures, makes policy decisions about which arrestees are eligible for release on nonfinancial conditions. The County, through the judges, also makes policy decisions about the content of the findings that are required to justify pretrial detention and about the procedural safeguards to provide for arrestees, including: whether and when to provide adversarial hearings and counsel; whether to provide notice, an opportunity to be heard, and an opportunity to present and confront evidence; and whether to make findings on the record. The County’s policies and practices result in systemic wealth-based pretrial detention of Harris County felony arrestees without the substantive findings or procedural safeguards required by the United States Constitution.
24. The Harris County Sheriff is the chief law enforcement officer for Harris County and operates the Harris County Jail, the forthcoming Joint Processing Center, and several other detention facilities. He is responsible under state law for enforcing pretrial bail orders and directives issued by judges or promulgated by local rule. State law also obligates the Sheriff to ensure the lawfulness of any order resulting in a person’s detention in the Harris County Jail and requires him to not enforce orders he knows to be illegal.
25. The Sheriff’s Office is itself responsible for about 19% of felony arrests within Harris County. The Sheriff’s Office also transports arrestees from field stations run by various other authorities with arresting power to the Harris County Jail, which houses all people to be
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detained pending prosecution within the Harris County courts. The Sheriff’s Office detains arrestees at the Harris County Jail and several other facilities. The officers and employees of the Sheriff’s Office are authorized by County policy to accept money bail, as determined by the money bail schedule or by a judicial officer, and release arrestees.
Bonding office in the Joint Processing Center, which the County expects will open on February 1, 2019, subject to further delays.
26. After arrest, Sheriff’s Office employees and agents bring arrestees detained because they cannot pay money bail to a room inside the jail for probable cause hearings and bail setting. Sheriff’s Office employees supervise and monitor the arrestees during the hearing. The Sheriff has knowledge that Hearing Officers require secured financial conditions of release without findings concerning a person’s ability to pay the amount set and without any findings concerning alternatives to pretrial detention.
27. The Sheriff, who operates the jail, is aware of who is in the jail and the basis for each person’s detention, including whether any person is eligible for pretrial release, and the amount of money bail any person is required to pay for immediate release. The Sheriff therefore has knowledge that the imposition of secured money bail results in systemic, wealth-based detention, and that there are thousands of people in the jail every night who would be released but
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for their inability to pay a money bail amount imposed without any finding that pretrial detention is necessary and without the basic procedural safeguards necessary to ensure the accuracy of such a finding.
28. The Sheriff’s Office, by policy and practice, detains arrestees too poor to afford the money bail amounts that are imposed without findings concerning ability to pay or the need for detention, and releases arrestees who pay their money bail.
29. The Sheriff is sued in his official capacity because he is the final policymaker for all law enforcement decisions in Harris County. To the extent the Sheriff is not a County policymaker for the conduct challenged in this Complaint, the Sheriff is sued in his official capacity as an enforcement actor for purposes of injunctive relief and can be enjoined in his capacity as an enforcement actor, regardless of whether he acts on behalf of the County or the State of Texas when he enforces bail directives.11
Factual Background A. The Named Plaintiffs Are Being Kept in Jail Because They Cannot Afford the
Money Bail Required for Their Release, Even Though the Government Has Not Made a Substantive Finding that Detention is Necessary 30. Dwight Russell is a 61-year-old man. Ex. 1 (Declaration of Dwight Russell) ¶ 1. 31. Mr. Russell was arrested on January 19, 2019 and taken into the custody of Harris County for allegedly driving while intoxicated, third offense. He was informed that, because of the Harris County bail schedule, he would be released immediately, but only if he paid a money bail amount of $25,000. He was told that he will be detained by Harris County if he does not pay. See Id. ¶¶ 3, 4.
11 Defendant Ed Gonzalez is named separately from the County as a defendant in the event that the Court concludes that he acts on behalf of the State in any capacity, and thus is subject to prospective relief only in that capacity. If the Court, however, determines that he is a final policymaker for the County, naming him individually is redundant of a suit against the County.
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32. Mr. Russell appeared while in custody at the jail at a probable cause hearing, and a Hearing Officer found probable cause for his arrest. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Id. ¶¶ 5, 6. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
33. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $25,000. Id. ¶ 4.
34. Mr. Russell struggles to meet the basic necessities of life. His only income is from food stamps. He is unemployed and has no savings. He lives with his sister, who provides him with financial support. Id. ¶ 7.
35. He cannot afford to purchase his release from jail. Id. ¶ 4. 36. Johnnie Pierson is a 51-year-old man. Ex. 2 (Declaration of Johnnie Pierson) ¶ 1. 37. Mr. Pierson was arrested on January 18, 2019, for possession of less than one gram of a Penalty Group 1 controlled substance, a state jail felony offense. He was taken to the Houston city jail and then to the Harris County jail. Id. ¶ 3. 38. At the jail, deputies took him to see a Hearing Officer, who told Mr. Pierson that he could be released, but only if he paid $15,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4. 39. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Id. ¶ 7. Nor was he afforded the procedural protections required,
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including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
40. Mr. Pierson struggles to meet the basic necessities of life. He survives on food stamps and works part-time on cars when he can. He does not have any other income. Id. ¶ 10.
41. He cannot afford to purchase his release from jail. Id. ¶ 13. 42. Joseph Ortuno is an 18-year-old teenager who is in high school. Ex. 3 (Declaration of Joseph Ortuno) ¶¶ 1, 6. 43. He was arrested on January 17, 2019, for possession with intent to deliver a controlled substance. He was taken first to the Houston city jail and then to the Harris County jail. Id. ¶ 3. 44. At the jail, deputies took him to see a Hearing Officer, who told Mr. Ortuno that he could be released, but only if he paid $30,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4. 45. Pursuant to the policies and practices described in this Complaint, no findings were ever made concerning his ability to pay or the need to detain him in light of available, lessrestrictive alternative conditions of release. See Id. ¶ 5. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 46. Mr. Ortuno struggles to meet the basic necessities of life. When not in school, he makes money by helping his uncle with tile installation, but he cannot afford to purchase his release from jail. Id. ¶¶ 4, 7, 12. 47. Christopher Clack is 46 years old.
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48. Mr. Clack was arrested on January 17, 2020 for two felony offenses, and taken to the Harris County Jail.
49. At the jail, deputies took him to see a Hearing Officer, who told Mr. Clack that he could be released, but only if he paid $17,500. He was told that, if he does not pay the money, he would be kept in a jail cell.
50. Mr. Clack struggles to meet the basic necessities of life. Prior to being detained, Mr. Clack typically earned about $200–$400 per week as an independent contractor. He does not have any financial support outside of the income he used to earn by working. He does not have a bank account.
51. He cannot afford to purchase his release from jail. 52. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 53. Although court records show that Mr. Clack had settings on January 21 and March 12, 2020, he was transported to court from the jail only on March 12, and he was kept in lock-up during the hearing. There was no review of his bail conditions, and the judge did not make a finding that his continued detention was necessary. His next court appearance is scheduled for July 16. 54. Mr. Clack learned on May 4, 2020, that a few weeks ago, his lawyer called the judge in his case to ask for a bond reduction. Mr. Clack was not present for the call. The judge refused to reduce the bond amount, but the reasons were never explained to him.
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55. Mr. Clack fears for his health and life because of an outbreak of COVID-19 in the Harris County Jail.
56. Mr. Clack is ineligible for release on a personal bond pursuant to GA-13. 57. Maurice Wilson is 36 years old. 58. He was arrested on January 30, 2020 for drug possession, and taken to the Harris County Jail. 59. At the jail, deputies took him to see a Hearing Officer, who told Mr. Wilson that he could be released, but only if he paid $15,000. He was told that, if he does not pay the money, he will be kept in a jail cell. 60. Although court records show that Mr. Wilson had court settings on February 3, February 12, April 6, April 13, and May 4, he was transported to court from the jail only on February 12, and he was kept in lock-up during that proceeding and did not see the judge. On February 12, 2020, the judge lowered Mr. Wilson’s bond from $15,000 to $10,000, but Mr. Wilson still could not afford the sum. There was no on-the-record bail hearing, and the judge did not make a finding that detention was necessary. Mr. Wilson’s next court date is currently set for June 15. 61. Mr. Wilson struggles to meet the basic necessities of life. Before his arrest, he earned money by working sporadically for his father’s landscaping business. He has no other source of income. Mr. Wilson provides financial support for his 15-year-old son. 62. He cannot afford to purchase his release from jail. 63. Pursuant to the policies and practices described in this Complaint, no findings have been made concerning Mr. Wilson’s ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Nor was Mr. Wilson afforded the procedural
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protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
64. Mr. Wilson fears for his health and life because of an outbreak of COVID-19 in the Harris County Jail.
65. Mr. Wilson is ineligible for a personal bond pursuant to GA-13. B. Defendants’ Post-Arrest Practices Cause the Detention of Arrestees Who
Cannot Pay a Money Bail Amount While Those Who Can Pay Are Released i. Arrest and the Initial Money Bail-Setting Process 66. Harris County uses a predetermined money bail schedule, promulgated through administrative order by the Harris County District Court Judges (“the felony judges”), to determine financial conditions of pretrial release for nearly all felony arrestees in Harris County. See Ex. 4 (Harris County District Court Felony Bond Schedule). The schedule requires arrestees charged with certain offenses to remain in custody until a magistrate determines conditions of release at a probable cause hearing. For all other arrestees, the schedule lists an amount of cash a person must pay to purchase her release. The cash amount is based on a combination of the type of offense and the “risk” level of the arrestee as determined by a risk assessment algorithm. The algorithm itself is a secret, and the County’s use of the assessment tool to determine the price of release is nonsensical and an improper use of the tool. First, there is no science showing that higher amounts of money mitigate higher risks of nonappearance or new criminal activity. Second, the tool is intended only to identify a risk absent interventions, such as text-message reminders or appropriate conditions like a stay-away order.
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67. Harris County itself made 19% of felony arrests within the County in 2017. The City of Houston Police Department made 53.9% of felony arrests in 2017.12 There are roughly 100 additional agencies within Harris County that have the authority to make arrests.
68. When a person is arrested within Harris County, she will be taken to a “field station” run by the arresting authority. If she is arrested by Harris County, she will be taken either to a field station or directly to the jail. These field stations vary in size and their capacity to hold and process arrestees. Some include holding cells. In others, arrestees are made to sit shackled to a bench while initial post-arrest procedures are conducted.
69. When the newly constructed Joint Processing Center (“JPC”)—which Harris County spent $100 million to build—opens later this year, all people arrested by Harris County or the Houston Police Department will be taken directly to the JPC. This means that about 75% of arrestees will immediately be in the Sheriff’s physical custody upon arrest.
70. Once at a field station, if the person was arrested without a warrant, the arresting officer will determine whether the Harris County District Attorney’s Office wishes to pursue the charge by calling a hotline that is staffed 24 hours a day, 7 days a week by Harris County’s assistant district attorneys. The arresting officer describes the allegations to the assistant district attorney (“ADA”) on duty, who makes an initial charging decision over the phone.
71. If the ADA on hotline duty does not wish to pursue charges, she tells the officer to release the individual.
72. If the ADA decides to pursue the charges, the arresting officer will type a summary of the facts giving rise to the arrest into the District Attorney’s Intake Management System.
12 Harris County Pretrial Services, supra note 3, at 8.
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73. The summary will be transmitted to the District Attorney’s (“DA”) intake division where an ADA will formally accept charges.
74. The District Clerk’s Office then files the case, creates a case number, and assigns the case to a courtroom. Pretrial Services runs the person’s information through an algorithm to create a “risk assessment” score and applies the felony judges’ schedule. The process from arrest to formal charges being filed and the cash amount required for release being set typically lasts about 6 to 8 hours.
75. Once the charging document is filed, a case number assigned, and a monetary amount set, the arrestee will be eligible to pay the secured money bail amount and be released. Up to this point, Harris County does not perform any inquiry into the arrestee’s ability to pay the money bail amount required by the felony judges’ schedule.
76. From the moment a secured bail amount is set in a felony case, the arrestee is eligible for release from Harris County custody if she can pay the amount required. If a person is subject to certain “hold” orders (e.g., an immigration detainer, probation hold, or process from another county), that person will be eligible for transfer to the jurisdiction where the hold is operative as soon as she pays. Typically, there is a set time period within which the other jurisdiction can come and pick up the arrestee. That time period does not begin ticking down unless and until the person pays the amount required by the judges’ schedule in Harris County.
77. Arrestees can pay the amount themselves, make a phone call to ask a friend or family member to pay the money on their behalf, or contact a commercial bonding agent to post bail. A person who can afford to pay will be released from the field station and will never be transported to the Harris County Jail.
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78. The imposition of a financial condition of release is the moment of differential treatment: Defendants will release a person with financial resources almost immediately after money is paid, but Defendants will continue to detain a person who cannot afford to pay. This policy and practice results in systemic and automatic wealth-based detention.
79. Whether a person is arrested pursuant to a warrant or pursuant to a warrantless arrest, that person can pay the secured money bail amount predetermined by the schedule and be released immediately from the field station,13 prior to formal booking.14 If the individual is unable to pay, she will be transported to and booked into the jail.
80. The time it takes for an arrestee to be transported to the Harris County Jail varies depending on a variety of factors, including where the person was arrested.
81. Harris County is a large county, and individuals arrested within its borders can be taken initially to field stations as geographically close to the Harris County Jail as the Houston Police Station located a little over a mile from the jail, or as far away as, for example, the City of Lakeview, which is more than 30 miles away.
82. Sometime after a person arrives at the jail—and usually before she is assigned to a housing unit—she will be taken by Sheriff’s Office employees to a room in the jail with several dozen other new arrestees to appear before a Hearing Officer, who will determine probable cause. Many people every month must wait up to 48 hours for a probable cause hearing, though some have their hearings within 24 hours of arrest.
13 Individuals arrested by Harris County officers are generally taken directly to the Harris County Jail. However, as noted, Harris County itself is only one of roughly 100 agencies with arresting authority in the County, some of which are 60 to 90 minutes outside of Houston. 14 The vast majority of arrestees use a bail bond, obtained through a commercial bail bond company, to secure their release from jail. Typically, if accepted by a for-profit bail agent, an arrestee will have to pay the agent a nonrefundable fee of 10% of the value of the bond to be released.
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83. These policies have consistently, for years, resulted in the needless and devastating jailing of impoverished people accused of felony offenses. In 2017, up to 85% of felony arrestees were booked into the jail because they were unable to immediately pay for their release.15 Arrestees booked into the jail endure a lengthy, intrusive, and humiliating process that includes seizure of their property, bodily searches, personal questions about their physical health, and interviews requiring them to disclose private financial and mental health information. The inmate processing center is notoriously crowded with people who are in moments of extreme crisis, having just been arrested, separated from their children and families, and deprived of their freedom. Some are suffering from painful withdrawal symptoms or mental health episodes. Many are worried about missing shifts at their jobs or making rent payments. All are, at that moment, presumed innocent of all charges. The processing center is loud, dirty, and full of flies and noxious smells. The risk of suicide—elevated for all people detained in jails—is at its highest in the hours and days immediately following arrest. Similarly situated arrestees who were able to pay the predetermined money bail amount avoid the booking process altogether.
84. In 2017, approximately 55% of felony arrestees were still in jail when their case reached disposition.16 Many of these arrestees were detained solely due to their inability to afford the secured financial condition set for their release.17
ii. Probable Cause Hearings 85. The Harris County Sheriff’s Office, through its jail personnel, assembles recently arrested people nine times per day, every day of the week, for an appearance before one of the
15 Harris County Pretrial Services, supra note 3, at 19. 16 Id. at 16. 17 Id. at 19 (showing in Table B.1 that roughly 45% of felony arrestees post money bail).
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Harris County Hearing Officers. The Hearing Officer determines probable cause for the arrest, if
it was warrantless, and imposes conditions of release.
86. These hearings are referred to locally as “magistrations,” “Article 15.17 hearings,”
or “probable cause hearings.”
87. In March 2017, in the middle of the evidentiary hearing in the ODonnell case,
challenging the County’s misdemeanor bail system, the County Commissioners voted to fund a
pilot program allowing defense attorneys to appear on behalf of detained arrestees at these hearings beginning in July 2017.18 Assistant public defenders are currently authorized to represent most
arrestees, though there are some exclusions.
88. At the probable cause hearing, Hearing Officers typically make no findings
concerning ability to pay; they make no findings as to whether alternative conditions of release
serve the government’s interests or whether pretrial detention is necessary to serve any government
interest; they do not allow arrestees to confront the evidence and arguments of the government or
put on evidence in support of pretrial release; and they do not provide other basic procedural
safeguards, such as applying any evidentiary standard to any factual finding, let alone the clear-
18 Harris County received $150,000 in May 2015 from the MacArthur Foundation to create a proposal for improvements to the criminal legal system. See Press Release, MacArthur Announces 20 Jurisdictions to Receive Funding to Reduce Jail Use (May 26, 2015), https://www.macfound.org/press/press-releases/macarthur-announces20-jurisdictions-receive-funding-reduce-jail-use/. Harris County subsequently convened a Criminal Justice Coordinating Council, which investigated ways to reduce incarceration. Among the most important reforms that participants recommended was to provide defense attorneys at the probable cause hearings. Early in January 2016, the Coordinating Counsel submitted its grant proposal to the MacArthur Foundation, seeking $4 million over two years to put its plans into effect. Without a public explanation and despite the availability for funding for lawyers to represent all arrestees, the final document included a proposal for counsel only to represent individuals who are mentally ill. Meagan Flynn, Bail Hearings: Where Prosecutors and Magistrates Ensure Defenseless People Stay In Jail (Jan. 11, 2016), http://www.houstonpress.com/news/bail-hearings-where-prosecutors-and-magistrates-ensuredefenseless-people-stay-in-jail-8058308. On April 13, 2016, Harris County was awarded a $2 million MacArthur grant to reform its criminal system, but that money was not allocated to funding public defenders at bail hearings, even for people with mental illnesses. See Harris County receives $2 million grant to reform criminal justice system, KPRC News (Apr. 13, 2106), http://www.click2houston.com/news/watch-live-harris-county-receives-2-million-grant-toreform-criminal-justice-system. That change came only in the midst of the evidentiary hearing on the ODonnell Plaintiffs’ motion for preliminary injunction.
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and-convincing-evidence standard, or issuing any statement of findings or reasons explaining why a particular financial condition or pretrial detention is required.
89. An ADA participates in the probable cause hearings via videolink by arguing for the Hearing Officer to make a finding of probable cause and often asking the Hearing Officer to impose money bail in an amount higher than the amount on the schedule or on the warrant. District Attorney Kim Ogg has an internal policy requiring motions for high bond on certain cases. She also has a policy of asking the Hearing Officer to detain using a “no bond” order every arrestee charged with an offense for which the Texas Constitution authorizes pretrial detention, regardless of the person’s individual case and circumstances and regardless of the availability of lessrestrictive alternatives to detention.
90. When the docket begins, arrestees are seated on benches in a room at the jail. 91. The Hearing Officer calls an individual’s name and reads the charge. That individual gets up and stands in the middle of a red square on the floor of the room in the jail. An ADA then reads from the police report. The Hearing Officer decides whether there is probable cause, finding probable cause in almost every case. The Hearing Officer regularly sets secured money bail and sometimes increases the money bail amount from the amount required by the bail schedule. 92. As a matter of routine practice, Hearing Officers do not make findings concerning an arrestee’s ability to pay the money bail amount that they impose, nor do they meaningfully consider alternative non-financial conditions of release for those who cannot afford to pay the bail amount set. They do not make findings concerning the necessity of pretrial detention or make findings that less-restrictive conditions are inadequate to meet a compelling government interest.
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93. Hearing Officers rarely require alternative, non-monetary conditions of release and routinely state that they are not permitted to impose certain non-monetary conditions of release.
94. For decades, the Hearing Officers simply reviewed the bail amount previously affixed to ensure that it conformed to the bail schedule and the specific policy instructions from the felony judges about how to administer the predetermined schedule. These instructions included laminated charts and emails instructing Hearing Officers about who the Hearing Officers could and could not order released on personal bonds (i.e., unsecured bonds that do not require payment upfront) and in what circumstances they could deviate from the cash bail schedule (almost never, according to the instructions). Although the felony judges purportedly rescinded these instructions in 2017 with the implementation of the new felony bail schedule and expanded the Hearing Officers’ authority to determine money bail amounts and other conditions of release, the purported policy changes have not meaningfully changed actual practice. Specifically, the rule changes have failed to correct the core constitutional infirmity of the Harris County bail system: requiring secured financial conditions of release without findings concerning ability to pay, the necessity of pretrial detention, or the adequacy of alternative conditions, and without all of the safeguards required to ensure the accuracy of those findings, including application of the clear-andconvincing-evidence standard and a statement of reasons concerning why a particular financial condition or pretrial detention is required.
95. Throughout the hearing, the arrestees remain in the Harris County Jail, supervised by Sheriff’s Office employees. Sheriff’s Office employees and agents also observe the probable cause hearings and witness Defendant Hearing Officers routinely failing and refusing as a matter of policy to consider alternatives to secured financial conditions.
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96. State law requires probable cause hearings to occur within 48 hours. Although the County strives to hold these probable cause hearings within 24 hours of arrest for people charged with felonies, the County’s online case records show that the hearings sometimes do not occur until up to 48 hours after arrest. At any point in the booking process, an arrestee can pay his or her predetermined money bail and be released.
97. If a person pays money bail prior to the probable cause hearing, she will be released and the probable cause determination in her case will be made at a subsequent court appearance.
98. If an individual is not brought to the probable cause hearing due to medical reasons, which is a frequent occurrence (approximately 5% to 10% of male arrestees are not brought to the probable cause hearing for medical reasons and approximately 25% of female arrestees are not brought to the probable cause hearing for medical reasons), the Hearing Officer will make a finding of probable cause and require financial conditions of pretrial release in that person’s absence. The County’s protocol prohibits assistant public defenders from representing people who are not present at the hearing. Therefore, in these cases, the money bail amount is set without any argument on the arrestee’s behalf.
iii. The Use of Personal Bonds 99. Hearing Officers sometimes recommend arrestees for release on “personal bonds,” a term Defendants use to describe release without requiring an up-front payment prior to release, i.e., without a secured financial condition of release. The felony bond schedule lists certain lowlevel offenses for which there is a presumption of personal bond. 100. Only about 8% of felony arrestees were released on personal bonds in 2017.19
19 Harris County Pretrial Services, supra note 3, at 17.
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101. Even when individuals are recommended for personal bonds, many will not be released immediately, and some will not be released at all. This is because some Hearing Officers require Pretrial Services to first “verify” a person’s references, meaning that the arrestee must provide Pretrial Services with contact information for friends or family members, and Pretrial Services must then contact those individuals and attempt to confirm certain information reported by the arrestee. Sometimes Pretrial Services is required to verify the information with multiple “references.” Among the information Pretrial Services seeks to confirm, as a matter of policy, is whether the person has a place to stay if she is released from the jail. If a person does not have an address to verify, then the verification process cannot be completed, and the person will not be released. According to these policies and practices, a person who is homeless will not be released on a personal bond, i.e., without payment of the scheduled amount of bail, because she has no address that can possibly be verified. Homeless defendants are therefore categorically ineligible for personal bonds due to the verification policy. Sometimes, references cannot be reached to verify information for days or a week. Sometimes they cannot be reached at all. In those cases, the person will not be released on a personal bond and will be detained unless she can pay the money bail.
102. At any point in the verification process, the arrestee is permitted to pay the money set pursuant to the schedule and be released immediately.
103. For decades, in violation of state judicial conduct rules, there has been an entrenched culture among the Hearing Officers of abiding strictly by written and oral directives regarding the money bail–setting process issued by the felony judges, who control their employment. For example, the felony judges instructed Hearing Officers that they could never recommend homeless individuals for release on personal bonds, i.e., without secured financial
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conditions. Some judges told Hearing Officers never to issue non-financial conditions for any defendant who was assigned to their courtroom at all,20 or for individuals who previously received personal bonds in other cases.21 Other judges told Hearing Officers to consider unsecured financial conditions only for “students.”22 The Hearing Officers believed themselves to be bound by these rules and understood that the judges could hire and fire them at will. The Hearing Officers’ contracts are reviewed annually by a committee that includes several of the felony judges.
104. These explicit written instructions have purportedly been rescinded with implementation of the current schedule in 2017, and Hearing Officers have purportedly been given greater discretion to determine bond amounts. Although written rules prohibiting or categorically limiting release have purportedly been formally rescinded, videos and data demonstrate that actual practices are virtually the same as they have been for many years.
iv. Assignment to a Housing Unit 105. People who are being processed through the Inmate Processing Center cannot be contacted by people outside the jail, including attorneys, with the exception of a brief interview with an assistant public defender shortly before the probable cause hearing. Most arrestees are not assigned to a housing unit until after their probable cause hearing and will remain inaccessible to their appointed attorney, who will represent them in their case, and everyone else outside the jail until the jail assigns the individual to a housing unit sometime after the probable cause and bail hearing.
20 Gabrielle Banks, Harris County hearing officers sanctioned by state for not considering personal bonds, Houston Chron. (Feb. 23, 2018), https://www.chron.com/news/houston-texas/article/Trio-of-Harris-County-hearing-officerssanctioned-12494892.php 21 James Pinkerton & Laura Caruba, Tough bail policies punish the poor and the sick, critics say, Houston Chron. (Dec. 26, 2015), http://www.houstonchronicle.com/news/houston-texas/houston/article/Tough-bail-policies-punishthe-poor-and-the-sick-6721984.php?t=373b57d418&cmpid=email-premium. 22 Id.
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106. It is only after being assigned to a housing unit that an arrestee can be contacted by anyone outside the jail and will be scheduled for a hearing in a Criminal District Court.
107. Typically, a lawyer is not appointed until the first appearance in court. First appearance cannot occur until booking is complete. The booking process can take days.
108. In total, it takes a minimum of 24 hours for an arrested person to be fully booked into the jail, assigned to a housing unit, and made available for a visit. Arrested persons who cannot pay generally will not have counsel appointed or be able to meet with counsel until after their first court appearance. Felony arrestees virtually never meet their lawyer before the first appearance. At any point during this period of time, a person can pay money bail and be released.
v. First Appearances 109. If, after the probable cause hearing, an arrestee is still unable to purchase her release from jail, general Harris County practice is that she will be taken to a District Court, usually within 24 to 48 hours of the probable cause hearing. However, many arrestees who have their probable cause hearings on Thursday or Friday will not see a District Judge until the following Monday at the earliest, and sometimes must wait until Tuesday. 110. Detained individuals are usually assigned a court-appointed attorney or public defender at the first appearance hearing, but there is typically no review of the money bail amount previously imposed. Although an informal off-the-record request for bail reduction may, in theory, be made at first appearance, it is not possible to have a bail hearing at that time. 111. Detained individuals typically remain in lock-up outside of the courtroom and are not brought into the courtroom on this court date. The case is almost always then “reset,” meaning that another hearing is scheduled, typically weeks in the future.
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112. As a result, arrestees who cannot pay for their release remain in detention and are returned to jail cells, usually without ever having been brought into the courtroom.
113. As a matter of routine practice, the felony judges do not conduct bail hearings at first appearance: they make no findings concerning ability to pay; they make no findings as to whether pretrial detention is necessary to serve any government interest; they do not allow arrestees to confront the evidence and arguments of the government or put on evidence and argument in support of pretrial release; and they do not provide other basic procedural safeguards, such as making findings by any evidentiary standard, let alone by clear and convincing evidence, or issuing any statement of reasons concerning why a particular financial condition or pretrial detention is required.
114. Typically, if a person wishes to have an evidentiary hearing concerning the appropriateness of the secured bond amount set, the need to keep the person in a jail cell pending resolution of the case, and whether less-restrictive conditions of release are available, the person’s lawyer must file a motion and then have a court proceeding scheduled for a later date. A hearing on the motion will likely not occur for more than a week after the motion is filed. This hearing will be the arrestee’s first opportunity to present witnesses or documentary evidence and the first time that a judge will even conceivably make findings on the record regarding release conditions.
115. One of the purposes and effects of Harris County’s post-arrest detention is to coerce and process large numbers of guilty pleas prior to any person conducting any legal or factual investigation into the charges, let alone the complete and zealous investigation and defense required by professional standards and the Sixth Amendment to the United States Constitution. If an arrestee agrees to plead guilty at this first appearance, then the arrestee will be brought out from the lock-up to plead guilty.
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116. The felony judges routinely accept guilty pleas from individuals who are in jail solely because they are too poor to pay money bail.
117. The felony judges—and every other actor in the County’s post-arrest system (as well as anyone who has observed probable cause hearings or first appearances)—know that many of the detained individuals who appear in front of them charged with felonies are being detained in jail solely because they are too poor to pay the money bail amount required as payment for release. The judges and Sheriff’s Office employees and agents have knowledge that, in thousands of people’s cases every day, there is no reason for a person’s detention other than the person’s inability to make a monetary payment.
118. In 2017, approximately 55% of felony arrestees were still in jail when their case reached disposition.23 Individuals detained pretrial are more likely to be sentenced to jail, are less likely to be sentenced to probation, and are given longer sentences than those received by individuals who were released pretrial. The conviction rates for people released at disposition are significantly lower than for similarly situated people who are detained at disposition.
C. The Harris County Jail 119. The Harris County Jail is the largest jail in Texas and the third largest jail in the United States, behind only Rikers in New York and the Los Angeles County Jail.24 The Harris County Jail books on average 120,000 individuals per year and 330 individuals per day.25
23 Harris County Pretrial Services, supra note 3, at 16 (showing in Table B.1 that roughly 45% of felony arrestees post money bail). 24 Sarah R. Guidry, et al., A Blueprint for Criminal Justice Policy Solutions in Harris County 1 (2015), http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2015/ls_sclaid_summit_03_tcjc _2015_harris_county_blueprint.authcheckdam.pdf. 25 Id. at 9.
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120. The vast majority of human beings in the Harris County Jail cells are not there because they have been convicted of a crime. Instead, most people—an average of 85% in September 2018—are being kept in jail cells prior to trial, despite the presumption of innocence. Many of these people are in jail solely because they cannot afford to pay money bail. If they could pay the money bail assigned to them, they could walk out of the doors of the jail at any time.
121. In September 2018, a typical month, the average daily population of the Harris County Jail was 9,803 individuals, 8,386 of whom were pretrial detainees. About 90% of these pretrial detainees—7,553 individuals—had been arrested for felony or state jail felony charges.
122. Over 10 years ago, the Department of Justice investigated the Harris County Jail and launched an era of federal oversight because of the serious and systemic violations of constitutional rights that pervaded the facility.26 The investigation led the County to form the Harris County Criminal Justice Coordinating Council in an effort to address the overcrowding in the jail.27 Although there have been some decreases in the jail population in more recent years, Harris County consistently struggles to stay within its operating capacity. In fact, the jail’s persistent overcrowding, resulting largely from the thousands of people detained pretrial on felony charges, has led the Sheriff to refuse to accept new arrestees from arresting agencies like Houston Police Department (“HPD”), which in turn has meant that HPD arrestees are forced to languish in the City’s custody for days before being transferred to the County’s inmate processing center.28
123. In 2013, taxpayers spent almost $500,000 per day to operate the jail.29
26 Id. at 2. 27 Id. 28 Undersigned counsel Civil Rights Corps sued the City of Houston for detaining people in violation of their Fourth Amendment right to a probable cause determination within 48 hours. Hernandez v. City of Houston, 4:16-cv-3577 (S.D. Tex. Dec. 5, 2016). 29 Guidry, supra note 23, at 13.
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124. Since 2009, 125 human beings have died while in pretrial custody in the Harris County Jail.30
125. In August 2018, arrestee Debora Lyons hanged herself in a common area of the Harris County Jail while detained on a felony theft charge with money bail set at $1,500.31 She had been arrested on July 21 for allegedly stealing clothes and an airbed totaling less than $2,500. The day after she died, former Judge Jim Wallace granted her a personal bond.
126. Three weeks earlier, Navy veteran Eldon Lee Harris had hanged himself while in solitary confinement.32
127. The Texas Commission on Jail Standards has found the Harris County Jail to be in noncompliance of state standards five times in the past two years.33 Three out of five of these compliance failures have been related to preventable deaths.
128. On January 17, 2019, two days after Tracy Whited committed suicide in the Harris County Jail, Texas state Senator John Whitmire sent a letter to County Judge Lina Hidalgo citing “unsanitary and unhealthy conditions” at the jail and proposing state oversight for the facility. He stated that conditions at the jail “jeopardize[] the safety and well-being of our fellow citizens who find themselves housed in the Harris County Jail.”34
30 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019. 31 Keri Blakinger, Inmate who killed herself in Harris County jail had previously threatened suicide, Houston Chron. (Aug. 22, 2018), https://www.chron.com/news/houston-texas/article/Inmate-who-killed-herself-in-jail-hadpreviously-13172633.php. 32 Id. 33 Keri Blakinger, State finds Harris County jail out of compliance for 5th time in two years, Houston Chron. (Nov. 30, 2018), https://www.chron.com/news/houston-texas/article/State-finds-Harris-County-jail-out-of-compliance13435304.php. 34 Keri Blakinger, Houston senator raises possibility of state oversight for Harris County jail, Houston Chron. (Jan. 17, 2019), https://www.chron.com/news/houston-texas/article/Houston-senator-raises-possibility-of-state13542101.php.
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129. According to the Harris County Sheriff’s Office, one-quarter of individuals in the Harris County Jail have been diagnosed with some form of mental illness.35
130. There is a documented history of inmate abuse by jail guards, deaths and suicides in the jail, inadequate training of jail staff, and lack of access to medications and medical services. For years, the County has been aware of these intolerable conditions, which exist largely because of the overcrowding resulting from the volume of pretrial felony detainees who cannot afford to pay money bail. It has failed to remedy them.36
131. On a typical day, hundreds of new arrestees, presumed innocent, are arrested and booked into this jail.37 At any given moment, there are hundreds of people charged only with state jail felonies—the least serious class of felony charges in the Texas criminal legal system, consisting mostly of non-violent offenses or misdemeanor offenses enhanced by prior misdemeanor convictions—who are being detained in the Harris County Jail solely because they cannot afford money bail.38
132. In 2017 alone, there were more than 500 people who were detained at disposition because they were unable to pay a $2,000 money bail. Many of these individuals could have walked out of the jail if they had been wealthy enough to pay the monetary amount required for
35 Harris County Sheriff’s Office, Jail Mental Health Initiatives, http://www.harriscountycit.org/jail-mental-healthunit/ (last visited January 19, 2019). 36 Jailhouse Jeopardy: Uncovering abuses at Harris County’s jail, Houston Chron., (Oct. 3, 2015–Mar. 6, 2016), http://www.houstonchronicle.com/local/investigations/jailhouse-jeopardy/ (providing links to a series of articles written by several reporters). 37 Guidry, supra note 23, at 9 (stating that there are 330 bookings per day); Harris County Pretrial Services, supra note 3, at 16 (stating that, in 2017, 30,978 people were arrested on felony charges, which averages more than 80 arrests per day). 38 See, e.g., Guidry, supra note 243, at 15 (noting that, in 2013 alone, there were 3,120 misdemeanor arrestees who could not post the $500 money bail that Harris County demanded of them).
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freedom. Only those individuals who are too poor to purchase their release are subjected to these

conditions and the health and safety risks of pretrial jailing.

D.

Defendants’ Wealth-Based Detention Practices Are Causing Plaintiffs to Be

Jailed Solely Due to Their Inability to Pay Bail

133. The named Plaintiffs are eligible for release and would not have to endure pretrial

incarceration if they paid the amount of money required by Defendants.

134. Arrestees are given a right to release pending trial, but Defendants’ wealth-based

detention system conditions their release on their ability to afford money bail, thus tying their

pretrial freedom to their wealth status.

135. As a matter of policy and practice, when a new arrestee is brought to the Harris

County Jail, county employees inform the arrestee that she will be released from jail immediately

if she pays the money bail amount. The arrestee is told that she will remain in jail if she is not able

to make that payment.

136. The Harris County Sheriff’s Office collects arrestees’ money bail payments. It is

the policy and practice of the Harris County Sheriff’s Office to release only those arrestees who

pay their money bail amount.

137. In a typical week, the Sheriff’s Office releases hundreds of individuals who pay

their money bail amount.

138. It is the policy and practice of the Sheriff’s Office to detain individuals who do not

pay the money bail amount. Before an individual’s probable cause hearing, it is the policy and

practice of the Sheriff’s Office to detain the individual based on a money bail amount set pursuant

to a predetermined bail schedule. After a probable cause hearing, it is the policy and practice of

the Sheriff’s Office to detain the individual based on a money bail amount imposed by a Hearing

Officer.

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139. If a person cannot pay money bail after her first court appearance before a District Judge, it is the policy and practice of the Sheriff’s Office to continue to detain that individual unless and until she makes a monetary payment.
140. Under Defendants’ wealth-based practices, those who have enough money to pay are released from the County jail. Some poorer arrestees eventually make arrangements with private bail bond companies, after spending hours, days, or weeks in jail.39 And many others who are poorer still are left to languish in jail until their case resolves. E. Defendants’ Use of Money Bail Is Not Narrowly Tailored—Nor Is It as Effective as
Many Other Methods—in Securing Court Attendance or Public Safety 141. The empirical evidence shows that there is no relationship between requiring money bail as a condition of release and defendants’ rates of appearance in court.40 142. While tying pretrial freedom (for those charged with felonies) to access to money is the norm in Harris County, other jurisdictions throughout the country do not keep people in jail because of their poverty. Instead of relying on money, other jurisdictions release arrestees with pretrial supervision practices and procedures that can help increase court attendance and public safety without requiring detention. 143. Other jurisdictions employ numerous less restrictive strategies for assuring public safety and court appearance when the government determines, on the basis of evidence and
39 Because of the common availability of commercial bail bonds, those who remain in the Harris County jail are typically those who cannot even afford to pay a third-party bonding agent. Typically, bonding agents require a nonrefundable premium of 10% of the bail amount, although a bonding agent is free to refuse to pay for the release of any arrestee for any reason or for no reason. Bonding agents also routinely accept lower premiums, or no premiums, and place the arrestee on a payment plan for the rest. In short, it is completely up to the bonding company whether to make a deal with a particular individual who cannot afford to pay the sum required for release. The Named Plaintiffs cannot afford such a bail. 40 Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 5 (May 2, 2016), http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf (“We find no evidence that money bail increases the probability of appearance.”).
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argument, that there is a need to guard against a particular risk. These strategies include: unsecured or “signature” bonds (which do not require payment up front for release but instead allow immediate release upon a promise to pay the monetary amount if the person does not appear as required), reporting obligations, two-way phone and text message reminders of court dates, rides to court for those without transportation or a stable address, flexible court appearances including evening and weekend court sessions for those with jobs they cannot miss, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
144. Defendants are permitted by state (and federal) law to use these alternatives but, as a matter of routine practice and policy, choose not to for impoverished felony arrestees. The vast majority of Harris County arrestees are therefore processed and detained through Harris County’s money bail scheme rather than non-monetary supervision methods. As a matter of policy and practice, Defendants do not consider, or make findings concerning, less restrictive alternatives than detention based on money bail that a person cannot afford.
145. Jurisdictions routinely using non-monetary conditions of release achieve high rates of court appearances while ensuring public safety. In Washington, DC, where 94% of cases resulted in pretrial release without secured financial conditions in Fiscal Year 2017,41 88% of defendants released pretrial made all scheduled appearances throughout the life of their cases, with more than 86% of those released pretrial remaining arrest-free (and 99% remaining arrest-free for violent crimes).42

41 Pretrial Services Agency for the District of Columbia, FY 2017 Release Rates for Pretrial Defendants within

Washington,

DC

(2018),

https://www.psa.gov/sites/default/files/2017%20Release%

20Rates%20for%20DC%20Pretrial%20Defendants.pdf.

42 Pretrial Services Agency for the District of Columbia, Congressional Budget Justification and Performance Budget Request: Fiscal Year 2019 (2018), https://www.csosa.gov/wp-content/uploads/bsk-pdf-manager/2018/07/FY2019PSA-CBJ-Performance-Budget-02122018-1.pdf.

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146. Empirical evidence proves that unsecured bond alone is at least as effective at reasonably assuring appearance in court as secured money bail.
147. Empirical evidence also demonstrates that secured money bail does not have any positive benefit to public safety. In fact, short periods of pretrial detention actually increase future crime. And in Texas, because a person cannot forfeit a secured money bail by committing a new crime, there is no rational relationship between a higher secured money bail and public safety, unless the higher bail is intended to accomplish pretrial detention—and even then, as noted, studies show that the resulting detention has a criminogenic effect on that person. Thus, even though the person may be incapacitated for the pretrial period, the destabilizing effects of pretrial detention make it more likely she will commit new crimes during the pretrial period and after.
148. Detention due to inability to pay money bail increases the likelihood of conviction. A person who is detained pretrial is 13% more likely to be convicted and 21% more likely to plead guilty.43 Additionally, individuals detained pretrial are more likely to be given longer jail sentences.44 Overall, individuals who are detained—instead of released on money bail or on a personal bond—have worse case outcomes.45
149. Money bail is disproportionately imposed on non-white arrestees.46 In other words, even the rare personal bond in Harris County is disproportionately given to white arrestees.
43 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; see also Gupta, et. al, supra note 40 at 3 (finding a 12% increase in the likelihood of conviction using the same data). 44 Stevenson, supra note 43 at 18; Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017). 45 Stevenson, supra note 42 at 18; Gupta, et. al, supra note 40 at 13 (finding a 12% increase in the likelihood of conviction using the same data); Guidry, supra note 23 at 13 (“[D]efendants who are not released pre-trial are more likely to be incarcerated following a conviction, and they generally receive longer sentences upon conviction.”). 46 Gupta, et. al, supra note 40 at 4–5; Lise Olson, Study: Inmates who can’t afford bond face tougher sentences, Houston Chron. (Sept. 15, 2013), http://www.houstonchronicle.com/news/houston-texas/houston/article/StudyInmates-who-can-t-afford-bond-face-tougher-4817053.php (discussing Carlos Mathis, an African-American man,
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150. Setting a secured money bail amount in an amount higher than a person can afford by definition defeats the purpose of money bail—to incentivize a person to return to court—and removes any legitimate (let alone compelling) state interest in the setting of a financial condition. Nor is setting money bail without findings concerning ability to pay narrowly tailored to meet any other legitimate or compelling government interest.
151. Defendants’ use of money bail leads disproportionately to the detention of people of color. Regardless of the amount of money bail imposed, people of color are more likely to be detained at disposition than whites.47
152. Unnecessary pretrial detention causes instability in employment, housing, and care for dependent relatives. Studies show that those detained pretrial face worse outcomes at trial and sentencing than those released pretrial, even when charged with the same offenses. Detained defendants are more likely to plead guilty just to shorten their jail time, even if they are innocent. In fact, Harris County has led the country for years in exonerations—many of which resulted from wrongful convictions in drug cases involving people who pled guilty to get out of jail.48 People detained pretrial have a more difficult time preparing for their defense, gathering evidence and witnesses, and meeting with their lawyers. Studies also show that just two days of pretrial detention increases the likelihood of future arrests and increases the future risk level of low-level offenders.

who was detained in jail for seven months on minor drug and theft charges because he could not afford money bail,

and whose charges were dismissed); Isami Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and

the

Effects

of

Pretrial

Services

Programs

(Mar.

11,

2013),

http://www.pretrial.org/download/research/Racial%20Disparities%20at%20Pretrial%20and%20Sentencing%20and

%20the%20Effects%20of%20Pretrial%20Services%20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones,

“Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013);

Tina L. Freiburger, et. al, The Impact of Race on the Pretrial Decision, 35 Am. J. of Crim. Just. 76 (2010),

http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf.

47 Gupta, et. al, supra note 40 at 4–5

48 Alex Samuels, Study finds Harris County leads nation in exonerations, Texas Tribune (Mar. 7, 2017) https://www.texastribune.org/2017/03/07/report/.

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153. Pretrial detention is more than ten times more expensive than effective pretrial supervision programs. Through non-monetary tools, pretrial supervision programs can save taxpayer expense while maintaining high public safety and court appearance rates.
154. Since March 2020, due to the COVID-19 pandemic, people detained in the Harris County Jail face yet another irreparable harm: a heightened risk of contracting a deadly diesase and dying because they cannot practice social distancing or basic health and sanitation measures.
155. On March 11, 2020, the World Health Organization declared COVID-19 a pandemic.49
156. As COVID-19 swept across the United States, it quickly became apparent that the Harris County Jail, like most jails and prisons, is devastatingly ill-equipped to prevent the virus from rapidly spreading among detainees and staff. Indeed, Sheriff Ed Gonzalez issued a desperate public warning on March 21, 2020: “Currently have 8,000 individuals, most pre-trial, in tight quarters.”50 The jail has “[v]ery limited services. No capacity for ICU care. If someone older and/or with frail health gets the virus it can be a death sentence. Plus spread like wildfire… Individuals would need to be taken to our public health system, which does not have capacity to handle an outbreak in the jail and the anticipated needs of the general community.”51
49 World Health Organization, “WHO Timeline – COVID-19” (Apr. 27, 2020), https://www.who.int/newsroom/detail/27-04-2020-who-timeline---covid-19 (last accessed May 1, 2020). 50 Ed Gonzalez (@SheriffEd_HCSO), TWITTER (Mar. 21, 2020, 8:41 AM), https://twitter.com/SheriffEd_HCSO/status/1241344221921136641. 51 Id. (Mar. 21, 2020, 8:05 AM), https://twitter.com/SheriffEd_HCSO/status/1241335204905713664; id. (Mar. 20, 5:19 PM), https://twitter.com/SheriffEd_HCSO/status/1241112204067381249. (“Jail health is community health.”).
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157. On March 29, 2020, the Houston Chronicle reported that the first detained person in the Harris County Jail had tested positive for COVID-19.52
158. Also on March 29, 2020, Texas Governor Greg Abbott issued Executive Order GA13.53 GA-13 purports to prohibit anyone currently charged with a crime involving “violence” and anyone with a prior conviction at any time in the past for a crime involving “violence” (regardless of the current charge), from being released on unsecured bail, regardless of any individualized proceedings or findings by a state court judge.54
159. Thus, for all of the people in these broad categories, GA-13 requires pretrial detention if they cannot pay for release and requires enforcement officials, including the Sheriff and County, to refuse to release categories of people on personal bonds.55
160. GA-13 also makes pretrial detention indefinite by suspending relevant speedy trial provisions of Texas law that ordinarily would require a person’s release if the state is not ready for trial.56
161. A little more than a month after GA-13 was issued, the number of reported COVID19 cases in the jail—among both detainees and staff—has exploded. As of May 5, 2020, 599 people detained in the Harris County Jail and 255 employees of the Sheriff’s Office had tested positive for COVID-19.57 Almost half of people detained the jail were in quarantine: 2,828 people
52 Gabrielle Banks & Nicole Hensley, “First Harris County Jail inmate tests positive for COVID-19,” Houston Chron. (Mar. 29, 2020), https://www.houstonchronicle.com/news/houston-texas/houston/article/First-HarrisCounty-Jail-inmate-tests-positive-15164825.php. 53 See Dkt. 39-1. 54 See id. 55 A personal bond is an unsecured bond that allow a person to be released without making an up-front payment if the person agrees to pay an amount of money if the person does not appear. 56 Id. 57 Dkt. 138.
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detained in the jail were in observational quarantine (possible exposure), 601 were in buffer quarantine (for those newly booked into the jail), 92 were in surveillance quarantine (asymptomatic patients who tested positive), and 157 in recovery quarantine.58
Class Action Allegations 162. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common basis. 163. A class action is a superior means, and the only practicable means, by which the named Plaintiffs and unknown Class members can challenge Defendants’ unlawful wealth-based post-arrest detention scheme. 164. 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. 165. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions. 166. The Plaintiffs propose a single Class seeking declaratory and injunctive relief. The Declaratory and Injunctive Class is defined as: All felony arrestees who are detained by Harris County, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on secured money bail because of indigence. A. Numerosity—Fed. R. Civ. P. 23(a)(1) 167. In September 2018, the average daily population of felony and state jail felony arrestees being held pretrial was 7,553 individuals. Many of these people were held only because they could not afford to pay a money bail. Arrestees are detained in jail for varying lengths of time
58 Id.
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depending on how long it takes them to make the cash payment that is required for their release. 168. Some arrestees are able to pay immediately for their release. Others are forced to
wait one or two days until they or family members can make the payment. Others will never be able to come up with any amount of money to pay for their release.
169. The number of current and future arrestees subject to this policy—if it is not enjoined—is well into the thousands.
B. Commonality—Fed. R. Civ. P. 23(a)(2) 170. The relief sought is common to all members of the Class, and common questions of law and fact exist as to all members of the Class. The named Plaintiffs seek relief concerning whether Defendants’ policies, practices, and procedures violate the rights of the Class members and relief mandating that Defendants change their policies, practices, and procedures so that the constitutional rights of the Class members will be protected in the future. 171. Common legal and factual questions arise from one central scheme and set of policies and practices: Defendants’ post-arrest wealth-based detention scheme. Defendants operate this scheme openly and in materially the same manner every day. The material components of the scheme do not vary from Class member to Class member, and the resolution of these legal and factual issues will determine whether all of the members of the Class are entitled to the constitutional relief that they seek. Among the most important, but not the only, common questions of fact are:
 Whether Defendants have a policy and practice of using a predetermined schedule to determine the amount of money required to secure post-arrest release;
 Whether Defendants require that scheduled amount of money to be paid up front before releasing a person from the jail;
 Whether Defendants require arrestees who have had probable cause hearings to pay the secured money bail amount imposed by the Hearing Officer before releasing such people from the jail;
 Whether, when requiring a financial condition of release there is an inquiry into
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ability to pay;  Whether, if a person cannot pay for release, there is any inquiry into and findings
concerning availability of alternative conditions of release and a finding that pretrial detention is necessary;  Whether, in requiring pretrial detention, there is an adversarial hearing with counsel and notice of the critical issues at stake, opportunity to be heard and to confront evidence, findings by clear and convincing evidence, and a statement of reasons orally or in writing concerning the need for pretrial detention; and  What standard post-arrest procedures Defendants perform on felony arrestees, for example, whether Defendants use any other alternate procedures for promptly releasing people determined otherwise eligible for release but who are unable to afford a monetary payment.
172. Among the most important common questions of law are:
 Whether requiring arrestees to pay money up front to secure release from postarrest detention without an inquiry into or findings concerning the arrestee’s present ability to pay the amount required, and without meaningful consideration of less restrictive alternative conditions of release, violates the Fourteenth Amendment’s Equal Protection and Due Process Clauses;
 Whether it is lawful to impose a secured financial condition of release that operates as a de facto order of pretrial detention because of a person’s inability to pay without complying with the substantial findings, legal standards, and procedural safeguards required for issuing and enforcing a transparent order of preventive detention; and
 What substantive findings and procedural safeguards are required as a matter of federal law prior to pretrial detention of a presumptively innocent person.
C. Typicality—Fed. R. Civ. P. 23(a)(3)
173. The named Plaintiffs’ claims are typical of the claims of the other members of the
Class, and they have the same interests in this case as all other Class members. Each Class member
is threatened with imminent and/or ongoing confinement in jail because she cannot afford to pay
a standardized cash bail amount. The answer to whether Defendants’ wealth-based detention
scheme is unconstitutional will determine the claims of the named Plaintiffs and every other Class
member.
174. If the named Plaintiffs succeed in the claim that Defendants’ policies and practices
concerning post-arrest detention violate their constitutional rights, that ruling will likewise benefit
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every other member of the Class. D. Adequacy—Fed. R. Civ. P. 23(a)(4) 175. The named Plaintiffs are adequate representatives of the Class because their interest
in the vindication of the legal claims that they raise is entirely aligned with the interests of the other Class members, each of whom has the same basic constitutional claims. They are members of the Class, and their interests do not conflict with those of the other Class members.
176. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-freedom post-arrest detention system.
177. Plaintiffs are represented by attorneys from Civil Rights Corps, Susman Godfrey, and Texas Civil Rights Project who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are more fully set forth in the contemporaneously filed Motion for Class Certification.
178. The combined efforts of Class counsel have so far included extensive investigation into Harris County’s predetermined money bail practices over a period of years, including numerous interviews, most intensively in recent months, with witnesses, court employees, people detained in jail, families, judges, attorneys practicing in courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
179. Class counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function
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in other cities and counties in order to investigate the wide array of lawful options in practice for municipalities.
180. Counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ practices and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel have also developed relationships with many of the individuals and families victimized by unlawful wealth-based pretrial detention practices. The interests of the members of the Class will be fairly and adequately protected by the Plaintiffs and their attorneys.
E. Rule 23(b)(2) 181. Class action status is appropriate because Defendants, through the policies, practices, and procedures that make up their wealth-based post-arrest detention scheme, have acted in the same unconstitutional manner with respect to all Class members. Defendants apply and enforce a wealth-based system of pretrial justice: some arrestees can purchase their immediate release, while other arrestees must remain in jail solely because they cannot pay. 182. The Class therefore seeks declaratory and injunctive relief that will prevent Defendants from detaining arrestees who cannot afford cash payments. Because the putative Class challenges Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the Class, Rule 23(b)(2) is appropriate and necessary. 183. Injunctive relief compelling Defendants to comply with these constitutional rights will similarly protect each member of the Class from being subjected to Defendants’ unlawful policies and practices. A declaration and injunction stating that Defendants cannot detain arrestees solely due to their inability to make a monetary payment would provide relief to every Class
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member. It would ensure that pretrial detention based on lack of access to money does not occur without the substantive findings and procedural safeguards that the Constitution requires for that government detention. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.
184. Plaintiffs seek the following relief. Claims for Relief
Count One: Defendants Violate Plaintiffs’ Equal Protection and Due Process Rights by Jailing Them Solely Because They Cannot Afford a Monetary Payment.
185. Plaintiffs incorporate by reference the allegations in paragraphs 1-155. 186. The Fourteenth Amendment’s Equal Protection and Due Process Clauses prohibit jailing a person solely because of her inability to make a monetary payment. Defendants violate Plaintiffs’ rights by enforcing against them a system of pretrial detention that keeps them in jail solely because they cannot afford to pay money bail amounts imposed without findings concerning their present ability to pay and without findings concerning the necessity of the detention in light of alternative conditions of release that could serve the government’s interests. Count Two: Defendants Violate Plaintiffs’ Substantive Due Process Right to Pretrial Liberty by Jailing Them Without a Finding That Pretrial Detention Is Necessary 187. Plaintiffs incorporate by reference the allegations in paragraphs 1-157. 188. The Fourteenth Amendment protects the fundamental interest in pretrial liberty that is infringed whenever a person is subject to a transparent or de facto order of pretrial detention. That interest in bodily liberty is not absolute, and it can be overcome, but only if the government first demonstrates that no alternative short of pretrial detention exists to mitigate an identifiable risk to the safety of the community or a risk of flight from prosecution, and that pretrial detention is therefore necessary to serve a specified, compelling interest in public safety or court appearance.
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Defendants violate Plaintiffs’ rights by jailing them prior to trial without making any finding that pretrial detention is necessary to serve the government’s interests.
Count Three: Defendants Violate Plaintiffs’ Procedural Due Process Rights 189. Plaintiffs incorporate by reference the allegations in paragraphs 1-159. 190. The Due Process Clause requires that, for a transparent or de facto order of pretrial detention to be constitutionally valid, the government must provide rigorous procedural safeguards to ensure the accuracy of the substantive finding that pretrial detention is necessary because lessrestrictive conditions are insufficient. The minimal safeguards required by the Constitution include: an adversarial hearing, with counsel, at which the person has notice of the critical issues to be decided at the hearing, an opportunity to be heard and to present and confront evidence, and a statement of reasons on the record explaining the reasons for the finding that pretrial detention is necessary. Defendants violate procedural due process by detaining plaintiffs prior to trial without providing these safeguards to ensure the accuracy of any substantive determination that pretrial detention is necessary.
Request for Relief WHEREFORE, Plaintiffs and the other Class members request that this Court issue the following relief: a. A declaratory judgment that Defendants violate the Named Plaintiffs’ and Class members’ constitutional rights by operating a system of wealth-based detention that keeps them in jail solely because they cannot afford to pay secured money bail amounts required without findings concerning ability to pay, without consideration of or findings concerning nonfinancial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of that finding; b. An order and judgment permanently enjoining Defendants from operating and enforcing a system of post-arrest detention that keeps Named Plaintiffs and Class members in jail because they cannot pay a secured financial condition of release required without findings concerning ability to pay, without consideration of or findings concerning non-financial
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alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
c. A declaratory judgment that Executive Order GA-13 is unconstitutional to the extent it requires pretrial detention of arrestees who cannot afford secured money bail without the substantive findings and procedural safeguards required for an order of pretrial detention;
d. An order and judgment permanently enjoining the Sheriff and the County from enforcing GA-13 to the extent enforcing GA-13 results in the pretrial detention of individuals against whom there has been no substantive finding that pretrial detention is necessary following a hearing with sufficient procedural safeguards to ensure the accuracy of that finding;
e. Any other order and judgment this Court deems necessary to permanently enjoin Defendants—whether acting on behalf of the State, the County, or some other government entity—from implementing and enforcing a system of wealth-based pretrial detention that keeps arrestees in jail solely because they cannot afford to pay a secured financial condition of release required without an inquiry into or findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that a particular release condition is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
f. An order certifying the class defined above; and
g. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.

Date: May 6, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Liyah Brown Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 mimi@texascivilrightsproject.org Liyah Brown (Pro Hac Vice)

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666

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D.C. Bar No. 500149 liyah@texascivilrightsproject.org Peter Steffensen Texas State Bar No. 24106464 Southern District No. 3327006 peter@texascivilrightsproject.org Texas Civil Rights Project 2202 Alabama Street Houston, TX 77004 Telephone: 512-474-5073 ext. 118

/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100
Attorneys for Plaintiffs

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IN THE UNITED STATES DISTRICT COURTUNITED STATES DISTRICT COURT FOR THEFOR THE SOUTHERN DISTRICT OF TEXAS , HOUSTON DIVISION

)

DWIGHT RUSSELL,

)

JOHNNIE PIERSON,

)

JOSEPH ORTUNO,

)

CHRISTOPHER CLACK,

)

MAURICE WILSON

)

)

On behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

SHERIFF ED GONZALEZ,

)

)

Defendants.

)

____________________________________)

Case No. 4:19-cv-00226 (Class Action) The Honorable Lee H. Rosenthal U.S. District Judge
Case No. _______ (Class Action)

FIRST AMENDED CLASS ACTION COMPLAINT

I. Introduction

1. This case is about Harris County’s jailing some of its poorest people, charged with

felonies, because they cannot afford to make a monetary payment.

2. Harris County previously used access to cash to make release-and-detention

decisions in the County’s misdemeanor bail system. In 2016, certain of undersigned counsel filed

a lawsuit against the County, the Sheriff, the misdemeanor judges (who were added later), and the

Hearing Officers. Following a nearly two-week evidentiary hearing in March 2017, the Court

struck down Harris County’s misdemeanor bail policies, finding that the policies violated Equal

Protection and Due Process, coerced guilty pleas, and disproportionately affected people of color.

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The Court issued a preliminary injunction that led to the release of more than 13,000 people who otherwise would have been illegally detained.
3. In 2018, a slate of candidates ran for election to the misdemeanor courts on a platform acknowledging the devastating consequences of the County’s decades-long policy of detaining poor misdemeanor arrestees after arrest for days and weeks, and promising to work with the Plaintiffs’ counsel and other stakeholders to reform the system and end the misdemeanor lawsuit. All of the candidates won; all of the incumbent judges who had resisted the lawsuit were removed by the voters. On January 17, 2019, after the newly elected judges took office, all of the misdemeanor judges promulgated a new rule that will dramatically change the misdemeanor bail system. It was the result of intensive conversations with class counsel, the District Attorney, the Sheriff and his command staff, and the Public Defender. The rule requires the initial release decision in misdemeanor cases to be made on the basis of the offense charged. Most arrestees— approximately 85%—will automatically qualify for release on unsecured bonds (requiring a payment only if the person willfully misses court and the bond is subsequently forfeited). Only people arrested for a few select offenses will be required to appear before a judge within 48 hours, at which time they may also qualify for release on unsecured bonds or with other appropriate conditions tailored to a specific, identified risk. This rule will give effect to the Supreme Court’s requirement that detention prior to trial must be the “carefully limited exception,” and will reverse the years-long practice of detaining 40% of misdemeanor arrestees throughout the duration of their cases.
4. Reforms to Harris County’s misdemeanor pretrial detention system came after numerous county officials spoke out against the system’s unequal treatment of people who are
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poor. Sheriff Ed Gonzalez, though a necessary defendant in the misdemeanor case and in this one,
has stated:
The County’s widespread detention of arrestees because they are too poor to pay arbitrary amounts of money is a waste of public resources and actually undermines public safety . . . . I believe that the current operation of the money bail system, including the Sheriff’s active participation in that system, violates the United States Constitution . . . . A person’s access to money should not be a determining factor in whether he or she is jailed or released after arrest and pending trial.1
District Attorney Kim Ogg, who is not a defendant in either case but has been a strong voice for
reform of the County’s misdemeanor bail policies, has stated:
It is our position that bail reform is necessary and long overdue. Holding un-adjudicated misdemeanor offenders in the Harris County Jail solely because they lack the money or other means of posting bail is counterproductive to the goal of seeing that justice is done. We do not want to be complicit in a system that incentivizes presumptively innocent people to plead guilty merely to expedite their release from custody. We do not want to administer punishment before the defendant has been adjudicated. It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time. These secure beds and expensive resources should be prioritized for the truly dangerous offenders and “flight risks” who need to be separated from the community.2
5. For people charged with felonies, however, the practice of conditioning release on
access to money persists: arrestees charged with felonies are released from custody almost
immediately if they can make a predetermined payment of money to the County while arrestees
1 Meagan Flynn, Incoming Sheriff Ed Gonzalez Declares Bail System Unconstitutional, Houston Press (Nov. 29, 2016), https://www.houstonpress.com/news/incoming-sheriff-ed-gonzalez-declares-bail-system-unconstitutional8984569; see also Michael Hardy, In Fight Over Bail’s Fairness, Sheriff Joins the Critics, New York Times (Mar. 9, 2017), https://www.nytimes.com/2017/03/09/us/houston-bail-reform-sheriff-gonzalez.html?module=inline (quoting Sheriff Gonzalez saying “When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately [B]lack and Hispanic, that’s not a rational system.”); Cameron Langford, Texas Sheriff Among Critics of His Own Bail System, Courthouse News (Mar. 9, 2017), https://www.courthousenews.com/texas-sheriff-among-critics-bail-system/ (quoting Sheriff Gonzalez’s testimony in federal court, in which he stated, “When we look at equal protection, in my opinion it should be equal protection for everyone, but statistically speaking it doesn’t bear that out. When I see that many of the people inside the jail, on any given day an average of 9,000, are just poor and can’t bond out, and I look at racial disparities, disproportionally communities of color, then that’s very concerning to me.”). 2 Position Statement of District Attorney Kim Ogg About Bail Bond Litigation Pending in the United States District Court, Case No. 4:16-cv-1414, ECF 206 (Mar. 3, 2017).
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who are too poor to purchase their liberty remain in jail solely because of their poverty. As a result of these policies and practices, more than half of the people arrested for felony offenses remain detained for the entire duration of their case until its disposition.3 Many of the lowest level arrestees are then released on the day of conviction.
6. The felony bail system in Harris County raises the same legal issues as the misdemeanor system, has the same devastating consequences for impoverished arrestees, is similarly coercive of guilty pleas, and is even more costly to the system, in part, because felony arrestees constitute approximately 77% of the jail population on any given day. The felony system demands analogous reforms: ending the use of the secured bail schedule to make the initial release decision and ensuring that anyone detained prior to trial is afforded the substantive findings and procedural protections the Constitution requires to protect against an erroneous deprivation of the right to bodily liberty—the most important right protected by the Constitution, other than the right to life itself.
7. Approximately twelve percent of the felony pretrial population in the Harris County Jail consists of people whose most serious charge is a “state jail” felony. State jail felonies are the least serious class of felony charges in the Texas criminal legal system. They consist mostly of non-violent offenses and, in many instances, they are simply misdemeanor offenses enhanced by prior misdemeanor convictions.
8. Almost 70% of all felony arrestees are charged with non-violent offenses.4 The most common charge for all felony arrestees is drug possession, which is the most serious charge

3

Harris

County

Pretrial

Services,

2017

Annual

Report

16

(2017),

https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf (showing that non-violent felony arrests

account for 68.9% of all felony arrests).

4 Harris County Pretrial Services, supra note 3, at 21.

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for 26.8% of felony arrestees.5 Only 8.6% of all felony arrestees are released on an unsecured bond.6 Money bail is required as a condition of release for the overwhelming majority of felony arrestees, meaning that these arrestees are eligible for release, but will be released only if they can make an up-front monetary payment. Those who are too poor to pay must stay in jail cells.
9. This mass detention caused by arrestees’ inability to access money has devastating consequences for arrested individuals, for their families, and for the community. Pretrial detention of presumptively innocent individuals causes them to lose their jobs and shelter, interrupts vital medication cycles, worsens mental health conditions, makes people working to remain sober more likely to relapse, and separates parents and children. It exposes people to dangerous overcrowding, violence, and infectious disease at the jail. It coerces guilty pleas and results in longer sentences. In part because arrest and detention for any period of time destabilizes a person’s life, even a couple of days in pretrial detention makes a person more likely to commit crimes in the future. It also costs Harris County tens of millions of dollars every year—money that could be invested in systems that provide support to people suffering from addiction, housing instability, mental health issues, and poverty, instead of a system that research shows actually exacerbates those conditions.
10. Between 2009 and the present, 125 people died in the Harris County Jail awaiting trial,7 including a woman this month who committed suicide while being detained due to her inability to pay $3,000 money bail. She was granted a personal bond an hour after she was found hanging.8
5 Id. 6 Id. at 17. 7 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019. 8 Keri Blakinger, Harris County jail inmate dies by suicide days after misdemeanor arrest, Houston Chron. (Jan. 16, 2019) https://www.chron.com/news/houston-texas/article/Harris-County-jail-inmate-dies-by-suicide-days-
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11. Named Plaintiffs Dwight Russell, Johnnie Pierson, and Joseph OrtunoChristopher Clack and Maurice Wilson are currently being detained in the Harris County Jail because they cannot afford the monetary payment required for their release. Mr. RussellClack is required to pay $17,500 to be released. And Mr. Wilson is required to pay $10,000 to be released. Dwight Russell, Johnnie Pierson, and Joseph Ortuno were detained when the initial Complaint was filed on January 21, 2019.9 Mr. Russell was required to pay a $25,000 secured bail amount to be released. Mr. Pierson iswas required to pay $15,000 to be released. And Mr. Ortuno iswas required to pay $30,000 to be released. Because of their poverty, each of the Plaintiffs is (or was) confined to a Harris County jail cell. In none of their cases did a judicial officer make any finding concerning ability to pay, the availability of alternative non-financial conditions of release, or the need to detain them to serve any government interest. Moreover, none of the Plaintiffs was afforded the procedural safeguards required to ensure the accuracy of any decision to detain them pretrial.
12. On behalf of the many other arrestees subjected to Harris County’s unlawful and ongoing post-arrest wealth-based detention scheme, the Plaintiffs challenge in this action the use of secured money bail to detain only the most impoverished felony arrestees. Harris County’s wealth-based felony pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution.
13. By and through their attorneys and on behalf of themselves and all others similarly situated, Plaintiffs seek an injunction against Defendants’ wealth-based post-arrest policies and practices and a declaration that Defendants cannot employ a system of pretrial detention based solely on access to money by imposing and enforcing secured financial conditions of pretrial
13538819.php?hchronfb&fbclid=IwAR00Vn77P8IM5CQ1jUjqPkLSPOrnGNBxOzFrNQjAR6SzMqYqFbK3EnSfa8&utm_campaign=CMS%20Sharing%20Tools %20(Desktop)&utm_source=share-by-email&utm_medium=email.. 9 Each of the original named Plaintiffs was subsequently released after the lawsuit was filed.
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release without factual findings on the record, after adequate procedural safeguards to ensure the accuracy of the findings, either (1) that the person can afford to pay the amount required for release or (2) that, although the person cannot afford it and will be detained, pretrial detention is necessary because every less-restrictive alternative condition is inadequate to meet a specific, compelling government interest in court appearance or community safety.
II. Related Litigation 14. In accordance with Local Rule 5.2, Plaintiffs advise the Court of related litigation
that is currently pending: ODonnell v. Harris County, Case No. 4:16-cv-1414 (S.D. Tex. 2016), in the United States District Court for the Southern District of Texas, Houston Division. ODonnell raises the same legal claims and challenges materially identical bail policies and practices as applied to people arrested for misdemeanor offenses. This lawsuit is a companion case to ODonnell; the claims pled here could have been added to ODonnell itself by way of an amended Complaint.
III. Nature of the Action10 15. It is the policy and practice of Defendants to detain all felony arrestees who are
eligible for release unless they pay a monetary sum. The amount of money required is initially determined by a generic schedule and is subsequently set by Hearing Officers at arrestees’ probable cause hearings, during which the Hearing Officers fail to make the findings required by the Constitution, and the County fails to provide the procedural protections required to ensure the accuracy of any decision that results in a person’s pretrial detention. It is the policy and practice of the Harris County Sheriff to require these payments as a condition of release without a judicial
10 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.
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officer having made a finding either that the person can afford to pay the amount or that detention is necessary to serve any government interest. This practice results in the systemic detention of those arrestees who are too poor to pay. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants’ post-arrest detention scheme based on access to money.
Jurisdiction and Venue 16. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 17. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 18. Dwight Russell is a 61-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subjected to Defendants’ wealth-based post-arrest detention practices. 19. Johnnie Pierson is a 51-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices. 20. Joseph OturnoOrtuno is an 18-year-old teenager who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices. 21. Christopher Clack is a 46-year-old man who lives in Houston. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealthbased post-arrest detention practices.
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20.22. Maurice Wilson is 36-year-old man who lives in Houston. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based postarrest detention practices.
21.23. Defendant Harris County is a municipal corporation organized under the laws of the State of Texas. The County, through the judges who are its final policymakers for promulgating bail procedures, makes policy decisions about which arrestees are eligible for release on nonfinancial conditions. The County, through the judges, also makes policy decisions about the content of the findings that are required to justify pretrial detention and about the procedural safeguards to provide for arrestees, including: whether and when to provide adversarial hearings and counsel; whether to provide notice, an opportunity to be heard, and an opportunity to present and confront evidence; and whether to make findings on the record. The County’s policies and practices result in systemic wealth-based pretrial detention of Harris County felony arrestees without the substantive findings or procedural safeguards required by the United States Constitution.
22.24. The Harris County Sheriff is the chief law enforcement officer for Harris County and operates the Harris County Jail, the forthcoming Joint Processing Center, and several other detention facilities. He is responsible under state law for enforcing pretrial bail orders and directives issued by judges or promulgated by local rule. State law also obligates the Sheriff to ensure the lawfulness of any order resulting in a person’s detention in the Harris County Jail and requires him to not enforce orders he knows to be illegal.
23.25. The Sheriff’s Office is itself responsible for about 19% of felony arrests within Harris County. The Sheriff’s Office also transports arrestees from field stations run by various other authorities with arresting power to the Harris County Jail, which houses all people to be
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Case 4:19-cv-00226 Document 140-2 Filed on 05/06/20 in TXSD Page 10 of 49 detained pending prosecution within the Harris County courts. The Sheriff’s Office detains arrestees at the Harris County Jail and several other facilities. The officers and employees of the Sheriff’s Office are authorized by County policy to accept money bail, as determined by the money bail schedule or by a judicial officer, and release arrestees.
Bonding office in the Joint Processing Center, which the County expects will open on February 1, 2019, subject to further delays.
24.26. After arrest, Sheriff’s Office employees and agents bring arrestees detained because they cannot pay money bail to a room inside the jail for probable cause hearings and bail setting. Sheriff’s Office employees supervise and monitor the arrestees during the hearing. The Sheriff has
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knowledge that Hearing Officers require secured financial conditions of release without findings concerning a person’s ability to pay the amount set and without any findings concerning alternatives to pretrial detention.
25.27. The Sheriff, who operates the jail, is aware of who is in the jail and the basis for each person’s detention, including whether any person is eligible for pretrial release, and the amount of money bail any person is required to pay for immediate release. The Sheriff therefore has knowledge that the imposition of secured money bail results in systemic, wealth-based detention, and that there are thousands of people in the jail every night who would be released but for their inability to pay a money bail amount imposed without any finding that pretrial detention is necessary and without the basic procedural safeguards necessary to ensure the accuracy of such a finding.
26.28. The Sheriff’s Office, by policy and practice, detains arrestees too poor to afford the money bail amounts that are imposed without findings concerning ability to pay or the need for detention, and releases arrestees who pay their money bail.
27.29. The Sheriff is sued in his official capacity because he is the final policymaker for all law enforcement decisions in Harris County. To the extent the Sheriff is not a County policymaker for the conduct challenged in this Complaint, the Sheriff is sued in his official capacity as an enforcement actor for purposes of injunctive relief and can be enjoined in his capacity as an enforcement actor, regardless of whether he acts on behalf of the County or the State of Texas when he enforces bail directives.11
Factual Background
11 Defendant Ed Gonzalez is named separately from the County as a defendant in the event that the Court concludes that he acts on behalf of the State in any capacity, and thus is subject to prospective relief only in that capacity. If the Court, however, determines that he is a final policymaker for the County, naming him individually is redundant of a suit against the County.
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A. The Named Plaintiffs Are Being Kept in Jail Because They Cannot Afford the Money Bail Required for Their Release, Even Though the Government Has Not Made a Substantive Finding that Detention is Necessary
28.30. Dwight Russell is a 61-year-old man. Ex. 1 (Declaration of Dwight Russell) ¶ 1. 29.31. Mr. Russell was arrested on January 19, 2019 and taken into the custody of Harris County for allegedly driving while intoxicated, third offense. He was informed that, because of the Harris County bail schedule, he would be released immediately, but only if he paid a money bail amount of $25,000. He was told that he will be detained by Harris County if he does not pay. See Id. ¶¶ 3, 4. 30.32. Mr. Russell appeared while in custody at the jail at a probable cause hearing, and a Hearing Officer found probable cause for his arrest. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Id. ¶¶ 5, 6. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 31.33. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $25,000. Id. ¶ 4. 32.34. Mr. Russell struggles to meet the basic necessities of life. His only income is from food stamps. He is unemployed and has no savings. He lives with his sister, who provides him with financial support. Id. ¶ 7. 33.35. He cannot afford to purchase his release from jail. Id. ¶ 4. 34.36. Johnnie Pierson is a 51-year-old man. Ex. 2 (Declaration of Johnnie Pierson) ¶ 1.
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35.37. Mr. Pierson was arrested on January 18, 2019, for possession of less than one gram of a Penalty Group 1 controlled substance, a state jail felony offense. He was taken to the Houston city jail and then to the Harris County jail. Id. ¶ 3.
36.38. At the jail, deputies took him to see a Hearing Officer, who told Mr. Pierson that he could be released, but only if he paid $15,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4.
37.39. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Id. ¶ 7. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
38.40. Mr. Pierson struggles to meet the basic necessities of life. He survives on food stamps and works part-time on cars when he can. He does not have any other income. Id. ¶ 10.
39.41. He cannot afford to purchase his release from jail. Id. ¶ 13. 40.42. Joseph Ortuno is an 18-year-old teenager who is in high school. Ex. 3 (Declaration of Joseph Ortuno) ¶¶ 1, 6. 41.43. He was arrested on January 17, 2019, for possession with intent to deliver a controlled substance. He was taken first to the Houston city jail and then to the Harris County jail. Id. ¶ 3. 42.44. At the jail, deputies took him to see a Hearing Officer, who told Mr. Ortuno that he could be released, but only if he paid $30,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4.
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43.45. Pursuant to the policies and practices described in this Complaint, no findings were ever made concerning his ability to pay or the need to detain him in light of available, lessrestrictive alternative conditions of release. See Id. ¶ 5. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
44.46. Mr. Ortuno struggles to meet the basic necessities of life. When not in school, he makes money by helping his uncle with tile installation, but he cannot afford to purchase his release from jail. Id. ¶¶ 4, 7, 12.
47. Christopher Clack is 46 years old. 48. Mr. Clack was arrested on January 17, 2020 for two felony offenses, and taken to the Harris County Jail. 49. At the jail, deputies took him to see a Hearing Officer, who told Mr. Clack that he could be released, but only if he paid $17,500. He was told that, if he does not pay the money, he would be kept in a jail cell. 50. Mr. Clack struggles to meet the basic necessities of life. Prior to being detained, Mr. Clack typically earned about $200–$400 per week as an independent contractor. He does not have any financial support outside of the income he used to earn by working. He does not have a bank account. 51. He cannot afford to purchase his release from jail. 52. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Nor was he afforded the procedural protections required,
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including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
53. Although court records show that Mr. Clack had settings on January 21 and March 12, 2020, he was transported to court from the jail only on March 12, and he was kept in lock-up during the hearing. There was no review of his bail conditions, and the judge did not make a finding that his continued detention was necessary. His next court appearance is scheduled for July 16.
54. Mr. Clack learned on May 4, 2020, that a few weeks ago, his lawyer called the judge in his case to ask for a bond reduction. Mr. Clack was not present for the call. The judge refused to reduce the bond amount, but the reasons were never explained to him.
55. Mr. Clack fears for his health and life because of an outbreak of COVID-19 in the Harris County Jail.
56. Mr. Clack is ineligible for release on a personal bond pursuant to GA-13. 57. Maurice Wilson is 36 years old. 58. He was arrested on January 30, 2020 for drug possession, and taken to the Harris County Jail. 59. At the jail, deputies took him to see a Hearing Officer, who told Mr. Wilson that he could be released, but only if he paid $15,000. He was told that, if he does not pay the money, he will be kept in a jail cell. 60. Although court records show that Mr. Wilson had court settings on February 3, February 12, April 6, April 13, and May 4, he was transported to court from the jail only on February 12, and he was kept in lock-up during that proceeding and did not see the judge. On February 12, 2020, the judge lowered Mr. Wilson’s bond from $15,000 to $10,000, but Mr. Wilson
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still could not afford the sum. There was no on-the-record bail hearing, and the judge did not make a finding that detention was necessary. Mr. Wilson’s next court date is currently set for June 15.
61. Mr. Wilson struggles to meet the basic necessities of life. Before his arrest, he earned money by working sporadically for his father’s landscaping business. He has no other source of income. Mr. Wilson provides financial support for his 15-year-old son.
62. He cannot afford to purchase his release from jail. 63. Pursuant to the policies and practices described in this Complaint, no findings have been made concerning Mr. Wilson’s ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Nor was Mr. Wilson afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 64. Mr. Wilson fears for his health and life because of an outbreak of COVID-19 in the Harris County Jail. 65. Mr. Wilson is ineligible for a personal bond pursuant to GA-13. B. Defendants’ Post-Arrest Practices Cause the Detention of Arrestees Who
Cannot Pay a Money Bail Amount While Those Who Can Pay Are Released i. Arrest and the Initial Money Bail-Setting Process 45.66. Harris County uses a predetermined money bail schedule, promulgated through administrative order by the Harris County District Court Judges (“the felony judges”), to determine financial conditions of pretrial release for nearly all felony arrestees in Harris County. See Ex. 4 (Harris County District Court Felony Bond Schedule). The schedule requires arrestees charged with certain offenses to remain in custody until a magistrate determines conditions of release at a probable cause hearing. For all other arrestees, the schedule lists an amount of cash a person must pay to purchase her release. The cash amount is based on a combination of the type of offense and
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the “risk” level of the arrestee as determined by a risk assessment algorithm. The algorithm itself is a secret, and the County’s use of the assessment tool to determine the price of release is nonsensical and an improper use of the tool. First, there is no science showing that higher amounts of money mitigate higher risks of nonappearance or new criminal activity. Second, the tool is intended only to identify a risk absent interventions, such as text-message reminders or appropriate conditions like a stay-away order.
46.67. Harris County itself made 19% of felony arrests within the County in 2017. The City of Houston Police Department made 53.9% of felony arrests in 2017.12 There are roughly 100 additional agencies within Harris County that have the authority to make arrests.
47.68. When a person is arrested within Harris County, she will be taken to a “field station” run by the arresting authority. If she is arrested by Harris County, she will be taken either to a field station or directly to the jail. These field stations vary in size and their capacity to hold and process arrestees. Some include holding cells. In others, arrestees are made to sit shackled to a bench while initial post-arrest procedures are conducted.
48.69. When the newly constructed Joint Processing Center (“JPC”)—which Harris County spent $100 million to build—opens later this year, all people arrested by Harris County or the Houston Police Department will be taken directly to the JPC. This means that about 75% of arrestees will immediately be in the Sheriff’s physical custody upon arrest.
49.70. Once at a field station, if the person was arrested without a warrant, the arresting officer will determine whether the Harris County District Attorney’s Office wishes to pursue the charge by calling a hotline that is staffed 24 hours a day, 7 days a week by Harris County’s assistant
12 Harris County Pretrial Services, supra note 3, at 8.
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district attorneys. The arresting officer describes the allegations to the assistant district attorney (“ADA”) on duty, who makes an initial charging decision over the phone.
50.71. If the ADA on hotline duty does not wish to pursue charges, she tells the officer to release the individual.
51.72. If the ADA decides to pursue the charges, the arresting officer will type a summary of the facts giving rise to the arrest into the District Attorney’s Intake Management System.
52.73. The summary will be transmitted to the District Attorney’s (“DA”) intake division where an ADA will formally accept charges.
53.74. The District Clerk’s Office then files the case, creates a case number, and assigns the case to a courtroom. Pretrial Services runs the person’s information through an algorithm to create a “risk assessment” score and applies the felony judges’ schedule. The process from arrest to formal charges being filed and the cash amount required for release being set typically lasts about 6 to 8 hours.
54.75. Once the charging document is filed, a case number assigned, and a monetary amount set, the arrestee will be eligible to pay the secured money bail amount and be released. Up to this point, Harris County does not perform any inquiry into the arrestee’s ability to pay the money bail amount required by the felony judges’ schedule.
55.76. From the moment a secured bail amount is set in a felony case, the arrestee is eligible for release from Harris County custody if she can pay the amount required. If a person is subject to certain “hold” orders (e.g., an immigration detainer, probation hold, or process from another county), that person will be eligible for transfer to the jurisdiction where the hold is operative as soon as she pays. Typically, there is a set time period within which the other
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jurisdiction can come and pick up the arrestee. That time period does not begin ticking down unless and until the person pays the amount required by the judges’ schedule in Harris County.
56.77. Arrestees can pay the amount themselves, make a phone call to ask a friend or family member to pay the money on their behalf, or contact a commercial bonding agent to post bail. A person who can afford to pay will be released from the field station and will never be transported to the Harris County Jail.
57.78. The imposition of a financial condition of release is the moment of differential treatment: Defendants will release a person with financial resources almost immediately after money is paid, but Defendants will continue to detain a person who cannot afford to pay. This policy and practice results in systemic and automatic wealth-based detention.
58.79. Whether a person is arrested pursuant to a warrant or pursuant to a warrantless arrest, that person can pay the secured money bail amount predetermined by the schedule and be released immediately from the field station,13 prior to formal booking.14 If the individual is unable to pay, she will be transported to and booked into the jail.
59.80. The time it takes for an arrestee to be transported to the Harris County Jail varies depending on a variety of factors, including where the person was arrested.
60.81. Harris County is a large county, and individuals arrested within its borders can be taken initially to field stations as geographically close to the Harris County Jail as the Houston Police Station located a little over a mile from the jail, or as far away as, for example, the City of Lakeview, which is more than 30 miles away.
13 Individuals arrested by Harris County officers are generally taken directly to the Harris County Jail. However, as noted, Harris County itself is only one of roughly 100 agencies with arresting authority in the County, some of which are 60 to 90 minutes outside of Houston. 14 The vast majority of arrestees use a bail bond, obtained through a commercial bail bond company, to secure their release from jail. Typically, if accepted by a for-profit bail agent, an arrestee will have to pay the agent a nonrefundable fee of 10% of the value of the bond to be released.
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61.82. Sometime after a person arrives at the jail—and usually before she is assigned to a housing unit—she will be taken by Sheriff’s Office employees to a room in the jail with several dozen other new arrestees to appear before a Hearing Officer, who will determine probable cause. Many people every month must wait up to 48 hours for a probable cause hearing, though some have their hearings within 24 hours of arrest.
62.83. These policies have consistently, for years, resulted in the needless and devastating jailing of impoverished people accused of felony offenses. In 2017, up to 85% of felony arrestees were booked into the jail because they were unable to immediately pay for their release.15 Arrestees booked into the jail endure a lengthy, intrusive, and humiliating process that includes seizure of their property, bodily searches, personal questions about their physical health, and interviews requiring them to disclose private financial and mental health information. The inmate processing center is notoriously crowded with people who are in moments of extreme crisis, having just been arrested, separated from their children and families, and deprived of their freedom. Some are suffering from painful withdrawal symptoms or mental health episodes. Many are worried about missing shifts at their jobs or making rent payments. All are, at that moment, presumed innocent of all charges. The processing center is loud, dirty, and full of flies and noxious smells. The risk of suicide—elevated for all people detained in jails—is at its highest in the hours and days immediately following arrest. Similarly situated arrestees who were able to pay the predetermined money bail amount avoid the booking process altogether.
15 Harris County Pretrial Services, supra note 3, at 19.
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63.84. In 2017, approximately 55% of felony arrestees were still in jail when their case reached disposition.16 Many of these arrestees were detained solely due to their inability to afford the secured financial condition set for their release.17
ii. Probable Cause Hearings
64.85. The Harris County Sheriff’s Office, through its jail personnel, assembles recently
arrested people nine times per day, every day of the week, for an appearance before one of the
Harris County Hearing Officers. The Hearing Officer determines probable cause for the arrest, if
it was warrantless, and imposes conditions of release.
65.86. These hearings are referred to locally as “magistrations,” “Article 15.17 hearings,”
or “probable cause hearings.”
66.87. In March 2017, in the middle of the evidentiary hearing in the ODonnell case,
challenging the County’s misdemeanor bail system, the County Commissioners voted to fund a
pilot program allowing defense attorneys to appear on behalf of detained arrestees at these hearings beginning in July 2017.18 Assistant public defenders are currently authorized to represent most
arrestees, though there are some exclusions.
16 Id. at 16. 17 Id. at 19 (showing in Table B.1 that roughly 45% of felony arrestees post money bail). 18 Harris County received $150,000 in May 2015 from the MacArthur Foundation to create a proposal for improvements to the criminal legal system. See Press Release, MacArthur Announces 20 Jurisdictions to Receive Funding to Reduce Jail Use (May 26, 2015), https://www.macfound.org/press/press-releases/macarthur-announces20-jurisdictions-receive-funding-reduce-jail-use/. Harris County subsequently convened a Criminal Justice Coordinating Council, which investigated ways to reduce incarceration. Among the most important reforms that participants recommended was to provide defense attorneys at the probable cause hearings. Early in January 2016, the Coordinating Counsel submitted its grant proposal to the MacArthur Foundation, seeking $4 million over two years to put its plans into effect. Without a public explanation and despite the availability for funding for lawyers to represent all arrestees, the final document included a proposal for counsel only to represent individuals who are mentally ill. Meagan Flynn, Bail Hearings: Where Prosecutors and Magistrates Ensure Defenseless People Stay In Jail (Jan. 11, 2016), http://www.houstonpress.com/news/bail-hearings-where-prosecutors-and-magistrates-ensuredefenseless-people-stay-in-jail-8058308. On April 13, 2016, Harris County was awarded a $2 million MacArthur grant to reform its criminal system, but that money was not allocated to funding public defenders at bail hearings, even for people with mental illnesses. See Harris County receives $2 million grant to reform criminal justice system, KPRC
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67.88. At the probable cause hearing, Hearing Officers typically make no findings concerning ability to pay; they make no findings as to whether alternative conditions of release serve the government’s interests or whether pretrial detention is necessary to serve any government interest; they do not allow arrestees to confront the evidence and arguments of the government or put on evidence in support of pretrial release; and they do not provide other basic procedural safeguards, such as applying any evidentiary standard to any factual finding, let alone the clearand-convincing-evidence standard, or issuing any statement of findings or reasons explaining why a particular financial condition or pretrial detention is required.
68.89. An ADA participates in the probable cause hearings via videolink by arguing for the Hearing Officer to make a finding of probable cause and often asking the Hearing Officer to impose money bail in an amount higher than the amount on the schedule or on the warrant. District Attorney Kim Ogg has an internal policy requiring motions for high bond on certain cases. She also has a policy of asking the Hearing Officer to detain using a “no bond” order every arrestee charged with an offense for which the Texas Constitution authorizes pretrial detention, regardless of the person’s individual case and circumstances and regardless of the availability of lessrestrictive alternatives to detention.
69.90. When the docket begins, arrestees are seated on benches in a room at the jail. 70.91. The Hearing Officer calls an individual’s name and reads the charge. That individual gets up and stands in the middle of a red square on the floor of the room in the jail. An ADA then reads from the police report. The Hearing Officer decides whether there is probable cause, finding probable cause in almost every case. The Hearing Officer regularly sets secured
News (Apr. 13, 2106), http://www.click2houston.com/news/watch-live-harris-county-receives-2-million-grant-toreform-criminal-justice-system. That change came only in the midst of the evidentiary hearing on the ODonnell Plaintiffs’ motion for preliminary injunction.
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money bail and sometimes increases the money bail amount from the amount required by the bail schedule.
71.92. As a matter of routine practice, Hearing Officers do not make findings concerning an arrestee’s ability to pay the money bail amount that they impose, nor do they meaningfully consider alternative non-financial conditions of release for those who cannot afford to pay the bail amount set. They do not make findings concerning the necessity of pretrial detention or make findings that less-restrictive conditions are inadequate to meet a compelling government interest.
72.93. Hearing Officers rarely require alternative, non-monetary conditions of release and routinely state that they are not permitted to impose certain non-monetary conditions of release.
73.94. For decades, the Hearing Officers simply reviewed the bail amount previously affixed to ensure that it conformed to the bail schedule and the specific policy instructions from the felony judges about how to administer the predetermined schedule. These instructions included laminated charts and emails instructing Hearing Officers about who the Hearing Officers could and could not order released on personal bonds (i.e., unsecured bonds that do not require payment upfront) and in what circumstances they could deviate from the cash bail schedule (almost never, according to the instructions). Although the felony judges purportedly rescinded these instructions in 2017 with the implementation of the new felony bail schedule and expanded the Hearing Officers’ authority to determine money bail amounts and other conditions of release, the purported policy changes have not meaningfully changed actual practice. Specifically, the rule changes have failed to correct the core constitutional infirmity of the Harris County bail system: requiring secured financial conditions of release without findings concerning ability to pay, the necessity of pretrial detention, or the adequacy of alternative conditions, and without all of the safeguards required to ensure the accuracy of those findings, including application of the clear-and-
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convincing-evidence standard and a statement of reasons concerning why a particular financial condition or pretrial detention is required.
74.95. Throughout the hearing, the arrestees remain in the Harris County Jail, supervised by Sheriff’s Office employees. Sheriff’s Office employees and agents also observe the probable cause hearings and witness Defendant Hearing Officers routinely failing and refusing as a matter of policy to consider alternatives to secured financial conditions.
75.96. State law requires probable cause hearings to occur within 48 hours. Although the County strives to hold these probable cause hearings within 24 hours of arrest for people charged with felonies, the County’s online case records show that the hearings sometimes do not occur until up to 48 hours after arrest. At any point in the booking process, an arrestee can pay his or her predetermined money bail and be released.
76.97. If a person pays money bail prior to the probable cause hearing, she will be released and the probable cause determination in her case will be made at a subsequent court appearance.
77.98. If an individual is not brought to the probable cause hearing due to medical reasons, which is a frequent occurrence (approximately 5% to 10% of male arrestees are not brought to the probable cause hearing for medical reasons and approximately 25% of female arrestees are not brought to the probable cause hearing for medical reasons), the Hearing Officer will make a finding of probable cause and require financial conditions of pretrial release in that person’s absence. The County’s protocol prohibits assistant public defenders from representing people who are not present at the hearing. Therefore, in these cases, the money bail amount is set without any argument on the arrestee’s behalf.
iii. The Use of Personal Bonds
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78.99. Hearing Officers sometimes recommend arrestees for release on “personal bonds,”

a term Defendants use to describe release without requiring an up-front payment prior to release,

i.e., without a secured financial condition of release. The felony bond schedule lists certain low-

level offenses for which there is a presumption of personal bond.

79.100. 2017.19

Only about 8% of felony arrestees were released on personal bonds in

80.101.

Even when individuals are recommended for personal bonds, many will not

be released immediately, and some will not be released at all. This is because some Hearing

Officers require Pretrial Services to first “verify” a person’s references, meaning that the arrestee

must provide Pretrial Services with contact information for friends or family members, and Pretrial

Services must then contact those individuals and attempt to confirm certain information reported

by the arrestee. Sometimes Pretrial Services is required to verify the information with multiple

“references.” Among the information Pretrial Services seeks to confirm, as a matter of policy, is

whether the person has a place to stay if she is released from the jail. If a person does not have an

address to verify, then the verification process cannot be completed, and the person will not be

released. According to these policies and practices, a person who is homeless will not be released

on a personal bond, i.e., without payment of the scheduled amount of bail, because she has no

address that can possibly be verified. Homeless defendants are therefore categorically ineligible

for personal bonds due to the verification policy. Sometimes, references cannot be reached to

verify information for days or a week. Sometimes they cannot be reached at all. In those cases,

the person will not be released on a personal bond and will be detained unless she can pay the

money bail.

19 Harris County Pretrial Services, supra note 3, at 17.
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81.102.

At any point in the verification process, the arrestee is permitted to pay the

money set pursuant to the schedule and be released immediately.

82.103.

For decades, in violation of state judicial conduct rules, there has been an

entrenched culture among the Hearing Officers of abiding strictly by written and oral directives

regarding the money bail–setting process issued by the felony judges, who control their

employment. For example, the felony judges instructed Hearing Officers that they could never

recommend homeless individuals for release on personal bonds, i.e., without secured financial

conditions. Some judges told Hearing Officers never to issue non-financial conditions for any

defendant who was assigned to their courtroom at all,20 or for individuals who previously received

personal bonds in other cases.21 Other judges told Hearing Officers to consider unsecured financial conditions only for “students.”22 The Hearing Officers believed themselves to be bound by these

rules and understood that the judges could hire and fire them at will. The Hearing Officers’

contracts are reviewed annually by a committee that includes several of the felony judges.

83.104.

These explicit written instructions have purportedly been rescinded with

implementation of the current schedule in 2017, and Hearing Officers have purportedly been given

greater discretion to determine bond amounts. Although written rules prohibiting or categorically

limiting release have purportedly been formally rescinded, videos and data demonstrate that actual

practices are virtually the same as they have been for many years.

iv. Assignment to a Housing Unit

20 Gabrielle Banks, Harris County hearing officers sanctioned by state for not considering personal bonds, Houston Chron. (Feb. 23, 2018), https://www.chron.com/news/houston-texas/article/Trio-of-Harris-County-hearing-officerssanctioned-12494892.php 21 James Pinkerton & Laura Caruba, Tough bail policies punish the poor and the sick, critics say, Houston Chron. (Dec. 26, 2015), http://www.houstonchronicle.com/news/houston-texas/houston/article/Tough-bail-policies-punishthe-poor-and-the-sick-6721984.php?t=373b57d418&cmpid=email-premium. 22 Id.
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84.105.

People who are being processed through the Inmate Processing Center

cannot be contacted by people outside the jail, including attorneys, with the exception of a brief

interview with an assistant public defender shortly before the probable cause hearing. Most

arrestees are not assigned to a housing unit until after their probable cause hearing and will remain

inaccessible to their appointed attorney, who will represent them in their case, and everyone else

outside the jail until the jail assigns the individual to a housing unit sometime after the probable

cause and bail hearing.

85.106.

It is only after being assigned to a housing unit that an arrestee can be

contacted by anyone outside the jail and will be scheduled for a hearing in a Criminal District

Court.

86.107.

Typically, a lawyer is not appointed until the first appearance in court. First

appearance cannot occur until booking is complete. The booking process can take days.

87.108.

In total, it takes a minimum of 24 hours for an arrested person to be fully

booked into the jail, assigned to a housing unit, and made available for a visit. Arrested persons

who cannot pay generally will not have counsel appointed or be able to meet with counsel until

after their first court appearance. Felony arrestees virtually never meet their lawyer before the first

appearance. At any point during this period of time, a person can pay money bail and be released.

v. First Appearances

88.109.

If, after the probable cause hearing, an arrestee is still unable to purchase

her release from jail, general Harris County practice is that she will be taken to a District Court,

usually within 24 to 48 hours of the probable cause hearing. However, many arrestees who have

their probable cause hearings on Thursday or Friday will not see a District Judge until the following

Monday at the earliest, and sometimes must wait until Tuesday.

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89.110.

Detained individuals are usually assigned a court-appointed attorney or

public defender at the first appearance hearing, but there is typically no review of the money bail

amount previously imposed. Although an informal off-the-record request for bail reduction may,

in theory, be made at first appearance, it is not possible to have a bail hearing at that time.

90.111.

Detained individuals typically remain in lock-up outside of the courtroom

and are not brought into the courtroom on this court date. The case is almost always then “reset,”

meaning that another hearing is scheduled, typically weeks in the future.

91.112.

As a result, arrestees who cannot pay for their release remain in detention

and are returned to jail cells, usually without ever having been brought into the courtroom.

92.113.

As a matter of routine practice, the felony judges do not conduct bail

hearings at first appearance: they make no findings concerning ability to pay; they make no

findings as to whether pretrial detention is necessary to serve any government interest; they do not

allow arrestees to confront the evidence and arguments of the government or put on evidence and

argument in support of pretrial release; and they do not provide other basic procedural safeguards,

such as making findings by any evidentiary standard, let alone by clear and convincing evidence,

or issuing any statement of reasons concerning why a particular financial condition or pretrial

detention is required.

93.114.

Typically, if a person wishes to have an evidentiary hearing concerning the

appropriateness of the secured bond amount set, the need to keep the person in a jail cell pending

resolution of the case, and whether less-restrictive conditions of release are available, the person’s

lawyer must file a motion and then have a court proceeding scheduled for a later date. A hearing

on the motion will likely not occur for more than a week after the motion is filed. This hearing will

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be the arrestee’s first opportunity to present witnesses or documentary evidence and the first time

that a judge will even conceivably make findings on the record regarding release conditions.

94.115.

One of the purposes and effects of Harris County’s post-arrest detention is

to coerce and process large numbers of guilty pleas prior to any person conducting any legal or

factual investigation into the charges, let alone the complete and zealous investigation and defense

required by professional standards and the Sixth Amendment to the United States Constitution. If

an arrestee agrees to plead guilty at this first appearance, then the arrestee will be brought out from

the lock-up to plead guilty.

95.116.

The felony judges routinely accept guilty pleas from individuals who are in

jail solely because they are too poor to pay money bail.

96.117.

The felony judges—and every other actor in the County’s post-arrest system

(as well as anyone who has observed probable cause hearings or first appearances)—know that

many of the detained individuals who appear in front of them charged with felonies are being

detained in jail solely because they are too poor to pay the money bail amount required as payment

for release. The judges and Sheriff’s Office employees and agents have knowledge that, in

thousands of people’s cases every day, there is no reason for a person’s detention other than the

person’s inability to make a monetary payment.

97.118.

In 2017, approximately 55% of felony arrestees were still in jail when their

case reached disposition.23 Individuals detained pretrial are more likely to be sentenced to jail, are

less likely to be sentenced to probation, and are given longer sentences than those received by

23 Harris County Pretrial Services, supra note 3, at 16 (showing in Table B.1 that roughly 45% of felony arrestees post money bail).
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individuals who were released pretrial. The conviction rates for people released at disposition are

significantly lower than for similarly situated people who are detained at disposition.

C. The Harris County Jail

98.119.

The Harris County Jail is the largest jail in Texas and the third largest jail

in the United States, behind only Rikers in New York and the Los Angeles County Jail.24 The

Harris County Jail books on average 120,000 individuals per year and 330 individuals per day.25

99.120.

The vast majority of human beings in the Harris County Jail cells are not

there because they have been convicted of a crime. Instead, most people—an average of 85% in

September 2018—are being kept in jail cells prior to trial, despite the presumption of innocence.

Many of these people are in jail solely because they cannot afford to pay money bail. If they could

pay the money bail assigned to them, they could walk out of the doors of the jail at any time.

100.121. In September 2018, a typical month, the average daily population of the

Harris County Jail was 9,803 individuals, 8,386 of whom were pretrial detainees. About 90% of

these pretrial detainees—7,553 individuals—had been arrested for felony or state jail felony

charges.

101.122. Over 10 years ago, the Department of Justice investigated the Harris County

Jail and launched an era of federal oversight because of the serious and systemic violations of constitutional rights that pervaded the facility.26 The investigation led the County to form the

Harris County Criminal Justice Coordinating Council in an effort to address the overcrowding in

24 Sarah R. Guidry, et al., A Blueprint for Criminal Justice Policy Solutions in Harris County 1 (2015), http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2015/ls_sclaid_summit_03_tcjc _2015_harris_county_blueprint.authcheckdam.pdf. 25 Id. at 9. 26 Id. at 2.
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the jail.27 Although there have been some decreases in the jail population in more recent years,

Harris County consistently struggles to stay within its operating capacity. In fact, the jail’s

persistent overcrowding, resulting largely from the thousands of people detained pretrial on felony

charges, has led the Sheriff to refuse to accept new arrestees from arresting agencies like Houston

Police Department (“HPD”), which in turn has meant that HPD arrestees are forced to languish in the City’s custody for days before being transferred to the County’s inmate processing center.28

102.123.

In 2013, taxpayers spent almost $500,000 per day to operate the jail.29

103.124. Since 2009, 125 human beings have died while in pretrial custody in the

Harris County Jail.30

104.125. In August 2018, arrestee Debora Lyons hanged herself in a common area of the Harris County Jail while detained on a felony theft charge with money bail set at $1,500.31 She

had been arrested on July 21 for allegedly stealing clothes and an airbed totaling less than $2,500.

The day after she died, former Judge Jim Wallace granted her a personal bond.

105.126. Three weeks earlier, Navy veteran Eldon Lee Harris had hanged himself

while in solitary confinement.32

27 Id. 28 Undersigned counsel Civil Rights Corps sued the City of Houston for detaining people in violation of their Fourth Amendment right to a probable cause determination within 48 hours. Hernandez v. City of Houston, 4:16-cv-3577 (S.D. Tex. Dec. 5, 2016). 29 Guidry, supra note 23, at 13. 30 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019. 31 Keri Blakinger, Inmate who killed herself in Harris County jail had previously threatened suicide, Houston Chron. (Aug. 22, 2018), https://www.chron.com/news/houston-texas/article/Inmate-who-killed-herself-in-jail-hadpreviously-13172633.php. 32 Id.
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106.127. The Texas Commission on Jail Standards has found the Harris County Jail to be in noncompliance of state standards five times in the past two years.33 Three out of five of these compliance failures have been related to preventable deaths.
107.128. On January 17, 2019, two days after Tracy Whited committed suicide in the Harris County Jail, Texas state Senator John Whitmire sent a letter to County Judge Lina Hidalgo citing “unsanitary and unhealthy conditions” at the jail and proposing state oversight for the facility. He stated that conditions at the jail “jeopardize[] the safety and well-being of our fellow citizens who find themselves housed in the Harris County Jail.”34
108.129. According to the Harris County Sheriff’s Office, one-quarter of individuals in the Harris County Jail have been diagnosed with some form of mental illness.35
109.130. There is a documented history of inmate abuse by jail guards, deaths and suicides in the jail, inadequate training of jail staff, and lack of access to medications and medical services. For years, the County has been aware of these intolerable conditions, which exist largely because of the overcrowding resulting from the volume of pretrial felony detainees who cannot afford to pay money bail. It has failed to remedy them.36
33 Keri Blakinger, State finds Harris County jail out of compliance for 5th time in two years, Houston Chron. (Nov. 30, 2018), https://www.chron.com/news/houston-texas/article/State-finds-Harris-County-jail-out-of-compliance13435304.php. 34 Keri Blakinger, Houston senator raises possibility of state oversight for Harris County jail, Houston Chron. (Jan. 17, 2019), https://www.chron.com/news/houston-texas/article/Houston-senator-raises-possibility-of-state13542101.php. 35 Harris County Sheriff’s Office, Jail Mental Health Initiatives, http://www.harriscountycit.org/jail-mental-healthunit/ (last visited January 19, 2019). 36 Jailhouse Jeopardy: Uncovering abuses at Harris County’s jail, Houston Chron., (Oct. 3, 2015–Mar. 6, 2016), http://www.houstonchronicle.com/local/investigations/jailhouse-jeopardy/ (providing links to a series of articles written by several reporters).
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110.131. On a typical day, hundreds of new arrestees, presumed innocent, are arrested and booked into this jail.37 At any given moment, there are hundreds of people charged

only with state jail felonies—the least serious class of felony charges in the Texas criminal legal

system, consisting mostly of non-violent offenses or misdemeanor offenses enhanced by prior

misdemeanor convictions—who are being detained in the Harris County Jail solely because they cannot afford money bail.38

111.132. In 2017 alone, there were more than 500 people who were detained at

disposition because they were unable to pay a $2,000 money bail. Many of these individuals could

have walked out of the jail if they had been wealthy enough to pay the monetary amount required

for freedom. Only those individuals who are too poor to purchase their release are subjected to

these conditions and the health and safety risks of pretrial jailing.

D.

Defendants’ Wealth-Based Detention Practices Are Causing Plaintiffs to Be

Jailed Solely Due to Their Inability to Pay Bail

112.133. The named Plaintiffs are eligible for release and would not have to endure

pretrial incarceration if they paid the amount of money required by Defendants.

113.134. Arrestees are given a right to release pending trial, but Defendants’ wealth-

based detention system conditions their release on their ability to afford money bail, thus tying

their pretrial freedom to their wealth status.

114.135. As a matter of policy and practice, when a new arrestee is brought to the

Harris County Jail, county employees inform the arrestee that she will be released from jail

37 Guidry, supra note 23, at 9 (stating that there are 330 bookings per day); Harris County Pretrial Services, supra note 3, at 16 (stating that, in 2017, 30,978 people were arrested on felony charges, which averages more than 80 arrests per day). 38 See, e.g., Guidry, supra note 243, at 15 (noting that, in 2013 alone, there were 3,120 misdemeanor arrestees who could not post the $500 money bail that Harris County demanded of them).
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immediately if she pays the money bail amount. The arrestee is told that she will remain in jail if she is not able to make that payment.
115.136. The Harris County Sheriff’s Office collects arrestees’ money bail payments. It is the policy and practice of the Harris County Sheriff’s Office to release only those arrestees who pay their money bail amount.
116.137. In a typical week, the Sheriff’s Office releases hundreds of individuals who pay their money bail amount.
117.138. It is the policy and practice of the Sheriff’s Office to detain individuals who do not pay the money bail amount. Before an individual’s probable cause hearing, it is the policy and practice of the Sheriff’s Office to detain the individual based on a money bail amount set pursuant to a predetermined bail schedule. After a probable cause hearing, it is the policy and practice of the Sheriff’s Office to detain the individual based on a money bail amount imposed by a Hearing Officer.
118.139. If a person cannot pay money bail after her first court appearance before a District Judge, it is the policy and practice of the Sheriff’s Office to continue to detain that individual unless and until she makes a monetary payment.
119.140. Under Defendants’ wealth-based practices, those who have enough money to pay are released from the County jail. Some poorer arrestees eventually make arrangements with private bail bond companies, after spending hours, days, or weeks in jail.39 And many others who are poorer still are left to languish in jail until their case resolves.
39 Because of the common availability of commercial bail bonds, those who remain in the Harris County jail are typically those who cannot even afford to pay a third-party bonding agent. Typically, bonding agents require a nonrefundable premium of 10% of the bail amount, although a bonding agent is free to refuse to pay for the release of any arrestee for any reason or for no reason. Bonding agents also routinely accept lower premiums, or no premiums, and place the arrestee on a payment plan for the rest. In short, it is completely up to the bonding company whether to make
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E. Defendants’ Use of Money Bail Is Not Narrowly Tailored—Nor Is It as Effective as Many Other Methods—in Securing Court Attendance or Public Safety 120.141. The empirical evidence shows that there is no relationship between
requiring money bail as a condition of release and defendants’ rates of appearance in court.40 121.142. While tying pretrial freedom (for those charged with felonies) to access to
money is the norm in Harris County, other jurisdictions throughout the country do not keep people in jail because of their poverty. Instead of relying on money, other jurisdictions release arrestees with pretrial supervision practices and procedures that can help increase court attendance and public safety without requiring detention.
122.143. Other jurisdictions employ numerous less restrictive strategies for assuring public safety and court appearance when the government determines, on the basis of evidence and argument, that there is a need to guard against a particular risk. These strategies include: unsecured or “signature” bonds (which do not require payment up front for release but instead allow immediate release upon a promise to pay the monetary amount if the person does not appear as required), reporting obligations, two-way phone and text message reminders of court dates, rides to court for those without transportation or a stable address, flexible court appearances including evening and weekend court sessions for those with jobs they cannot miss, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
a deal with a particular individual who cannot afford to pay the sum required for release. The Named Plaintiffs cannot afford such a bail. 40 Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 5 (May 2, 2016), http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf (“We find no evidence that money bail increases the probability of appearance.”).
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123.144. Defendants are permitted by state (and federal) law to use these alternatives but, as a matter of routine practice and policy, choose not to for impoverished felony arrestees. The vast majority of Harris County arrestees are therefore processed and detained through Harris County’s money bail scheme rather than non-monetary supervision methods. As a matter of policy and practice, Defendants do not consider, or make findings concerning, less restrictive alternatives than detention based on money bail that a person cannot afford.
124.145. Jurisdictions routinely using non-monetary conditions of release achieve high rates of court appearances while ensuring public safety. In Washington, DC, where 94% of cases resulted in pretrial release without secured financial conditions in Fiscal Year 2017,41 88% of defendants released pretrial made all scheduled appearances throughout the life of their cases, with more than 86% of those released pretrial remaining arrest-free (and 99% remaining arrestfree for violent crimes).42
125.146. Empirical evidence proves that unsecured bond alone is at least as effective at reasonably assuring appearance in court as secured money bail.
126.147. Empirical evidence also demonstrates that secured money bail does not have any positive benefit to public safety. In fact, short periods of pretrial detention actually increase future crime. And in Texas, because a person cannot forfeit a secured money bail by committing a new crime, there is no rational relationship between a higher secured money bail and public safety, unless the higher bail is intended to accomplish pretrial detention—and even then, as noted, studies show that the resulting detention has a criminogenic effect on that person. Thus,

41 Pretrial Services Agency for the District of Columbia, FY 2017 Release Rates for Pretrial Defendants within

Washington,

DC

(2018),

https://www.psa.gov/sites/default/files/2017%20Release%

20Rates%20for%20DC%20Pretrial%20Defendants.pdf.

42 Pretrial Services Agency for the District of Columbia, Congressional Budget Justification and Performance Budget Request: Fiscal Year 2019 (2018), https://www.csosa.gov/wp-content/uploads/bsk-pdf-manager/2018/07/FY2019PSA-CBJ-Performance-Budget-02122018-1.pdf.

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even though the person may be incapacitated for the pretrial period, the destabilizing effects of

pretrial detention make it more likely she will commit new crimes during the pretrial period and

after.

127.148. Detention due to inability to pay money bail increases the likelihood of

conviction. A person who is detained pretrial is 13% more likely to be convicted and 21% more likely to plead guilty.43 Additionally, individuals detained pretrial are more likely to be given

longer jail sentences.44 Overall, individuals who are detained—instead of released on money bail

or on a personal bond—have worse case outcomes.45

128.149.

Money bail is disproportionately imposed on non-white arrestees.46 In other

words, even the rare personal bond in Harris County is disproportionately given to white arrestees.

129.150. Setting a secured money bail amount in an amount higher than a person can

afford by definition defeats the purpose of money bail—to incentivize a person to return to court—

and removes any legitimate (let alone compelling) state interest in the setting of a financial

43 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; see also Gupta, et. al, supra note 40 at 3 (finding a 12% increase in the likelihood of conviction using the same data).

44 Stevenson, supra note 43 at 18; Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017).

45 Stevenson, supra note 42 at 18; Gupta, et. al, supra note 40 at 13 (finding a 12% increase in the likelihood of conviction using the same data); Guidry, supra note 23 at 13 (“[D]efendants who are not released pre-trial are more likely to be incarcerated following a conviction, and they generally receive longer sentences upon conviction.”).

46 Gupta, et. al, supra note 40 at 4–5; Lise Olson, Study: Inmates who can’t afford bond face tougher sentences,

Houston Chron. (Sept. 15, 2013), http://www.houstonchronicle.com/news/houston-texas/houston/article/Study-

Inmates-who-can-t-afford-bond-face-tougher-4817053.php (discussing Carlos Mathis, an African-American man,

who was detained in jail for seven months on minor drug and theft charges because he could not afford money bail,

and whose charges were dismissed); Isami Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and

the

Effects

of

Pretrial

Services

Programs

(Mar.

11,

2013),

http://www.pretrial.org/download/research/Racial%20Disparities%20at%20Pretrial%20and%20Sentencing%20and

%20the%20Effects%20of%20Pretrial%20Services%20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones,

“Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013);

Tina L. Freiburger, et. al, The Impact of Race on the Pretrial Decision, 35 Am. J. of Crim. Just. 76 (2010),

http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf.

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condition. Nor is setting money bail without findings concerning ability to pay narrowly tailored to meet any other legitimate or compelling government interest.
130.151. Defendants’ use of money bail leads disproportionately to the detention of people of color. Regardless of the amount of money bail imposed, people of color are more likely to be detained at disposition than whites.47
131.152. Unnecessary pretrial detention causes instability in employment, housing, and care for dependent relatives. Studies show that those detained pretrial face worse outcomes at trial and sentencing than those released pretrial, even when charged with the same offenses. Detained defendants are more likely to plead guilty just to shorten their jail time, even if they are innocent. In fact, Harris County has led the country for years in exonerations—many of which resulted from wrongful convictions in drug cases involving people who pled guilty to get out of jail.48 People detained pretrial have a more difficult time preparing for their defense, gathering evidence and witnesses, and meeting with their lawyers. Studies also show that just two days of pretrial detention increases the likelihood of future arrests and increases the future risk level of low-level offenders.
132.153. Pretrial detention is more than ten times more expensive than effective pretrial supervision programs. Through non-monetary tools, pretrial supervision programs can save taxpayer expense while maintaining high public safety and court appearance rates.
47 Gupta, et. al, supra note 3940 at 4–5 48 Alex Samuels, Study finds Harris County leads nation in exonerations, Texas Tribune (Mar. 7, 2017) https://www.texastribune.org/2017/03/07/report/.
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154. Since March 2020, due to the COVID-19 pandemic, people detained in the Harris County Jail face yet another irreparable harm: a heightened risk of contracting a deadly diesase and dying because they cannot practice social distancing or basic health and sanitation measures.
155. On March 11, 2020, the World Health Organization declared COVID-19 a pandemic.49
156. As COVID-19 swept across the United States, it quickly became apparent that the Harris County Jail, like most jails and prisons, is devastatingly ill-equipped to prevent the virus from rapidly spreading among detainees and staff. Indeed, Sheriff Ed Gonzalez issued a desperate public warning on March 21, 2020: “Currently have 8,000 individuals, most pre-trial, in tight quarters.”50 The jail has “[v]ery limited services. No capacity for ICU care. If someone older and/or with frail health gets the virus it can be a death sentence. Plus spread like wildfire… Individuals would need to be taken to our public health system, which does not have capacity to handle an outbreak in the jail and the anticipated needs of the general community.”51
157. On March 29, 2020, the Houston Chronicle reported that the first detained person in the Harris County Jail had tested positive for COVID-19.52
158. Also on March 29, 2020, Texas Governor Greg Abbott issued Executive Order GA13.53 GA-13 purports to prohibit anyone currently charged with a crime involving “violence” and
49 World Health Organization, “WHO Timeline – COVID-19” (Apr. 27, 2020), https://www.who.int/newsroom/detail/27-04-2020-who-timeline---covid-19 (last accessed May 1, 2020). 50 Ed Gonzalez (@SheriffEd_HCSO), TWITTER (Mar. 21, 2020, 8:41 AM), https://twitter.com/SheriffEd_HCSO/status/1241344221921136641. 51 Id. (Mar. 21, 2020, 8:05 AM), https://twitter.com/SheriffEd_HCSO/status/1241335204905713664; id. (Mar. 20, 5:19 PM), https://twitter.com/SheriffEd_HCSO/status/1241112204067381249. (“Jail health is community health.”). 52 Gabrielle Banks & Nicole Hensley, “First Harris County Jail inmate tests positive for COVID-19,” Houston Chron. (Mar. 29, 2020), https://www.houstonchronicle.com/news/houston-texas/houston/article/First-HarrisCounty-Jail-inmate-tests-positive-15164825.php. 53 See Dkt. 39-1.
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anyone with a prior conviction at any time in the past for a crime involving “violence” (regardless of the current charge), from being released on unsecured bail, regardless of any individualized proceedings or findings by a state court judge.54
159. Thus, for all of the people in these broad categories, GA-13 requires pretrial detention if they cannot pay for release and requires enforcement officials, including the Sheriff and County, to refuse to release categories of people on personal bonds.55
160. GA-13 also makes pretrial detention indefinite by suspending relevant speedy trial provisions of Texas law that ordinarily would require a person’s release if the state is not ready for trial.56
161. A little more than a month after GA-13 was issued, the number of reported COVID19 cases in the jail—among both detainees and staff—has exploded. As of May 5, 2020, 599 people detained in the Harris County Jail and 255 employees of the Sheriff’s Office had tested positive for COVID-19.57 Almost half of people detained the jail were in quarantine: 2,828 people detained in the jail were in observational quarantine (possible exposure), 601 were in buffer quarantine (for those newly booked into the jail), 92 were in surveillance quarantine (asymptomatic patients who tested positive), and 157 in recovery quarantine.58
Class Action Allegations 133.162. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a
54 See id. 55 A personal bond is an unsecured bond that allow a person to be released without making an up-front payment if the person agrees to pay an amount of money if the person does not appear. 56 Id. 57 Dkt. 138. 58 Id.
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common basis. 134.163. A class action is a superior means, and the only practicable means, by which
the named Plaintiffs and unknown Class members can challenge Defendants’ unlawful wealthbased post-arrest detention scheme.
135.164. 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.
136.165. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
137.166. The Plaintiffs propose a single Class seeking declaratory and injunctive relief. The Declaratory and Injunctive Class is defined as: All felony arrestees who are detained by Harris County, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on secured money bail because of indigence.
A. Numerosity—Fed. R. Civ. P. 23(a)(1) 138.167. In September 2018, the average daily population of felony and state jail felony arrestees being held pretrial was 7,553 individuals. Many of these people were held only because they could not afford to pay a money bail. Arrestees are detained in jail for varying lengths of time depending on how long it takes them to make the cash payment that is required for their release. 139.168. Some arrestees are able to pay immediately for their release. Others are forced to wait one or two days until they or family members can make the payment. Others will never be able to come up with any amount of money to pay for their release. 140.169. The number of current and future arrestees subject to this policy—if it is not enjoined—is well into the thousands.
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B. Commonality—Fed. R. Civ. P. 23(a)(2)
141.170. The relief sought is common to all members of the Class, and common
questions of law and fact exist as to all members of the Class. The named Plaintiffs seek relief
concerning whether Defendants’ policies, practices, and procedures violate the rights of the Class
members and relief mandating that Defendants change their policies, practices, and procedures so
that the constitutional rights of the Class members will be protected in the future.
142.171. Common legal and factual questions arise from one central scheme and set
of policies and practices: Defendants’ post-arrest wealth-based detention scheme. Defendants
operate this scheme openly and in materially the same manner every day. The material components
of the scheme do not vary from Class member to Class member, and the resolution of these legal
and factual issues will determine whether all of the members of the Class are entitled to the
constitutional relief that they seek.
Among the most important, but not the only, common questions of fact are:
 Whether Defendants have a policy and practice of using a predetermined schedule to determine the amount of money required to secure post-arrest release;
 Whether Defendants require that scheduled amount of money to be paid up front before releasing a person from the jail;
 Whether Defendants require arrestees who have had probable cause hearings to pay the secured money bail amount imposed by the Hearing Officer before releasing such people from the jail;
 Whether, when requiring a financial condition of release there is an inquiry into ability to pay;
 Whether, if a person cannot pay for release, there is any inquiry into and findings concerning availability of alternative conditions of release and a finding that pretrial detention is necessary;
 Whether, in requiring pretrial detention, there is an adversarial hearing with counsel and notice of the critical issues at stake, opportunity to be heard and to confront evidence, findings by clear and convincing evidence, and a statement of reasons orally or in writing concerning the need for pretrial detention; and
 What standard post-arrest procedures Defendants perform on felony arrestees, for example, whether Defendants use any other alternate procedures for promptly releasing people determined otherwise eligible for release but who are unable to afford a monetary payment.
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143.172. Among the most important common questions of law are:  Whether requiring arrestees to pay money up front to secure release from postarrest detention without an inquiry into or findings concerning the arrestee’s present ability to pay the amount required, and without meaningful consideration of less restrictive alternative conditions of release, violates the Fourteenth Amendment’s Equal Protection and Due Process Clauses;  Whether it is lawful to impose a secured financial condition of release that operates as a de facto order of pretrial detention because of a person’s inability to pay without complying with the substantial findings, legal standards, and procedural safeguards required for issuing and enforcing a transparent order of preventive detention; and  What substantive findings and procedural safeguards are required as a matter of federal law prior to pretrial detention of a presumptively innocent person.
C. Typicality—Fed. R. Civ. P. 23(a)(3) 144.173. The named Plaintiffs’ claims are typical of the claims of the other members of the Class, and they have the same interests in this case as all other Class members. Each Class member is threatened with imminent and/or ongoing confinement in jail because she cannot afford to pay a standardized cash bail amount. The answer to whether Defendants’ wealth-based detention scheme is unconstitutional will determine the claims of the named Plaintiffs and every other Class member. 145.174. If the named Plaintiffs succeed in the claim that Defendants’ policies and practices concerning post-arrest detention violate their constitutional rights, that ruling will likewise benefit every other member of the Class. D. Adequacy—Fed. R. Civ. P. 23(a)(4) 146.175. The named Plaintiffs are adequate representatives of the Class because their interest in the vindication of the legal claims that they raise is entirely aligned with the interests of the other Class members, each of whom has the same basic constitutional claims. They are members of the Class, and their interests do not conflict with those of the other Class members.
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147.176. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-freedom post-arrest detention system.
148.177. Plaintiffs are represented by attorneys from Civil Rights Corps, Susman Godfrey, and Texas Civil Rights Project who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are more fully set forth in the contemporaneously filed Motion for Class Certification.
149.178. The combined efforts of Class counsel have so far included extensive investigation into Harris County’s predetermined money bail practices over a period of years, including numerous interviews, most intensively in recent months, with witnesses, court employees, people detained in jail, families, judges, attorneys practicing in courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
150.179. Class counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipalities.
151.180. Counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ practices and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel have also developed relationships with many of the individuals and families victimized by unlawful wealth-based pretrial detention practices.
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The interests of the members of the Class will be fairly and adequately protected by the Plaintiffs and their attorneys.
E. Rule 23(b)(2) 152.181. Class action status is appropriate because Defendants, through the policies, practices, and procedures that make up their wealth-based post-arrest detention scheme, have acted in the same unconstitutional manner with respect to all Class members. Defendants apply and enforce a wealth-based system of pretrial justice: some arrestees can purchase their immediate release, while other arrestees must remain in jail solely because they cannot pay. 153.182. The Class therefore seeks declaratory and injunctive relief that will prevent Defendants from detaining arrestees who cannot afford cash payments. Because the putative Class challenges Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the Class, Rule 23(b)(2) is appropriate and necessary. 154.183. Injunctive relief compelling Defendants to comply with these constitutional rights will similarly protect each member of the Class from being subjected to Defendants’ unlawful policies and practices. A declaration and injunction stating that Defendants cannot detain arrestees solely due to their inability to make a monetary payment would provide relief to every Class member. It would ensure that pretrial detention based on lack of access to money does not occur without the substantive findings and procedural safeguards that the Constitution requires for that government detention. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate.
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155.184. Plaintiffs seek the following relief.

Claims for Relief

Count One: Defendants Violate Plaintiffs’ Equal Protection and Due Process Rights by Jailing Them Solely Because They Cannot Afford a Monetary Payment.

156.185.

Plaintiffs incorporate by reference the allegations in paragraphs 1-155.

157.186. The Fourteenth Amendment’s Equal Protection and Due Process Clauses

prohibit jailing a person solely because of her inability to make a monetary payment. Defendants

violate Plaintiffs’ rights by enforcing against them a system of pretrial detention that keeps them

in jail solely because they cannot afford to pay money bail amounts imposed without findings

concerning their present ability to pay and without findings concerning the necessity of the

detention in light of alternative conditions of release that could serve the government’s interests.

Count Two: Defendants Violate Plaintiffs’ Substantive Due Process Right to Pretrial Liberty by Jailing Them Without a Finding That Pretrial Detention Is Necessary

158.187. Plaintiffs incorporate by reference the allegations in paragraphs 1-157.

159.188. The Fourteenth Amendment protects the fundamental interest in pretrial

liberty that is infringed whenever a person is subject to a transparent or de facto order of pretrial

detention. That interest in bodily liberty is not absolute, and it can be overcome, but only if the

government first demonstrates that no alternative short of pretrial detention exists to mitigate an

identifiable risk to the safety of the community or a risk of flight from prosecution, and that pretrial

detention is therefore necessary to serve a specified, compelling interest in public safety or court

appearance. Defendants violate Plaintiffs’ rights by jailing them prior to trial without making any

finding that pretrial detention is necessary to serve the government’s interests.

Count Three: Defendants Violate Plaintiffs’ Procedural Due Process Rights

160.189. Plaintiffs incorporate by reference the allegations in paragraphs 1-159.

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Case 4:19-cv-00226 Document 140-2 Filed on 05/06/20 in TXSD Page 47 of 49
161.190. The Due Process Clause requires that, for a transparent or de facto order of
pretrial detention to be constitutionally valid, the government must provide rigorous procedural
safeguards to ensure the accuracy of the substantive finding that pretrial detention is necessary
because less-restrictive conditions are insufficient. The minimal safeguards required by the
Constitution include: an adversarial hearing, with counsel, at which the person has notice of the
critical issues to be decided at the hearing, an opportunity to be heard and to present and confront
evidence, and a statement of reasons on the record explaining the reasons for the finding that
pretrial detention is necessary. Defendants violate procedural due process by detaining plaintiffs
prior to trial without providing these safeguards to ensure the accuracy of any substantive
determination that pretrial detention is necessary.
Request for Relief
WHEREFORE, Plaintiffs and the other Class members request that this Court issue the
following relief:
a. A declaratory judgment that Defendants violate the Named Plaintiffs’ and Class members’ constitutional rights by operating a system of wealth-based detention that keeps them in jail solely because they cannot afford to pay secured money bail amounts required without findings concerning ability to pay, without consideration of or findings concerning nonfinancial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of that finding;
b. An order and judgment permanently enjoining Defendants from operating and enforcing a system of post-arrest detention that keeps Named Plaintiffs and Class members in jail because they cannot pay a secured financial condition of release required without findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
c. A declaratory judgment that Executive Order GA-13 is unconstitutional to the extent it requires pretrial detention of arrestees who cannot afford secured money bail without the substantive findings and procedural safeguards required for an order of pretrial detention;
d. An order and judgment permanently enjoining the Sheriff and the County from enforcing GA-13 to the extent enforcing GA-13 results in the pretrial detention of individuals against
47

Case 4:19-cv-00226 Document 140-2 Filed on 05/06/20 in TXSD Page 48 of 49

whom there has been no substantive finding that pretrial detention is necessary following a hearing with sufficient procedural safeguards to ensure the accuracy of that finding;
c.e. Any other order and judgment this Court deems necessary to permanently enjoin Defendants—whether acting on behalf of the State, the County, or some other government entity—from implementing and enforcing a system of wealth-based pretrial detention that keeps arrestees in jail solely because they cannot afford to pay a secured financial condition of release required without an inquiry into or findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that a particular release condition is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
d.f. An order certifying the class defined above; and
e.g.An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.

Date: May 6, 2020

Respectfully submittedSubmitted,

/s/ Alec Karakatsanis

/s/ Neal S. Manne

/s/ Elizabeth Rossi

Neal S. Manne

Alec George

Karakatsanis (Pro Hac Vice application forthcoming)) Texas Bar No. 12937980

D.C. Bar No. 999294 Elizabeth Rossi (Pro Hac Vice) D.C.elizabeth@civilrightscorps.org
Connecticut Ave NW, Suite 800

alec@civilrightscorps.org nmanne@susmangodfrey.com
Lexie G. White application forthcoming) Texas Bar No. 240488761500502
Civil Rights Corps lwhite@susmangodfrey.com
910 17th Street1601 Joseph S. Grinstein200 Washington, DC 20006 Phone: (202) 599-0953 Fax: (202) 609-8030 alec@civilrightscorps.org elizabeth@civilrightscorps.org

Neal S. Manne

/s/ Neal 20009 TexasManne State Bar No.: 12937980

48

Case 4:19-cv-00226 Document 140-2 Filed on 05/06/20 in TXSD Page 49 of 49

Lexie G. .White

State Bar No.: 24048876

Joseph S. Grinstein

State Bar No.: 24002188

Elizabeth Hadaway (Pro Hac Vice application

forthcoming)

State Bar No. 24109962

Telephone: (202) 681-2721

jgrinstein@susmangodfrey.com

SUSMAN GODFREY L.L.P.

s/ Liyah Brown

1000 Louisiana Street, Suite 5100

Mimi Marziani (Pro Hac Vice)

Houston, TXTexas 77002

PhoneTexas State Bar No. 24091906

Telephone: (713) 651-9366

nmanne@susmangodfrey.com

lwhite@susmangodfrey.com

jgrinstein@susmangodfrey.com

ehadawaymimi@texascivilrightsproject.org

Facsimile: (713) 654-6666

Liyah Brown (Pro Hac Vice)

D.C. Bar No. 500149

/s/ Michael Gervais

liyah@texascivilrightsproject.org

Michael Gervais (Pro Hac Vice)

Peter Steffensen

mgervais@susmangodfrey.com

/s/ Natalia M. Cornelio

Natalia M. Cornelio

IllinoisTexas State Bar No. 628926724106464 SUSMAN GODFREY L.L.P.

Southern District No. 12788663327006

1900 Avenue of the Stars, #1400

peter@texascivilrightsproject.org

Los Angeles, CA 90067

Texas Civil Rights Project

Telephone: (310) 789-3100

405 N Main St, Suite 716

2202 Alabama Street

Houston, TX 7700377004

Phone: 832-767-3650

Fax: 832-554-9981

natalia@texascivilrightsproject.org

Telephone: 512-474-5073 ext. 118

Attorneys for Plaintiffs

49

 
 Case 4:19-cv-00226 Document 195 Filed on 06/26/20 in TXSD Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

RUSSELL, et al.

)

)

Plaintiffs,

)

)

Case No. 4:19-cv-00226

v.

)

(Class Action)

)

The Honorable Lee H. Rosenthal

HARRIS COUNTY, TEXAS, et al.

)

U.S. District Judge

)

Defendants.

)

)

NOTICE OF FILING SECOND AMENDED COMPLAINT Plaintiffs hereby file their Second Amended Class Action Complaint, Exhibit 1, with leave of the Court. See Dkt. 179 (granting leave to file a second amended complaint). Plaintiffs also file a redlined version of the Second Amended Complaint, showing the amendments Plaintiffs made to the First Amended Complaint (Dkt. 140-1). See Exhibit 2.

Date: June 26, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
/s/ Liyah Brown Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 mimi@texascivilrightsproject.org Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 liyah@texascivilrightsproject.org

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice)
1

Case 4:19-cv-00226 Document 195 Filed on 06/26/20 in TXSD Page 2 of 3

Peter Steffensen Texas State Bar No. 24106464 Southern District No. 3327006 peter@texascivilrightsproject.org Texas Civil Rights Project 2202 Alabama Street Houston, TX 77004 Telephone: 512-474-5073 ext. 118

mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100

2

Case 4:19-cv-00226 Document 195 Filed on 06/26/20 in TXSD Page 3 of 3 CERTIFICATE OF SERVICE
I certify that on June 26, 2020 a true and correct copy of this document properly was served on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas Procedures for Electronic Filing.
/s/ Elizabeth Rossi Elizabeth Rossi
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Case 4:19-cv-00226 Document 195-1 Filed on 06/26/20 in TXSD Page 1 of 51

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

DWIGHT RUSSELL,

)

JOHNNIE PIERSON,

)

JOSEPH ORTUNO,

)

CHRISTOPHER CLACK,

)

MAURICE WILSON

)

On behalf of themselves and all )

others similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

SHERIFF ED GONZALEZ,

)

)

HAZEL B. JONES (174th)

)

NIKITA V. HARMON (176th)

)

ROBERT JOHNSON (177th)

)

KELLI JOHNSON (178th)

)

RANDY ROLL (179th)

)

DASEAN JONES (180th)

)

DANILO LACAYO (182nd)

)

CHUCK SILVERMAN (183rd)

)

ABIGAIL ANASTASIO (184th)

)

JASON LUONG (185th)

)

GREG GLASS (208th)

)

BRIAN E. WARREN (209th)

)

FRANK AGUILAR (228th)

)

CHRIS MORTON (230th)

)

JOSH HILL (232nd)

)

HILARY UNGER (248th)

)

LORI CHAMBERS GRAY (262nd)

)

AMY MARTIN (263rd)

)

HERB RITCHIE (337th)

)

RAMONA FRANKLIN (338th)

)

JESSE MCCLURE, III (339th)

)

GEORGE POWELL (351st)

)

BROCK THOMAS (RIC)

)

)

Defendants.

)

____________________________________)

Case No. 4:19-cv-00226 (Class Action) The Honorable Lee H. Rosenthal U.S. District Judge

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SECOND AMENDED CLASS ACTION COMPLAINT I. Introduction
1. This case is about Harris County jailing some of its poorest people, charged with felonies, because they cannot afford to make a monetary payment.
2. Harris County previously used access to cash to make release-and-detention decisions in the County’s misdemeanor bail system. In 2016, certain of undersigned counsel filed a lawsuit against the County, the Sheriff, the misdemeanor judges (who were added later), and the Hearing Officers. Following a nearly two-week evidentiary hearing in March 2017, the Court struck down Harris County’s misdemeanor bail policies, finding that the policies violated Equal Protection and Due Process, coerced guilty pleas, and disproportionately affected people of color. The Court issued a preliminary injunction that led to the release of more than 13,000 people who otherwise would have been illegally detained.
3. In 2018, a slate of candidates ran for election to the misdemeanor courts on a platform acknowledging the devastating consequences of the County’s decades-long policy of detaining poor misdemeanor arrestees after arrest for days and weeks, and promising to work with the Plaintiffs’ counsel and other stakeholders to reform the system and end the misdemeanor lawsuit. All of the candidates won; all of the incumbent judges who had resisted the lawsuit were removed by the voters. On January 17, 2019, after the newly elected judges took office, all of the misdemeanor judges promulgated a new rule that will dramatically change the misdemeanor bail system. It was the result of intensive conversations with class counsel, the District Attorney, the Sheriff and his command staff, and the Public Defender. The rule requires the initial release decision in misdemeanor cases to be made on the basis of the offense charged. Most arrestees— approximately 85%—will automatically qualify for release on unsecured bonds (requiring a
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payment only if the person willfully misses court and the bond is subsequently forfeited). Only
people arrested for a few select offenses will be required to appear before a judge within 48 hours,
at which time they may also qualify for release on unsecured bonds or with other appropriate
conditions tailored to a specific, identified risk. This rule will give effect to the Supreme Court’s
requirement that detention prior to trial must be the “carefully limited exception,” and will reverse
the years-long practice of detaining 40% of misdemeanor arrestees throughout the duration of their
cases.
4. Reforms to Harris County’s misdemeanor pretrial detention system came after
numerous county officials spoke out against the system’s unequal treatment of people who are
poor. Sheriff Ed Gonzalez, though a necessary defendant in the misdemeanor case and in this one,
has stated:
The County’s widespread detention of arrestees because they are too poor to pay arbitrary amounts of money is a waste of public resources and actually undermines public safety . . . . I believe that the current operation of the money bail system, including the Sheriff’s active participation in that system, violates the United States Constitution . . . . A person’s access to money should not be a determining factor in whether he or she is jailed or released after arrest and pending trial.1
District Attorney Kim Ogg, who is not a defendant in either case but has been a strong voice for
reform of the County’s misdemeanor bail policies, has stated:
1 Meagan Flynn, Incoming Sheriff Ed Gonzalez Declares Bail System Unconstitutional, Houston Press (Nov. 29, 2016), https://www.houstonpress.com/news/incoming-sheriff-ed-gonzalez-declares-bail-system-unconstitutional8984569; see also Michael Hardy, In Fight Over Bail’s Fairness, Sheriff Joins the Critics, New York Times (Mar. 9, 2017), https://www.nytimes.com/2017/03/09/us/houston-bail-reform-sheriff-gonzalez.html?module=inline (quoting Sheriff Gonzalez saying “When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately [B]lack and Hispanic, that’s not a rational system.”); Cameron Langford, Texas Sheriff Among Critics of His Own Bail System, Courthouse News (Mar. 9, 2017), https://www.courthousenews.com/texas-sheriff-among-critics-bail-system/ (quoting Sheriff Gonzalez’s testimony in federal court, in which he stated, “When we look at equal protection, in my opinion it should be equal protection for everyone, but statistically speaking it doesn’t bear that out. When I see that many of the people inside the jail, on any given day an average of 9,000, are just poor and can’t bond out, and I look at racial disparities, disproportionally communities of color, then that’s very concerning to me.”).
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It is our position that bail reform is necessary and long overdue. Holding un-adjudicated misdemeanor offenders in the Harris County Jail solely because they lack the money or other means of posting bail is counterproductive to the goal of seeing that justice is done. We do not want to be complicit in a system that incentivizes presumptively innocent people to plead guilty merely to expedite their release from custody. We do not want to administer punishment before the defendant has been adjudicated. It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time. These secure beds and expensive resources should be prioritized for the truly dangerous offenders and “flight risks” who need to be separated from the community.2
5. For people charged with felonies, however, the practice of conditioning release on
access to money persists: arrestees charged with felonies are released from custody almost
immediately if they can make a predetermined payment of money to the County while arrestees
who are too poor to purchase their liberty remain in jail solely because of their poverty. As a result
of these policies and practices, more than half of the people arrested for felony offenses remain detained for the entire duration of their case until its disposition.3 Many of the lowest level arrestees
are then released on the day of conviction.
6. The felony bail system in Harris County raises the same legal issues as the
misdemeanor system, has the same devastating consequences for impoverished arrestees, is
similarly coercive of guilty pleas, and is even more costly to the system, in part, because felony
arrestees constitute approximately 77% of the jail population on any given day. The felony system
demands analogous reforms: ending the use of the secured bail schedule to make the initial release
decision and ensuring that anyone detained prior to trial is afforded the substantive findings and
procedural protections the Constitution requires to protect against an erroneous deprivation of the

2 Position Statement of District Attorney Kim Ogg About Bail Bond Litigation Pending in the United States District Court, Case No. 4:16-cv-1414, ECF 206 (Mar. 3, 2017).

3

Harris

County

Pretrial

Services,

2017

Annual

Report

16

(2017),

https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf (showing that non-violent felony arrests

account for 68.9% of all felony arrests).

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right to bodily liberty—the most important right protected by the Constitution, other than the right to life itself.
7. Approximately twelve percent of the felony pretrial population in the Harris County Jail consists of people whose most serious charge is a “state jail” felony. State jail felonies are the least serious class of felony charges in the Texas criminal legal system. They consist mostly of non-violent offenses and, in many instances, they are simply misdemeanor offenses enhanced by prior misdemeanor convictions.
8. Almost 70% of all felony arrestees are charged with non-violent offenses.4 The most common charge for all felony arrestees is drug possession, which is the most serious charge for 26.8% of felony arrestees.5 Only 8.6% of all felony arrestees are released on an unsecured bond.6 Money bail is required as a condition of release for the overwhelming majority of felony arrestees, meaning that these arrestees are eligible for release, but will be released only if they can make an up-front monetary payment. Those who are too poor to pay must stay in jail cells.
9. This mass detention caused by arrestees’ inability to access money has devastating consequences for arrested individuals, for their families, and for the community. Pretrial detention of presumptively innocent individuals causes them to lose their jobs and shelter, interrupts vital medication cycles, worsens mental health conditions, makes people working to remain sober more likely to relapse, and separates parents and children. It exposes people to dangerous overcrowding, violence, and infectious disease at the jail. It coerces guilty pleas and results in longer sentences. In part because arrest and detention for any period of time destabilizes a person’s life, even a couple of days in pretrial detention makes a person more likely to commit crimes in the future. It
4 Harris County Pretrial Services, supra note 3, at 21. 5 Id. 6 Id. at 17.
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also costs Harris County tens of millions of dollars every year—money that could be invested in systems that provide support to people suffering from addiction, housing instability, mental health issues, and poverty, instead of a system that research shows actually exacerbates those conditions.
10. Between 2009 and the present, 125 people died in the Harris County Jail awaiting trial,7 including a woman this month who committed suicide while being detained due to her inability to pay $3,000 money bail. She was granted a personal bond an hour after she was found hanging.8
11. Named Plaintiffs Christopher Clack and Maurice Wilson are currently being detained in the Harris County Jail because they cannot afford the monetary payment required for their release. Mr. Clack is required to pay $17,500 to be released. And Mr. Wilson is required to pay $10,000 to be released. Dwight Russell, Johnnie Pierson, and Joseph Ortuno were detained when the initial Complaint was filed on January 21, 2019.9 Mr. Russell was required to pay a $25,000 secured bail amount to be released. Mr. Pierson was required to pay $15,000 to be released. Mr. Ortuno was required to pay $30,000 to be released. Because of their poverty, each of the Plaintiffs is (or was) confined to a Harris County jail cell. In none of their cases did a judicial officer make any finding concerning ability to pay, the availability of alternative non-financial conditions of release, or the need to detain them to serve any government interest. Moreover, none of the Plaintiffs was afforded the procedural safeguards required to ensure the accuracy of any decision to detain them pretrial.
7 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019. 8 Keri Blakinger, Harris County jail inmate dies by suicide days after misdemeanor arrest, Houston Chron. (Jan. 16, 2019) https://www.chron.com/news/houston-texas/article/Harris-County-jail-inmate-dies-by-suicide-days13538819.php. 9 Each of the original named Plaintiffs was subsequently released after the lawsuit was filed.
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12. On behalf of the many other arrestees subjected to Harris County’s unlawful and ongoing post-arrest wealth-based detention scheme, the Plaintiffs challenge in this action the use of secured money bail to detain only the most impoverished felony arrestees. Harris County’s wealth-based felony pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution.
13. By and through their attorneys and on behalf of themselves and all others similarly situated, Plaintiffs seek an injunction against Defendants’ wealth-based post-arrest policies and practices and a declaration that Defendants cannot employ a system of pretrial detention based solely on access to money by imposing and enforcing secured financial conditions of pretrial release without factual findings on the record, after adequate procedural safeguards to ensure the accuracy of the findings, either (1) that the person can afford to pay the amount required for release or (2) that, although the person cannot afford it and will be detained, pretrial detention is necessary because every less-restrictive alternative condition is inadequate to meet a specific, compelling government interest in court appearance or community safety.
II. Related Litigation 14. In accordance with Local Rule 5.2, Plaintiffs advise the Court of related litigation
that is currently pending: ODonnell v. Harris County, Case No. 4:16-cv-1414 (S.D. Tex. 2016), in the United States District Court for the Southern District of Texas, Houston Division. ODonnell raises the same legal claims and challenges materially identical bail policies and practices as applied to people arrested for misdemeanor offenses. This lawsuit is a companion case to ODonnell; the claims pled here could have been added to ODonnell itself by way of an amended Complaint.
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III. Nature of the Action10 15. It is the policy and practice of Defendants to detain all felony arrestees who are
eligible for release unless they pay a monetary sum. The amount of money required is initially determined by a generic schedule and is subsequently set by Hearing Officers at arrestees’ probable cause hearings, during which the Hearing Officers fail to make the findings required by the Constitution, and the County fails to provide the procedural protections required to ensure the accuracy of any decision that results in a person’s pretrial detention. It is the policy and practice of the Harris County Sheriff to require these payments as a condition of release without a judicial officer having made a finding either that the person can afford to pay the amount or that detention is necessary to serve any government interest. This practice results in the systemic detention of those arrestees who are too poor to pay. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants’ post-arrest detention scheme based on access to money.
Jurisdiction and Venue 16. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 17. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties 18. Dwight Russell is a 61-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subjected to Defendants’ wealth-based post-arrest detention practices.
10 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.
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19. Johnnie Pierson is a 51-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices.
20. Joseph Ortuno is an 18-year-old teenager who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices.
21. Christopher Clack is a 46-year-old man who lives in Houston. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealthbased post-arrest detention practices.
22. Maurice Wilson is 36-year-old man who lives in Houston. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based postarrest detention practices.
23. Defendant Harris County is a municipal corporation organized under the laws of the State of Texas. The County, through the judges who are its final policymakers for promulgating bail procedures, makes policy decisions about which arrestees are eligible for release on nonfinancial conditions. The County, through the judges, also makes policy decisions about the content of the findings that are required to justify pretrial detention and about the procedural safeguards to provide for arrestees, including: whether and when to provide adversarial hearings and counsel; whether to provide notice, an opportunity to be heard, and an opportunity to present and confront evidence; and whether to make findings on the record. The County’s policies and practices result in systemic wealth-based pretrial detention of Harris County felony arrestees without the substantive findings or procedural safeguards required by the United States Constitution.
9

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24. The Harris County Sheriff is the chief law enforcement officer for Harris County and operates the Harris County Jail, the forthcoming Joint Processing Center, and several other detention facilities. He is responsible under state law for enforcing pretrial bail orders and directives issued by judges or promulgated by local rule. State law also obligates the Sheriff to ensure the lawfulness of any order resulting in a person’s detention in the Harris County Jail and requires him to not enforce orders he knows to be illegal.
25. The Sheriff’s Office is itself responsible for about 19% of felony arrests within Harris County. The Sheriff’s Office also transports arrestees from field stations run by various other authorities with arresting power to the Harris County Jail, which houses all people to be detained pending prosecution within the Harris County courts. The Sheriff’s Office detains arrestees at the Harris County Jail and several other facilities. The officers and employees of the Sheriff’s Office are authorized by County policy to accept money bail, as determined by the money bail schedule or by a judicial officer, and release arrestees.
Bonding office in the Joint Processing Center, which the County expects will open on February 1, 2019, subject to further delays.
26. After arrest, Sheriff’s Office employees and agents bring arrestees detained because they cannot pay money bail to a room inside the jail for probable cause hearings and bail setting.
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Sheriff’s Office employees supervise and monitor the arrestees during the hearing. The Sheriff has knowledge that Hearing Officers require secured financial conditions of release without findings concerning a person’s ability to pay the amount set and without any findings concerning alternatives to pretrial detention.
27. The Sheriff, who operates the jail, is aware of who is in the jail and the basis for each person’s detention, including whether any person is eligible for pretrial release, and the amount of money bail any person is required to pay for immediate release. The Sheriff therefore has knowledge that the imposition of secured money bail results in systemic, wealth-based detention, and that there are thousands of people in the jail every night who would be released but for their inability to pay a money bail amount imposed without any finding that pretrial detention is necessary and without the basic procedural safeguards necessary to ensure the accuracy of such a finding.
28. The Sheriff’s Office, by policy and practice, detains arrestees too poor to afford the money bail amounts that are imposed without findings concerning ability to pay or the need for detention, and releases arrestees who pay their money bail.
29. The Sheriff is sued in his official capacity because he is the final policymaker for all law enforcement decisions in Harris County. To the extent the Sheriff is not a County policymaker for the conduct challenged in this Complaint, the Sheriff is sued in his official capacity as an enforcement actor for purposes of injunctive relief and can be enjoined in his capacity as an enforcement actor, regardless of whether he acts on behalf of the County or the State of Texas when he enforces bail directives.11
11 Defendant Ed Gonzalez is named separately from the County as a defendant in the event that the Court concludes that he acts on behalf of the State in any capacity, and thus is subject to prospective relief only in that capacity. If the Court, however, determines that he is a final policymaker for the County, naming him individually is redundant of a suit against the County.
11

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30. Hazel B. Jones, Nikita V. Harmon, Robert Johnson, Kelli Johnson, Randy Roll, DaSean Jones, Danilo Lacayo, Chuck Silverman, Abigail Anastasio, Jason Luong, Greg Glass, Brian E. Warren, Frank Aguilar, Chris Morton, Josh Hill, Hilary Unger, Lori Chambers Gray, Amy Martin, Herb Ritchie, Ramona Franklin, Jesse McClure, III, George Powell, and Brock Thomas are the 23 Harris County District Court Judges (“felony judges”) who preside over felony criminal cases.
31. On June 24, 2020, Judge Chuck Silverman filed a Motion to Intervene, stating that “[t]he felony pretrial detention system in Harris County needs to be reformed” and acknowledging that the system “has real—sometimes devastating—consequences.” Dkt. 181-1 at 3. Judge Silverman further explained that his interests are “directly at odds” with the “apparent objectives” of the State Intervenors who “would seemingly have the Court reject the plaintiffs’ efforts to reform the felony bail system in Harris County.” Id. at 9.
32. On June 26, 2020, Judge Brian Warren filed a Motion to Intervene, stating that “bond reform . . . requires well-reasoned and intelligent proposals in order to ensure that the system recognizes ‘liberty [as] the norm, and detention prior to trial or without trial [as] the carefully limited exceptino.’ United States v. Salerno, 481 U.S. 739, 755 (1987).” Dkt. 192 at 1. Judge Warren further stated that he believes “more voices are needed” to ensure new felony bail rules do “not lead to disproportionately affecting minorities,” that he has “already taken part in promoting and shaping bond reform,” and that he has “important interests that cannot be adequately represented by an existing party.” Id.
33. The felony judges are sued in their official capacities for injunctive and declaratory relief.
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34. The felony judges promulgate Harris County’s post-arrest procedures for felony arrestees—including the generally applicable Felony Bond Schedule (Ex. 4)—by administrative order.
35. On March 20, 2020, and again on April 2, 2020, the felony judges—sitting en banc and acting collectively—promulgated standing orders enumerating specific offenses for which an arrestee would be automatically eligible for a release on a personal bond prior to seeing a judicial officer. The operative Amended Order excludes all people who have a prior conviction for a “violent” offense, although the judges do not define the term “violent,” and there is no definition of the term in state law.
36. In practice, the standing order applies to only a handful of arrestees, and the jail population has continued to rise steadily each week.
37. Sheriff Gonzalez estimates that the jail population will exceed 10,000 by Labor Day 2020, a nearly 25% increase in several months.
38. Each judge knows that, notwithstanding the recent orders, the vast majority of arrestees continue to be subjected to the same process with the same constitutional infirmities: arrestees are required to pay secured money bail amounts that are determined without any finding that pretrial detention is necessary or that less-restrictive conditions are inadequate to reasonably assure community safety and reasonably prevent flight, and these policies and practices result in the pretrial detention every day of thousands of presumptively innocent people—in the middle of a global pandemic which has caused a deadly virus to circulate quickly throughout the jail and resulted in the deaths of at least three people in the jail so far.
39. Each judge knows that, pursuant to their policies and practices, the Sheriff’s Office enforces secured financial conditions of release against people the Sheriff’s Office arrests or
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accepts into custody, without an inquiry into or findings concerning the person’s present ability to pay the predetermined amount set.
40. Each judge also knows that, during the initial probable cause hearing,12 the Criminal Law Hearing Officers systematically order secured financial conditions of release without making findings concerning the person’s present ability to pay and without a showing by the government that pretrial detention is necessary to serve a compelling interest in protecting public safety or preventing flight from prosecution.
41. Each judge is further aware that thousands of people charged with felonies are detained in Harris County every day solely because they cannot afford to pay the money bail amounts imposed pursuant to the predetermined bail schedule that the felony judges promulgate and without a finding that detention in necessary. Each judge is aware that Criminal Law Hearing Officers fail—as a matter of routine practice—to make findings concerning ability to pay or the necessity of detention during the initial magistration hearings, which are recorded on video and audio and kept by the County and the clerk’s office.
42. Each judge knows that arrestees are not given a formal, on-the-record, adversarial, evidentiary bail hearing at their first appearance before a felony judge after magistration. Each judge is aware that, typically, there is no review of the money bail amount previously imposed; no findings concerning ability to pay; no findings concerning whether pretrial detention is necessary to serve a compelling government interest; that arrestees typically do not present evidence and legal argument in support of pretrial release or against the arguments and evidence of the government; and that, when a judges issues a transparent or de facto detention order, there is never a finding that pretrial detention is necessary because less restrictive alternatives are insufficient to
12 The probable cause hearing is also known as a “magistration” or “15.17 hearing.”
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serve the government’s interests. When the felony judges retain or set conditions of release, they routinely as a matter of practice do not hold a formal adversarial hearing where the arrestee is present with counsel and given an opportunity to present and confront evidence. They do not apply an evidentiary standard, let alone require clear and convincing evidence. They do not make any findings on the record concerning ability to pay any financial condition of pretrial release, alternatives to detention, or that pretrial detention is necessary.
43. If a person files a request for pretrial release by motion or writ after their first appearance, it will typically take weeks for any hearing to occur, and it does not occur at all in the vast majority of cases. During that time, people are detained solely because they cannot afford to pay secured bail, even though the government has not proved, and no judge has found, that such pretrial detention is necessary to meet any government interest.
Factual Background A. The Named Plaintiffs Are Being Kept in Jail Because They Cannot Afford the
Money Bail Required for Their Release, Even Though the Government Has Not Made a Substantive Finding that Detention is Necessary 44. Dwight Russell is a 61-year-old man. Ex. 1 (Declaration of Dwight Russell) ¶ 1. 45. Mr. Russell was arrested on January 19, 2019 and taken into the custody of Harris County for allegedly driving while intoxicated, third offense. He was informed that, because of the Harris County bail schedule, he would be released immediately, but only if he paid a money bail amount of $25,000. He was told that he will be detained by Harris County if he does not pay. See Id. ¶¶ 3, 4. 46. Mr. Russell appeared while in custody at the jail at a probable cause hearing, and a Hearing Officer found probable cause for his arrest. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to
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detain him in light of available, less-restrictive alternative conditions of release. Id. ¶¶ 5, 6. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
47. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $25,000. Id. ¶ 4.
48. Mr. Russell struggles to meet the basic necessities of life. His only income is from food stamps. He is unemployed and has no savings. He lives with his sister, who provides him with financial support. Id. ¶ 7.
49. He cannot afford to purchase his release from jail. Id. ¶ 4. 50. Johnnie Pierson is a 51-year-old man. Ex. 2 (Declaration of Johnnie Pierson) ¶ 1. 51. Mr. Pierson was arrested on January 18, 2019, for possession of less than one gram of a Penalty Group 1 controlled substance, a state jail felony offense. He was taken to the Houston city jail and then to the Harris County jail. Id. ¶ 3. 52. At the jail, deputies took him to see a Hearing Officer, who told Mr. Pierson that he could be released, but only if he paid $15,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4. 53. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Id. ¶ 7. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 54. Mr. Pierson struggles to meet the basic necessities of life. He survives on food stamps and works part-time on cars when he can. He does not have any other income. Id. ¶ 10.
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55. He cannot afford to purchase his release from jail. Id. ¶ 13. 56. Joseph Ortuno is an 18-year-old teenager who is in high school. Ex. 3 (Declaration of Joseph Ortuno) ¶¶ 1, 6. 57. He was arrested on January 17, 2019, for possession with intent to deliver a controlled substance. He was taken first to the Houston city jail and then to the Harris County jail. Id. ¶ 3. 58. At the jail, deputies took him to see a Hearing Officer, who told Mr. Ortuno that he could be released, but only if he paid $30,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4. 59. Pursuant to the policies and practices described in this Complaint, no findings were ever made concerning his ability to pay or the need to detain him in light of available, lessrestrictive alternative conditions of release. See Id. ¶ 5. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 60. Mr. Ortuno struggles to meet the basic necessities of life. When not in school, he makes money by helping his uncle with tile installation, but he cannot afford to purchase his release from jail. Id. ¶¶ 4, 7, 12. 61. Christopher Clack is 46 years old. 62. Mr. Clack was arrested on January 17, 2020 for two felony offenses, and taken to the Harris County Jail. 63. At the jail, deputies took him to see a Hearing Officer, who told Mr. Clack that he could be released, but only if he paid $17,500. He was told that, if he does not pay the money, he would be kept in a jail cell.
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64. Mr. Clack struggles to meet the basic necessities of life. Prior to being detained, Mr. Clack typically earned about $200–$400 per week as an independent contractor. He does not have any financial support outside of the income he used to earn by working. He does not have a bank account.
65. He cannot afford to purchase his release from jail. 66. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 67. Although court records show that Mr. Clack had settings on January 21 and March 12, 2020, he was transported to court from the jail only on March 12, and he was kept in lock-up during the hearing. There was no review of his bail conditions, and the judge did not make a finding that his continued detention was necessary. His next court appearance is scheduled for July 16. 68. Mr. Clack learned on May 4, 2020, that a few weeks ago, his lawyer called the judge in his case to ask for a bond reduction. Mr. Clack was not present for the call. The judge refused to reduce the bond amount, but the reasons were never explained to him. 69. Mr. Clack fears for his health and life because of an outbreak of COVID-19 in the Harris County Jail. 70. Mr. Clack is ineligible for release on a personal bond pursuant to GA-13. 71. Maurice Wilson is 36 years old. 72. He was arrested on January 30, 2020 for drug possession, and taken to the Harris County Jail.
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73. At the jail, deputies took him to see a Hearing Officer, who told Mr. Wilson that he could be released, but only if he paid $15,000. He was told that, if he does not pay the money, he will be kept in a jail cell.
74. Although court records show that Mr. Wilson had court settings on February 3, February 12, April 6, April 13, and May 4, he was transported to court from the jail only on February 12, and he was kept in lock-up during that proceeding and did not see the judge. On February 12, 2020, the judge lowered Mr. Wilson’s bond from $15,000 to $10,000, but Mr. Wilson still could not afford the sum. There was no on-the-record bail hearing, and the judge did not make a finding that detention was necessary. Mr. Wilson’s next court date is currently set for June 15.
75. Mr. Wilson struggles to meet the basic necessities of life. Before his arrest, he earned money by working sporadically for his father’s landscaping business. He has no other source of income. Mr. Wilson provides financial support for his 15-year-old son.
76. He cannot afford to purchase his release from jail. 77. Pursuant to the policies and practices described in this Complaint, no findings have been made concerning Mr. Wilson’s ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Nor was Mr. Wilson afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 78. Mr. Wilson fears for his health and life because of an outbreak of COVID-19 in the Harris County Jail. 79. Mr. Wilson is ineligible for a personal bond pursuant to GA-13. B. Defendants’ Post-Arrest Practices Cause the Detention of Arrestees Who
Cannot Pay a Money Bail Amount While Those Who Can Pay Are Released i. Arrest and the Initial Money Bail-Setting Process
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80. Harris County uses a predetermined money bail schedule, promulgated through administrative order by the Harris County District Court Judges (“the felony judges”), to determine financial conditions of pretrial release for nearly all felony arrestees in Harris County. See Ex. 4 (Harris County District Court Felony Bond Schedule). The schedule requires arrestees charged with certain offenses to remain in custody until a magistrate determines conditions of release at a probable cause hearing. For all other arrestees, the schedule lists an amount of cash a person must pay to purchase her release. The cash amount is based on a combination of the type of offense and the “risk” level of the arrestee as determined by a risk assessment algorithm. The algorithm itself is a secret, and the County’s use of the assessment tool to determine the price of release is nonsensical and an improper use of the tool. First, there is no science showing that higher amounts of money mitigate higher risks of nonappearance or new criminal activity. Second, the tool is intended only to identify a risk absent interventions, such as text-message reminders or appropriate conditions like a stay-away order.
81. Harris County itself made 19% of felony arrests within the County in 2017. The City of Houston Police Department made 53.9% of felony arrests in 2017.13 There are roughly 100 additional agencies within Harris County that have the authority to make arrests.
82. When a person is arrested within Harris County, she will be taken to a “field station” run by the arresting authority. If she is arrested by Harris County, she will be taken either to a field station or directly to the jail. These field stations vary in size and their capacity to hold and process arrestees. Some include holding cells. In others, arrestees are made to sit shackled to a bench while initial post-arrest procedures are conducted.
13 Harris County Pretrial Services, supra note 3, at 8.
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83. When the newly constructed Joint Processing Center (“JPC”)—which Harris County spent $100 million to build—opens later this year, all people arrested by Harris County or the Houston Police Department will be taken directly to the JPC. This means that about 75% of arrestees will immediately be in the Sheriff’s physical custody upon arrest.
84. Once at a field station, if the person was arrested without a warrant, the arresting officer will determine whether the Harris County District Attorney’s Office wishes to pursue the charge by calling a hotline that is staffed 24 hours a day, 7 days a week by Harris County’s assistant district attorneys. The arresting officer describes the allegations to the assistant district attorney (“ADA”) on duty, who makes an initial charging decision over the phone.
85. If the ADA on hotline duty does not wish to pursue charges, she tells the officer to release the individual.
86. If the ADA decides to pursue the charges, the arresting officer will type a summary of the facts giving rise to the arrest into the District Attorney’s Intake Management System.
87. The summary will be transmitted to the District Attorney’s (“DA”) intake division where an ADA will formally accept charges.
88. The District Clerk’s Office then files the case, creates a case number, and assigns the case to a courtroom. Pretrial Services runs the person’s information through an algorithm to create a “risk assessment” score and applies the felony judges’ schedule. The process from arrest to formal charges being filed and the cash amount required for release being set typically lasts about 6 to 8 hours.
89. Once the charging document is filed, a case number assigned, and a monetary amount set, the arrestee will be eligible to pay the secured money bail amount and be released. Up
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to this point, Harris County does not perform any inquiry into the arrestee’s ability to pay the money bail amount required by the felony judges’ schedule.
90. From the moment a secured bail amount is set in a felony case, the arrestee is eligible for release from Harris County custody if she can pay the amount required. If a person is subject to certain “hold” orders (e.g., an immigration detainer, probation hold, or process from another county), that person will be eligible for transfer to the jurisdiction where the hold is operative as soon as she pays. Typically, there is a set time period within which the other jurisdiction can come and pick up the arrestee. That time period does not begin ticking down unless and until the person pays the amount required by the judges’ schedule in Harris County.
91. Arrestees can pay the amount themselves, make a phone call to ask a friend or family member to pay the money on their behalf, or contact a commercial bonding agent to post bail. A person who can afford to pay will be released from the field station and will never be transported to the Harris County Jail.
92. The imposition of a financial condition of release is the moment of differential treatment: Defendants will release a person with financial resources almost immediately after money is paid, but Defendants will continue to detain a person who cannot afford to pay. This policy and practice results in systemic and automatic wealth-based detention.
93. Whether a person is arrested pursuant to a warrant or pursuant to a warrantless arrest, that person can pay the secured money bail amount predetermined by the schedule and be
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released immediately from the field station,14 prior to formal booking.15 If the individual is unable to pay, she will be transported to and booked into the jail.
94. The time it takes for an arrestee to be transported to the Harris County Jail varies depending on a variety of factors, including where the person was arrested.
95. Harris County is a large county, and individuals arrested within its borders can be taken initially to field stations as geographically close to the Harris County Jail as the Houston Police Station located a little over a mile from the jail, or as far away as, for example, the City of Lakeview, which is more than 30 miles away.
96. Sometime after a person arrives at the jail—and usually before she is assigned to a housing unit—she will be taken by Sheriff’s Office employees to a room in the jail with several dozen other new arrestees to appear before a Hearing Officer, who will determine probable cause. Many people every month must wait up to 48 hours for a probable cause hearing, though some have their hearings within 24 hours of arrest.
97. These policies have consistently, for years, resulted in the needless and devastating jailing of impoverished people accused of felony offenses. In 2017, up to 85% of felony arrestees were booked into the jail because they were unable to immediately pay for their release.16 Arrestees booked into the jail endure a lengthy, intrusive, and humiliating process that includes seizure of their property, bodily searches, personal questions about their physical health, and interviews requiring them to disclose private financial and mental health information. The inmate processing
14 Individuals arrested by Harris County officers are generally taken directly to the Harris County Jail. However, as noted, Harris County itself is only one of roughly 100 agencies with arresting authority in the County, some of which are 60 to 90 minutes outside of Houston. 15 The vast majority of arrestees use a bail bond, obtained through a commercial bail bond company, to secure their release from jail. Typically, if accepted by a for-profit bail agent, an arrestee will have to pay the agent a nonrefundable fee of 10% of the value of the bond to be released. 16 Harris County Pretrial Services, supra note 3, at 19.
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center is notoriously crowded with people who are in moments of extreme crisis, having just been arrested, separated from their children and families, and deprived of their freedom. Some are suffering from painful withdrawal symptoms or mental health episodes. Many are worried about missing shifts at their jobs or making rent payments. All are, at that moment, presumed innocent of all charges. The processing center is loud, dirty, and full of flies and noxious smells. The risk of suicide—elevated for all people detained in jails—is at its highest in the hours and days immediately following arrest. Similarly situated arrestees who were able to pay the predetermined money bail amount avoid the booking process altogether.
98. In 2017, approximately 55% of felony arrestees were still in jail when their case reached disposition.17 Many of these arrestees were detained solely due to their inability to afford the secured financial condition set for their release.18
ii. Probable Cause Hearings 99. The Harris County Sheriff’s Office, through its jail personnel, assembles recently arrested people nine times per day, every day of the week, for an appearance before one of the Harris County Hearing Officers. The Hearing Officer determines probable cause for the arrest, if it was warrantless, and imposes conditions of release. 100. These hearings are referred to locally as “magistrations,” “Article 15.17 hearings,” or “probable cause hearings.” 101. In March 2017, in the middle of the evidentiary hearing in the ODonnell case, challenging the County’s misdemeanor bail system, the County Commissioners voted to fund a pilot program allowing defense attorneys to appear on behalf of detained arrestees at these hearings
17 Id. at 16. 18 Id. at 19 (showing in Table B.1 that roughly 45% of felony arrestees post money bail).
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beginning in July 2017.19 Assistant public defenders are currently authorized to represent most
arrestees, though there are some exclusions.
102. At the probable cause hearing, Hearing Officers typically make no findings
concerning ability to pay; they make no findings as to whether alternative conditions of release
serve the government’s interests or whether pretrial detention is necessary to serve any government
interest; they do not allow arrestees to confront the evidence and arguments of the government or
put on evidence in support of pretrial release; and they do not provide other basic procedural
safeguards, such as applying any evidentiary standard to any factual finding, let alone the clear-
and-convincing-evidence standard, or issuing any statement of findings or reasons explaining why
a particular financial condition or pretrial detention is required.
103. An ADA participates in the probable cause hearings via videolink by arguing for
the Hearing Officer to make a finding of probable cause and often asking the Hearing Officer to
impose money bail in an amount higher than the amount on the schedule or on the warrant. District
Attorney Kim Ogg has an internal policy requiring motions for high bond on certain cases. She
also has a policy of asking the Hearing Officer to detain using a “no bond” order every arrestee
19 Harris County received $150,000 in May 2015 from the MacArthur Foundation to create a proposal for improvements to the criminal legal system. See Press Release, MacArthur Announces 20 Jurisdictions to Receive Funding to Reduce Jail Use (May 26, 2015), https://www.macfound.org/press/press-releases/macarthur-announces20-jurisdictions-receive-funding-reduce-jail-use/. Harris County subsequently convened a Criminal Justice Coordinating Council, which investigated ways to reduce incarceration. Among the most important reforms that participants recommended was to provide defense attorneys at the probable cause hearings. Early in January 2016, the Coordinating Counsel submitted its grant proposal to the MacArthur Foundation, seeking $4 million over two years to put its plans into effect. Without a public explanation and despite the availability for funding for lawyers to represent all arrestees, the final document included a proposal for counsel only to represent individuals who are mentally ill. Meagan Flynn, Bail Hearings: Where Prosecutors and Magistrates Ensure Defenseless People Stay In Jail (Jan. 11, 2016), http://www.houstonpress.com/news/bail-hearings-where-prosecutors-and-magistrates-ensuredefenseless-people-stay-in-jail-8058308. On April 13, 2016, Harris County was awarded a $2 million MacArthur grant to reform its criminal system, but that money was not allocated to funding public defenders at bail hearings, even for people with mental illnesses. See Harris County receives $2 million grant to reform criminal justice system, KPRC News (Apr. 13, 2106), http://www.click2houston.com/news/watch-live-harris-county-receives-2-million-grant-toreform-criminal-justice-system. That change came only in the midst of the evidentiary hearing on the ODonnell Plaintiffs’ motion for preliminary injunction.
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charged with an offense for which the Texas Constitution authorizes pretrial detention, regardless of the person’s individual case and circumstances and regardless of the availability of lessrestrictive alternatives to detention.
104. When the docket begins, arrestees are seated on benches in a room at the jail. 105. The Hearing Officer calls an individual’s name and reads the charge. That individual gets up and stands in the middle of a red square on the floor of the room in the jail. An ADA then reads from the police report. The Hearing Officer decides whether there is probable cause, finding probable cause in almost every case. The Hearing Officer regularly sets secured money bail and sometimes increases the money bail amount from the amount required by the bail schedule. 106. As a matter of routine practice, Hearing Officers do not make findings concerning an arrestee’s ability to pay the money bail amount that they impose, nor do they meaningfully consider alternative non-financial conditions of release for those who cannot afford to pay the bail amount set. They do not make findings concerning the necessity of pretrial detention or make findings that less-restrictive conditions are inadequate to meet a compelling government interest. 107. Hearing Officers rarely require alternative, non-monetary conditions of release and routinely state that they are not permitted to impose certain non-monetary conditions of release. 108. For decades, the Hearing Officers simply reviewed the bail amount previously affixed to ensure that it conformed to the bail schedule and the specific policy instructions from the felony judges about how to administer the predetermined schedule. These instructions included laminated charts and emails instructing Hearing Officers about who the Hearing Officers could and could not order released on personal bonds (i.e., unsecured bonds that do not require payment upfront) and in what circumstances they could deviate from the cash bail schedule (almost never,
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according to the instructions). Although the felony judges purportedly rescinded these instructions in 2017 with the implementation of the new felony bail schedule and expanded the Hearing Officers’ authority to determine money bail amounts and other conditions of release, the purported policy changes have not meaningfully changed actual practice. Specifically, the rule changes have failed to correct the core constitutional infirmity of the Harris County bail system: requiring secured financial conditions of release without findings concerning ability to pay, the necessity of pretrial detention, or the adequacy of alternative conditions, and without all of the safeguards required to ensure the accuracy of those findings, including application of the clear-andconvincing-evidence standard and a statement of reasons concerning why a particular financial condition or pretrial detention is required.
109. Throughout the hearing, the arrestees remain in the Harris County Jail, supervised by Sheriff’s Office employees. Sheriff’s Office employees and agents also observe the probable cause hearings and witness Defendant Hearing Officers routinely failing and refusing as a matter of policy to consider alternatives to secured financial conditions.
110. State law requires probable cause hearings to occur within 48 hours. Although the County strives to hold these probable cause hearings within 24 hours of arrest for people charged with felonies, the County’s online case records show that the hearings sometimes do not occur until up to 48 hours after arrest. At any point in the booking process, an arrestee can pay his or her predetermined money bail and be released.
111. If a person pays money bail prior to the probable cause hearing, she will be released and the probable cause determination in her case will be made at a subsequent court appearance.
112. If an individual is not brought to the probable cause hearing due to medical reasons, which is a frequent occurrence (approximately 5% to 10% of male arrestees are not brought to the
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probable cause hearing for medical reasons and approximately 25% of female arrestees are not brought to the probable cause hearing for medical reasons), the Hearing Officer will make a finding of probable cause and require financial conditions of pretrial release in that person’s absence. The County’s protocol prohibits assistant public defenders from representing people who are not present at the hearing. Therefore, in these cases, the money bail amount is set without any argument on the arrestee’s behalf.
iii. The Use of Personal Bonds 113. Hearing Officers sometimes recommend arrestees for release on “personal bonds,” a term Defendants use to describe release without requiring an up-front payment prior to release, i.e., without a secured financial condition of release. The felony bond schedule lists certain lowlevel offenses for which there is a presumption of personal bond. 114. Only about 8% of felony arrestees were released on personal bonds in 2017.20 115. Even when individuals are recommended for personal bonds, many will not be released immediately, and some will not be released at all. This is because some Hearing Officers require Pretrial Services to first “verify” a person’s references, meaning that the arrestee must provide Pretrial Services with contact information for friends or family members, and Pretrial Services must then contact those individuals and attempt to confirm certain information reported by the arrestee. Sometimes Pretrial Services is required to verify the information with multiple “references.” Among the information Pretrial Services seeks to confirm, as a matter of policy, is whether the person has a place to stay if she is released from the jail. If a person does not have an address to verify, then the verification process cannot be completed, and the person will not be released. According to these policies and practices, a person who is homeless will not be released
20 Harris County Pretrial Services, supra note 3, at 17.
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on a personal bond, i.e., without payment of the scheduled amount of bail, because she has no address that can possibly be verified. Homeless defendants are therefore categorically ineligible for personal bonds due to the verification policy. Sometimes, references cannot be reached to verify information for days or a week. Sometimes they cannot be reached at all. In those cases, the person will not be released on a personal bond and will be detained unless she can pay the money bail.
116. At any point in the verification process, the arrestee is permitted to pay the money set pursuant to the schedule and be released immediately.
117. For decades, in violation of state judicial conduct rules, there has been an entrenched culture among the Hearing Officers of abiding strictly by written and oral directives regarding the money bail–setting process issued by the felony judges, who control their employment. For example, the felony judges instructed Hearing Officers that they could never recommend homeless individuals for release on personal bonds, i.e., without secured financial conditions. Some judges told Hearing Officers never to issue non-financial conditions for any defendant who was assigned to their courtroom at all,21 or for individuals who previously received personal bonds in other cases.22 Other judges told Hearing Officers to consider unsecured financial conditions only for “students.”23 The Hearing Officers believed themselves to be bound by these rules and understood that the judges could hire and fire them at will. The Hearing Officers’ contracts are reviewed annually by a committee that includes several of the felony judges.
21 Gabrielle Banks, Harris County hearing officers sanctioned by state for not considering personal bonds, Houston Chron. (Feb. 23, 2018), https://www.chron.com/news/houston-texas/article/Trio-of-Harris-County-hearing-officerssanctioned-12494892.php 22 James Pinkerton & Laura Caruba, Tough bail policies punish the poor and the sick, critics say, Houston Chron. (Dec. 26, 2015), http://www.houstonchronicle.com/news/houston-texas/houston/article/Tough-bail-policies-punishthe-poor-and-the-sick-6721984.php?t=373b57d418&cmpid=email-premium. 23 Id.
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118. These explicit written instructions have purportedly been rescinded with implementation of the current schedule in 2017, and Hearing Officers have purportedly been given greater discretion to determine bond amounts. Although written rules prohibiting or categorically limiting release have purportedly been formally rescinded, videos and data demonstrate that actual practices are virtually the same as they have been for many years.
iv. Assignment to a Housing Unit 119. People who are being processed through the Inmate Processing Center cannot be contacted by people outside the jail, including attorneys, with the exception of a brief interview with an assistant public defender shortly before the probable cause hearing. Most arrestees are not assigned to a housing unit until after their probable cause hearing and will remain inaccessible to their appointed attorney, who will represent them in their case, and everyone else outside the jail until the jail assigns the individual to a housing unit sometime after the probable cause and bail hearing. 120. It is only after being assigned to a housing unit that an arrestee can be contacted by anyone outside the jail and will be scheduled for a hearing in a Criminal District Court. 121. Typically, a lawyer is not appointed until the first appearance in court. First appearance cannot occur until booking is complete. The booking process can take days. 122. In total, it takes a minimum of 24 hours for an arrested person to be fully booked into the jail, assigned to a housing unit, and made available for a visit. Arrested persons who cannot pay generally will not have counsel appointed or be able to meet with counsel until after their first court appearance. Felony arrestees virtually never meet their lawyer before the first appearance. At any point during this period of time, a person can pay money bail and be released.
v. First Appearances
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123. If, after the probable cause hearing, an arrestee is still unable to purchase her release from jail, general Harris County practice is that she will be taken to a District Court, usually within 24 to 48 hours of the probable cause hearing. However, many arrestees who have their probable cause hearings on Thursday or Friday will not see a District Judge until the following Monday at the earliest, and sometimes must wait until Tuesday.
124. Detained individuals are usually assigned a court-appointed attorney or public defender at the first appearance hearing, but there is typically no review of the money bail amount previously imposed. Although an informal off-the-record request for bail reduction may, in theory, be made at first appearance, it is not possible to have a bail hearing at that time.
125. Detained individuals typically remain in lock-up outside of the courtroom and are not brought into the courtroom on this court date. The case is almost always then “reset,” meaning that another hearing is scheduled, typically weeks in the future.
126. As a result, arrestees who cannot pay for their release remain in detention and are returned to jail cells, usually without ever having been brought into the courtroom.
127. As a matter of routine practice, the felony judges do not conduct bail hearings at first appearance: they make no findings concerning ability to pay; they make no findings as to whether pretrial detention is necessary to serve any government interest; they do not allow arrestees to confront the evidence and arguments of the government or put on evidence and argument in support of pretrial release; and they do not provide other basic procedural safeguards, such as making findings by any evidentiary standard, let alone by clear and convincing evidence, or issuing any statement of reasons concerning why a particular financial condition or pretrial detention is required.
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128. Typically, if a person wishes to have an evidentiary hearing concerning the appropriateness of the secured bond amount set, the need to keep the person in a jail cell pending resolution of the case, and whether less-restrictive conditions of release are available, the person’s lawyer must file a motion and then have a court proceeding scheduled for a later date. A hearing on the motion will likely not occur for more than a week after the motion is filed. This hearing will be the arrestee’s first opportunity to present witnesses or documentary evidence and the first time that a judge will even conceivably make findings on the record regarding release conditions.
129. One of the purposes and effects of Harris County’s post-arrest detention is to coerce and process large numbers of guilty pleas prior to any person conducting any legal or factual investigation into the charges, let alone the complete and zealous investigation and defense required by professional standards and the Sixth Amendment to the United States Constitution. If an arrestee agrees to plead guilty at this first appearance, then the arrestee will be brought out from the lock-up to plead guilty.
130. The felony judges routinely accept guilty pleas from individuals who are in jail solely because they are too poor to pay money bail.
131. The felony judges—and every other actor in the County’s post-arrest system (as well as anyone who has observed probable cause hearings or first appearances)—know that many of the detained individuals who appear in front of them charged with felonies are being detained in jail solely because they are too poor to pay the money bail amount required as payment for release. The judges and Sheriff’s Office employees and agents have knowledge that, in thousands of people’s cases every day, there is no reason for a person’s detention other than the person’s inability to make a monetary payment.
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132. In 2017, approximately 55% of felony arrestees were still in jail when their case reached disposition.24 Individuals detained pretrial are more likely to be sentenced to jail, are less likely to be sentenced to probation, and are given longer sentences than those received by individuals who were released pretrial. The conviction rates for people released at disposition are significantly lower than for similarly situated people who are detained at disposition.
C. The Harris County Jail 133. The Harris County Jail is the largest jail in Texas and the third largest jail in the United States, behind only Rikers in New York and the Los Angeles County Jail.25 The Harris County Jail books on average 120,000 individuals per year and 330 individuals per day.26 134. The vast majority of human beings in the Harris County Jail cells are not there because they have been convicted of a crime. Instead, most people—an average of 85% in September 2018—are being kept in jail cells prior to trial, despite the presumption of innocence. Many of these people are in jail solely because they cannot afford to pay money bail. If they could pay the money bail assigned to them, they could walk out of the doors of the jail at any time. 135. In September 2018, a typical month, the average daily population of the Harris County Jail was 9,803 individuals, 8,386 of whom were pretrial detainees. About 90% of these pretrial detainees—7,553 individuals—had been arrested for felony or state jail felony charges. 136. Over 10 years ago, the Department of Justice investigated the Harris County Jail and launched an era of federal oversight because of the serious and systemic violations of
24 Harris County Pretrial Services, supra note 3, at 16 (showing in Table B.1 that roughly 45% of felony arrestees post money bail). 25 Sarah R. Guidry, et al., A Blueprint for Criminal Justice Policy Solutions in Harris County 1 (2015), http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2015/ls_sclaid_summit_03_tcjc _2015_harris_county_blueprint.authcheckdam.pdf. 26 Id. at 9.
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constitutional rights that pervaded the facility.27 The investigation led the County to form the Harris County Criminal Justice Coordinating Council in an effort to address the overcrowding in the jail.28 Although there have been some decreases in the jail population in more recent years, Harris County consistently struggles to stay within its operating capacity. In fact, the jail’s persistent overcrowding, resulting largely from the thousands of people detained pretrial on felony charges, has led the Sheriff to refuse to accept new arrestees from arresting agencies like Houston Police Department (“HPD”), which in turn has meant that HPD arrestees are forced to languish in the City’s custody for days before being transferred to the County’s inmate processing center.29
137. In 2013, taxpayers spent almost $500,000 per day to operate the jail.30 138. Since 2009, 125 human beings have died while in pretrial custody in the Harris County Jail.31 139. In August 2018, arrestee Debora Lyons hanged herself in a common area of the Harris County Jail while detained on a felony theft charge with money bail set at $1,500.32 She had been arrested on July 21 for allegedly stealing clothes and an airbed totaling less than $2,500. The day after she died, former Judge Jim Wallace granted her a personal bond.
27 Id. at 2. 28 Id. 29 Undersigned counsel Civil Rights Corps sued the City of Houston for detaining people in violation of their Fourth Amendment right to a probable cause determination within 48 hours. Hernandez v. City of Houston, 4:16-cv-3577 (S.D. Tex. Dec. 5, 2016). 30 Guidry, supra note 23, at 13. 31 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019. 32 Keri Blakinger, Inmate who killed herself in Harris County jail had previously threatened suicide, Houston Chron. (Aug. 22, 2018), https://www.chron.com/news/houston-texas/article/Inmate-who-killed-herself-in-jail-hadpreviously-13172633.php.
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140. Three weeks earlier, Navy veteran Eldon Lee Harris had hanged himself while in solitary confinement.33
141. The Texas Commission on Jail Standards has found the Harris County Jail to be in noncompliance of state standards five times in the past two years.34 Three out of five of these compliance failures have been related to preventable deaths.
142. On January 17, 2019, two days after Tracy Whited committed suicide in the Harris County Jail, Texas state Senator John Whitmire sent a letter to County Judge Lina Hidalgo citing “unsanitary and unhealthy conditions” at the jail and proposing state oversight for the facility. He stated that conditions at the jail “jeopardize[] the safety and well-being of our fellow citizens who find themselves housed in the Harris County Jail.”35
143. According to the Harris County Sheriff’s Office, one-quarter of individuals in the Harris County Jail have been diagnosed with some form of mental illness.36
144. There is a documented history of inmate abuse by jail guards, deaths and suicides in the jail, inadequate training of jail staff, and lack of access to medications and medical services. For years, the County has been aware of these intolerable conditions, which exist largely because
33 Id. 34 Keri Blakinger, State finds Harris County jail out of compliance for 5th time in two years, Houston Chron. (Nov. 30, 2018), https://www.chron.com/news/houston-texas/article/State-finds-Harris-County-jail-out-of-compliance13435304.php. 35 Keri Blakinger, Houston senator raises possibility of state oversight for Harris County jail, Houston Chron. (Jan. 17, 2019), https://www.chron.com/news/houston-texas/article/Houston-senator-raises-possibility-of-state13542101.php. 36 Harris County Sheriff’s Office, Jail Mental Health Initiatives, http://www.harriscountycit.org/jail-mental-healthunit/ (last visited January 19, 2019).
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of the overcrowding resulting from the volume of pretrial felony detainees who cannot afford to

pay money bail. It has failed to remedy them.37

145. On a typical day, hundreds of new arrestees, presumed innocent, are arrested and

booked into this jail.38 At any given moment, there are hundreds of people charged only with state

jail felonies—the least serious class of felony charges in the Texas criminal legal system,

consisting mostly of non-violent offenses or misdemeanor offenses enhanced by prior

misdemeanor convictions—who are being detained in the Harris County Jail solely because they

cannot afford money bail.39

146. In 2017 alone, there were more than 500 people who were detained at disposition

because they were unable to pay a $2,000 money bail. Many of these individuals could have

walked out of the jail if they had been wealthy enough to pay the monetary amount required for

freedom. Only those individuals who are too poor to purchase their release are subjected to these

conditions and the health and safety risks of pretrial jailing.

D.

Defendants’ Wealth-Based Detention Practices Are Causing Plaintiffs to Be

Jailed Solely Due to Their Inability to Pay Bail

147. The named Plaintiffs are eligible for release and would not have to endure pretrial

incarceration if they paid the amount of money required by Defendants.

37 Jailhouse Jeopardy: Uncovering abuses at Harris County’s jail, Houston Chron., (Oct. 3, 2015–Mar. 6, 2016), http://www.houstonchronicle.com/local/investigations/jailhouse-jeopardy/ (providing links to a series of articles written by several reporters). 38 Guidry, supra note 23, at 9 (stating that there are 330 bookings per day); Harris County Pretrial Services, supra note 3, at 16 (stating that, in 2017, 30,978 people were arrested on felony charges, which averages more than 80 arrests per day). 39 See, e.g., Guidry, supra note 253, at 15 (noting that, in 2013 alone, there were 3,120 misdemeanor arrestees who could not post the $500 money bail that Harris County demanded of them).
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148. Arrestees are given a right to release pending trial, but Defendants’ wealth-based detention system conditions their release on their ability to afford money bail, thus tying their pretrial freedom to their wealth status.
149. As a matter of policy and practice, when a new arrestee is brought to the Harris County Jail, county employees inform the arrestee that she will be released from jail immediately if she pays the money bail amount. The arrestee is told that she will remain in jail if she is not able to make that payment.
150. The Harris County Sheriff’s Office collects arrestees’ money bail payments. It is the policy and practice of the Harris County Sheriff’s Office to release only those arrestees who pay their money bail amount.
151. In a typical week, the Sheriff’s Office releases hundreds of individuals who pay their money bail amount.
152. It is the policy and practice of the Sheriff’s Office to detain individuals who do not pay the money bail amount. Before an individual’s probable cause hearing, it is the policy and practice of the Sheriff’s Office to detain the individual based on a money bail amount set pursuant to a predetermined bail schedule. After a probable cause hearing, it is the policy and practice of the Sheriff’s Office to detain the individual based on a money bail amount imposed by a Hearing Officer.
153. If a person cannot pay money bail after her first court appearance before a District Judge, it is the policy and practice of the Sheriff’s Office to continue to detain that individual unless and until she makes a monetary payment.
154. Under Defendants’ wealth-based practices, those who have enough money to pay are released from the County jail. Some poorer arrestees eventually make arrangements with
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private bail bond companies, after spending hours, days, or weeks in jail.40 And many others who are poorer still are left to languish in jail until their case resolves. E. Defendants’ Use of Money Bail Is Not Narrowly Tailored—Nor Is It as Effective as
Many Other Methods—in Securing Court Attendance or Public Safety 155. The empirical evidence shows that there is no relationship between requiring money bail as a condition of release and defendants’ rates of appearance in court.41 156. While tying pretrial freedom (for those charged with felonies) to access to money is the norm in Harris County, other jurisdictions throughout the country do not keep people in jail because of their poverty. Instead of relying on money, other jurisdictions release arrestees with pretrial supervision practices and procedures that can help increase court attendance and public safety without requiring detention. 157. Other jurisdictions employ numerous less restrictive strategies for assuring public safety and court appearance when the government determines, on the basis of evidence and argument, that there is a need to guard against a particular risk. These strategies include: unsecured or “signature” bonds (which do not require payment up front for release but instead allow immediate release upon a promise to pay the monetary amount if the person does not appear as required), reporting obligations, two-way phone and text message reminders of court dates, rides to court for those without transportation or a stable address, flexible court appearances including
40 Because of the common availability of commercial bail bonds, those who remain in the Harris County jail are typically those who cannot even afford to pay a third-party bonding agent. Typically, bonding agents require a nonrefundable premium of 10% of the bail amount, although a bonding agent is free to refuse to pay for the release of any arrestee for any reason or for no reason. Bonding agents also routinely accept lower premiums, or no premiums, and place the arrestee on a payment plan for the rest. In short, it is completely up to the bonding company whether to make a deal with a particular individual who cannot afford to pay the sum required for release. The Named Plaintiffs cannot afford such a bail. 41 Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 5 (May 2, 2016), http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf (“We find no evidence that money bail increases the probability of appearance.”).
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evening and weekend court sessions for those with jobs they cannot miss, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
158. Defendants are permitted by state (and federal) law to use these alternatives but, as a matter of routine practice and policy, choose not to for impoverished felony arrestees. The vast majority of Harris County arrestees are therefore processed and detained through Harris County’s money bail scheme rather than non-monetary supervision methods. As a matter of policy and practice, Defendants do not consider, or make findings concerning, less restrictive alternatives than detention based on money bail that a person cannot afford.
159. Jurisdictions routinely using non-monetary conditions of release achieve high rates of court appearances while ensuring public safety. In Washington, DC, where 94% of cases resulted in pretrial release without secured financial conditions in Fiscal Year 2017,42 88% of defendants released pretrial made all scheduled appearances throughout the life of their cases, with more than 86% of those released pretrial remaining arrest-free (and 99% remaining arrest-free for violent crimes).43
160. Empirical evidence proves that unsecured bond alone is at least as effective at reasonably assuring appearance in court as secured money bail.
161. Empirical evidence also demonstrates that secured money bail does not have any positive benefit to public safety. In fact, short periods of pretrial detention actually increase future crime. And in Texas, because a person cannot forfeit a secured money bail by committing a new

42 Pretrial Services Agency for the District of Columbia, FY 2017 Release Rates for Pretrial Defendants within

Washington,

DC

(2018),

https://www.psa.gov/sites/default/files/2017%20Release%

20Rates%20for%20DC%20Pretrial%20Defendants.pdf.

43 Pretrial Services Agency for the District of Columbia, Congressional Budget Justification and Performance Budget Request: Fiscal Year 2019 (2018), https://www.csosa.gov/wp-content/uploads/bsk-pdf-manager/2018/07/FY2019PSA-CBJ-Performance-Budget-02122018-1.pdf.

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crime, there is no rational relationship between a higher secured money bail and public safety, unless the higher bail is intended to accomplish pretrial detention—and even then, as noted, studies show that the resulting detention has a criminogenic effect on that person. Thus, even though the person may be incapacitated for the pretrial period, the destabilizing effects of pretrial detention make it more likely she will commit new crimes during the pretrial period and after.
162. Detention due to inability to pay money bail increases the likelihood of conviction. A person who is detained pretrial is 13% more likely to be convicted and 21% more likely to plead guilty.44 Additionally, individuals detained pretrial are more likely to be given longer jail sentences.45 Overall, individuals who are detained—instead of released on money bail or on a personal bond—have worse case outcomes.46
163. Money bail is disproportionately imposed on non-white arrestees.47 In other words, even the rare personal bond in Harris County is disproportionately given to white arrestees.

44 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; see also Gupta, et. al, supra note 41 at 3 (finding a 12% increase in the likelihood of conviction using the same data).

45 Stevenson, supra note 44 at 18; Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017).

46 Stevenson, supra note 42 at 18; Gupta, et. al, supra note 41 at 13 (finding a 12% increase in the likelihood of conviction using the same data); Guidry, supra note 23 at 13 (“[D]efendants who are not released pre-trial are more likely to be incarcerated following a conviction, and they generally receive longer sentences upon conviction.”).

47 Gupta, et. al, supra note 41 at 4–5; Lise Olson, Study: Inmates who can’t afford bond face tougher sentences,

Houston Chron. (Sept. 15, 2013), http://www.houstonchronicle.com/news/houston-texas/houston/article/Study-

Inmates-who-can-t-afford-bond-face-tougher-4817053.php (discussing Carlos Mathis, an African-American man,

who was detained in jail for seven months on minor drug and theft charges because he could not afford money bail,

and whose charges were dismissed); Isami Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and

the

Effects

of

Pretrial

Services

Programs

(Mar.

11,

2013),

http://www.pretrial.org/download/research/Racial%20Disparities%20at%20Pretrial%20and%20Sentencing%20and

%20the%20Effects%20of%20Pretrial%20Services%20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones,

“Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013);

Tina L. Freiburger, et. al, The Impact of Race on the Pretrial Decision, 35 Am. J. of Crim. Just. 76 (2010),

http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf.

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164. Setting a secured money bail amount in an amount higher than a person can afford by definition defeats the purpose of money bail—to incentivize a person to return to court—and removes any legitimate (let alone compelling) state interest in the setting of a financial condition. Nor is setting money bail without findings concerning ability to pay narrowly tailored to meet any other legitimate or compelling government interest.
165. Defendants’ use of money bail leads disproportionately to the detention of people of color. Regardless of the amount of money bail imposed, people of color are more likely to be detained at disposition than whites.48
166. Unnecessary pretrial detention causes instability in employment, housing, and care for dependent relatives. Studies show that those detained pretrial face worse outcomes at trial and sentencing than those released pretrial, even when charged with the same offenses. Detained defendants are more likely to plead guilty just to shorten their jail time, even if they are innocent. In fact, Harris County has led the country for years in exonerations—many of which resulted from wrongful convictions in drug cases involving people who pled guilty to get out of jail.49 People detained pretrial have a more difficult time preparing for their defense, gathering evidence and witnesses, and meeting with their lawyers. Studies also show that just two days of pretrial detention increases the likelihood of future arrests and increases the future risk level of low-level offenders.
167. Pretrial detention is more than ten times more expensive than effective pretrial supervision programs. Through non-monetary tools, pretrial supervision programs can save taxpayer expense while maintaining high public safety and court appearance rates.
48 Gupta, et. al, supra note 40 at 4–5 49 Alex Samuels, Study finds Harris County leads nation in exonerations, Texas Tribune (Mar. 7, 2017) https://www.texastribune.org/2017/03/07/report/.
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168. Since March 2020, due to the COVID-19 pandemic, people detained in the Harris County Jail face yet another irreparable harm: a heightened risk of contracting a deadly diesase and dying because they cannot practice social distancing or basic health and sanitation measures.
169. On March 11, 2020, the World Health Organization declared COVID-19 a pandemic.50
170. As COVID-19 swept across the United States, it quickly became apparent that the Harris County Jail, like most jails and prisons, is devastatingly ill-equipped to prevent the virus from rapidly spreading among detainees and staff. Indeed, Sheriff Ed Gonzalez issued a desperate public warning on March 21, 2020: “Currently have 8,000 individuals, most pre-trial, in tight quarters.”51 The jail has “[v]ery limited services. No capacity for ICU care. If someone older and/or with frail health gets the virus it can be a death sentence. Plus spread like wildfire… Individuals would need to be taken to our public health system, which does not have capacity to handle an outbreak in the jail and the anticipated needs of the general community.”52
171. On March 29, 2020, the Houston Chronicle reported that the first detained person in the Harris County Jail had tested positive for COVID-19.53
172. Also on March 29, 2020, Texas Governor Greg Abbott issued Executive Order GA13.54 GA-13 purports to prohibit anyone currently charged with a crime involving “violence” and
50 World Health Organization, “WHO Timeline – COVID-19” (Apr. 27, 2020), https://www.who.int/newsroom/detail/27-04-2020-who-timeline---covid-19 (last accessed May 1, 2020). 51 Ed Gonzalez (@SheriffEd_HCSO), TWITTER (Mar. 21, 2020, 8:41 AM), https://twitter.com/SheriffEd_HCSO/status/1241344221921136641. 52 Id. (Mar. 21, 2020, 8:05 AM), https://twitter.com/SheriffEd_HCSO/status/1241335204905713664; id. (Mar. 20, 5:19 PM), https://twitter.com/SheriffEd_HCSO/status/1241112204067381249. (“Jail health is community health.”). 53 Gabrielle Banks & Nicole Hensley, “First Harris County Jail inmate tests positive for COVID-19,” Houston Chron. (Mar. 29, 2020), https://www.houstonchronicle.com/news/houston-texas/houston/article/First-HarrisCounty-Jail-inmate-tests-positive-15164825.php. 54 See Dkt. 39-1.
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anyone with a prior conviction at any time in the past for a crime involving “violence” (regardless of the current charge), from being released on unsecured bail, regardless of any individualized proceedings or findings by a state court judge.55
173. Thus, for all of the people in these broad categories, GA-13 requires pretrial detention if they cannot pay for release and requires enforcement officials, including the Sheriff and County, to refuse to release categories of people on personal bonds.56
174. GA-13 also makes pretrial detention indefinite by suspending relevant speedy trial provisions of Texas law that ordinarily would require a person’s release if the state is not ready for trial.57
175. A little more than a month after GA-13 was issued, the number of reported COVID19 cases in the jail—among both detainees and staff—has exploded. As of May 5, 2020, 599 people detained in the Harris County Jail and 255 employees of the Sheriff’s Office had tested positive for COVID-19.58 Almost half of people detained the jail were in quarantine: 2,828 people detained in the jail were in observational quarantine (possible exposure), 601 were in buffer quarantine (for those newly booked into the jail), 92 were in surveillance quarantine (asymptomatic patients who tested positive), and 157 in recovery quarantine.59
Class Action Allegations 176. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a common
55 See id. 56 A personal bond is an unsecured bond that allow a person to be released without making an up-front payment if the person agrees to pay an amount of money if the person does not appear. 57 Id. 58 Dkt. 138. 59 Id.
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basis. 177. A class action is a superior means, and the only practicable means, by which the
named Plaintiffs and unknown Class members can challenge Defendants’ unlawful wealth-based post-arrest detention scheme.
178. 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.
179. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
180. The Plaintiffs propose a single Class seeking declaratory and injunctive relief. The Declaratory and Injunctive Class is defined as: All felony arrestees who are detained by Harris County, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on secured money bail because of indigence.
A. Numerosity—Fed. R. Civ. P. 23(a)(1) 181. In September 2018, the average daily population of felony and state jail felony arrestees being held pretrial was 7,553 individuals. Many of these people were held only because they could not afford to pay a money bail. Arrestees are detained in jail for varying lengths of time depending on how long it takes them to make the cash payment that is required for their release. 182. Some arrestees are able to pay immediately for their release. Others are forced to wait one or two days until they or family members can make the payment. Others will never be able to come up with any amount of money to pay for their release. 183. The number of current and future arrestees subject to this policy—if it is not enjoined—is well into the thousands. B. Commonality—Fed. R. Civ. P. 23(a)(2)
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184. The relief sought is common to all members of the Class, and common questions
of law and fact exist as to all members of the Class. The named Plaintiffs seek relief concerning
whether Defendants’ policies, practices, and procedures violate the rights of the Class members
and relief mandating that Defendants change their policies, practices, and procedures so that the
constitutional rights of the Class members will be protected in the future.
185. Common legal and factual questions arise from one central scheme and set of
policies and practices: Defendants’ post-arrest wealth-based detention scheme. Defendants operate
this scheme openly and in materially the same manner every day. The material components of the
scheme do not vary from Class member to Class member, and the resolution of these legal and
factual issues will determine whether all of the members of the Class are entitled to the
constitutional relief that they seek.
Among the most important, but not the only, common questions of fact are:
 Whether Defendants have a policy and practice of using a predetermined schedule to determine the amount of money required to secure post-arrest release;
 Whether Defendants require that scheduled amount of money to be paid up front before releasing a person from the jail;
 Whether Defendants require arrestees who have had probable cause hearings to pay the secured money bail amount imposed by the Hearing Officer before releasing such people from the jail;
 Whether, when requiring a financial condition of release there is an inquiry into ability to pay;
 Whether, if a person cannot pay for release, there is any inquiry into and findings concerning availability of alternative conditions of release and a finding that pretrial detention is necessary;
 Whether, in requiring pretrial detention, there is an adversarial hearing with counsel and notice of the critical issues at stake, opportunity to be heard and to confront evidence, findings by clear and convincing evidence, and a statement of reasons orally or in writing concerning the need for pretrial detention; and
 What standard post-arrest procedures Defendants perform on felony arrestees, for example, whether Defendants use any other alternate procedures for promptly releasing people determined otherwise eligible for release but who are unable to afford a monetary payment.
186. Among the most important common questions of law are:
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 Whether requiring arrestees to pay money up front to secure release from postarrest detention without an inquiry into or findings concerning the arrestee’s present ability to pay the amount required, and without meaningful consideration of less restrictive alternative conditions of release, violates the Fourteenth Amendment’s Equal Protection and Due Process Clauses;
 Whether it is lawful to impose a secured financial condition of release that operates as a de facto order of pretrial detention because of a person’s inability to pay without complying with the substantial findings, legal standards, and procedural safeguards required for issuing and enforcing a transparent order of preventive detention; and
 What substantive findings and procedural safeguards are required as a matter of federal law prior to pretrial detention of a presumptively innocent person.
C. Typicality—Fed. R. Civ. P. 23(a)(3) 187. The named Plaintiffs’ claims are typical of the claims of the other members of the Class, and they have the same interests in this case as all other Class members. Each Class member is threatened with imminent and/or ongoing confinement in jail because she cannot afford to pay a standardized cash bail amount. The answer to whether Defendants’ wealth-based detention scheme is unconstitutional will determine the claims of the named Plaintiffs and every other Class member. 188. If the named Plaintiffs succeed in the claim that Defendants’ policies and practices concerning post-arrest detention violate their constitutional rights, that ruling will likewise benefit every other member of the Class.
D. Adequacy—Fed. R. Civ. P. 23(a)(4) 189. The named Plaintiffs are adequate representatives of the Class because their interest in the vindication of the legal claims that they raise is entirely aligned with the interests of the other Class members, each of whom has the same basic constitutional claims. They are members of the Class, and their interests do not conflict with those of the other Class members. 190. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants’
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pay-for-freedom post-arrest detention system. 191. Plaintiffs are represented by attorneys from Civil Rights Corps, Susman Godfrey,
and Texas Civil Rights Project who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are more fully set forth in the contemporaneously filed Motion for Class Certification.
192. The combined efforts of Class counsel have so far included extensive investigation into Harris County’s predetermined money bail practices over a period of years, including numerous interviews, most intensively in recent months, with witnesses, court employees, people detained in jail, families, judges, attorneys practicing in courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
193. Class counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipalities.
194. Counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ practices and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel have also developed relationships with many of the individuals and families victimized by unlawful wealth-based pretrial detention practices. The interests of the members of the Class will be fairly and adequately protected by the Plaintiffs and their attorneys.
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E. Rule 23(b)(2) 195. Class action status is appropriate because Defendants, through the policies, practices, and procedures that make up their wealth-based post-arrest detention scheme, have acted in the same unconstitutional manner with respect to all Class members. Defendants apply and enforce a wealth-based system of pretrial justice: some arrestees can purchase their immediate release, while other arrestees must remain in jail solely because they cannot pay. 196. The Class therefore seeks declaratory and injunctive relief that will prevent Defendants from detaining arrestees who cannot afford cash payments. Because the putative Class challenges Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the Class, Rule 23(b)(2) is appropriate and necessary. 197. Injunctive relief compelling Defendants to comply with these constitutional rights will similarly protect each member of the Class from being subjected to Defendants’ unlawful policies and practices. A declaration and injunction stating that Defendants cannot detain arrestees solely due to their inability to make a monetary payment would provide relief to every Class member. It would ensure that pretrial detention based on lack of access to money does not occur without the substantive findings and procedural safeguards that the Constitution requires for that government detention. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate. 198. Plaintiffs seek the following relief.
Claims for Relief Count One: Defendants Violate Plaintiffs’ Equal Protection and Due Process Rights by Jailing Them Solely Because They Cannot Afford a Monetary Payment. 199. Plaintiffs incorporate by reference the allegations in paragraphs 1-155.
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200. The Fourteenth Amendment’s Equal Protection and Due Process Clauses prohibit jailing a person solely because of her inability to make a monetary payment. Defendants violate Plaintiffs’ rights by enforcing against them a system of pretrial detention that keeps them in jail solely because they cannot afford to pay money bail amounts imposed without findings concerning their present ability to pay and without findings concerning the necessity of the detention in light of alternative conditions of release that could serve the government’s interests.
Count Two: Defendants Violate Plaintiffs’ Substantive Due Process Right to Pretrial Liberty by Jailing Them Without a Finding That Pretrial Detention Is Necessary
201. Plaintiffs incorporate by reference the allegations in paragraphs 1-157. 202. The Fourteenth Amendment protects the fundamental interest in pretrial liberty that is infringed whenever a person is subject to a transparent or de facto order of pretrial detention. That interest in bodily liberty is not absolute, and it can be overcome, but only if the government first demonstrates that no alternative short of pretrial detention exists to mitigate an identifiable risk to the safety of the community or a risk of flight from prosecution, and that pretrial detention is therefore necessary to serve a specified, compelling interest in public safety or court appearance. Defendants violate Plaintiffs’ rights by jailing them prior to trial without making any finding that pretrial detention is necessary to serve the government’s interests. Count Three: Defendants Violate Plaintiffs’ Procedural Due Process Rights 203. Plaintiffs incorporate by reference the allegations in paragraphs 1-159. 204. The Due Process Clause requires that, for a transparent or de facto order of pretrial detention to be constitutionally valid, the government must provide rigorous procedural safeguards to ensure the accuracy of the substantive finding that pretrial detention is necessary because lessrestrictive conditions are insufficient. The minimal safeguards required by the Constitution include: an adversarial hearing, with counsel, at which the person has notice of the critical issues
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to be decided at the hearing, an opportunity to be heard and to present and confront evidence, and
a statement of reasons on the record explaining the reasons for the finding that pretrial detention
is necessary. Defendants violate procedural due process by detaining plaintiffs prior to trial without
providing these safeguards to ensure the accuracy of any substantive determination that pretrial
detention is necessary.
Request for Relief
WHEREFORE, Plaintiffs and the other Class members request that this Court issue the
following relief:
a. A declaratory judgment that Defendants violate the Named Plaintiffs’ and Class members’ constitutional rights by operating a system of wealth-based detention that keeps them in jail solely because they cannot afford to pay secured money bail amounts required without findings concerning ability to pay, without consideration of or findings concerning nonfinancial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of that finding;
b. An order and judgment permanently enjoining Defendants from operating and enforcing a system of post-arrest detention that keeps Named Plaintiffs and Class members in jail because they cannot pay a secured financial condition of release required without findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
c. A declaratory judgment that Executive Order GA-13 is unconstitutional to the extent it requires pretrial detention of arrestees who cannot afford secured money bail without the substantive findings and procedural safeguards required for an order of pretrial detention;
d. An order and judgment permanently enjoining the Sheriff and the County from enforcing GA-13 to the extent enforcing GA-13 results in the pretrial detention of individuals against whom there has been no substantive finding that pretrial detention is necessary following a hearing with sufficient procedural safeguards to ensure the accuracy of that finding;
e. Any other order and judgment this Court deems necessary to permanently enjoin Defendants—whether acting on behalf of the State, the County, or some other government entity—from implementing and enforcing a system of wealth-based pretrial detention that keeps arrestees in jail solely because they cannot afford to pay a secured financial condition of release required without an inquiry into or findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that a
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particular release condition is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
f. An order certifying the class defined above; and
g. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.

Date: June 26, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Liyah Brown Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 mimi@texascivilrightsproject.org Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 liyah@texascivilrightsproject.org Peter Steffensen Texas State Bar No. 24106464 Southern District No. 3327006 peter@texascivilrightsproject.org Texas Civil Rights Project 2202 Alabama Street Houston, TX 77004 Telephone: 512-474-5073 ext. 118

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100
Attorneys for Plaintiffs

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Case 4:19-cv-00226 Document 195-2 Filed on 06/26/20 in TXSD Page 1 of 52

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

)

DWIGHT RUSSELL,

)

JOHNNIE PIERSON,

)

JOSEPH ORTUNO,

)

CHRISTOPHER CLACK,

)

MAURICE WILSON

)

)

On behalf of themselves and all )

Case No. 4:19-cv-00226

others similarly situated,

)

(Class Action)

)

The Honorable Lee H. Rosenthal

Plaintiffs,

)

U.S. District Judge

)

v.

)

)

HARRIS COUNTY, TEXAS,

)

)

SHERIFF ED GONZALEZ,

)

)

HAZEL B. JONES (174th)

)

NIKITA V. HARMON (176th)

)

ROBERT JOHNSON (177th)

)

KELLI JOHNSON (178th)

)

RANDY ROLL (179th)

)

DASEAN JONES (180th)

)

DANILO LACAYO (182nd)

)

CHUCK SILVERMAN (183rd)

)

ABIGAIL ANASTASIO (184th)

)

JASON LUONG (185th)

)

GREG GLASS (208th)

)

BRIAN E. WARREN (209th)

)

FRANK AGUILAR (228th)

)

CHRIS MORTON (230th)

)

JOSH HILL (232nd)

)

HILARY UNGER (248th)

)

LORI CHAMBERS GRAY (262nd)

)

AMY MARTIN (263rd)

)

HERB RITCHIE (337th)

)

RAMONA FRANKLIN (338th)

)

JESSE MCCLURE, III (339th)

)

GEORGE POWELL (351st)

)

BROCK THOMAS (RIC)

)

)

Defendants.

)

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____________________________________) FIRSTSECOND AMENDED CLASS ACTION COMPLAINT
I. Introduction 1. This case is about Harris County’sCounty jailing some of its poorest people,
charged with felonies, because they cannot afford to make a monetary payment. 2. Harris County previously used access to cash to make release-and-detention
decisions in the County’s misdemeanor bail system. In 2016, certain of undersigned counsel filed a lawsuit against the County, the Sheriff, the misdemeanor judges (who were added later), and the Hearing Officers. Following a nearly two-week evidentiary hearing in March 2017, the Court struck down Harris County’s misdemeanor bail policies, finding that the policies violated Equal Protection and Due Process, coerced guilty pleas, and disproportionately affected people of color. The Court issued a preliminary injunction that led to the release of more than 13,000 people who otherwise would have been illegally detained.
3. In 2018, a slate of candidates ran for election to the misdemeanor courts on a platform acknowledging the devastating consequences of the County’s decades-long policy of detaining poor misdemeanor arrestees after arrest for days and weeks, and promising to work with the Plaintiffs’ counsel and other stakeholders to reform the system and end the misdemeanor lawsuit. All of the candidates won; all of the incumbent judges who had resisted the lawsuit were removed by the voters. On January 17, 2019, after the newly elected judges took office, all of the misdemeanor judges promulgated a new rule that will dramatically change the misdemeanor bail system. It was the result of intensive conversations with class counsel, the District Attorney, the Sheriff and his command staff, and the Public Defender. The rule requires the initial release decision in misdemeanor cases to be made on the basis of the offense charged. Most arrestees—
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approximately 85%—will automatically qualify for release on unsecured bonds (requiring a
payment only if the person willfully misses court and the bond is subsequently forfeited). Only
people arrested for a few select offenses will be required to appear before a judge within 48 hours,
at which time they may also qualify for release on unsecured bonds or with other appropriate
conditions tailored to a specific, identified risk. This rule will give effect to the Supreme Court’s
requirement that detention prior to trial must be the “carefully limited exception,” and will reverse
the years-long practice of detaining 40% of misdemeanor arrestees throughout the duration of their
cases.
4. Reforms to Harris County’s misdemeanor pretrial detention system came after
numerous county officials spoke out against the system’s unequal treatment of people who are
poor. Sheriff Ed Gonzalez, though a necessary defendant in the misdemeanor case and in this one,
has stated:
The County’s widespread detention of arrestees because they are too poor to pay arbitrary amounts of money is a waste of public resources and actually undermines public safety . . . . I believe that the current operation of the money bail system, including the Sheriff’s active participation in that system, violates the United States Constitution . . . . A person’s access to money should not be a determining factor in whether he or she is jailed or released after arrest and pending trial.1
1 Meagan Flynn, Incoming Sheriff Ed Gonzalez Declares Bail System Unconstitutional, Houston Press (Nov. 29, 2016), https://www.houstonpress.com/news/incoming-sheriff-ed-gonzalez-declares-bail-system-unconstitutional8984569; see also Michael Hardy, In Fight Over Bail’s Fairness, Sheriff Joins the Critics, New York Times (Mar. 9, 2017), https://www.nytimes.com/2017/03/09/us/houston-bail-reform-sheriff-gonzalez.html?module=inline (quoting Sheriff Gonzalez saying “When most of the people in my jail are there because they can’t afford to bond out, and when those people are disproportionately [B]lack and Hispanic, that’s not a rational system.”); Cameron Langford, Texas Sheriff Among Critics of His Own Bail System, Courthouse News (Mar. 9, 2017), https://www.courthousenews.com/texas-sheriff-among-critics-bail-system/ (quoting Sheriff Gonzalez’s testimony in federal court, in which he stated, “When we look at equal protection, in my opinion it should be equal protection for everyone, but statistically speaking it doesn’t bear that out. When I see that many of the people inside the jail, on any given day an average of 9,000, are just poor and can’t bond out, and I look at racial disparities, disproportionally communities of color, then that’s very concerning to me.”).
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District Attorney Kim Ogg, who is not a defendant in either case but has been a strong voice for
reform of the County’s misdemeanor bail policies, has stated:
It is our position that bail reform is necessary and long overdue. Holding un-adjudicated misdemeanor offenders in the Harris County Jail solely because they lack the money or other means of posting bail is counterproductive to the goal of seeing that justice is done. We do not want to be complicit in a system that incentivizes presumptively innocent people to plead guilty merely to expedite their release from custody. We do not want to administer punishment before the defendant has been adjudicated. It makes no sense to spend public funds to house misdemeanor offenders in a high-security penal facility when the crimes themselves may not merit jail time. These secure beds and expensive resources should be prioritized for the truly dangerous offenders and “flight risks” who need to be separated from the community.2
5. For people charged with felonies, however, the practice of conditioning release on
access to money persists: arrestees charged with felonies are released from custody almost
immediately if they can make a predetermined payment of money to the County while arrestees
who are too poor to purchase their liberty remain in jail solely because of their poverty. As a result
of these policies and practices, more than half of the people arrested for felony offenses remain detained for the entire duration of their case until its disposition.3 Many of the lowest level arrestees
are then released on the day of conviction.
6. The felony bail system in Harris County raises the same legal issues as the
misdemeanor system, has the same devastating consequences for impoverished arrestees, is
similarly coercive of guilty pleas, and is even more costly to the system, in part, because felony
arrestees constitute approximately 77% of the jail population on any given day. The felony system
demands analogous reforms: ending the use of the secured bail schedule to make the initial release

2 Position Statement of District Attorney Kim Ogg About Bail Bond Litigation Pending in the United States District Court, Case No. 4:16-cv-1414, ECF 206 (Mar. 3, 2017).

3

Harris

County

Pretrial

Services,

2017

Annual

Report

16

(2017),

https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf (showing that non-violent felony arrests

account for 68.9% of all felony arrests).

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decision and ensuring that anyone detained prior to trial is afforded the substantive findings and procedural protections the Constitution requires to protect against an erroneous deprivation of the right to bodily liberty—the most important right protected by the Constitution, other than the right to life itself.
7. Approximately twelve percent of the felony pretrial population in the Harris County Jail consists of people whose most serious charge is a “state jail” felony. State jail felonies are the least serious class of felony charges in the Texas criminal legal system. They consist mostly of non-violent offenses and, in many instances, they are simply misdemeanor offenses enhanced by prior misdemeanor convictions.
8. Almost 70% of all felony arrestees are charged with non-violent offenses.4 The most common charge for all felony arrestees is drug possession, which is the most serious charge for 26.8% of felony arrestees.5 Only 8.6% of all felony arrestees are released on an unsecured bond.6 Money bail is required as a condition of release for the overwhelming majority of felony arrestees, meaning that these arrestees are eligible for release, but will be released only if they can make an up-front monetary payment. Those who are too poor to pay must stay in jail cells.
9. This mass detention caused by arrestees’ inability to access money has devastating consequences for arrested individuals, for their families, and for the community. Pretrial detention of presumptively innocent individuals causes them to lose their jobs and shelter, interrupts vital medication cycles, worsens mental health conditions, makes people working to remain sober more likely to relapse, and separates parents and children. It exposes people to dangerous overcrowding, violence, and infectious disease at the jail. It coerces guilty pleas and results in longer sentences.
4 Harris County Pretrial Services, supra note 3, at 21. 5 Id. 6 Id. at 17.
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In part because arrest and detention for any period of time destabilizes a person’s life, even a couple of days in pretrial detention makes a person more likely to commit crimes in the future. It also costs Harris County tens of millions of dollars every year—money that could be invested in systems that provide support to people suffering from addiction, housing instability, mental health issues, and poverty, instead of a system that research shows actually exacerbates those conditions.
10. Between 2009 and the present, 125 people died in the Harris County Jail awaiting trial,7 including a woman this month who committed suicide while being detained due to her inability to pay $3,000 money bail. She was granted a personal bond an hour after she was found hanging.8
11. Named Plaintiffs Christopher Clack and Maurice Wilson are currently being detained in the Harris County Jail because they cannot afford the monetary payment required for their release. Mr. Clack is required to pay $17,500 to be released. And Mr. Wilson is required to pay $10,000 to be released. Dwight Russell, Johnnie Pierson, and Joseph Ortuno were detained when the initial Complaint was filed on January 21, 2019.9 Mr. Russell was required to pay a $25,000 secured bail amount to be released. Mr. Pierson was required to pay $15,000 to be released. Mr. Ortuno was required to pay $30,000 to be released. Because of their poverty, each of the Plaintiffs is (or was) confined to a Harris County jail cell. In none of their cases did a judicial officer make any finding concerning ability to pay, the availability of alternative non-financial conditions of release, or the need to detain them to serve any government interest. Moreover, none
7 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019. 8 Keri Blakinger, Harris County jail inmate dies by suicide days after misdemeanor arrest, Houston Chron. (Jan. 16, 2019) https://www.chron.com/news/houston-texas/article/Harris-County-jail-inmate-dies-by-suicide-days13538819.php. 9 Each of the original named Plaintiffs was subsequently released after the lawsuit was filed.
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of the Plaintiffs was afforded the procedural safeguards required to ensure the accuracy of any decision to detain them pretrial.
12. On behalf of the many other arrestees subjected to Harris County’s unlawful and ongoing post-arrest wealth-based detention scheme, the Plaintiffs challenge in this action the use of secured money bail to detain only the most impoverished felony arrestees. Harris County’s wealth-based felony pretrial detention system violates the Equal Protection and Due Process Clauses of the United States Constitution.
13. By and through their attorneys and on behalf of themselves and all others similarly situated, Plaintiffs seek an injunction against Defendants’ wealth-based post-arrest policies and practices and a declaration that Defendants cannot employ a system of pretrial detention based solely on access to money by imposing and enforcing secured financial conditions of pretrial release without factual findings on the record, after adequate procedural safeguards to ensure the accuracy of the findings, either (1) that the person can afford to pay the amount required for release or (2) that, although the person cannot afford it and will be detained, pretrial detention is necessary because every less-restrictive alternative condition is inadequate to meet a specific, compelling government interest in court appearance or community safety.
II. Related Litigation 14. In accordance with Local Rule 5.2, Plaintiffs advise the Court of related litigation
that is currently pending: ODonnell v. Harris County, Case No. 4:16-cv-1414 (S.D. Tex. 2016), in the United States District Court for the Southern District of Texas, Houston Division. ODonnell raises the same legal claims and challenges materially identical bail policies and practices as applied to people arrested for misdemeanor offenses. This lawsuit is a companion case to
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ODonnell; the claims pled here could have been added to ODonnell itself by way of an amended Complaint.
III. Nature of the Action10 15. It is the policy and practice of Defendants to detain all felony arrestees who are
eligible for release unless they pay a monetary sum. The amount of money required is initially determined by a generic schedule and is subsequently set by Hearing Officers at arrestees’ probable cause hearings, during which the Hearing Officers fail to make the findings required by the Constitution, and the County fails to provide the procedural protections required to ensure the accuracy of any decision that results in a person’s pretrial detention. It is the policy and practice of the Harris County Sheriff to require these payments as a condition of release without a judicial officer having made a finding either that the person can afford to pay the amount or that detention is necessary to serve any government interest. This practice results in the systemic detention of those arrestees who are too poor to pay. Plaintiffs seek declaratory and injunctive relief prohibiting Defendants’ post-arrest detention scheme based on access to money.
Jurisdiction and Venue 16. This is a civil rights action arising under 42 U.S.C. § 1983 and 28 U.S.C. § 2201, et seq., and the Fourteenth Amendment to the United States Constitution. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 17. Venue in this Court is proper pursuant to 28 U.S.C. § 1391.
Parties
10 Plaintiffs make the allegations in this Complaint based on personal knowledge as to matters in which they have had personal involvement and on information and belief as to all other matters.
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18. Dwight Russell is a 61-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subjected to Defendants’ wealth-based post-arrest detention practices.
19. Johnnie Pierson is a 51-year-old man who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices.
20. Joseph Ortuno is an 18-year-old teenager who has lived in Houston his entire life. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based post-arrest detention practices.
21. Christopher Clack is a 46-year-old man who lives in Houston. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealthbased post-arrest detention practices.
22. Maurice Wilson is 36-year-old man who lives in Houston. He represents himself as an individual and a Class of similarly situated people subject to Defendants’ wealth-based postarrest detention practices.
23. Defendant Harris County is a municipal corporation organized under the laws of the State of Texas. The County, through the judges who are its final policymakers for promulgating bail procedures, makes policy decisions about which arrestees are eligible for release on nonfinancial conditions. The County, through the judges, also makes policy decisions about the content of the findings that are required to justify pretrial detention and about the procedural safeguards to provide for arrestees, including: whether and when to provide adversarial hearings and counsel; whether to provide notice, an opportunity to be heard, and an opportunity to present and confront evidence; and whether to make findings on the record. The County’s policies and
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practices result in systemic wealth-based pretrial detention of Harris County felony arrestees without the substantive findings or procedural safeguards required by the United States Constitution.
24. The Harris County Sheriff is the chief law enforcement officer for Harris County and operates the Harris County Jail, the forthcoming Joint Processing Center, and several other detention facilities. He is responsible under state law for enforcing pretrial bail orders and directives issued by judges or promulgated by local rule. State law also obligates the Sheriff to ensure the lawfulness of any order resulting in a person’s detention in the Harris County Jail and requires him to not enforce orders he knows to be illegal.
25. The Sheriff’s Office is itself responsible for about 19% of felony arrests within Harris County. The Sheriff’s Office also transports arrestees from field stations run by various other authorities with arresting power to the Harris County Jail, which houses all people to be detained pending prosecution within the Harris County courts. The Sheriff’s Office detains arrestees at the Harris County Jail and several other facilities. The officers and employees of the Sheriff’s Office are authorized by County policy to accept money bail, as determined by the money bail schedule or by a judicial officer, and release arrestees.
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Bonding office in the Joint Processing Center, which the County expects will open on February 1, 2019, subject to further delays.
26. After arrest, Sheriff’s Office employees and agents bring arrestees detained because they cannot pay money bail to a room inside the jail for probable cause hearings and bail setting. Sheriff’s Office employees supervise and monitor the arrestees during the hearing. The Sheriff has knowledge that Hearing Officers require secured financial conditions of release without findings concerning a person’s ability to pay the amount set and without any findings concerning alternatives to pretrial detention.
27. The Sheriff, who operates the jail, is aware of who is in the jail and the basis for each person’s detention, including whether any person is eligible for pretrial release, and the amount of money bail any person is required to pay for immediate release. The Sheriff therefore has knowledge that the imposition of secured money bail results in systemic, wealth-based detention, and that there are thousands of people in the jail every night who would be released but for their inability to pay a money bail amount imposed without any finding that pretrial detention is necessary and without the basic procedural safeguards necessary to ensure the accuracy of such a finding.
28. The Sheriff’s Office, by policy and practice, detains arrestees too poor to afford the money bail amounts that are imposed without findings concerning ability to pay or the need for detention, and releases arrestees who pay their money bail.
29. The Sheriff is sued in his official capacity because he is the final policymaker for all law enforcement decisions in Harris County. To the extent the Sheriff is not a County policymaker for the conduct challenged in this Complaint, the Sheriff is sued in his official capacity as an enforcement actor for purposes of injunctive relief and can be enjoined in his
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capacity as an enforcement actor, regardless of whether he acts on behalf of the County or the State of Texas when he enforces bail directives.11
30. Hazel B. Jones, Nikita V. Harmon, Robert Johnson, Kelli Johnson, Randy Roll, DaSean Jones, Danilo Lacayo, Chuck Silverman, Abigail Anastasio, Jason Luong, Greg Glass, Brian E. Warren, Frank Aguilar, Chris Morton, Josh Hill, Hilary Unger, Lori Chambers Gray, Amy Martin, Herb Ritchie, Ramona Franklin, Jesse McClure, III, George Powell, and Brock Thomas are the 23 Harris County District Court Judges (“felony judges”) who preside over felony criminal cases.
31. On June 24, 2020, Judge Chuck Silverman filed a Motion to Intervene, stating that “[t]he felony pretrial detention system in Harris County needs to be reformed” and acknowledging that the system “has real—sometimes devastating—consequences.” Dkt. 181-1 at 3. Judge Silverman further explained that his interests are “directly at odds” with the “apparent objectives” of the State Intervenors who “would seemingly have the Court reject the plaintiffs’ efforts to reform the felony bail system in Harris County.” Id. at 9.
32. On June 26, 2020, Judge Brian Warren filed a Motion to Intervene, stating that “bond reform . . . requires well-reasoned and intelligent proposals in order to ensure that the system recognizes ‘liberty [as] the norm, and detention prior to trial or without trial [as] the carefully limited exceptino.’ United States v. Salerno, 481 U.S. 739, 755 (1987).” Dkt. 192 at 1. Judge Warren further stated that he believes “more voices are needed” to ensure new felony bail rules do “not lead to disproportionately affecting minorities,” that he has “already taken part in promoting
11 Defendant Ed Gonzalez is named separately from the County as a defendant in the event that the Court concludes that he acts on behalf of the State in any capacity, and thus is subject to prospective relief only in that capacity. If the Court, however, determines that he is a final policymaker for the County, naming him individually is redundant of a suit against the County.
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and shaping bond reform,” and that he has “important interests that cannot be adequately represented by an existing party.” Id.
33. The felony judges are sued in their official capacities for injunctive and declaratory relief.
34. The felony judges promulgate Harris County’s post-arrest procedures for felony arrestees—including the generally applicable Felony Bond Schedule (Ex. 4)—by administrative order.
35. On March 20, 2020, and again on April 2, 2020, the felony judges—sitting en banc and acting collectively—promulgated standing orders enumerating specific offenses for which an arrestee would be automatically eligible for a release on a personal bond prior to seeing a judicial officer. The operative Amended Order excludes all people who have a prior conviction for a “violent” offense, although the judges do not define the term “violent,” and there is no definition of the term in state law.
36. In practice, the standing order applies to only a handful of arrestees, and the jail population has continued to rise steadily each week.
37. Sheriff Gonzalez estimates that the jail population will exceed 10,000 by Labor Day 2020, a nearly 25% increase in several months.
38. Each judge knows that, notwithstanding the recent orders, the vast majority of arrestees continue to be subjected to the same process with the same constitutional infirmities: arrestees are required to pay secured money bail amounts that are determined without any finding that pretrial detention is necessary or that less-restrictive conditions are inadequate to reasonably assure community safety and reasonably prevent flight, and these policies and practices result in the pretrial detention every day of thousands of presumptively innocent people—in the middle of
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a global pandemic which has caused a deadly virus to circulate quickly throughout the jail and resulted in the deaths of at least three people in the jail so far.
39. Each judge knows that, pursuant to their policies and practices, the Sheriff’s Office enforces secured financial conditions of release against people the Sheriff’s Office arrests or accepts into custody, without an inquiry into or findings concerning the person’s present ability to pay the predetermined amount set.
40. Each judge also knows that, during the initial probable cause hearing,12 the Criminal Law Hearing Officers systematically order secured financial conditions of release without making findings concerning the person’s present ability to pay and without a showing by the government that pretrial detention is necessary to serve a compelling interest in protecting public safety or preventing flight from prosecution.
41. Each judge is further aware that thousands of people charged with felonies are detained in Harris County every day solely because they cannot afford to pay the money bail amounts imposed pursuant to the predetermined bail schedule that the felony judges promulgate and without a finding that detention in necessary. Each judge is aware that Criminal Law Hearing Officers fail—as a matter of routine practice—to make findings concerning ability to pay or the necessity of detention during the initial magistration hearings, which are recorded on video and audio and kept by the County and the clerk’s office.
42. Each judge knows that arrestees are not given a formal, on-the-record, adversarial, evidentiary bail hearing at their first appearance before a felony judge after magistration. Each judge is aware that, typically, there is no review of the money bail amount previously imposed; no findings concerning ability to pay; no findings concerning whether pretrial detention is necessary
12 The probable cause hearing is also known as a “magistration” or “15.17 hearing.”
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to serve a compelling government interest; that arrestees typically do not present evidence and legal argument in support of pretrial release or against the arguments and evidence of the government; and that, when a judges issues a transparent or de facto detention order, there is never a finding that pretrial detention is necessary because less restrictive alternatives are insufficient to serve the government’s interests. When the felony judges retain or set conditions of release, they routinely as a matter of practice do not hold a formal adversarial hearing where the arrestee is present with counsel and given an opportunity to present and confront evidence. They do not apply an evidentiary standard, let alone require clear and convincing evidence. They do not make any findings on the record concerning ability to pay any financial condition of pretrial release, alternatives to detention, or that pretrial detention is necessary.
43. If a person files a request for pretrial release by motion or writ after their first appearance, it will typically take weeks for any hearing to occur, and it does not occur at all in the vast majority of cases. During that time, people are detained solely because they cannot afford to pay secured bail, even though the government has not proved, and no judge has found, that such pretrial detention is necessary to meet any government interest.
Factual Background A. The Named Plaintiffs Are Being Kept in Jail Because They Cannot Afford the
Money Bail Required for Their Release, Even Though the Government Has Not Made a Substantive Finding that Detention is Necessary 30.44. Dwight Russell is a 61-year-old man. Ex. 1 (Declaration of Dwight Russell) ¶ 1. 31.45. Mr. Russell was arrested on January 19, 2019 and taken into the custody of Harris County for allegedly driving while intoxicated, third offense. He was informed that, because of the Harris County bail schedule, he would be released immediately, but only if he paid a money
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bail amount of $25,000. He was told that he will be detained by Harris County if he does not pay. See Id. ¶¶ 3, 4.
32.46. Mr. Russell appeared while in custody at the jail at a probable cause hearing, and a Hearing Officer found probable cause for his arrest. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Id. ¶¶ 5, 6. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
33.47. The predetermined money bail amount required by the Harris County bail schedule was confirmed to be $25,000. Id. ¶ 4.
34.48. Mr. Russell struggles to meet the basic necessities of life. His only income is from food stamps. He is unemployed and has no savings. He lives with his sister, who provides him with financial support. Id. ¶ 7.
35.49. He cannot afford to purchase his release from jail. Id. ¶ 4. 36.50. Johnnie Pierson is a 51-year-old man. Ex. 2 (Declaration of Johnnie Pierson) ¶ 1. 37.51. Mr. Pierson was arrested on January 18, 2019, for possession of less than one gram of a Penalty Group 1 controlled substance, a state jail felony offense. He was taken to the Houston city jail and then to the Harris County jail. Id. ¶ 3. 38.52. At the jail, deputies took him to see a Hearing Officer, who told Mr. Pierson that he could be released, but only if he paid $15,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4. 39.53. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive
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alternative conditions of release. Id. ¶ 7. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
40.54. Mr. Pierson struggles to meet the basic necessities of life. He survives on food stamps and works part-time on cars when he can. He does not have any other income. Id. ¶ 10.
41.55. He cannot afford to purchase his release from jail. Id. ¶ 13. 42.56. Joseph Ortuno is an 18-year-old teenager who is in high school. Ex. 3 (Declaration of Joseph Ortuno) ¶¶ 1, 6. 43.57. He was arrested on January 17, 2019, for possession with intent to deliver a controlled substance. He was taken first to the Houston city jail and then to the Harris County jail. Id. ¶ 3. 44.58. At the jail, deputies took him to see a Hearing Officer, who told Mr. Ortuno that he could be released, but only if he paid $30,000. He was told that, if he does not pay the money, he will be kept in a jail cell. Id. ¶ 4. 45.59. Pursuant to the policies and practices described in this Complaint, no findings were ever made concerning his ability to pay or the need to detain him in light of available, lessrestrictive alternative conditions of release. See Id. ¶ 5. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 46.60. Mr. Ortuno struggles to meet the basic necessities of life. When not in school, he makes money by helping his uncle with tile installation, but he cannot afford to purchase his release from jail. Id. ¶¶ 4, 7, 12. 47.61. Christopher Clack is 46 years old.
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48.62. Mr. Clack was arrested on January 17, 2020 for two felony offenses, and taken to the Harris County Jail.
49.63. At the jail, deputies took him to see a Hearing Officer, who told Mr. Clack that he could be released, but only if he paid $17,500. He was told that, if he does not pay the money, he would be kept in a jail cell.
50.64. Mr. Clack struggles to meet the basic necessities of life. Prior to being detained, Mr. Clack typically earned about $200–$400 per week as an independent contractor. He does not have any financial support outside of the income he used to earn by working. He does not have a bank account.
51.65. He cannot afford to purchase his release from jail. 52.66. Pursuant to the policies and practices described in this Complaint, no findings were made concerning his ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Nor was he afforded the procedural protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence. 53.67. Although court records show that Mr. Clack had settings on January 21 and March 12, 2020, he was transported to court from the jail only on March 12, and he was kept in lock-up during the hearing. There was no review of his bail conditions, and the judge did not make a finding that his continued detention was necessary. His next court appearance is scheduled for July 16. 54.68. Mr. Clack learned on May 4, 2020, that a few weeks ago, his lawyer called the judge in his case to ask for a bond reduction. Mr. Clack was not present for the call. The judge refused to reduce the bond amount, but the reasons were never explained to him.
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55.69. Mr. Clack fears for his health and life because of an outbreak of COVID-19 in the Harris County Jail.
56.70. Mr. Clack is ineligible for release on a personal bond pursuant to GA-13. 57.71. Maurice Wilson is 36 years old. 58.72. He was arrested on January 30, 2020 for drug possession, and taken to the Harris County Jail. 59.73. At the jail, deputies took him to see a Hearing Officer, who told Mr. Wilson that he could be released, but only if he paid $15,000. He was told that, if he does not pay the money, he will be kept in a jail cell. 60.74. Although court records show that Mr. Wilson had court settings on February 3, February 12, April 6, April 13, and May 4, he was transported to court from the jail only on February 12, and he was kept in lock-up during that proceeding and did not see the judge. On February 12, 2020, the judge lowered Mr. Wilson’s bond from $15,000 to $10,000, but Mr. Wilson still could not afford the sum. There was no on-the-record bail hearing, and the judge did not make a finding that detention was necessary. Mr. Wilson’s next court date is currently set for June 15. 61.75. Mr. Wilson struggles to meet the basic necessities of life. Before his arrest, he earned money by working sporadically for his father’s landscaping business. He has no other source of income. Mr. Wilson provides financial support for his 15-year-old son. 62.76. He cannot afford to purchase his release from jail. 63.77. Pursuant to the policies and practices described in this Complaint, no findings have been made concerning Mr. Wilson’s ability to pay or the need to detain him in light of available, less-restrictive alternative conditions of release. Nor was Mr. Wilson afforded the procedural
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protections required, including an adversarial hearing with an opportunity to present evidence and on-the-record findings by clear and convincing evidence.
64.78. Mr. Wilson fears for his health and life because of an outbreak of COVID-19 in the Harris County Jail.
65.79. Mr. Wilson is ineligible for a personal bond pursuant to GA-13. B. Defendants’ Post-Arrest Practices Cause the Detention of Arrestees Who
Cannot Pay a Money Bail Amount While Those Who Can Pay Are Released i. Arrest and the Initial Money Bail-Setting Process 66.80. Harris County uses a predetermined money bail schedule, promulgated through administrative order by the Harris County District Court Judges (“the felony judges”), to determine financial conditions of pretrial release for nearly all felony arrestees in Harris County. See Ex. 4 (Harris County District Court Felony Bond Schedule). The schedule requires arrestees charged with certain offenses to remain in custody until a magistrate determines conditions of release at a probable cause hearing. For all other arrestees, the schedule lists an amount of cash a person must pay to purchase her release. The cash amount is based on a combination of the type of offense and the “risk” level of the arrestee as determined by a risk assessment algorithm. The algorithm itself is a secret, and the County’s use of the assessment tool to determine the price of release is nonsensical and an improper use of the tool. First, there is no science showing that higher amounts of money mitigate higher risks of nonappearance or new criminal activity. Second, the tool is intended only to identify a risk absent interventions, such as text-message reminders or appropriate conditions like a stay-away order.
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67.81. Harris County itself made 19% of felony arrests within the County in 2017. The City of Houston Police Department made 53.9% of felony arrests in 2017.13 There are roughly 100 additional agencies within Harris County that have the authority to make arrests.
68.82. When a person is arrested within Harris County, she will be taken to a “field station” run by the arresting authority. If she is arrested by Harris County, she will be taken either to a field station or directly to the jail. These field stations vary in size and their capacity to hold and process arrestees. Some include holding cells. In others, arrestees are made to sit shackled to a bench while initial post-arrest procedures are conducted.
69.83. When the newly constructed Joint Processing Center (“JPC”)—which Harris County spent $100 million to build—opens later this year, all people arrested by Harris County or the Houston Police Department will be taken directly to the JPC. This means that about 75% of arrestees will immediately be in the Sheriff’s physical custody upon arrest.
70.84. Once at a field station, if the person was arrested without a warrant, the arresting officer will determine whether the Harris County District Attorney’s Office wishes to pursue the charge by calling a hotline that is staffed 24 hours a day, 7 days a week by Harris County’s assistant district attorneys. The arresting officer describes the allegations to the assistant district attorney (“ADA”) on duty, who makes an initial charging decision over the phone.
71.85. If the ADA on hotline duty does not wish to pursue charges, she tells the officer to release the individual.
72.86. If the ADA decides to pursue the charges, the arresting officer will type a summary of the facts giving rise to the arrest into the District Attorney’s Intake Management System.
13 Harris County Pretrial Services, supra note 3, at 8.
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73.87. The summary will be transmitted to the District Attorney’s (“DA”) intake division where an ADA will formally accept charges.
74.88. The District Clerk’s Office then files the case, creates a case number, and assigns the case to a courtroom. Pretrial Services runs the person’s information through an algorithm to create a “risk assessment” score and applies the felony judges’ schedule. The process from arrest to formal charges being filed and the cash amount required for release being set typically lasts about 6 to 8 hours.
75.89. Once the charging document is filed, a case number assigned, and a monetary amount set, the arrestee will be eligible to pay the secured money bail amount and be released. Up to this point, Harris County does not perform any inquiry into the arrestee’s ability to pay the money bail amount required by the felony judges’ schedule.
76.90. From the moment a secured bail amount is set in a felony case, the arrestee is eligible for release from Harris County custody if she can pay the amount required. If a person is subject to certain “hold” orders (e.g., an immigration detainer, probation hold, or process from another county), that person will be eligible for transfer to the jurisdiction where the hold is operative as soon as she pays. Typically, there is a set time period within which the other jurisdiction can come and pick up the arrestee. That time period does not begin ticking down unless and until the person pays the amount required by the judges’ schedule in Harris County.
77.91. Arrestees can pay the amount themselves, make a phone call to ask a friend or family member to pay the money on their behalf, or contact a commercial bonding agent to post bail. A person who can afford to pay will be released from the field station and will never be transported to the Harris County Jail.
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78.92. The imposition of a financial condition of release is the moment of differential treatment: Defendants will release a person with financial resources almost immediately after money is paid, but Defendants will continue to detain a person who cannot afford to pay. This policy and practice results in systemic and automatic wealth-based detention.
79.93. Whether a person is arrested pursuant to a warrant or pursuant to a warrantless arrest, that person can pay the secured money bail amount predetermined by the schedule and be released immediately from the field station,14 prior to formal booking.15 If the individual is unable to pay, she will be transported to and booked into the jail.
80.94. The time it takes for an arrestee to be transported to the Harris County Jail varies depending on a variety of factors, including where the person was arrested.
81.95. Harris County is a large county, and individuals arrested within its borders can be taken initially to field stations as geographically close to the Harris County Jail as the Houston Police Station located a little over a mile from the jail, or as far away as, for example, the City of Lakeview, which is more than 30 miles away.
82.96. Sometime after a person arrives at the jail—and usually before she is assigned to a housing unit—she will be taken by Sheriff’s Office employees to a room in the jail with several dozen other new arrestees to appear before a Hearing Officer, who will determine probable cause. Many people every month must wait up to 48 hours for a probable cause hearing, though some have their hearings within 24 hours of arrest.
14 Individuals arrested by Harris County officers are generally taken directly to the Harris County Jail. However, as noted, Harris County itself is only one of roughly 100 agencies with arresting authority in the County, some of which are 60 to 90 minutes outside of Houston. 15 The vast majority of arrestees use a bail bond, obtained through a commercial bail bond company, to secure their release from jail. Typically, if accepted by a for-profit bail agent, an arrestee will have to pay the agent a nonrefundable fee of 10% of the value of the bond to be released.
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83.97. These policies have consistently, for years, resulted in the needless and devastating jailing of impoverished people accused of felony offenses. In 2017, up to 85% of felony arrestees were booked into the jail because they were unable to immediately pay for their release.16 Arrestees booked into the jail endure a lengthy, intrusive, and humiliating process that includes seizure of their property, bodily searches, personal questions about their physical health, and interviews requiring them to disclose private financial and mental health information. The inmate processing center is notoriously crowded with people who are in moments of extreme crisis, having just been arrested, separated from their children and families, and deprived of their freedom. Some are suffering from painful withdrawal symptoms or mental health episodes. Many are worried about missing shifts at their jobs or making rent payments. All are, at that moment, presumed innocent of all charges. The processing center is loud, dirty, and full of flies and noxious smells. The risk of suicide—elevated for all people detained in jails—is at its highest in the hours and days immediately following arrest. Similarly situated arrestees who were able to pay the predetermined money bail amount avoid the booking process altogether.
84.98. In 2017, approximately 55% of felony arrestees were still in jail when their case reached disposition.17 Many of these arrestees were detained solely due to their inability to afford the secured financial condition set for their release.18
ii. Probable Cause Hearings 85.99. The Harris County Sheriff’s Office, through its jail personnel, assembles recently arrested people nine times per day, every day of the week, for an appearance before one of the
16 Harris County Pretrial Services, supra note 3, at 19. 17 Id. at 16. 18 Id. at 19 (showing in Table B.1 that roughly 45% of felony arrestees post money bail).
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Harris County Hearing Officers. The Hearing Officer determines probable cause for the arrest, if

it was warrantless, and imposes conditions of release.

86.100.

These hearings are referred to locally as “magistrations,” “Article 15.17

hearings,” or “probable cause hearings.”

87.101.

In March 2017, in the middle of the evidentiary hearing in the ODonnell

case, challenging the County’s misdemeanor bail system, the County Commissioners voted to fund

a pilot program allowing defense attorneys to appear on behalf of detained arrestees at these

hearings beginning in July 2017.19 Assistant public defenders are currently authorized to represent

most arrestees, though there are some exclusions.

88.102.

At the probable cause hearing, Hearing Officers typically make no findings

concerning ability to pay; they make no findings as to whether alternative conditions of release

serve the government’s interests or whether pretrial detention is necessary to serve any government

interest; they do not allow arrestees to confront the evidence and arguments of the government or

put on evidence in support of pretrial release; and they do not provide other basic procedural

safeguards, such as applying any evidentiary standard to any factual finding, let alone the clear-

19 Harris County received $150,000 in May 2015 from the MacArthur Foundation to create a proposal for improvements to the criminal legal system. See Press Release, MacArthur Announces 20 Jurisdictions to Receive Funding to Reduce Jail Use (May 26, 2015), https://www.macfound.org/press/press-releases/macarthur-announces20-jurisdictions-receive-funding-reduce-jail-use/. Harris County subsequently convened a Criminal Justice Coordinating Council, which investigated ways to reduce incarceration. Among the most important reforms that participants recommended was to provide defense attorneys at the probable cause hearings. Early in January 2016, the Coordinating Counsel submitted its grant proposal to the MacArthur Foundation, seeking $4 million over two years to put its plans into effect. Without a public explanation and despite the availability for funding for lawyers to represent all arrestees, the final document included a proposal for counsel only to represent individuals who are mentally ill. Meagan Flynn, Bail Hearings: Where Prosecutors and Magistrates Ensure Defenseless People Stay In Jail (Jan. 11, 2016), http://www.houstonpress.com/news/bail-hearings-where-prosecutors-and-magistrates-ensuredefenseless-people-stay-in-jail-8058308. On April 13, 2016, Harris County was awarded a $2 million MacArthur grant to reform its criminal system, but that money was not allocated to funding public defenders at bail hearings, even for people with mental illnesses. See Harris County receives $2 million grant to reform criminal justice system, KPRC News (Apr. 13, 2106), http://www.click2houston.com/news/watch-live-harris-county-receives-2-million-grant-toreform-criminal-justice-system. That change came only in the midst of the evidentiary hearing on the ODonnell Plaintiffs’ motion for preliminary injunction.
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and-convincing-evidence standard, or issuing any statement of findings or reasons explaining why

a particular financial condition or pretrial detention is required.

89.103.

An ADA participates in the probable cause hearings via videolink by

arguing for the Hearing Officer to make a finding of probable cause and often asking the Hearing

Officer to impose money bail in an amount higher than the amount on the schedule or on the

warrant. District Attorney Kim Ogg has an internal policy requiring motions for high bond on

certain cases. She also has a policy of asking the Hearing Officer to detain using a “no bond” order

every arrestee charged with an offense for which the Texas Constitution authorizes pretrial

detention, regardless of the person’s individual case and circumstances and regardless of the

availability of less-restrictive alternatives to detention.

90.104.

When the docket begins, arrestees are seated on benches in a room at the

jail.

91.105.

The Hearing Officer calls an individual’s name and reads the charge. That

individual gets up and stands in the middle of a red square on the floor of the room in the jail. An

ADA then reads from the police report. The Hearing Officer decides whether there is probable

cause, finding probable cause in almost every case. The Hearing Officer regularly sets secured

money bail and sometimes increases the money bail amount from the amount required by the bail

schedule.

92.106.

As a matter of routine practice, Hearing Officers do not make findings

concerning an arrestee’s ability to pay the money bail amount that they impose, nor do they

meaningfully consider alternative non-financial conditions of release for those who cannot afford

to pay the bail amount set. They do not make findings concerning the necessity of pretrial detention

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or make findings that less-restrictive conditions are inadequate to meet a compelling government

interest.

93.107.

Hearing Officers rarely require alternative, non-monetary conditions of

release and routinely state that they are not permitted to impose certain non-monetary conditions

of release.

94.108.

For decades, the Hearing Officers simply reviewed the bail amount

previously affixed to ensure that it conformed to the bail schedule and the specific policy

instructions from the felony judges about how to administer the predetermined schedule. These

instructions included laminated charts and emails instructing Hearing Officers about who the

Hearing Officers could and could not order released on personal bonds (i.e., unsecured bonds that

do not require payment upfront) and in what circumstances they could deviate from the cash bail

schedule (almost never, according to the instructions). Although the felony judges purportedly

rescinded these instructions in 2017 with the implementation of the new felony bail schedule and

expanded the Hearing Officers’ authority to determine money bail amounts and other conditions

of release, the purported policy changes have not meaningfully changed actual practice.

Specifically, the rule changes have failed to correct the core constitutional infirmity of the Harris

County bail system: requiring secured financial conditions of release without findings concerning

ability to pay, the necessity of pretrial detention, or the adequacy of alternative conditions, and

without all of the safeguards required to ensure the accuracy of those findings, including

application of the clear-and-convincing-evidence standard and a statement of reasons concerning

why a particular financial condition or pretrial detention is required.

95.109.

Throughout the hearing, the arrestees remain in the Harris County Jail,

supervised by Sheriff’s Office employees. Sheriff’s Office employees and agents also observe the

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probable cause hearings and witness Defendant Hearing Officers routinely failing and refusing as

a matter of policy to consider alternatives to secured financial conditions.

96.110.

State law requires probable cause hearings to occur within 48 hours.

Although the County strives to hold these probable cause hearings within 24 hours of arrest for

people charged with felonies, the County’s online case records show that the hearings sometimes

do not occur until up to 48 hours after arrest. At any point in the booking process, an arrestee can

pay his or her predetermined money bail and be released.

97.111.

If a person pays money bail prior to the probable cause hearing, she will be

released and the probable cause determination in her case will be made at a subsequent court

appearance.

98.112.

If an individual is not brought to the probable cause hearing due to medical

reasons, which is a frequent occurrence (approximately 5% to 10% of male arrestees are not

brought to the probable cause hearing for medical reasons and approximately 25% of female

arrestees are not brought to the probable cause hearing for medical reasons), the Hearing Officer

will make a finding of probable cause and require financial conditions of pretrial release in that

person’s absence. The County’s protocol prohibits assistant public defenders from representing

people who are not present at the hearing. Therefore, in these cases, the money bail amount is set

without any argument on the arrestee’s behalf.

iii. The Use of Personal Bonds

99.113.

Hearing Officers sometimes recommend arrestees for release on “personal

bonds,” a term Defendants use to describe release without requiring an up-front payment prior to

release, i.e., without a secured financial condition of release. The felony bond schedule lists certain

low-level offenses for which there is a presumption of personal bond.

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100.114. Only about 8% of felony arrestees were released on personal bonds in 2017.20
101.115. Even when individuals are recommended for personal bonds, many will not be released immediately, and some will not be released at all. This is because some Hearing Officers require Pretrial Services to first “verify” a person’s references, meaning that the arrestee must provide Pretrial Services with contact information for friends or family members, and Pretrial Services must then contact those individuals and attempt to confirm certain information reported by the arrestee. Sometimes Pretrial Services is required to verify the information with multiple “references.” Among the information Pretrial Services seeks to confirm, as a matter of policy, is whether the person has a place to stay if she is released from the jail. If a person does not have an address to verify, then the verification process cannot be completed, and the person will not be released. According to these policies and practices, a person who is homeless will not be released on a personal bond, i.e., without payment of the scheduled amount of bail, because she has no address that can possibly be verified. Homeless defendants are therefore categorically ineligible for personal bonds due to the verification policy. Sometimes, references cannot be reached to verify information for days or a week. Sometimes they cannot be reached at all. In those cases, the person will not be released on a personal bond and will be detained unless she can pay the money bail.
102.116. At any point in the verification process, the arrestee is permitted to pay the money set pursuant to the schedule and be released immediately.
103.117. For decades, in violation of state judicial conduct rules, there has been an entrenched culture among the Hearing Officers of abiding strictly by written and oral directives
20 Harris County Pretrial Services, supra note 3, at 17.
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regarding the money bail–setting process issued by the felony judges, who control their employment. For example, the felony judges instructed Hearing Officers that they could never recommend homeless individuals for release on personal bonds, i.e., without secured financial conditions. Some judges told Hearing Officers never to issue non-financial conditions for any defendant who was assigned to their courtroom at all,21 or for individuals who previously received personal bonds in other cases.22 Other judges told Hearing Officers to consider unsecured financial conditions only for “students.”23 The Hearing Officers believed themselves to be bound by these rules and understood that the judges could hire and fire them at will. The Hearing Officers’ contracts are reviewed annually by a committee that includes several of the felony judges.
104.118. These explicit written instructions have purportedly been rescinded with implementation of the current schedule in 2017, and Hearing Officers have purportedly been given greater discretion to determine bond amounts. Although written rules prohibiting or categorically limiting release have purportedly been formally rescinded, videos and data demonstrate that actual practices are virtually the same as they have been for many years.
iv. Assignment to a Housing Unit 105.119. People who are being processed through the Inmate Processing Center cannot be contacted by people outside the jail, including attorneys, with the exception of a brief interview with an assistant public defender shortly before the probable cause hearing. Most arrestees are not assigned to a housing unit until after their probable cause hearing and will remain
21 Gabrielle Banks, Harris County hearing officers sanctioned by state for not considering personal bonds, Houston Chron. (Feb. 23, 2018), https://www.chron.com/news/houston-texas/article/Trio-of-Harris-County-hearing-officerssanctioned-12494892.php 22 James Pinkerton & Laura Caruba, Tough bail policies punish the poor and the sick, critics say, Houston Chron. (Dec. 26, 2015), http://www.houstonchronicle.com/news/houston-texas/houston/article/Tough-bail-policies-punishthe-poor-and-the-sick-6721984.php?t=373b57d418&cmpid=email-premium. 23 Id.
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inaccessible to their appointed attorney, who will represent them in their case, and everyone else outside the jail until the jail assigns the individual to a housing unit sometime after the probable cause and bail hearing.
106.120. It is only after being assigned to a housing unit that an arrestee can be contacted by anyone outside the jail and will be scheduled for a hearing in a Criminal District Court.
107.121. Typically, a lawyer is not appointed until the first appearance in court. First appearance cannot occur until booking is complete. The booking process can take days.
108.122. In total, it takes a minimum of 24 hours for an arrested person to be fully booked into the jail, assigned to a housing unit, and made available for a visit. Arrested persons who cannot pay generally will not have counsel appointed or be able to meet with counsel until after their first court appearance. Felony arrestees virtually never meet their lawyer before the first appearance. At any point during this period of time, a person can pay money bail and be released.
v. First Appearances 109.123. If, after the probable cause hearing, an arrestee is still unable to purchase her release from jail, general Harris County practice is that she will be taken to a District Court, usually within 24 to 48 hours of the probable cause hearing. However, many arrestees who have their probable cause hearings on Thursday or Friday will not see a District Judge until the following Monday at the earliest, and sometimes must wait until Tuesday. 110.124. Detained individuals are usually assigned a court-appointed attorney or public defender at the first appearance hearing, but there is typically no review of the money bail amount previously imposed. Although an informal off-the-record request for bail reduction may, in theory, be made at first appearance, it is not possible to have a bail hearing at that time.
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111.125. Detained individuals typically remain in lock-up outside of the courtroom and are not brought into the courtroom on this court date. The case is almost always then “reset,” meaning that another hearing is scheduled, typically weeks in the future.
112.126. As a result, arrestees who cannot pay for their release remain in detention and are returned to jail cells, usually without ever having been brought into the courtroom.
113.127. As a matter of routine practice, the felony judges do not conduct bail hearings at first appearance: they make no findings concerning ability to pay; they make no findings as to whether pretrial detention is necessary to serve any government interest; they do not allow arrestees to confront the evidence and arguments of the government or put on evidence and argument in support of pretrial release; and they do not provide other basic procedural safeguards, such as making findings by any evidentiary standard, let alone by clear and convincing evidence, or issuing any statement of reasons concerning why a particular financial condition or pretrial detention is required.
114.128. Typically, if a person wishes to have an evidentiary hearing concerning the appropriateness of the secured bond amount set, the need to keep the person in a jail cell pending resolution of the case, and whether less-restrictive conditions of release are available, the person’s lawyer must file a motion and then have a court proceeding scheduled for a later date. A hearing on the motion will likely not occur for more than a week after the motion is filed. This hearing will be the arrestee’s first opportunity to present witnesses or documentary evidence and the first time that a judge will even conceivably make findings on the record regarding release conditions.
115.129. One of the purposes and effects of Harris County’s post-arrest detention is to coerce and process large numbers of guilty pleas prior to any person conducting any legal or factual investigation into the charges, let alone the complete and zealous investigation and defense
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required by professional standards and the Sixth Amendment to the United States Constitution. If an arrestee agrees to plead guilty at this first appearance, then the arrestee will be brought out from the lock-up to plead guilty.
116.130. The felony judges routinely accept guilty pleas from individuals who are in jail solely because they are too poor to pay money bail.
117.131. The felony judges—and every other actor in the County’s post-arrest system (as well as anyone who has observed probable cause hearings or first appearances)—know that many of the detained individuals who appear in front of them charged with felonies are being detained in jail solely because they are too poor to pay the money bail amount required as payment for release. The judges and Sheriff’s Office employees and agents have knowledge that, in thousands of people’s cases every day, there is no reason for a person’s detention other than the person’s inability to make a monetary payment.
118.132. In 2017, approximately 55% of felony arrestees were still in jail when their case reached disposition.24 Individuals detained pretrial are more likely to be sentenced to jail, are less likely to be sentenced to probation, and are given longer sentences than those received by individuals who were released pretrial. The conviction rates for people released at disposition are significantly lower than for similarly situated people who are detained at disposition.
C. The Harris County Jail
24 Harris County Pretrial Services, supra note 3, at 16 (showing in Table B.1 that roughly 45% of felony arrestees post money bail).
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119.133. The Harris County Jail is the largest jail in Texas and the third largest jail in the United States, behind only Rikers in New York and the Los Angeles County Jail.25 The Harris County Jail books on average 120,000 individuals per year and 330 individuals per day.26
120.134. The vast majority of human beings in the Harris County Jail cells are not there because they have been convicted of a crime. Instead, most people—an average of 85% in September 2018—are being kept in jail cells prior to trial, despite the presumption of innocence. Many of these people are in jail solely because they cannot afford to pay money bail. If they could pay the money bail assigned to them, they could walk out of the doors of the jail at any time.
121.135. In September 2018, a typical month, the average daily population of the Harris County Jail was 9,803 individuals, 8,386 of whom were pretrial detainees. About 90% of these pretrial detainees—7,553 individuals—had been arrested for felony or state jail felony charges.
122.136. Over 10 years ago, the Department of Justice investigated the Harris County Jail and launched an era of federal oversight because of the serious and systemic violations of constitutional rights that pervaded the facility.27 The investigation led the County to form the Harris County Criminal Justice Coordinating Council in an effort to address the overcrowding in the jail.28 Although there have been some decreases in the jail population in more recent years, Harris County consistently struggles to stay within its operating capacity. In fact, the jail’s persistent overcrowding, resulting largely from the thousands of people detained pretrial on felony
25 Sarah R. Guidry, et al., A Blueprint for Criminal Justice Policy Solutions in Harris County 1 (2015), http://www.americanbar.org/content/dam/aba/events/legal_aid_indigent_defendants/2015/ls_sclaid_summit_03_tcjc _2015_harris_county_blueprint.authcheckdam.pdf. 26 Id. at 9. 27 Id. at 2. 28 Id.
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charges, has led the Sheriff to refuse to accept new arrestees from arresting agencies like Houston

Police Department (“HPD”), which in turn has meant that HPD arrestees are forced to languish in

the City’s custody for days before being transferred to the County’s inmate processing center.29

123.137.

In 2013, taxpayers spent almost $500,000 per day to operate the jail.30

124.138. Since 2009, 125 human beings have died while in pretrial custody in the Harris County Jail.31

125.139. In August 2018, arrestee Debora Lyons hanged herself in a common area of

the Harris County Jail while detained on a felony theft charge with money bail set at $1,500.32 She

had been arrested on July 21 for allegedly stealing clothes and an airbed totaling less than $2,500.

The day after she died, former Judge Jim Wallace granted her a personal bond.

126.140. Three weeks earlier, Navy veteran Eldon Lee Harris had hanged himself

while in solitary confinement.33

127.141. The Texas Commission on Jail Standards has found the Harris County Jail

to be in noncompliance of state standards five times in the past two years.34 Three out of five of

these compliance failures have been related to preventable deaths.

29 Undersigned counsel Civil Rights Corps sued the City of Houston for detaining people in violation of their Fourth Amendment right to a probable cause determination within 48 hours. Hernandez v. City of Houston, 4:16-cv-3577 (S.D. Tex. Dec. 5, 2016).
30 Guidry, supra note 23, at 13.
31 Attorney General of Texas, Custodial Death Report, https://oagtx.force.com/cdr/cdrreportdeaths, last accessed Jan. 21, 2019.
32 Keri Blakinger, Inmate who killed herself in Harris County jail had previously threatened suicide, Houston Chron. (Aug. 22, 2018), https://www.chron.com/news/houston-texas/article/Inmate-who-killed-herself-in-jail-hadpreviously-13172633.php.
33 Id.
34 Keri Blakinger, State finds Harris County jail out of compliance for 5th time in two years, Houston Chron. (Nov. 30, 2018), https://www.chron.com/news/houston-texas/article/State-finds-Harris-County-jail-out-of-compliance13435304.php.

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128.142. On January 17, 2019, two days after Tracy Whited committed suicide in the Harris County Jail, Texas state Senator John Whitmire sent a letter to County Judge Lina Hidalgo citing “unsanitary and unhealthy conditions” at the jail and proposing state oversight for the facility. He stated that conditions at the jail “jeopardize[] the safety and well-being of our fellow citizens who find themselves housed in the Harris County Jail.”35
129.143. According to the Harris County Sheriff’s Office, one-quarter of individuals in the Harris County Jail have been diagnosed with some form of mental illness.36
130.144. There is a documented history of inmate abuse by jail guards, deaths and suicides in the jail, inadequate training of jail staff, and lack of access to medications and medical services. For years, the County has been aware of these intolerable conditions, which exist largely because of the overcrowding resulting from the volume of pretrial felony detainees who cannot afford to pay money bail. It has failed to remedy them.37
131.145. On a typical day, hundreds of new arrestees, presumed innocent, are arrested and booked into this jail.38 At any given moment, there are hundreds of people charged only with state jail felonies—the least serious class of felony charges in the Texas criminal legal system, consisting mostly of non-violent offenses or misdemeanor offenses enhanced by prior
35 Keri Blakinger, Houston senator raises possibility of state oversight for Harris County jail, Houston Chron. (Jan. 17, 2019), https://www.chron.com/news/houston-texas/article/Houston-senator-raises-possibility-of-state13542101.php. 36 Harris County Sheriff’s Office, Jail Mental Health Initiatives, http://www.harriscountycit.org/jail-mental-healthunit/ (last visited January 19, 2019). 37 Jailhouse Jeopardy: Uncovering abuses at Harris County’s jail, Houston Chron., (Oct. 3, 2015–Mar. 6, 2016), http://www.houstonchronicle.com/local/investigations/jailhouse-jeopardy/ (providing links to a series of articles written by several reporters). 38 Guidry, supra note 23, at 9 (stating that there are 330 bookings per day); Harris County Pretrial Services, supra note 3, at 16 (stating that, in 2017, 30,978 people were arrested on felony charges, which averages more than 80 arrests per day).
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misdemeanor convictions—who are being detained in the Harris County Jail solely because they cannot afford money bail.39

132.146. In 2017 alone, there were more than 500 people who were detained at

disposition because they were unable to pay a $2,000 money bail. Many of these individuals could

have walked out of the jail if they had been wealthy enough to pay the monetary amount required

for freedom. Only those individuals who are too poor to purchase their release are subjected to

these conditions and the health and safety risks of pretrial jailing.

D.

Defendants’ Wealth-Based Detention Practices Are Causing Plaintiffs to Be

Jailed Solely Due to Their Inability to Pay Bail

133.147. The named Plaintiffs are eligible for release and would not have to endure

pretrial incarceration if they paid the amount of money required by Defendants.

134.148. Arrestees are given a right to release pending trial, but Defendants’ wealth-

based detention system conditions their release on their ability to afford money bail, thus tying

their pretrial freedom to their wealth status.

135.149. As a matter of policy and practice, when a new arrestee is brought to the

Harris County Jail, county employees inform the arrestee that she will be released from jail

immediately if she pays the money bail amount. The arrestee is told that she will remain in jail if

she is not able to make that payment.

136.150. The Harris County Sheriff’s Office collects arrestees’ money bail payments.

It is the policy and practice of the Harris County Sheriff’s Office to release only those arrestees

who pay their money bail amount.

39 See, e.g., Guidry, supra note 2523, at 15 (noting that, in 2013 alone, there were 3,120 misdemeanor arrestees who could not post the $500 money bail that Harris County demanded of them).
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137.151. In a typical week, the Sheriff’s Office releases hundreds of individuals who pay their money bail amount.
138.152. It is the policy and practice of the Sheriff’s Office to detain individuals who do not pay the money bail amount. Before an individual’s probable cause hearing, it is the policy and practice of the Sheriff’s Office to detain the individual based on a money bail amount set pursuant to a predetermined bail schedule. After a probable cause hearing, it is the policy and practice of the Sheriff’s Office to detain the individual based on a money bail amount imposed by a Hearing Officer.
139.153. If a person cannot pay money bail after her first court appearance before a District Judge, it is the policy and practice of the Sheriff’s Office to continue to detain that individual unless and until she makes a monetary payment.
140.154. Under Defendants’ wealth-based practices, those who have enough money to pay are released from the County jail. Some poorer arrestees eventually make arrangements with private bail bond companies, after spending hours, days, or weeks in jail.40 And many others who are poorer still are left to languish in jail until their case resolves. E. Defendants’ Use of Money Bail Is Not Narrowly Tailored—Nor Is It as Effective as
Many Other Methods—in Securing Court Attendance or Public Safety
40 Because of the common availability of commercial bail bonds, those who remain in the Harris County jail are typically those who cannot even afford to pay a third-party bonding agent. Typically, bonding agents require a nonrefundable premium of 10% of the bail amount, although a bonding agent is free to refuse to pay for the release of any arrestee for any reason or for no reason. Bonding agents also routinely accept lower premiums, or no premiums, and place the arrestee on a payment plan for the rest. In short, it is completely up to the bonding company whether to make a deal with a particular individual who cannot afford to pay the sum required for release. The Named Plaintiffs cannot afford such a bail.
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141.155. The empirical evidence shows that there is no relationship between requiring money bail as a condition of release and defendants’ rates of appearance in court.41
142.156. While tying pretrial freedom (for those charged with felonies) to access to money is the norm in Harris County, other jurisdictions throughout the country do not keep people in jail because of their poverty. Instead of relying on money, other jurisdictions release arrestees with pretrial supervision practices and procedures that can help increase court attendance and public safety without requiring detention.
143.157. Other jurisdictions employ numerous less restrictive strategies for assuring public safety and court appearance when the government determines, on the basis of evidence and argument, that there is a need to guard against a particular risk. These strategies include: unsecured or “signature” bonds (which do not require payment up front for release but instead allow immediate release upon a promise to pay the monetary amount if the person does not appear as required), reporting obligations, two-way phone and text message reminders of court dates, rides to court for those without transportation or a stable address, flexible court appearances including evening and weekend court sessions for those with jobs they cannot miss, counseling, drug and alcohol treatment, batterer intervention programs, anger management courses, alcohol monitors, or, in extreme cases of particular risk, electronic monitoring, among other services.
144.158. Defendants are permitted by state (and federal) law to use these alternatives but, as a matter of routine practice and policy, choose not to for impoverished felony arrestees. The vast majority of Harris County arrestees are therefore processed and detained through Harris County’s money bail scheme rather than non-monetary supervision methods. As a matter of policy
41 Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 5 (May 2, 2016), http://www.columbia.edu/~cjh2182/GuptaHansmanFrenchman.pdf (“We find no evidence that money bail increases the probability of appearance.”).
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and practice, Defendants do not consider, or make findings concerning, less restrictive alternatives than detention based on money bail that a person cannot afford.
145.159. Jurisdictions routinely using non-monetary conditions of release achieve high rates of court appearances while ensuring public safety. In Washington, DC, where 94% of cases resulted in pretrial release without secured financial conditions in Fiscal Year 2017,42 88% of defendants released pretrial made all scheduled appearances throughout the life of their cases, with more than 86% of those released pretrial remaining arrest-free (and 99% remaining arrestfree for violent crimes).43
146.160. Empirical evidence proves that unsecured bond alone is at least as effective at reasonably assuring appearance in court as secured money bail.
147.161. Empirical evidence also demonstrates that secured money bail does not have any positive benefit to public safety. In fact, short periods of pretrial detention actually increase future crime. And in Texas, because a person cannot forfeit a secured money bail by committing a new crime, there is no rational relationship between a higher secured money bail and public safety, unless the higher bail is intended to accomplish pretrial detention—and even then, as noted, studies show that the resulting detention has a criminogenic effect on that person. Thus, even though the person may be incapacitated for the pretrial period, the destabilizing effects of pretrial detention make it more likely she will commit new crimes during the pretrial period and after.

42 Pretrial Services Agency for the District of Columbia, FY 2017 Release Rates for Pretrial Defendants within

Washington,

DC

(2018),

https://www.psa.gov/sites/default/files/2017%20Release%

20Rates%20for%20DC%20Pretrial%20Defendants.pdf.

43 Pretrial Services Agency for the District of Columbia, Congressional Budget Justification and Performance Budget Request: Fiscal Year 2019 (2018), https://www.csosa.gov/wp-content/uploads/bsk-pdf-manager/2018/07/FY2019PSA-CBJ-Performance-Budget-02122018-1.pdf.

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148.162. Detention due to inability to pay money bail increases the likelihood of

conviction. A person who is detained pretrial is 13% more likely to be convicted and 21% more

likely to plead guilty.44 Additionally, individuals detained pretrial are more likely to be given

longer jail sentences.45 Overall, individuals who are detained—instead of released on money bail

or on a personal bond—have worse case outcomes.46

149.163.

Money bail is disproportionately imposed on non-white arrestees.47 In other

words, even the rare personal bond in Harris County is disproportionately given to white arrestees.

150.164. Setting a secured money bail amount in an amount higher than a person can

afford by definition defeats the purpose of money bail—to incentivize a person to return to court—

and removes any legitimate (let alone compelling) state interest in the setting of a financial

condition. Nor is setting money bail without findings concerning ability to pay narrowly tailored

to meet any other legitimate or compelling government interest.

44 Megan Stevenson, Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes 18 (May 2, 2016), https://www.law.upenn.edu/cf/faculty/research/details.cfm?research_id=14047; see also Gupta, et. al, supra note 4139 at 3 (finding a 12% increase in the likelihood of conviction using the same data).

45 Stevenson, supra note 4442 at 18; Paul Heaton, et al., The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017).

46 Stevenson, supra note 42 at 18; Gupta, et. al, supra note 4139 at 13 (finding a 12% increase in the likelihood of conviction using the same data); Guidry, supra note 23 at 13 (“[D]efendants who are not released pre-trial are more likely to be incarcerated following a conviction, and they generally receive longer sentences upon conviction.”).

47 Gupta, et. al, supra note 4139 at 4–5; Lise Olson, Study: Inmates who can’t afford bond face tougher sentences,

Houston Chron. (Sept. 15, 2013), http://www.houstonchronicle.com/news/houston-texas/houston/article/Study-

Inmates-who-can-t-afford-bond-face-tougher-4817053.php (discussing Carlos Mathis, an African-American man,

who was detained in jail for seven months on minor drug and theft charges because he could not afford money bail,

and whose charges were dismissed); Isami Arifuku & Judy Wallen, Racial Disparities at Pretrial and Sentencing and

the

Effects

of

Pretrial

Services

Programs

(Mar.

11,

2013),

http://www.pretrial.org/download/research/Racial%20Disparities%20at%20Pretrial%20and%20Sentencing%20and

%20the%20Effects%20of%20Pretrial%20Services%20Programs%20-%20NCCD%202013.pdf; Cynthia E. Jones,

“Give Us Free”: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. Legis. & Pub. Pol’y 919 (2013);

Tina L. Freiburger, et. al, The Impact of Race on the Pretrial Decision, 35 Am. J. of Crim. Just. 76 (2010),

http://libres.uncg.edu/ir/asu/f/Marcum_CD_2010_Impact_of_Race.pdf.

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151.165. Defendants’ use of money bail leads disproportionately to the detention of people of color. Regardless of the amount of money bail imposed, people of color are more likely to be detained at disposition than whites.48
152.166. Unnecessary pretrial detention causes instability in employment, housing, and care for dependent relatives. Studies show that those detained pretrial face worse outcomes at trial and sentencing than those released pretrial, even when charged with the same offenses. Detained defendants are more likely to plead guilty just to shorten their jail time, even if they are innocent. In fact, Harris County has led the country for years in exonerations—many of which resulted from wrongful convictions in drug cases involving people who pled guilty to get out of jail.49 People detained pretrial have a more difficult time preparing for their defense, gathering evidence and witnesses, and meeting with their lawyers. Studies also show that just two days of pretrial detention increases the likelihood of future arrests and increases the future risk level of low-level offenders.
153.167. Pretrial detention is more than ten times more expensive than effective pretrial supervision programs. Through non-monetary tools, pretrial supervision programs can save taxpayer expense while maintaining high public safety and court appearance rates.
154.168. Since March 2020, due to the COVID-19 pandemic, people detained in the Harris County Jail face yet another irreparable harm: a heightened risk of contracting a deadly diesase and dying because they cannot practice social distancing or basic health and sanitation measures.
48 Gupta, et. al, supra note 40 at 4–5 49 Alex Samuels, Study finds Harris County leads nation in exonerations, Texas Tribune (Mar. 7, 2017) https://www.texastribune.org/2017/03/07/report/.
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155.169. On March 11, 2020, the World Health Organization declared COVID-19 a pandemic.50
156.170. As COVID-19 swept across the United States, it quickly became apparent that the Harris County Jail, like most jails and prisons, is devastatingly ill-equipped to prevent the virus from rapidly spreading among detainees and staff. Indeed, Sheriff Ed Gonzalez issued a desperate public warning on March 21, 2020: “Currently have 8,000 individuals, most pre-trial, in tight quarters.”51 The jail has “[v]ery limited services. No capacity for ICU care. If someone older and/or with frail health gets the virus it can be a death sentence. Plus spread like wildfire… Individuals would need to be taken to our public health system, which does not have capacity to handle an outbreak in the jail and the anticipated needs of the general community.”52
157.171. On March 29, 2020, the Houston Chronicle reported that the first detained person in the Harris County Jail had tested positive for COVID-19.53
158.172. Also on March 29, 2020, Texas Governor Greg Abbott issued Executive Order GA-13.54 GA-13 purports to prohibit anyone currently charged with a crime involving “violence” and anyone with a prior conviction at any time in the past for a crime involving
50 World Health Organization, “WHO Timeline – COVID-19” (Apr. 27, 2020), https://www.who.int/newsroom/detail/27-04-2020-who-timeline---covid-19 (last accessed May 1, 2020). 51 Ed Gonzalez (@SheriffEd_HCSO), TWITTER (Mar. 21, 2020, 8:41 AM), https://twitter.com/SheriffEd_HCSO/status/1241344221921136641. 52 Id. (Mar. 21, 2020, 8:05 AM), https://twitter.com/SheriffEd_HCSO/status/1241335204905713664; id. (Mar. 20, 5:19 PM), https://twitter.com/SheriffEd_HCSO/status/1241112204067381249. (“Jail health is community health.”). 53 Gabrielle Banks & Nicole Hensley, “First Harris County Jail inmate tests positive for COVID-19,” Houston Chron. (Mar. 29, 2020), https://www.houstonchronicle.com/news/houston-texas/houston/article/First-HarrisCounty-Jail-inmate-tests-positive-15164825.php. 54 See Dkt. 39-1.
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“violence” (regardless of the current charge), from being released on unsecured bail, regardless of any individualized proceedings or findings by a state court judge.55
159.173. Thus, for all of the people in these broad categories, GA-13 requires pretrial detention if they cannot pay for release and requires enforcement officials, including the Sheriff and County, to refuse to release categories of people on personal bonds.56
160.174. GA-13 also makes pretrial detention indefinite by suspending relevant speedy trial provisions of Texas law that ordinarily would require a person’s release if the state is not ready for trial.57 A little more than a month after GA-13 was issued, the number of reported COVID-19 cases in
the jail—among both detainees and staff—has exploded. As of May 5, 2020, 599 people detained in the Harris County Jail and 255 employees of the Sheriff’s Office had tested positive
for COVID-19.58 Almost half of people detained the jail were in quarantine: 2,828 people detained in the jail were in observational quarantine (possible exposure), 601 were in buffer
quarantine (for those newly booked into the jail), 92 were in surveillance quarantine (asymptomatic patients who tested positive), and 157 in recovery quarantine.59Class Action
Allegations Class Action Allegations 161.175. The named Plaintiffs bring this action, on behalf of themselves and all others similarly situated, for the purpose of asserting the claims alleged in this Complaint on a
55 See id. 56 A personal bond is an unsecured bond that allow a person to be released without making an up-front payment if the person agrees to pay an amount of money if the person does not appear. 57 Id. 58 Dkt. 138. 59 Id.
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common basis. 162.176. A class action is a superior means, and the only practicable means, by which
the named Plaintiffs and unknown Class members can challenge Defendants’ unlawful wealthbased post-arrest detention scheme.
163.177. 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.
164.178. This action satisfies the numerosity, commonality, typicality, and adequacy requirements of those provisions.
165.179. The Plaintiffs propose a single Class seeking declaratory and injunctive relief. The Declaratory and Injunctive Class is defined as: All felony arrestees who are detained by Harris County, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on secured money bail because of indigence.
A. Numerosity—Fed. R. Civ. P. 23(a)(1) 166.180. In September 2018, the average daily population of felony and state jail felony arrestees being held pretrial was 7,553 individuals. Many of these people were held only because they could not afford to pay a money bail. Arrestees are detained in jail for varying lengths of time depending on how long it takes them to make the cash payment that is required for their release. 167.181. Some arrestees are able to pay immediately for their release. Others are forced to wait one or two days until they or family members can make the payment. Others will never be able to come up with any amount of money to pay for their release. 168.182. The number of current and future arrestees subject to this policy—if it is not enjoined—is well into the thousands.
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B. Commonality—Fed. R. Civ. P. 23(a)(2)
169.183. The relief sought is common to all members of the Class, and common
questions of law and fact exist as to all members of the Class. The named Plaintiffs seek relief
concerning whether Defendants’ policies, practices, and procedures violate the rights of the Class
members and relief mandating that Defendants change their policies, practices, and procedures so
that the constitutional rights of the Class members will be protected in the future.
170.184. Common legal and factual questions arise from one central scheme and set
of policies and practices: Defendants’ post-arrest wealth-based detention scheme. Defendants
operate this scheme openly and in materially the same manner every day. The material components
of the scheme do not vary from Class member to Class member, and the resolution of these legal
and factual issues will determine whether all of the members of the Class are entitled to the
constitutional relief that they seek.
Among the most important, but not the only, common questions of fact are:
 Whether Defendants have a policy and practice of using a predetermined schedule to determine the amount of money required to secure post-arrest release;
 Whether Defendants require that scheduled amount of money to be paid up front before releasing a person from the jail;
 Whether Defendants require arrestees who have had probable cause hearings to pay the secured money bail amount imposed by the Hearing Officer before releasing such people from the jail;
 Whether, when requiring a financial condition of release there is an inquiry into ability to pay;
 Whether, if a person cannot pay for release, there is any inquiry into and findings concerning availability of alternative conditions of release and a finding that pretrial detention is necessary;
 Whether, in requiring pretrial detention, there is an adversarial hearing with counsel and notice of the critical issues at stake, opportunity to be heard and to confront evidence, findings by clear and convincing evidence, and a statement of reasons orally or in writing concerning the need for pretrial detention; and
 What standard post-arrest procedures Defendants perform on felony arrestees, for example, whether Defendants use any other alternate procedures for promptly releasing people determined otherwise eligible for release but who are unable to afford a monetary payment.
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171.185. Among the most important common questions of law are:  Whether requiring arrestees to pay money up front to secure release from postarrest detention without an inquiry into or findings concerning the arrestee’s present ability to pay the amount required, and without meaningful consideration of less restrictive alternative conditions of release, violates the Fourteenth Amendment’s Equal Protection and Due Process Clauses;  Whether it is lawful to impose a secured financial condition of release that operates as a de facto order of pretrial detention because of a person’s inability to pay without complying with the substantial findings, legal standards, and procedural safeguards required for issuing and enforcing a transparent order of preventive detention; and  What substantive findings and procedural safeguards are required as a matter of federal law prior to pretrial detention of a presumptively innocent person.
C. Typicality—Fed. R. Civ. P. 23(a)(3) 172.186. The named Plaintiffs’ claims are typical of the claims of the other members of the Class, and they have the same interests in this case as all other Class members. Each Class member is threatened with imminent and/or ongoing confinement in jail because she cannot afford to pay a standardized cash bail amount. The answer to whether Defendants’ wealth-based detention scheme is unconstitutional will determine the claims of the named Plaintiffs and every other Class member. 173.187. If the named Plaintiffs succeed in the claim that Defendants’ policies and practices concerning post-arrest detention violate their constitutional rights, that ruling will likewise benefit every other member of the Class. D. Adequacy—Fed. R. Civ. P. 23(a)(4) 174.188. The named Plaintiffs are adequate representatives of the Class because their interest in the vindication of the legal claims that they raise is entirely aligned with the interests of the other Class members, each of whom has the same basic constitutional claims. They are members of the Class, and their interests do not conflict with those of the other Class members.
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175.189. There are no known conflicts of interest among members of the proposed Class, all of whom have a similar interest in vindicating their constitutional rights in the face of Defendants’ pay-for-freedom post-arrest detention system.
176.190. Plaintiffs are represented by attorneys from Civil Rights Corps, Susman Godfrey, and Texas Civil Rights Project who have experience in litigating complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are more fully set forth in the contemporaneously filed Motion for Class Certification.
177.191. The combined efforts of Class counsel have so far included extensive investigation into Harris County’s predetermined money bail practices over a period of years, including numerous interviews, most intensively in recent months, with witnesses, court employees, people detained in jail, families, judges, attorneys practicing in courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and national experts in constitutional law, post-arrest procedure, law enforcement, judicial procedures, criminal law, pretrial services, and jails.
178.192. Class counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipalities.
179.193. Counsel have devoted enormous time and resources to becoming intimately familiar with Defendants’ practices and with all of the relevant state and federal laws and procedures that can and should govern it. Counsel have also developed relationships with many of the individuals and families victimized by unlawful wealth-based pretrial detention practices.
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The interests of the members of the Class will be fairly and adequately protected by the Plaintiffs and their attorneys.
E. Rule 23(b)(2) 180.194. Class action status is appropriate because Defendants, through the policies, practices, and procedures that make up their wealth-based post-arrest detention scheme, have acted in the same unconstitutional manner with respect to all Class members. Defendants apply and enforce a wealth-based system of pretrial justice: some arrestees can purchase their immediate release, while other arrestees must remain in jail solely because they cannot pay. 181.195. The Class therefore seeks declaratory and injunctive relief that will prevent Defendants from detaining arrestees who cannot afford cash payments. Because the putative Class challenges Defendants’ scheme as unconstitutional through declaratory and injunctive relief that would apply the same relief to every member of the Class, Rule 23(b)(2) is appropriate and necessary. 182.196. Injunctive relief compelling Defendants to comply with these constitutional rights will similarly protect each member of the Class from being subjected to Defendants’ unlawful policies and practices. A declaration and injunction stating that Defendants cannot detain arrestees solely due to their inability to make a monetary payment would provide relief to every Class member. It would ensure that pretrial detention based on lack of access to money does not occur without the substantive findings and procedural safeguards that the Constitution requires for that government detention. Therefore, declaratory and injunctive relief with respect to the Class as a whole is appropriate. 183.197. Plaintiffs seek the following relief.
Claims for Relief
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Count One: Defendants Violate Plaintiffs’ Equal Protection and Due Process Rights by Jailing Them Solely Because They Cannot Afford a Monetary Payment.

184.198.

Plaintiffs incorporate by reference the allegations in paragraphs 1-155.

185.199. The Fourteenth Amendment’s Equal Protection and Due Process Clauses

prohibit jailing a person solely because of her inability to make a monetary payment. Defendants

violate Plaintiffs’ rights by enforcing against them a system of pretrial detention that keeps them

in jail solely because they cannot afford to pay money bail amounts imposed without findings

concerning their present ability to pay and without findings concerning the necessity of the

detention in light of alternative conditions of release that could serve the government’s interests.

Count Two: Defendants Violate Plaintiffs’ Substantive Due Process Right to Pretrial Liberty by Jailing Them Without a Finding That Pretrial Detention Is Necessary

186.200. Plaintiffs incorporate by reference the allegations in paragraphs 1-157.

187.201. The Fourteenth Amendment protects the fundamental interest in pretrial

liberty that is infringed whenever a person is subject to a transparent or de facto order of pretrial

detention. That interest in bodily liberty is not absolute, and it can be overcome, but only if the

government first demonstrates that no alternative short of pretrial detention exists to mitigate an

identifiable risk to the safety of the community or a risk of flight from prosecution, and that pretrial

detention is therefore necessary to serve a specified, compelling interest in public safety or court

appearance. Defendants violate Plaintiffs’ rights by jailing them prior to trial without making any

finding that pretrial detention is necessary to serve the government’s interests.

Count Three: Defendants Violate Plaintiffs’ Procedural Due Process Rights

188.202. Plaintiffs incorporate by reference the allegations in paragraphs 1-159.

189.203. The Due Process Clause requires that, for a transparent or de facto order of

pretrial detention to be constitutionally valid, the government must provide rigorous procedural

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safeguards to ensure the accuracy of the substantive finding that pretrial detention is necessary
because less-restrictive conditions are insufficient. The minimal safeguards required by the
Constitution include: an adversarial hearing, with counsel, at which the person has notice of the
critical issues to be decided at the hearing, an opportunity to be heard and to present and confront
evidence, and a statement of reasons on the record explaining the reasons for the finding that
pretrial detention is necessary. Defendants violate procedural due process by detaining plaintiffs
prior to trial without providing these safeguards to ensure the accuracy of any substantive
determination that pretrial detention is necessary.
Request for Relief
WHEREFORE, Plaintiffs and the other Class members request that this Court issue the
following relief:
a. A declaratory judgment that Defendants violate the Named Plaintiffs’ and Class members’ constitutional rights by operating a system of wealth-based detention that keeps them in jail solely because they cannot afford to pay secured money bail amounts required without findings concerning ability to pay, without consideration of or findings concerning nonfinancial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of that finding;
b. An order and judgment permanently enjoining Defendants from operating and enforcing a system of post-arrest detention that keeps Named Plaintiffs and Class members in jail because they cannot pay a secured financial condition of release required without findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that pretrial detention is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
c. A declaratory judgment that Executive Order GA-13 is unconstitutional to the extent it requires pretrial detention of arrestees who cannot afford secured money bail without the substantive findings and procedural safeguards required for an order of pretrial detention;
d. An order and judgment permanently enjoining the Sheriff and the County from enforcing GA-13 to the extent enforcing GA-13 results in the pretrial detention of individuals against whom there has been no substantive finding that pretrial detention is necessary following a hearing with sufficient procedural safeguards to ensure the accuracy of that finding;
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e. Any other order and judgment this Court deems necessary to permanently enjoin Defendants—whether acting on behalf of the State, the County, or some other government entity—from implementing and enforcing a system of wealth-based pretrial detention that keeps arrestees in jail solely because they cannot afford to pay a secured financial condition of release required without an inquiry into or findings concerning ability to pay, without consideration of or findings concerning non-financial alternatives, without findings that a particular release condition is necessary to meet a compelling government interest, and without safeguards to ensure the accuracy of those findings;
f. An order certifying the class defined above; and
g. An order and judgment granting reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and any other relief this Court deems just and proper.

Date: May 6June 26, 2020
/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
s/ Liyah Brown Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 mimi@texascivilrightsproject.org Liyah Brown (Pro Hac Vice) D.C. Bar No. 500149 liyah@texascivilrightsproject.org Peter Steffensen Texas State Bar No. 24106464 Southern District No. 3327006 peter@texascivilrightsproject.org Texas Civil Rights Project 2202 Alabama Street Houston, TX 77004 Telephone: 512-474-5073 ext. 118

Respectfully Submitted,
/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666
/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100
Attorneys for Plaintiffs

52

 
 Case 4:19-cv-00226 Document 197 Filed on 06/29/20 in TXSD Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

RUSSELL, et al,

[]

Plaintiffs

[]

[]

v.

[]

[]

HARRIS COUNTY, TEXAS, et al, []

Defendants

[]

No. 4:19-cv-00226 Hon. Lee H. Rosenthal U.S. District Judge

ANSWER OF SHERIFF ED GONZALEZ AND REQUEST FOR DECLARATORY RELIEF

INTRODUCTION

Even before his election as Sheriff in 2016, Sheriff Ed Gonzalez was on record

as supporting a fairer and constitutionally acceptable bail system for Harris County.

After he took office, he worked together with the stakeholders in the misdemeanor

bail case to craft a historic settlement. Now, he is prepared to do the same in this

felony bail case.

The Sheriff continues to believe it is wrong to detain an arrestee in jail merely

because the arrestee is too poor to post a bond. There must be a different system

that determines whether and on what terms public safety requires pre-trial detention,

separate from an ability to pay. Given the large number of players in the felony

justice system, the entrenchment of established procedures that may have outlasted

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their utility, and the emotions evoked whenever more serious crimes are committed, the Sheriff has no delusions that rethinking the system will be easy.
The Sheriff has no authority to make the rules that govern the bail system. His circumscribed role requires only that he carry out the rules as keeper of the jail. Too often lately has the Sheriff found himself pulled in different directions by conflicting orders or intransigence from competing officials. This has been especially true lately, with exquisitely dire consequences, as the coronavirus crisis has exacerbated the logjam at the jail.
For that reason, the Sheriff comes before this Court seeking relief of his own. He wants direction. He needs direction to do the job he was elected to do.
ANSWER 1. The Sheriff admits the following paragraphs of the First Amended Class Action Complaint: 1-10, 12-17, 24-28, 80-174, 198-203. 2. The Sheriff is without sufficient knowledge to admit or deny the following paragraphs of the First Amended Class Action Complaint: 11, 18-22, 3079, 175-197. 3. The Sheriff denies the following paragraphs: 29. 4. The following paragraphs require no response: 23, 198.
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REQUEST FOR DECLARATORY RELIEF 5. With the addition of the felony judges as parties to this case, the Sheriff believes all necessary parties are before the Court. The felony judges in Harris County are the true policymakers regarding bail practices, both in terms of setting rules and procedures and in applying those rules and procedures in individual cases. 6. It does not appear that the felony judges in Harris County are willing or able on their own to craft new rules and procedures that would accomplish the required goals. Those goals are simple to state but prove difficult to implement. Any new rules must (a), protect public safety and encourage court appearances, (b) satisfy the plaintiffs’ request for a system that complies with constitutional requirements, and (c) reduce overall jail population. It appears only the power of this Court can force the parties to accomplish these goals. 7. An actual controversy exists among the various parties before this Court regarding the constitutionality of the current bail system and the relief required to make it right. The Sheriff, as a key player in the criminal justice system, dutybound to carry out orders of the felony judges regarding pre-trial detention of arrestees, is an interested party with standing to seek relief from this Court. 8. Therefore, pursuant to 28 U.S.C. §2201, the Sheriff asks the Court to declare his rights and obligations going forward in connection with the pre-trial detention of felony arrestees.
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The Sheriff seeks such other relief to which he may be justly entitled.
Respectfully submitted.
/s/ Murray Fogler Murray Fogler FOGLER, BRAR, O’NEIL & GRAY, LLP S.D. Tex. No. 2003 State Bar No. 07207300 mfogler@foglerbrar.com 909 Fannin, Suite 1640 Houston, Texas 77010 Tel: 713.481.1010 Fax: 713.574.3224
Victoria Jimenez Legal Director Harris County Sheriff’s Office 1200 Baker St. Houston, Texas 77002 Tel: 346.286.1588 Victoria.Jimenez@sheriff.hctx.net
ATTORNEYS FOR SHERIFF ED GONZALEZ
CERTIFICATE OF SERVICE
I certify that on June 29, 2020, a copy of this document was served on counsel
of record via electronic filing in accordance with the USDC Southern District of
Texas Procedures for Electronic Filing.
/s/ Murray Fogler Murray Fogler
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 Case 4:19-cv-00226 Document 214 Filed on 07/10/20 in TXSD Page 1 of 33

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

DWIGHT RUSSELL, et al.,

§

Plaintiffs,

§

§

v.

§

§

HARRIS COUNTY, TEXAS, et al.,

§

Defendants,

§

§

STATE OF TEXAS, et al.,

§

Intervenor-Defendants.

§

Case No. 4:19-cv-00226

STATE INTERVENORS’ MOTION TO DISMISS

Case 4:19-cv-00226 Document 214 Filed on 07/10/20 in TXSD Page 2 of 33
TABLE OF CONTENTS
Table of Authorities ....................................................................................................... ii Nature and Stage of the Proceedings............................................................................ 1 Issues Presented and Standards of Review .................................................................. 2 Background .................................................................................................................... 4
I. An Overview of the ODonnell Litigation. ..................................................... 4 II. Harris County Overhauls its Bail System to Comply with
ODonnell. ....................................................................................................... 7 III. Plaintiffs Received all Bail Process Required by ODonnell. ...................... 12 IV. An Overview of Plaintiffs’ Lawsuit. ............................................................ 16 Argument ..................................................................................................................... 17 I. ODonnell Forecloses Plaintiffs’ Substantive Due Process Claim. ............. 17 II. Plaintiffs’ Procedural Due Process and Equal Protection Claims
Fail Because They Received all Process Required by ODonnell................ 20 A. Plaintiffs’ Claims are Nonjusticiable. ............................................... 20 B. Plaintiffs’ Procedural Due Process and Equal Protection Claims are Inadequately Pled. ....................................................................................... 21 III. Plaintiffs’ References to COVID-19 and GA-13 do Not Create Legally Viable Claims.................................................................................. 23 IV. Plaintiffs’ Claims Against Sheriff Gonzalez are Barred by ODonnell. ..................................................................................................... 25 Conclusion .................................................................................................................... 25 Certificate of Service.................................................................................................... 27
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TABLE OF AUTHORITIES
Cases Anderson v. Valdez,
845 F.3d 580 (5th Cir. 2016) ..................................................................................... 3 Arnold v. U.S. Dep’t of Interior,
213 F.3d 193 (5th Cir. 2000) ................................................................................... 18 Ashcroft v. Iqbal,
556 U.S. 662 (2009) ................................................................................................... 3 Barrera-Montenegro v. U.S. & Drug Enf’t Admin.,
74 F.3d 657 (5th Cir. 1996) ....................................................................................... 3 Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) ................................................................................................... 3 Booth v. Galveston Cty.,
No. 3:18-CV-00104, 2019 WL 4305457 (S.D. Tex. Sep. 11, 2019) ......................... 19 Brown v. Plata,
563 U.S. 493 (2011) ................................................................................................. 24 Cinel v. Connick,
15 F.3d 1338 (5th Cir. 1994) ..................................................................................... 4 Collins v. City of Harker Heights,
503 U.S. 115 (1992) ................................................................................................. 19 Collins v. Morgan Stanley Dean Witter,
224 F.3d 496 (5th Cir. 2000) ..................................................................................... 4 Conn v. Gabbert,
526 U.S. 286 (1999) ................................................................................................. 19 County of Sacramento v. Lewis,
523 U.S. 833 (1998) ................................................................................................. 19 DaimlerChrysler Corp. v. Cuno,
547 U. S. 332 (2006) ................................................................................................ 20 Daves v. Dallas Cty., Tex.,
341 F. Supp. 3d 688 (N.D. Tex. 2018)............................................................... 19, 25 Dillon v. Rogers,
596 F.3d 260 (5th Cir. 2010) ................................................................................... 24 Doe v. Tangipahoa Par. Sch. Bd.,
494 F.3d 494 (5th Cir. 2007) ............................................................................. 20, 21 Dorsey v. Portfolio Equities, Inc.,
540 F.3d 333 (5th Cir. 2008) ..................................................................................... 4
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Case 4:19-cv-00226 Document 214 Filed on 07/10/20 in TXSD Page 4 of 33
Edwards v. Cofield, No. 3:17-CV-321-WKW, 2018 WL 4101511 (M.D. Ala. Aug. 28, 2018) ................. 19
Ex parte Anderer, 61 S.W.3d 398 (Tex. Crim. App. 2001) ................................................................... 22
Gonzalez v. Seal, 702 F.3d 785 (5th Cir. 2012) ................................................................................... 24
Graham v. Connor, 490 U.S. 386 (1989) ................................................................................................. 19
In re Abbott, 954 F.3d 772 (5th Cir. 2020) ................................................................................... 24
Jacobson v. Commonwealth of Massachusetts, 1 97 U.S. 11 (1905) ..................................................................................................... 24
Little v. Frederick, No. 6:17-0724, 2020 U.S. Dist. LEXIS 21949 (W.D. La. Feb. 7, 2020).................. 19
Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242 (5th Cir. 1997) ................................................................................... 18
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ................................................................................................. 21
Md. Manor Assocs. v. City of Houston, 816 F. Supp. 2d 394 (S.D. Tex. 2011) ....................................................................... 4
MDPhysicians & Assoc., Inc. v. State Bd. of Ins., 957 F.2d 178 (5th Cir. 1992) ..................................................................................... 3
Norris v. Hearst Trust, 500 F.3d 454 (5th Cir. 2007) ..................................................................................... 4
Odonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018) ......................................................................... 6, 18, 22
ODonnell v. Harris County, 251 F. Supp. 3d 1052 (S.D. Tex. 2017) ............................................................. 4, 5, 7
ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018) ................................................................... 5, 18, 21, 25
ODonnell v. Harris Cty., Tex., No. H-16-1414, 2019 WL 6219933 (S.D. Tex. Nov. 21, 2019).................................. 7
ODonnell v. Salgado, 913 F.3d 479 (5th Cir. 2019) ..................................................................................... 6
Palacios v. Dep’t of Homeland Sec., 434 F. Supp. 3d 500 (S.D. Tex. 2020) ....................................................................... 4
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Case 4:19-cv-00226 Document 214 Filed on 07/10/20 in TXSD Page 5 of 33
Polar Pro Filters Inc. v. FrogSlayer, LLC, No. CV H-19-1706, 2020 WL 1987432 (S.D. Tex. Apr. 27, 2020) ............................ 4
Portuondo v. Agard, 529 U.S. 61 (2000) ................................................................................................... 19
Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) ................................................................................. 22
Rocky v. King, 900 F.2d 864 (5th Cir. 1990) ................................................................................... 20
Russell v. Harris County, 2020 --- F. Supp. ----, 2020 WL 1866835 (S.D. Tex. Apr. 14, 2020) ................... 6, 18
S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) ............................................................................................. 24
Sample v. Morrison, 406 F.3d 310 (5th Cir. 2005) ..................................................................................... 3
Schilb v. Kuebel, 404 U.S. 357 (1971) ................................................................................................. 23
Stack v. Boyle, 342 U.S. 1 (1951) ..................................................................................................... 23
Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702 (2010) ................................................................................................. 19
Teague v. City of Flower Mound, 179 F.3d 377 (5th Cir. 1999) ................................................................................... 18
Technical Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399 (5th Cir. 2012) ................................................................................... 18
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017) ............................................................................................. 21
United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980) ................................................................................................. 20
United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007)....................................................................................... 2
United States v. Lanier, 520 U.S. 259 (1997) ................................................................................................. 19
Valentine v. Collier, 956 F.3d 797 (5th Cir. 2020) ............................................................................. 24, 25
Warth v. Seldin, 422 U.S. 490 (1975). ................................................................................................ 20
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Case 4:19-cv-00226 Document 214 Filed on 07/10/20 in TXSD Page 6 of 33 Statutes 18 U.S.C. § 3626(a)(3) .................................................................................................. 24 42 U.S.C. § 1983............................................................................................................. 5 TEX. CONST. art. I, Sec. 11 ..................................................................................... 13, 23 TEX. CRIM. PROC. art. 11.24 ......................................................................................... 11 U.S. CONST. art. III, § 2 ............................................................................................... 20 U.S. CONST., AMEND. VIII ............................................................................................ 19 Rules FED. R. CIV. P. 12(b)(1) ................................................................................................... 3 FED. R. CIV. P. 12(b)(6) ............................................................................................. 3, 23
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NATURE AND STAGE OF THE PROCEEDINGS This case falls squarely within the Fifth Circuit’s ODonnell decisions. These precedents establish the bail process required by the Fourteenth Amendment. Harris County adopted a version of the bail system outlined in ODonnell’s model injunction and implemented additional protections for all arrestees. Plaintiffs received all bail process required by ODonnell. Plaintiffs never actually allege otherwise. Nor could they, as this fact is established by video recordings of the bail proceedings in question and other publicly available records. Plaintiffs’ Fourteenth Amendment claims are thus barred by binding precedent. Plaintiffs are also trying to create a substantive due process right to affordable bail—which they smuggle in through allegations that Defendants were constitutionally required to make strict scrutiny-level findings on what an arrestee can afford before imposing bail. This too is barred by ODonnell, which found that there is no “fundamental substantive due process right to be free from any form of wealth-based detention.” During this suit, Plaintiffs tacked on allegations about COVID-19 and the related Executive Order GA-13, which limited the use of personal bonds for violent arrestees. Plaintiffs assert no distinct claims related to these allegations. Indeed, Plaintiffs’ claims have not substantively changed since their original filing in January 2019—which was well over a year before COVID-19 was unfortunately introduced into our everyday lives. Looking back further, Plaintiffs largely fixate on infirmities in Harris County’s bail system from 2016, which is when their counsel filed the ODonnell lawsuit. But Harris County significantly changed its bail systems since then; a fact which Plaintiffs ignore and which is ultimately fatal to their claims.
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This case is not about what bail process is constitutionally required. ODonnell established the constitutional floor and, again, Harris County complied with
ODonnell’s requirement. Plaintiffs, and some recently “enlightened” Defendants, think that eliminating the “barbaric” practice of cash bail would promote a fairer judicial system.1 While this may or may not be true, it is not a court’s role to resolve such political debates about best practices. As one court explained: “Absent
[constitutional] concerns . . . it is not the proper function of the courts to act as superlegislatures, passing judgment upon [the legislature’s] penological determinations.”2
Your Honor’s role is to apply the law honestly and fairly to the bail system Plaintiffs actually went through. And Plaintiffs received all constitutionally-required process outlined by ODonnell. This suit should be dismissed.
ISSUES PRESENTED AND STANDARDS OF REVIEW 1. Substantive Due Process: Plaintiffs try to create a substantive due process
right to affordable bail. But in ODonnell, the Fifth Circuit explicitly found that there was no “fundamental substantive due process right to be free from any form of wealth-based detention.” Is Plaintiffs’ substantive due process claim barred by binding precedent? 2. Procedural Due Process and Equal Protection: Harris County complied with the bail process outlined by the Fifth Circuit’s decision in ODonnell, a fact which is established by video recordings and other publicly available records. Have Plaintiffs alleged justiciable and plausible Due Process and Equal Protection claims under the circumstances?
3. GA-13: Plaintiffs assert a claim against GA-13, a COVID-19-related executive order regarding the use of personal bonds. But none of the Plaintiffs were subjected to GA-13 and none were denied personal bonds due to this order. Have Plaintiffs plausibly alleged a claim against GA-13?
1 ECF 209, 2. 2 United States v. Dwinells, 508 F.3d 63, 69 (1st Cir. 2007).
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4. Sheriff Ed Gonzalez: Plaintiffs assert claims against Sheriff Gonzalez. But in ODonnell, the Fifth Circuit dismissed him as a defendant due to his lack of municipal policymaking authority. This has not changed since ODonnell. Do the claims against the Sheriff fail? The mootness and standing issues concern whether the Court has subject
matter jurisdiction to hear this dispute.3 A party may move to dismiss a claim for lack of subject matter jurisdiction under FED. R. CIV. P. 12(b)(1). In deciding such a motion, a court is free to weigh the evidence to ensure that it has power over the case.4 A court may rely on: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts in addition to the court’s resolution of disputed facts.5
The remaining issues are analyzed under FED. R. CIV. P. 12(b)(6).6 Such a motion hinges on whether the plaintiff pled a “plausible” (as opposed to just a “possible”) claim for relief—i.e. whether the plaintiff pled “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”7 If “a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”8 On such a motion, the court can rely on: (1) the complaint; (2) the complaint’s attachments; (3) a defendant’s attachments that were referenced in the complaint and central to the plaintiff’s claim; and (4) matters on which a court
3 See Sample v. Morrison, 406 F.3d 310, 312 (5th Cir. 2005). 4 MDPhysicians & Assoc., Inc. v. State Bd. of Ins., 957 F.2d 178, 181 (5th Cir. 1992). 5 Barrera-Montenegro v. U.S. & Drug Enf’t Admin., 74 F.3d 657, 659 (5th Cir. 1996). 6 See Anderson v. Valdez, 845 F.3d 580, 589 (5th Cir. 2016). 7 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 8 Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)) (quotations omitted).
3

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may take judicial notice.9 As the Fifth Circuit and Your Honor have consistently noted: “‘[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record.’”10
BACKGROUND Harris County’s bail system has dramatically changed over the last four years. As a result, the system challenged in ODonnell no longer exists. In its place are revamped procedures that give both misdemeanor and felony arrestees robust process in line with ODonnell. Despite this, Plaintiffs dwell on the infirmities of the old bail system in their Second Amended Complaint. But any alleged problems with the old bail system are irrelevant to this case. This is because Plaintiffs were arrested while Harris County’s reformed bail system was in place. And, under this upgraded system, Plaintiffs received all process required by ODonnell. I. An Overview of the ODonnell Litigation. In 2016, Maranda ODonnell challenged Harris County’s misdemeanor bail system.11 That system featured the mechanical imposition of cash bail from a preapproved bail schedule without any individualized assessment of the arrestees’ circumstances.12 Without this consideration, the hearing officers imposed secured
9 See, e.g., Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008); Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000); Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994).
10 Md. Manor Assocs. v. City of Houston, 816 F. Supp. 2d 394, 403 (S.D. Tex. 2011) (brackets in original) (quoting Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007)); see also Polar Pro Filters Inc. v. FrogSlayer, LLC, No. CV H-19-1706, 2020 WL 1987432, at *4 (S.D. Tex. Apr. 27, 2020); Palacios v. Dep’t of Homeland Sec., 434 F. Supp. 3d 500, 506 (S.D. Tex. 2020).
11 See ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1060-61 (S.D. Tex. 2017). 12 Id. at 1130.
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bail 90% of the time, leaving only 10% of misdemeanor arrestees with personal bonds.13
This Court found that this bail system violated the Fourteenth Amendment and awarded the plaintiffs injunctive relief.14 The Fifth Circuit later agreed that “the County’s mechanical application of [its] secured bail schedule without regard for the individual arrestee’s personal circumstances violated” the Constitution.15
But the Fifth Circuit disagreed with several of this Court’s holdings. It dismissed Sheriff Ed Gonzalez as an improper party due to his lack of municipal policymaking authority under 42 U.S.C. § 1983.16 The Fifth Circuit also found that this Court’s injunction was overbroad because it amounted to the outright elimination of secured bail.17 The Fifth Circuit reasoned that, while such a remedy could make sense if a fundamental substantive due process right to be free from any form of wealth-based detention existed, “no such right is in view.”18
ODonnell I issued a model injunction outlining what would be a constitutionally-sufficient bail process.19 Per the Fifth Circuit, the Constitution required that arrestees receive notice, an opportunity to be heard and to submit evidence, and a decision by an impartial magistrate.20
13 Id. at 1052. 14 ODonnell v. Harris County, 892 F.3d 147, 152 (5th Cir. 2018) (hereinafter “ODonnell I”). 15 Id. at 163. 16 Id. at 156. 17 Id. at 163-64. 18 Id. at 163. 19 Id. at 164-66. 20 Id. at 163.
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On remand, this Court revised the injunction to release some inmates.21 The Fifth Circuit stepped in again.22 In granting a stay, the Fifth Circuit explained that release was inappropriate because, again, “there is no ‘fundamental substantive due process right to be free from any form of wealth-based detention.’”23 It further held that “release on ‘sufficient sureties’” is “not purely defined by what the detainee can afford” and “does not create an automatic right to pretrial release.”24 The Fifth Circuit warned that “[s]ecured bail was not to be eliminated for any category of indigent arrestees, no matter how narrow.”25
The ODonnell defendants were swept out of office in the next election after ODonnell II and thus the new officials were substituted in as defendants in the case.26 Within days of being sworn in, the new defendants dismissed their predecessors’ appeal of the modified injunction, and the plaintiffs tried to vacate the adverse opinion in ODonnell II.27 The Fifth Circuit rejected this attempt, writing that ODonnell II “is this court’s last statement on the matter and, like all published opinions, binds the district courts in this circuit.”28
21 Odonnell v. Goodhart, 900 F.3d 220, 222 (5th Cir. 2018) (hereinafter “ODonnell II”). 22 Id. 23 Id. at 225, 228; see also Russell v. Harris County, 2020 --- F. Supp. ----, 2020 WL 1866835, at *12 (S.D. Tex. Apr. 14, 2020). 24 ODonnell II, 900 F.3d at 232. 25 Id. at 225. 26 ODonnell v. Salgado, 913 F.3d 479, 481 (5th Cir. 2019) (per curiam) (hereinafter “ODonnell III”). 27 Id. 28 Id. at 482.
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In late 2019, the new defendants settled the ODonnell litigation by charitably
agreeing to a consent decree that gave plaintiffs more relief than they could have
received at trial and paying them millions of dollars.29
II. Harris County Overhauls its Bail System to Comply with ODonnell. In April 2017, Your Honor noted that “Harris County is changing its bail
procedures” and that the County “commendably plans to revise its pretrial processes
and bail schedule by July 1, 2017.”30 Harris County continued its reform efforts past
July 2017 and has changed its bail system for all arrestees to bring it in line with
ODonnell’s holdings.31 Based on publicly available documents and videos of the bail
hearings at issue, Harris County’s upgraded bail system was fully operational prior
to this suit’s filing.32
As of January 2019, when the first Plaintiff had his bail set, the Harris County
bail system consisted of the following robust procedures.33
After arrest and transport, Harris County employees interview the arrestee to
collect both financial and personal information that will be considered in setting
29 See generally ODonnell v. Harris Cty., Tex., No. H-16-1414, 2019 WL 6219933 (S.D. Tex. Nov. 21, 2019).
30 ODonnell, 251 F. Supp. 3d at 1132, 1168. 31 See, e.g. Ex. A (Wilson PC Order memorializing ODonnell-compliant procedures); Ex. B (Wilson PC Court video showing ODonnell-complaint procedures); Ex. C (Affidavit of Financial Condition); Ex. D (Leitner Declaration, previously file at ECF No. 56); Second Amended Complaint (hereinafter “Second Amend. Comp.”) at ¶ 3 (discussing presence of counsel), ¶ 101 (discussing presence of counsel), ¶ 119 (discussing interviews by counsel occur prior to bail hearing); The Harris County, Texas Bail Manual (hereinafter “Bail Manual”) available at 2-4, available at https://www.nacdl.org/getattachment/e11b870d-0647-4468-a9aa-408204004509/the-harris-countybail-manual.pdf (discussing counsel at bail hearings and use of Arnold risk assessment tool); Sheriff’s Advisory, ECF 205 (describing system that provides for automatic settings in District Court for those refused a personal bond). 32 Id. 33 See, e.g., Ex. B (Ortuno PC Court video showing ODonnell-complaint procedures on January 19, 2019).
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bail.34 An arrestee also completes a verified affidavit of his or her financial condition.35 This affidavit provides notice that it “will be used to assess alternatives to imposing secured money bail and determine eligibility for appointed counsel.”36 In
addition to collecting information about employment, income, and expenses, the
affidavit concludes by asking: “What is the most money you could reasonably pay to
get out of jail within 24 hours after your arrest, including any contributions from family and friends?”37 This affidavit is considered in affixing bail.38
Next, the arrestee undergoes a Public Safety Assessment (“PSA”) using the risk assessment algorithm created by the Laura and John Arnold Foundation.39 The
PSA places arrestees into one of three risk categories and correlates to a recommended bail amount on the felony bail schedule.40 The felony schedule also sets out 30 felonies that qualify for a presumptive personal bond.41 This list has grown in
response to COVID-19 to include over 50 different felonies eligible for an automatic personal bond.42
34 See Second Amend. Comp. at ¶ 97 (discussing arrestees undergoing “interviews requiring them to disclose private financial and mental health information”); Ex. D at 2.
35 Ex. C; Ex. D at 2. 36 Ex. C. 37 Id. 38 See, e.g., Ex. I at 2 (noting signed and sworn financial affidavit was considered before setting bail). 39 See Second Amend. Comp. at ¶ 80 (discussing risk assessment); Bail Manual at 4-11; DataDriven Tool Gives Harris County, Texas, Judges New Way to Assess Defendants’ Pretrial Risk Level, Arnold Ventures, available at https://www.arnoldventures.org/newsroom/data-driven-tool-givesharris-county-judges-new-way-assess-defendants-pretrial-risk-level/ (last visited July 10, 2020); Ex. F, Felony Bond Schedule). 40 Id. 41 Ex. F. 42 Ex. G.
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Those arrestees not immediately released proceed to probable cause court (“PC
Court”), where a hearing officer conducts a probable cause and bail hearing within 48
hours of arrest.43 However, before appearing in front of the hearing officer, the
assistant public defender interviews the arrestee.44 This interview gathers personal
information such as ties to the community and other information
(familial/social/educational/occupational) that the assistant public defender can later
present to the hearing officer.45 According to the Public Defender’s Office, these
interviews are “a rich and useful source of material to convince a judge to release
someone the judge might otherwise detain.”46
After this interview, and, again, within 48 hours of arrest, arrestees appear
before the hearing officer.47 The hearing officer reads all arrestees legal warnings,
provides notice of the hearing’s purpose, and explains how the hearing (including the
portion for setting bail) will be conducted.48 This includes an explanation that the
43 See Second Amend. Comp. at ¶ 96 (“Many people every month must wait up to 48 hours for a probable cause hearing, though some have their hearings within 24 hours of arrest); Ex. H (Russell’s PC Court order showing hearing within 48 hours of arrest); Ex. I (Ortuno’s PC Court order showing hearing within 48 hours of arrest); Ex. A (Wilson’s PC Court order showing hearing within 48 hours of arrest); Ex. K (Clack’s PC Court order showing hearing within 48 hours of arrest); Ex. L (Pierson’s PC Court order showing hearing within 48 hours of arrest).
44 Second Amend. Comp. at ¶ 119 (admitting that interview with an assistant public defender occur shortly before the probable cause hearing).
45 Bail Manual at 14, 38. 46 Id. at 14. 47 See Second Amend. Comp. at¶ 96 (“Many people every month must wait up to 48 hours for a probable cause hearing, though some have their hearings within 24 hours of arrest); Ex. H (Russell’s PC Court order showing hearing within 48 hours of arrest); Ex. I (Ortuno’s PC Court order showing hearing within 48 hours of arrest); Ex. A (Wilson’s PC Court order showing hearing within 48 hours of arrest); Ex. K (Clack’s PC Court order showing hearing within 48 hours of arrest); Ex. L (Pierson’s PC Court order showing hearing within 48 hours of arrest); Ex. D at 2-3. 48 See Ex. B, Russell video at 0:07 to 5:02, Wilson video at 0:00 to 6:00, Clack video at 0:00 to 8:00, Pierson 2 Oct 19 video at 0:05 to 6:44, and Ortuno video at 0:00 to 1:56.
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proceedings are being recorded and that an arrestee can appeal any decision to the
presiding District Court Judge.49
The hearing officer then calls each arrestee up individually for the
presentation of probable cause by the prosecutor.50 If there is a finding of no probable
cause, the hearing ends for that arrestee and he or she is released unless there are
additional holds.51 If probable cause exists, the hearing officer next conducts a bail
hearing.52
During this bail hearing, both the prosecutor and assistant public defender
make their own bail recommendations.53 This hearing includes argument/evidence
about the seriousness of the case, criminal history, and any information about ties to
the community or inability to afford bail.54 Only after considering all the relevant
information about the arrestee (including the PSA, affidavit of financial condition,
and argument of counsel) does the hearing officer affix bail.55 Hearing officers
regularly adopt the public defender’s bail request or set bail below what the felony
bail schedule/PSA recommend.56 The hearing officers explain any decision to not
49 Id. 50 See Second Amend. Comp. at¶ 105; Ex. B, Russell video at 32:37 to 36:22, Wilson video at 25:55 to 30:30, Clack video at 11:04 to 18:33, Pierson 2 Oct 19 video at 52:30 to 55:46, and Ortuno video at 30:29 to 37:05. 51 See Second Amend. Comp. at ¶ 105; Ex. D at 2. 52 See Second Amend. Comp. at ¶ 105; Ex. B, Russell video at 32:37 to 36:22, Wilson video at 25:55 to 30:30, Clack video at 11:04 to 18:33, Pierson 2 Oct 19 video at 52:30 to 55:and Ortuno video at 30:29 to 37:05. 53 See Ex. H; Ex. I; Ex. A; Ex. K; Ex. L; Ex. B, Russell video at 32:37 to 36:22; Wilson video at 25:55 to 30:30, Clack video at 11:04 to 18:33, Pierson 2 Oct 19 video 52:30 to 55:46, and Ortuno video at 30:29 to 37:05. 54 Id. 55 Id. 56 See, e.g., Ex. D at 3; Ex. A (adopting public defender’s suggested bail amount); Ex. I (adopting public defender’s suggested bail amount).
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lower bail or issue a personal bond either orally, which is videotaped, or in writing on the bail order form.57
In the event arrestees cannot make any bail amount set by the hearing officer, they can later ask the presiding District Court Judge to review their bail amount.58
To streamline this process, “Harris County has put in place an automated system for incoming arrestees” in which “bail review hearings are now automatically set if a magistrate denies a personal bond.”59
This is the bail system that each Plaintiff went through.60 And this bail system has caused a dramatic increase in pretrial release. For example, of the 83,320 total
arrests in 2016, the year ODonnell I was filed, 52.4% of all arrestees were released pretrial on bond.61 41.7% of felony arrestees were released pretrial, but only 4.2% received personal bond.62
In 2017, the year this Court first enjoined Harris County, these numbers had improved slightly.63 That year, the total number of arrestees released pretrial
57 See, e.g., Ex. B, Pierson 2 Oct 19 video at 54:00 to 55:45 (explaining orally that secured bail was set because Pierson has continued to get arrested while out on felony bond); Ex. K at 2 (listing Clack’s extensive criminal history for why the hearing officer declined to set a personal bond).
58 See, e.g., Ex. B, Pierson 2 Oct 19 video at 54:00 to 55:45 (explaining to Pierson he can ask the District Court Judge to lower bond); Ex. M (showing Judge Warren reducing Wilson’s bail amount); see also TEX. CRIM. PROC. art. 11.24.
59 Sheriff’s Advisory, ECF No. 205. 60 See Ex. H; Ex. I; Ex. A; Ex. K; Ex. L; Ex. B Russell video at 32:37 to 36:22, Wilson video at 25:55 to 30:30, Clack video at 11:04 to 18:33, Pierson 2 Oct 19 video at 52:30 to 55:46, and Ortuno video at 30:29 to 37:05. 61 2016 Annual Report, Harris County Pretrial Services, at 3, 8-9, available at https://pretrial.harriscountytx.gov/Library/2016%20Annual%20Report.pdf. 62 Id. at 8-9. 63 2017 Annual Report, Harris County Pretrial Services, at 6, 13, available at https://pretrial.harriscountytx.gov/Library/2017%20Annual%20Report.pdf.
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increased to 63.6%.64 45.4% of felony arrestees were released pretrial, but only 8.6% received personal bonds.65
And the numbers for 2019 under the ODonnell-compliant bail system got significantly better.66 Of the 76,519 total arrests, 76% of all arrestees were released pretrial.67 Of those accused of felonies, 55% were released pretrial, including 23.6% on personal bond.68 III. Plaintiffs Received all Bail Process Required by ODonnell.
Video recordings and other publicly available documents show that Plaintiffs’ bail hearings were all conducted under Harris County’s current ODonnell-compliant bail system.69
Plaintiff Maurice Wilson: On January 30, 2020, officers stopped Wilson’s vehicle and, after Wilson consented to a search, they found drug dealing paraphernalia and two crack rocks.70 Wilson was arrested.71 Officers later found another large chunk of crack concealed inside Wilson’s pants which had smaller pieces cut from it, a sign of drug dealing.72 Wilson was charged with felony possession of a controlled substance, which is a second degree felony.73
64 Id. 65 Id. at 16-17. 66 2019 Annual Report, Harris County Pretrial Services, at 3, 14-16, available at https://pretrial.harriscountytx.gov/Library/2019%20Annual%20Report.pdf. 67 Id. 68 Id. 69 See Exs. A, B, H, I, K, L. 70 Ex. B, Wilson video at 25:55 to 30:30. 71 Id. 72 Id. 73 Id.; Ex. A at 1.
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Within hours of his arrest, Wilson attended a PC Court hearing.74 The hearing
officer began by providing all arrestees with the required warnings and explaining
the purpose and procedures for the bail hearing, including the specific factors and
items that would be considered in setting bail.75 Wilson was represented by counsel
during this hearing and he completed an affidavit of financial condition.76
The hearing officer found probable cause for Wilson’s arrest.77 Wilson’s PSA
suggested a bail amount of $20,000 (personal bond not recommended).78 Because he
had at least 19 felony and misdemeanor convictions, Wilson was eligible to be held
without bail.79 The public defender asked for bail at $15,000 (no personal bond).80 The
public defender argued that Wilson is 35 years old, lives in Houston with his
girlfriend and has a son.81 He previously worked but has been unemployed for the
past few months.82 The prosecutor argued for bail at $20,000 based on Wilson’s
criminal history and the evidence of his drug trafficking.83 The hearing officer
holistically considered Wilson’s circumstances and affixed bail at $15,000 as
requested by the public defender.84 The hearing officer declined to issue a personal
bond, noting Wilson’s prior recent felony conviction.85
74 Ex. B, Wilson video; Ex. A. 75 Ex. B, Wilson video at 0:00 to 6:00. 76 Id. at 25:55 to 30:30; Ex. A at 2. 77 Ex. B Wilson video at 25:58-30:30. 78 Ex. A at 2. 79 Ex. J; see TEX. CONST. art. I, Sec. 11 a (Denial of Bail After Multiple Felonies). 80 Ex. A at 2; Ex. B, Wilson video at 25:55 to 30:30. 81 Id. 82 Id. 83 Id. 84 Id.; Ex. A at 2. 85 See Ex. A at 2 (noting Wilson’s recent conviction for the same offense for reason not to grant personal bond).
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On February 12, 2020, District Judge Warren lowered Wilson’s bail to $10,000.86 On June 22, 2020, Wilson pleaded guilty to a reduced charge and is about to be released from jail.87
Plaintiff Joseph Ortuno: On January 17, 2019, officers arrested Ortuno with a backpack full of ecstasy and other drugs after he shot a gun into a house and led police on a highspeed chase with guns being thrown out the car’s windows.88 Ortuno was charged with selling drugs and, later, aggravated assault with a deadly weapon, which are first degree felonies.89
Within 48 hours of his arrest, Ortuno attended a PC hearing.90 The hearing officer began by providing all arrestees with the required warnings and explaining the purpose and procedures for the bail hearing, including the specific factors and items that would be considered in setting bail.91 Ortuno was represented by counsel during this hearing and he completed an affidavit of financial condition.92 Ortuno’s PSA recommended bail at $888,888.93 After an individualized assessment and argument of counsel, the hearing officer affixed bail at $30,000.94 On April 4, 2019, Ortuno made bail and has been free since.95
86 Ex. M. 87 Ex. T. 88 Ex. E; Ex. B, Ortuno video at 30:29 to 37:05. 89 Ex. O. 90 Ex. B, Ortuno video; Ex. I. 91 Ex. B, Ortuno video at 0:00 to 1:56; Ex. I. 92 Ex. B, Ortuno video at 30:29 to 37:05; Ex. I. 93 Id. 94 Id.; Ex. B, Ortuno video at 30:29 to 37:05. 95 Ex. P. In February 28, 2020, Ortuno agreed to plead guilty to the controlled substance case and serve six years in prison.
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Plaintiff Dwight Russell: On January 19, 2019, officers stopped Russell’s car and, after he failed field sobriety tests, charged him with his third DWI.96 Within 24 hours of his arrest, Russell received an individualized bail hearing just like Wilson and Ortuno and his bail was set at $25,000.97 The bond order form reflects the reason why the hearing officer denied a personal bond—his prior drunk driving convictions in 2010 and 2015.98 In March 2019, Russell pleaded guilty to misdemeanor DWI and he is out of jail.99
Plaintiff Christopher Clack: On January 17, 2020, Clack was arrested for fraudulently using identifying information and tampering with governmental records.100 Within 24 hours of his arrest, he too had bail set under Harris County’s upgraded bail system.101 Because of his extremely long criminal history, prosecutors moved in both cases for no bail.102 The public defender asked for either a personal bond or a $4,000 secured bond.103 After considering argument of counsel and Clack’s individual circumstances, the hearing officer set the bond on the tampering case at $10,000 and the fraudulent use case at $7,500.104 The hearing officer recorded the reasons for denying a personal bond on the bail order form—Clack’s extensive
96 Ex. B, Russell video at 32:37 to 36:22. 97 Id.; Ex. H. 98 Ex. H. 99 Ex. S. Russell left the Harris County Jail on May 17, 2019. 100 Ex. B, Clack video at 11:04 to 18:33; Ex. K. 101 Id. 102 Ex. N; Ex. B, Clack video at 14:47-15:18. 103 Ex. B, Clack video at 11:04 to 18:33; Ex. K. 104 Id.
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criminal history.105 The hearing officer informed Clack that he could appeal the decision to a District Court Judge.106
Plaintiff Johnnie Pierson: On January 18, June 6, and October 2, 2019, Pierson was arrested for selling crack.107 Within 24 hours of each arrest, he received the same bail processes described above.108 While Pierson was able to post a surety bond twice, he has continued to get arrested while free on bail.109
As shown above, each Plaintiff was arrested while Harris County’s upgraded bail system was in place. And each Plaintiff received the constitutionally-required bail process outlined in ODonnell. IV. An Overview of Plaintiffs’ Lawsuit.
On January 21, 2019, Plaintiffs sued Harris County and Sheriff Ed Gonzalez over the felony bail system.110 While the Complaint purports to be about the current felony system, it omits the changes to the system that gave felony arrestees, including Plaintiffs, ample process in compliance with ODonnell.111 It also paints a misleading picture of how felony arrestees are treated by citing to pretrial release statistics from 2017, while completely ignoring more recent statistics showing that more felony arrestees were being released under Harris County’s modified bail procedures.112
105 Ex. K. 106 Ex. B, Clack video at 18:07-18:31. 107 Ex. Q. 108 Ex. B, Pierson 19 Jan 19 video at 39:40 to 44:46; Ex. B, Pierson 7 Jun 19 video at 32:55 to 36:25; Ex. B, Pierson 2 Oct 19 video at 52:30 to 55:46; Ex. L. 109 Ex. R; Ex. O. 110 Class Action Complaint, ECF 1. 111 See generally id. 112 Id. at 6-8, n. 3-6 (citing statistics from the 2017 Annual Report from Pretrial Services).
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Shortly after filing, Plaintiffs and Defendants agreed to stay the case to work out yet another consent decree. Over a year passed with no movement. After COVID19 started spreading, Plaintiffs tried to use this dormant suit to empty Harris County jails. Plaintiffs have amended their Complaint twice. The first amendment added Plaintiffs Clack and Wilson (both of whom went through the reformed bail system) and conclusory allegations about Governor Abbott’s Executive Order GA-13—an executive order aimed at protecting the public and maintaining the rule of law during COVID-19 due to the threat of abusing the personal bond process to release dangerous individuals back into society.
The second amendment merely added the District Court Judges as Defendants. No allegations in this Second Amended Complaint suggest that Plaintiffs received anything less than the bail process required by ODonnell. Instead, Plaintiffs seek relief beyond ODonnell.113 They ask this Court to recognize a substantive due process right previously rejected by the Fifth Circuit and, in doing so, find that hearings officer must make onerous findings by clear and convincing evidence before assigning secured bail.114 If Plaintiffs get their way, it will effectively end the use of cash bail.
ARGUMENT I. ODonnell Forecloses Plaintiffs’ Substantive Due Process Claim.
Plaintiffs seek a federal substantive right to pretrial liberty that requires more relief than was outlined in ODonnell.115 The gist of this claim is that cash bail is being
113 See generally Second Amend. Comp. (pursuing a substantive due process claim and relief that includes findings of fact by clear and convincing evidence).
114 Id. 115 See, e.g., Second Am. Compl., ¶¶ 38, 40 (stating that judges and hearing offices are improperly failing to issue findings that “pretrial detention is necessary or that less-restrictive
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set too high for indigent defendants. Plaintiffs’ view is that ordering any amount of cash bail that an arrestee cannot afford, even after ODonnell’s required individualized assessment, amounts to a substantive due process violation that triggers strict scrutiny review. They demand a system where cash bail cannot be used unless several findings imported from the Federal Bail Reform Act are made by clear and convincing evidence. This would effectively create a presumption of release. Plaintiffs’ substantive due process claim fails for three main reasons.
First, their substantive due process claim is barred by ODonnell. As Your Honor explained, ODonnell “clarified that there is no ‘fundamental substantive due process right to be free from any form of wealth-based detention.’”116 Rather, it is “‘the automatic imposition of pretrial detention’” that “violate[s] federal due process.”117 Federal due process is therefore satisfied when there are proper individualized bail hearings that take place within 48 hours of arrest.118 Simply put, ODonnell outlined what constitutionally-proper bail procedures look like and Harris County complied with these requirements.119 This Court cannot overturn the Fifth Circuit’s decisions in ODonnell.120
conditions are inadequate to reasonably assure community safety and reasonably prevent flight” and that they are failing to require showings “that pretrial detention is necessary to serve a compelling interest”).
116 Russell v. Harris Cty., Texas, --- F. Supp. 3d. ---, 2020 WL 1866835, at *10 (S.D. Tex. Apr. 14, 2020) (quoting ODonnell I, 892 F.3d at 163; ODonnell II, 900 F.3d at 225).
117 Id. (quoting ODonnell II, 900 F.3d at 224). 118 Id. 119 ODonnell I, 892 F.3d at 164–66. 120 See Technical Automation Servs. Corp. v. Liberty Surplus Ins. Corp., 673 F.3d 399, 405 (5th Cir. 2012); Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 198 (5th Cir. 2000); Teague v. City of Flower Mound, 179 F.3d 377 (5th Cir. 1999); Lowrey v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
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Second, Plaintiffs’ substantive due process claims rests on their argument that bail is still being set too high for indigent detainees. This claim is squarely within the Eighth Amendment, which provides: “Excessive bail shall not be required.”121 Thus, Plaintiffs’ claim is subject to Eighth Amendment jurisprudence on excessive bail claims.122 As the Supreme Court explained, there is longstanding “reluctan[ce] to expand the concept of substantive due process.”123 As another court put it: “The moment that Plaintiffs transition from advocating for reformed procedures to advocating for the abolition of or lessening of monetary bail, they must traverse through the Eighth Amendment.”124 Plaintiffs’ cannot circumvent Eight Amendment jurisprudence by dressing up their excessive bail claim in the garb of substantive due process.
Finally, to consider such a substantive due process right, according to Plaintiffs, would require findings concerning ability to pay, whether alternative conditions of release serve the government’s interests, or whether pretrial detention is necessary to serve any government interest before affixing cash bail. Every district court in this Circuit has rejected such a theory in the bail context.125 Plaintiffs’ substantive due process claim is meritless and should be dismissed.
121 U.S. CONST., AMEND. VIII. 122 Graham v. Connor, 490 U.S. 386, 395 (1989); see also Portuondo v. Agard, 529 U.S. 61, 74 (2000); Conn v. Gabbert, 526 U.S. 286, 293 (1999); County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998); United States v. Lanier, 520 U.S. 259, 272 n.7 (1997); Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 721 (2010) (plurality op.). 123 Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). 124 Daves v. Dallas Cty., Tex., 341 F. Supp. 3d 688, 696 (N.D. Tex. 2018). 125 See id.; Little v. Frederick, No. 6:17-0724, 2020 U.S. Dist. LEXIS 21949, at *35-37, 2020 WL 605028 (W.D. La. Feb. 7, 2020); Booth v. Galveston Cty., No. 3:18-CV-00104, 2019 WL 4305457, at *2 (S.D. Tex. Sep. 11, 2019); see also Edwards v. Cofield, No. 3:17-CV-321-WKW, 2018 WL 4101511, at *3 (M.D. Ala. Aug. 28, 2018).
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II. Plaintiffs’ Procedural Due Process and Equal Protection Claims Fail Because They Received all Process Required by ODonnell. Plaintiffs’ procedural due process and equal protection claims also fail because
they received the constitutionally-required bail process. As explained below, these claims are nonjusticiable and inadequately pled.
A. Plaintiffs’ Claims are Nonjusticiable. Article III of the Constitution limits the jurisdiction of federal courts to live cases or controversies.126 “If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.”127 This actual case-or-controversy requirement gives rise to the justiciability doctrines of standing and mootness.128 Constitutional standing requires that the plaintiff personally suffered some actual or threatened injury that is fairly traceable to the challenged action and is redressable by the court.129 “The standing question . . . bears close affinity to [the] question[] . . . of mootness—whether the occasion for judicial intervention persists.”130 “The mootness doctrine requires that the controversy posed by the plaintiff’s complaint be ‘live’ not only at the time the plaintiff files the complaint but also throughout the litigation process.”131 Plaintiffs lack standing to bring this suit and their claims are moot. It is uncontroverted that Plaintiffs were subjected to Harris County’s revamped bail
126 U.S. CONST. art. III, § 2; United States Parole Comm’n v. Geraghty, 445 U.S. 388, 395 (1980). 127 DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 341 (2006). 128 Id. at 352. 129 Doe v. Tangipahoa Par. Sch. Bd., 494 F.3d 494, 496 (5th Cir. 2007). 130 Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975). 131 Rocky v. King, 900 F.2d 864, 866 (5th Cir. 1990).
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system and thus received all process required by ODonnell. What then is Plaintiffs’ legally cognizable injury? How is this injury fairly traceable to Defendants? Given that Harris County is complying with ODonnell, how would this Court redress Plaintiffs’ phantom injuries? How can Plaintiffs present a live challenge since they already received all constitutionally-required process? How can Plaintiffs overcome the “presumption of good faith” afforded to Harris County that it will not revert to its prior constitutionally-infirm procedures, especially since the County itself is on Plaintiffs’ side in this policy debate masquerading as a lawsuit?132 And how can Plaintiffs sue the District Court Judges without an ongoing violation of law capable of leveraging the Ex parte Young exception to sovereign immunity?
Plaintiffs have the burden of establishing that each of their claims is justiciable.133 They cannot meet this burden. And this Court cannot proceed unless these threshold jurisdictional issues are resolved.
B. Plaintiffs’ Procedural Due Process and Equal Protection Claims are Inadequately Pled.
Plaintiffs’ procedural due process and equal protection claims are inadequately pled for the same reason as their substantive due process claim—because Plaintiffs received all bail process required by ODonnell.
As ODonnell I explained, “[t]he fundamental source of constitutional deficiency in the due process and equal protection analyses is the same: the County’s mechanical
132 See, e.g., ECF 209. 133 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992); Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017); see also Doe, 494 F.3d at 496-97 (“Standing to sue must be proven, not merely asserted . . . .”).
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application of the secured bail schedule without regard for the individual arrestee's personal circumstances.”134 Thus, the remedy for both claims were the same:
the County must implement the constitutionally-necessary procedures to engage in a case-by-case evaluation of a given arrestee's circumstances, taking into account the various factors required by Texas state law (only one of which is ability to pay). These procedures are: notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.135 ODonnell II clarified that, under the Equal Protection Clause, heightened scrutiny only applies if such procedures were not followed.136 If these procedures were followed, a claim based around the indigent arrestee’s inability to afford bail “is reviewed for a rational basis” and is the type of claim that courts have “consistently rejected.”137 As explained above, Harris County gave Plaintiffs the constitutionallyrequired individualized bail hearings, within 48 hours, before an impartial decisionmaker, who considered the various factors required by Texas law, and who rendered a decision on the record.138 Nor do they allege in the Second Amended Complaint that they were deprived of this process. Thus, Plaintiffs’ procedural due process claim fails and their equal protection claim is subject to rational basis review; a standard which Harris County’s bail system easily surpasses.
134 ODonnell I, 892 F.3d at 163. 135 Id. 136 ODonnell II, 900 F.3d at 226. 137 Id. at 226–27. 138 Supra, Background II & III.
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It is well-established that a justice system has “a compelling interest in assuring the presence at trial of persons charged with crime.”139 To assure the presence of an accused at trial, courts must be able to “requir[e] a bail bond or the deposit of a sum of money subject to forfeiture” as a condition of pretrial release in appropriate circumstances.140 The use of cash bail is “basic to our system of law.”141 Harris County’s bail system serves this compelling interest not by the automatic imposition of secured bail, but by utilizing ODonnell’s procedural requirements.
Harris County provided Plaintiffs all bail process required by ODonnell, and Plaintiffs never meaningfully allege otherwise. Plaintiffs cannot sustain procedural due process and equal protection claims under these circumstances as they lack a plausible claim under Rule 12(b)(6). III. Plaintiffs’ References to COVID-19 and GA-13 do Not Create Legally
Viable Claims. In the Second Amended Complaint, Plaintiffs casually toss in a few references to COVID-19 and GA-13.142 It is unclear why. None of Plaintiffs’ claims turn on the seriousness of this pandemic. This is best highlighted by the fact that Plaintiffs filed this action in January 2019, well before COVID-19. Plaintiffs’ claims in 2019 were the same then as they are now.143 And Plaintiffs’ GA-13 “claim” cannot be meaningfully distinguished from their underlying Fourteenth Amendment claims.144
139 Pugh v. Rainwater, 572 F.2d 1053, 1056 (5th Cir. 1978) (footnote omitted); Ex parte Anderer, 61 S.W.3d 398, 404-05 (Tex. Crim. App. 2001) (en banc).
140 Stack v. Boyle, 342 U.S. 1, 5 (1951); See TEX. CONST. art. I, § 11. 141 Schilb v. Kuebel, 404 U.S. 357, 365 (1971). 142 See, e.g., Second Amend. Comp. at ¶¶ 69–70, 78–79, 168–75, Request for Relief (c). 143 Compare Dkt. 1, with 2nd Am. Compl. 144 Second Amend. Comp., Request for Relief(c) (requesting “[a] declaratory judgment that Executive Order GA-13 is unconstitutional to the extent it requires pretrial detention of arrestees who
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Plaintiffs’ motives aside, their COVID-19 and GA-13 references do not create
legally viable claims, as explained below.
First, Governor Abbott issued GA-13 on March 29, 2020.145 By this point, all of
the Plaintiffs had received ODonnell’s required bail process.146 There are no
allegations suggesting that Plaintiffs were denied a personal bond because of GA-13.
Plaintiffs lack standing to challenge GA-13 and they cannot plead a plausible § 1983
claim against it if they were never injured by this order.
Second, if Plaintiffs are still seeking to release arrestees due to COVID-19, as
they tried to do in their previous motion for a preliminary injunction, this would make
their claim subject to the Prison Litigation Reform Act. Under the PLRA, only a three-
judge panel can award such relief; this Court has no authority to do so.147 And
Plaintiffs are required to exhaust their administrative remedies before filing a claim
subject to the PLRA.148 They have not done so.
Finally, any challenge to GA-13—which is part of Governor Abbott’s response
to a public health emergency—is governed by Jacobson v. Commonwealth of
Massachusetts.149 GA-13 clearly meets Jacobson’s low bar—it was reasonably related
cannot afford secured money bail without the substantive findings and procedural safeguards for an order of pretrial detention . . . .”).
145 Executive Order by the Governor of Texas, GA-13, available at https://gov.texas.gov/uploads/files/press/EO-GA-13_jails_and_bail_for_COVID-19_IMAGE_03-292020.pdf.
146 Supra, Background II & III. 147 18 U.S.C. § 3626(a)(3); Brown v. Plata, 563 U.S. 493, 500 (2011) (“The authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amendment is a power reserved to a three-judge district court, not a single-judge district court.”). 148 Valentine v. Collier, 956 F.3d 797, 804–05 (5th Cir. 2020); Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012); Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010). 149 197 U.S. 11 (1905); see also S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613– 14 (2020) (Roberts, C.J., concurring); In re Abbott, 954 F.3d 772 (5th Cir. 2020); Valentine, 956 F.3d at 797.
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to Governor Abbott’s effort to protect Texans during this crisis and it resulted in no invasion (much less a “palpable invasion”) of Plaintiffs’ constitutional rights.150 Nor can Plaintiffs’ COVID-19 references help their Fourteenth Amendment claims. The opposite is true; any claims resting on Defendants’ response to this emergency would be governed by Jacobson’s lenient standard and thus can be easily dismissed. The fact that Plaintiffs are using COVID-19 to usurp Defendants’ administration of its jail systems—which is one of the strongest state interests—makes their claim even more implausible.151 IV. Plaintiffs’ Claims Against Sheriff Gonzalez are Barred by ODonnell.
In ODonnell I, the Fifth Circuit found that Sheriff Gonzalez was an improper defendant.152 Plaintiffs ignored ODonnell I’s holding and again named Sheriff Gonzalez as a defendant here. Plaintiffs’ claims against Sheriff Gonzalez fail for the same reasons they did in ODonnell I—he lacks the municipal policymaking authority to be a proper defendant under § 1983. Binding precedents still apply, even when a party doesn’t want them to.
CONCLUSION This suit boils down to a policy debate. Plaintiffs’ counsel (and more than a few Defendants) want to revolutionize Texas’ bail system to meet their policy goal— ending the State’s use of cash bail. But this Court is not the proper forum for resolving
150 Jacobson, 197 U.S. at 29. 151 Valentine, 956 F.3d at 803 (“[T]he Supreme Court has repeatedly warned that it is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons.”) (quotations omitted). 152 ODonnell I, 892 F.3d at 155–56; see also Daves, 341 F. Supp. 3d at 693–94 (finding that the Dallas County Sheriff was not a proper defendant in a similar bond case for the same reason).
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this political dispute. This Court can only resolve legal claims, and there are no viable legal claims presented here. Plaintiffs’ action is barred by the Fifth Circuit’s decisions in ODonnell. This suit should be dismissed.
Respectfully submitted.

KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
ERIC A. HUDSON Special Counsel Special Litigation Unit Texas Bar No. 24059977 Southern District ID: 1000759 Eric.Hudson@oag.texas.gov P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 936-1414 | FAX: (512) 936-0545

DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
THOMAS A. ALBRIGHT Chief for General Litigation Division
/s/Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel Attorney-in-Charge Texas Bar No. 24077727 Southern District No. 2964087 Adam.Biggs@oag.texas.gov
MATTHEW BOHUSLAV Assistant Attorney General Texas Bar No. 1303218 Southern District ID: 1303218 Matthew.Bohuslav@oag.texas.gov

DOMINIQUE G. STAFFORD Assistant Attorney General State Bar No. 24079382 Southern District ID: 3195055 Dominique.Stafford@oag.texas.gov General Litigation Division P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2120 | FAX: (512) 320-0667

COUNSEL FOR THE STATE INTERVENORS 26

Case 4:19-cv-00226 Document 214 Filed on 07/10/20 in TXSD Page 33 of 33 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been sent by electronic notification through ECF by the United States District Court, Southern District of Texas, Houston Division, on July 10, 2020 to all parties of record.
/s/Adam Arthur Biggs ADAM ARTHUR BIGGS Special Litigation Counsel
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 Case 4:19-cv-00226 Document 218 Filed on 07/17/20 in TXSD Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

DWIGHT RUSSELL, ET AL. On behalf of themselves and all Others similarly situated,
Plaintiffs,
v.
HARRIS COUNTY, TEXAS, ET AL.,
Defendants.

§ § § § § § § CIVIL ACTION NO. 4:19-CV-00226 § § § §

Response to Plaintiff’s Motion for Leave to Conduct Discovery [Dkt. No. 211]

Judges Frank Aguilar, Abigail Anastasio, Ramona Franklin, Greg Glass, Nikita Harmon, Josh Hill, Kelli Johnson, Robert Johnson, DaSean Jones, Hazel Jones, Danilo Lacayo, Jason Luong, Amy Martin, Jess McClure, III, Chris Morton, Herb Ritchie, Brock Thomas, Hillary Unger, George Powell, Randy Roll and Lori Gray (“District Judges”), by and through the Office of the Texas Attorney General, hereby file their response to Plaintiffs’ motion to take “limited” discovery.1 Dkt. No. 211.
Introduction Although originally filed back in January 2019, Plaintiffs’ suit against the District Judges is only weeks old. Despite having made no request to do so for the past 18 months, Plaintiffs now demand expedited discovery from the District Judges claiming an urgency created by a pandemic

1 The District Judges understood this Court’s order for a response to Plaintiffs’ motion to seek only their basis for their opposition to being required to submit to pre-answer discovery, rather than seeking request or interrogatory-specific objections. The District Judges reserve the right to submit objections to the requests and interrogatories, if any, that this Court orders District Judges to respond to.
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that started back in March 2020. Dkt. No. 211. There is no legitimate basis to grant expedited discovery in this case prior to the District Judges being allowed the opportunity to present valid and dispositive defenses. To do so would only serve to deplete necessary resources in Harris County’s criminal justice system as well as deprive the District Judges of the very protections the Eleventh Amendment is meant to afford them. Where this request for expedited discovery is born solely out of a strategic attempt to badger the District Judges into choosing between forfeiting their judicial discretion over their courtrooms or being placed in a detrimental position while defending against this suit, good cause does not exist to grant Plaintiffs’ motion. The parties should be ordered to engage in discovery during the appropriate time dictated by the Federal Rules.
Argument “Expedited discovery is not the norm.” St. Louis Group, Inc. v. Metals & Additives Corp., Inc., 275 F.R.D. 236, 240 (S.D. Tex. 2011) (quoting Merrill Lynch, Pierce, Fenner & Smith, Inc. v. O'Connor, 194 F.R.D. 618, 623 (N.D. Ill. 2000)). Indeed, according to the Federal Rules, the general rule for the commencement of discovery is “[a] party may not seek discovery from any source before the parties have conferred as required by Rule 26(f).” Fed. R. Civ. P. 26(d)(1). Courts only allow expedited discovery so long as it is narrowed in scope, and the moving party establishes good cause. El Pollo Loco, S.A. de C.V. v. El Pollo Loco, Inc., 344 F.Supp.2d 986, 991 (S.D.Tex. 2004). The burden of establishing good cause is generally only met where the moving party shows irreparable harm that can be addressed by limited, expedited discovery or that a failure to grant expedited discovery would substantially impact the case from progressing on the court's docket. St. Louis Group, Inc., 275 F.R.D. at 240-41.
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Plaintiffs’ Motion entirely fails to demonstrate good cause exists to divert from the Federal Rules’ preference that discovery occur after the parties have conferred pursuant to Rule 26(f). Plaintiffs’ discovery requests are aimed at a substantial due process clause claim that is unsustainable in this case. Plaintiffs identify no legitimate harm they will suffer without expedited discovery and, in contrast, the District Judges will be effectively denied the protections afforded by the Eleventh Amendment if they are required to engage in discovery prior to a ruling on their immunity from suit. Where the District Judges’ defenses have not been ruled upon, in addition to other pending dispositive motions and a motion for class certification by Plaintiffs, expedited discovery serves no purpose other than to serve Plaintiffs’ personal strategic needs and unnecessarily expend critical resources. For these reasons, as they are further discussed below, this Court should deny Plaintiffs’ Motion.
I. Plaintiffs’ Proposed Discovery is Aimed at Obtaining Information to Support a Meritless Substantive Due Process Claim.
After allowing this case to lie dormant for over a year, Plaintiffs now demand premature discovery to support their allegations in their Second Amendment Complaint (“SAC”). See Dkt. No. 211. The SAC, however, does not suggest, in any way, that Plaintiffs or the class they propose have received anything less than the bail process required by ODonnell v. Harris County, 892 F.3d 147, 163 (5th Cir. 2018) (“ODonnell I”). See Dkt. No. 195-1. Instead, Plaintiffs’ SAC asserts that ordering any amount of cash bail that an arrestee cannot afford, even after ODonnell’s required individualized assessment, amounts to a substantive due process violation that triggers strict scrutiny review. See id.
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Plaintiffs’ discovery requests seek information concerning only their substantive due process claim. In their interrogatories, Plaintiffs’ first interrogatory demands evidence of “formal, on-the-record, adversarial, evidentiary bail hearings.” Dkt. No. 211-1 at 5 (ROG No. 1).
This is not required by ODonnell. See ODonnell I, 892 F.3d at 163; see also ODonnell v. Goodhart, 900 F.3d 220, 223 (5th Cir. 2018) (“ODonnell II”).
Plaintiffs’ second interrogatory demands evidence of the District Judges making “factual finding[s] on the record as to a defendant’s ability to pay the required amount before requiring secured money bail as a condition of release.” Dkt. No. 211-1 at 5 (ROG No. 2).
This is not required by ODonnell. See ODonnell I, 892 F.3d at 165. Plaintiffs’ third interrogatory demands evidence of the District Judges making “substantive findings on the record about whether pretrial detention is necessary because no other less restrictive alternative is available to serve a compelling government interest.” Dkt. No. 211-1 at 5 (ROG No. 3). This is not required by ODonnell. See ODonnell I, 892 F.3d at 164-65. Plaintiffs’ fourth interrogatory demands evidence of the “evidentiary standard [the District Judges] apply to make the finding that pretrial detention is necessary for a defendant.” Dkt. No. 211-1 at 5 (ROG No. 4). This, too, is not required by ODonnell. See ODonnell I, 892 F.3d at 164-65. Plaintiffs’ requests for production mirror their asks in their interrogatories by broadly seeking years-old documents related to bail determinations and the ability to pay bail. Dkt. No. 2151. Although Plaintiffs do not offer what topics they need deposition testimony of from the District
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Judges, it is logical to assume they will track with a substantive due process claim, as Plaintiffs have not asserted the District Judges are failing to follow ODonnell procedures. Dkt. No. 211-3.
Thus, the evidence Plaintiffs are seeking are for a claim that this Court has already recognized is meritless. See Russell v. Harris Cty., Texas, --- F. Supp. 3d. ---, 2020 WL 1866835, at *10 (S.D. Tex. Apr. 14, 2020) (quoting ODonnell I, 892 F.3d at 163; ODonnell II, 900 F.3d at 225). (explaining ODonnell “clarified that there is no ‘fundamental substantive due process right to be free from any form of wealth-based detention.’”). Plaintiffs’ burden to show good cause for expedited discovery cannot be met by attempting to gain discovery “necessary” to a claim that the Fifth Circuit has explicitly foreclosed.
II. The District Judges are Entitled to the Protections Provided by the Eleventh Amendment.
The Fifth Circuit has stated that, “until resolution of the threshold question of the application of an immunity defense, discovery should not be allowed.” Nieto v. San Perlita Indep. Sch. Dist., 894 F.2d 174, 177 (5th Cir. 1990) (quotation omitted). This is because “[t]he very object and purpose of the 11th Amendment were to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties.” Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (quoting In re Ayers, 123 U.S. 443, 505 (1887)); see also Carty v. Rodriguez, 211 Fed. App’x 292, 293 (5th Cir. 2006) (quoting Williams v. Brooks, 996 F.2d 728, 730 n. 2 (5th Cir. 1993) (stating immunity “is an entitlement to be free from the burdens of time-consuming pre-trial matters and the trial process itself.”). Thus, when immunities are raised by a defendant, no discovery is permissible unless and until the court first determines discovery is necessary to resolve the question of immunity. Wicks v. Mississippi State Employment Services, 41 F.3d 991, 994–95 (5th Cir. 1995); see also Patel v. Texas Tech Univ., 727 Fed.
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App’x 94 (5th Cir. 2018) (mem. op.) (vacating and remanding denial of a stay pending an immunity ruling where the district court failed to follow the Fifth Circuit’s Rule 7(a) reply procedure).
Here, the District Judges are entitled to Eleventh Amendment immunity from suit. Although this suit against them is so premature they have not yet had the opportunity to raise the defense in a responsive pleading, it is asserted now, will be briefed at the appropriate time, and should prohibit discovery at this time. Plaintiffs have failed to state facts in their SAC that the Ex Parte Young exception applies to their suit, so they cannot overcome Eleventh Amendment immunity. In order to qualify under Ex parte Young, a plaintiff must seek prospective relief against an individual governmental official in their official capacity to end a continuing violation of federal law. 209 U.S. 123 (1908). Plaintiffs are no longer incarcerated in Harris County Jail. Therefore, it is impossible they are suffering any ongoing violation of federal law as a result of the bail procedures the district judges are following. Even if Plaintiffs were subjected to an ongoing injury, there is no violation of federal law alleged. As explained above, Plaintiffs’ SAC does not claim violations of ODonnell but, instead, alleges only that their substantive due process rights have been violated. As this is not a “colorable constitutional claim” as Ex Parte Young requires, the District Judges are entitled to Eleventh Amendment immunity. See, e.g., Hall v. Tex. Comm’n on Law Enf’t., 685 F. App'x 337, 341 (5th Cir. 2017) (per curiam).
The District Judges should be permitted to raise and brief their entitlement to Eleventh Amendment immunity, and receive a ruling on their defense, prior to engaging in discovery. To rule otherwise would be to deprive the District Judges of the very protections an assertion of Eleventh Amendment immunity is meant to provide.
III. The Existence of Covid-19 Does Not Provide a Basis for Expedited Discovery.
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Plaintiffs’ sole basis for why immediate, pre-answer discovery is necessary appears to turn on the presence of Covid-19.2 But Plaintiffs’ suit, filed 14 months before the pandemic began, does not concern the spread of Covid-19. 3 And Plaintiffs are at no risk of harm of being exposed to Covid-19 within Harris County jail as they are not incarcerated. And Plaintiffs’ reliance on the presence of Covid-19 to claim they need quicker resolution of the claims they have brought is not a basis for granting expedited discovery. St. Louis Group, Inc. v. Metals & Additives Corp., Inc., 275 F.R.D. 236, 242 (S.D. Tex. 2011) (“While [discovery] “sooner than later” may help in a “speedy” resolution, that reason alone does not constitute good cause.”).
While Plaintiffs also rely on their proposed class members to assert a potential harm, this, too, should not suffice to expedite discovery. Plaintiffs claim that their proposed class members are being “housed in conditions placing them at high risk for exposure to COVID-19.” Dkt. No. 211 at 7. Premature discovery is not justified, not only because there is no evidence of this claim, but also because there is no class certified in this case. It is entirely improper for this Court to consider potential harm to non-parties in considering Plaintiffs’ request for expedited discovery. Turner Indus. Group, LLC v. Int'l Union of Operating Engineers, Local 450, CIV.A. H-13-0456, 2013 WL 2147515, at *3 (S.D. Tex. May 10, 2013) (requiring showing of irreparable harm to the party seeking expedited discovery). No discovery should issue on the basis of speculative harm to Harris County detainees who are not parties to this suit.
2 Other than referring to the existence of Covid-19, Plaintiffs offer no other reasons why their proposed discovery is necessary immediately, as opposed to after the District Judges have had an opportunity to raise valid defenses. 3 Plaintiffs make a putative challenge to the Governor’s Executive order, GA-13. See ECF No. 195-1, pg. 50. However, it does not appear to be a separate cause of action, but rather, GA-13 only challenged to the extent it requires cash bail determinations be made with a standard lesser than strict scrutiny.
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Moreover, Covid-19 has now been a reality in this country for nearly 6 months. At no time between the start of the pandemic and the July 6th hearing (at which Plaintiffs asked this Court to order pre-answer discovery against the District Judges) have Plaintiffs ever served discovery requests or deposition notices on any party. In fact, prior to bringing the District Judges into this suit, and a full three months into the Covid-19 pandemic, Plaintiffs sought, and received, a scheduling order that pushed the discovery deadline out to March 2021. Dkt. No. 155. And, according to Plaintiffs, they “could have pursued identical discovery and depositions against the judges as non-parties to the case” at any time in the past 6 months. Dkt. No. 211 at 7. Since Plaintiffs assertedly could have, and consciously chose not to, pursue discovery for the past 19 months, this Court should decline to find good cause based on Plaintiffs’ prevaricatory claim that there is now a sudden urgency to do so.
Although Plaintiffs have not acted in an expedient fashion during the past 6 months of the Covid-19 pandemic, there have been multiple attempts by inmates to obtain release from prison or jail all over the country on the basis Covid-19’s existence. Most courts across the state have not found Covid-19 a legitimate basis, on its own, to release inmates or detainees prematurely. See generally United States v. Gonzalez, 3:17-CR-568-L, 2020 WL 2615932, at *3 (N.D. Tex. May 22, 2020) (providing numerous cases in which pretrial release was not warranted simply by virtue of Covid-19); Russell v. Harris County, Tex., CV H-19-226, 2020 WL 1866835, at *9 (S.D. Tex. Apr. 14, 2020) (same). If release from prison or jail itself is not warranted based on the existence of Covid-19, surely premature discovery, conducted by Plaintiffs that are not incarcerated, to gain advantage in a civil matter, would not be warranted.
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Any claim that the need for expedited discovery exists due to a 6-month-old pandemic is baseless and contrary to what Plaintiffs’ prior actions demonstrate. Plaintiffs’ sudden need for discovery is much more the result of a tactical decision to use this Court’s jurisdiction to pressure the District Judges into capitulating to a consent decree than of legitimate need. And a consent decree would not only deprive the District Judges of a legitimate course of litigation, but also destroy the judicial discretion Texas voters have imparted on them. Plaintiffs should not be permitted to use a very real pandemic that has had detrimental effects on the nation for the selfserving purpose of acquiring an unearned advantage in this suit.
IV. Expedited Discovery Not Only Harms the District Judges’ Protections from Suit by Virtue of their Immunity but also Diverts Resources and Focus Away from the Very System Plaintiffs Challenge.
In contrast to the lack of harm Plaintiffs will experience if discovery commences at the appropriate time, the District Judges, and the courtrooms they preside in, will suffer significant harm should discovery be allowed to proceed prematurely. First, as explained above, the District Judges have raised a viable immunity defense. Thus, the District Judges are entitled to refrain from pretrial matters, such as discovery, until a determination of that immunity is made. In addition to the District Judges’ interest in immunity from suit, a case against the District Judges in their official capacities also implicates the public’s interests. Clinton v. Jones, 520 U.S. 681, 693 (1997). The state actors’ immunity “serves the public interest in enabling such officials to perform their designated functions effectively without fear that a particular decision may give rise to personal liability.” Id. Thus, a determination of the District Judges’ sovereign immunity defense, prior to allowing this case to continue, serves “societal interest in providing such public officials with the
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maximum ability to deal fearlessly and impartially with the public at large.” Id. (quoting Ferri v. Ackerman, 444 U.S. 193, 202 (1979)).
Second, both this Court and the parties have expressed the desire to prevent the spread of Covid-19 however possible, including by reviewing bail determinations and holding bail hearings expeditiously. Requiring the District Judges to divert their focus and resources to meeting with counsel to respond to discovery, preparing for depositions, sitting for depositions, searching for responsive documents and responding to interrogatories directly impedes this process. Plaintiffs should be denied the ability to use the threat of Covid-19 in multiple, contradictory ways to achieve personal litigation goals, particularly in a suit that involves only the constitutionality of bail determinations. Either Covid-19 is so threatening that it suffices as a basis for expedited litigation, and specifically discovery, or it is so threatening that the parties must focus their attentions on effectuating prompt bail determinations for the Harris County jail population. To require the District Judges to begin submitting to extensive discovery, especially where this suit may not proceed beyond dispositive motions, does not serve any goal of this Court or the parties to operate an effective and safe criminal court system in the midst of this pandemic.
V. Discovery Should be Conducted After Pending Dispositive Motions and Plaintiffs’ Motion for Class Certification is Ruled Upon.
The District Judges have not answered Plaintiffs’ SAC yet, but intend to file defenses to Plaintiffs’ claims no later than their August 28, 2020 deadline. The State Intervenors have filed a motion to dismiss. Dkt. No. 214. Rulings on the State Intervenor’s dispositive motion as well as a dispositive motion by the District Judges could resolve this litigation or narrow it, depending on
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how this Court rules. The same is true of Plaintiffs’ motion for class certification: this Court’s ruling on the class certification will dictate the scope of this case going forward. Dkt. Nos. 11, 141
Refraining from ordering discovery until after those rulings is reasonable to allow the Court to decide what this case will look like going forward, and for the parties to consider whether either an interlocutory or permissive appeal is appropriate or necessary. It will also prevent the parties from wasting time and resources litigating over issues that may become irrelevant or moot, depending on this Court’s ruling and any subsequent appeals.
This basis for denial of Plaintiffs’ Motion is not novel. See, e.g., Sapp v. Mem'l Hermann Healthcare Sys., 406 Fed. Appx. 866, 870 (5th Cir. 2010) (quoting Corwin v. Marney, Orton Invs., 843 F.2d 194, 200 (5th Cir. 1988)) (not allowing discovery to move forward while a dispositive motion was pending was not abuse of discretion where it would have been “‘wasteful to allow discovery on all issues raised in a broad complaint when, for example, the case will not reach’ a determination on those merits.”); Landry v. Air Line Pilots Ass'n International AFL-CIO, 901 F.2d 404, 436 (5th Cir.) (refraining from ordering the parties to conduct discovery may be appropriate where the disposition of a motion to dismiss “might preclude the need for the discovery altogether thus saving time and expense.”); see also Walker v. Alta Colleges, Inc., 2010 WL 2710769, *8-9 (W.D. Tex. 2010) (stating that discovery sought by moving party was irrelevant prior to determination of class certification motion because such “discovery does not go to the question of whether a class can be certified.”).
Because the pending and forthcoming motions in this case will dictate whether or how this case will proceed, this Court should deny Plaintiffs’ motion for expedited discovery.
CONCLUSION
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Good cause does not exist to order pre-answer discovery based on Plaintiffs’ desire to
support a meritless claim and coerce the District Judges into forfeiting their defenses in this case
and their judicial discretion in their courtrooms. The District Judges respectfully request that this
Court afford them the protections afforded by the Eleventh Amendment and deny Plaintiffs’
Motion.
Dated: July 17, 2020.
Respectfully submitted.
KEN PAXTON Attorney General of Texas
JEFFREY C. MATEER First Assistant Attorney General
RYAN L. BANGERT Deputy First Assistant Attorney General
DARREN L. MCCARTY Deputy Attorney General for Civil Litigation
SHANNA E. MOLINARE Chief, Law Enforcement Defense Division
/s/ Courtney Corbello COURTNEY CORBELLO Assistant Attorney General Texas State Bar No. 24097533 Southern Distr. No. 3089117 Courtney.Corbello@oag.texas.gov
OFFICE OF THE ATTORNEY GENERAL Law Enforcement Defense Division P.O. Box 12548, Capitol Station Austin, Texas 78711 (512) 463-2080 / (512) 370-9410 (Fax) ATTORNEYS FOR THE DISTRICT JUDGES
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Case 4:19-cv-00226 Document 218 Filed on 07/17/20 in TXSD Page 13 of 13
NOTICE OF ELECTRONIC FILING I, COURTNEY CORBELLO, Assistant Attorney General of Texas, certify that I have electronically submitted for filing, a true and correct copy of the above and foregoing in accordance with the Electronic Case Files system of the United States District Court for the Southern District of Texas, on July 17, 2020.
/s/ Courtney Corbello COURTNEY CORBELLO Assistant Attorney General CERTIFICATE OF SERVICE I, COURTNEY CORBELLO, Assistant Attorney General of Texas, do hereby certify that a true and correct copy of the above and foregoing has been served directly to all counsel on record by the Electronic Case Files System of the Southern District of Texas on July 17, 2020. /s/ Courtney Corbello COURTNEY CORBELLO Assistant Attorney General
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 Case 4:19-cv-00226 Document 259 Filed on 08/27/20 in TXSD Page 1 of 62

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION

RUSSELL, et al. Plaintiffs, v. HARRIS COUNTY, TEXAS, et al. Defendants.

)

)

ORAL ARGUMENT REQUESTED

)

)

)

Case No. 4:19-cv-00226

)

(Class Action)

)

The Honorable Lee H. Rosenthal

)

U.S. District Judge

)

)

)

PLAINTIFFS’ OMNIBUS RESPONSE TO THE 20 DISTRICT JUDGES’ AND THE STATE INTERVENORS’ MOTIONS TO DISMISS

Case 4:19-cv-00226 Document 259 Filed on 08/27/20 in TXSD Page 2 of 62
TABLE OF CONTENTS
Page I. Standard of Review............................................................................................................. 2 II. Nature and Stage of Proceedings ........................................................................................ 3 III. Statement of Issues ............................................................................................................. 3 IV. Factual Background ............................................................................................................ 4
A. The Harris County Felony Bail System .................................................................. 4 B. Relevant Facts About the Named Plaintiffs............................................................ 9 V. Summary of the Argument................................................................................................ 10 VI. Argument .......................................................................................................................... 11 A. Plaintiffs Seek Substantive and Procedural Relief for Violations of
Their Federal Substantive Due Process and Equal Protection Rights .................. 11 1. The Constitution protects a right against wealth-based
detention.................................................................................................... 13 2. The Constitution protects a “fundamental” interest in liberty .................. 13
a. The interest in pretrial liberty is “fundamental” but not absolute ......................................................................................... 15
b. ODonnell does not hold that there is no interest in pretrial liberty................................................................................ 16
3. Violations of These Substantive Rights Require Substantive Remedies................................................................................................... 19
4. Pretrial detention is constitutionally permissible if it is necessary to serve a compelling government interest............................... 21 a. An unattainable financial condition is the functional equivalent of an order of pretrial detention................................... 22 b. Pretrial detention requires the government to demonstrate necessity, regardless of whether the detention results from a transparent order or a de facto one................................................................................................. 23 c. The State is wrong that rational basis applies............................... 25
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5. To prevent an erroneous deprivation of Plaintiffs’ substantive rights, Defendants must provide procedural protections .......................... 28 a. When considering financial conditions of release, the government must determine ability to pay.................................... 29 b. The government must provide additional safeguards when pretrial liberty is at stake. .................................................... 30 i. The government must provide notice, a prompt, adversarial hearing, and findings on the record ................ 30 ii. The government must apply the clear-andconvincing-evidence standard to any finding that detention is necessary ................................................ 31 c. Defendants do not provide the required procedural safeguards ..................................................................................... 32
B. Movants’ Other Arguments Fail ........................................................................... 32 1. Plaintiffs Were Not Required to Proceed Under the Eighth Amendment............................................................................................... 32 2. The State Misunderstands Plaintiffs’ Challenge to GA-13....................... 34 3. Plaintiffs’ Claims Are Not Moot, and Plaintiffs Have Standing .............. 35 a. Plaintiffs Had Standing When the Complaint Was Filed ............. 36 i. Plaintiffs’ Injuries Are Traceable to the Felony Judges................................................................................ 36 ii. This Court Can Order Relief Against the Felony Judges That Will Redress the Harm.................................. 41 iii. Plaintiffs faced an “injury in fact” when they sued ................................................................................... 45 b. Plaintiffs’ Claims Are Not Moot................................................... 46 4. Arguments Movants Advert to But Do Not Develop Are Waived ...................................................................................................... 47 5. Movants Do Not Have Sovereign Immunity ............................................ 49 6. Plaintiffs’ Claims Against the Sheriff Are Proper .................................... 49
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Case 4:19-cv-00226 Document 259 Filed on 08/27/20 in TXSD Page 4 of 62 7. Plaintiffs Properly Brought Their Claims Under 42 U.S.C. § 1983........................................................................................................... 49
VII. Conclusion ........................................................................................................................ 50
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TABLE OF AUTHORITIES
Page(s)
Cases
Bearden v. Georgia, 461 U.S. 600 (1983).........................................................................1, 12, 18, 20, 21, 24, 25, 28
Bearden v. Georgia, 461 U.S. 660 (1983)...................................................................................13, 15, 20, 24, 29, 34
Brady v. Fort Bend Cnty., 145 F.3d 691 (5th Cir. 1998) ...................................................................................................43
Brangan v. Commonwealth, 80 N.E.3d 949 (Mass. 2017) ..................................................................................14, 22, 24, 25
Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347 (5th Cir. 2003) ...................................................................................................47
Brooks v. Snow, 313 F. Supp. 2d 654 (S.D. Tex. 2004) .......................................................................................2
Buffin v. City & Cty. of San Francisco, No. 15-CV-04959-YGR, 2018 WL 424362 (N.D. Cal. Jan. 16, 2018) .............................14, 25
Caliste v. Cantrell, 329 F. Supp. 3d 296 (E.D. La. 2018), aff’d on other grounds, 937 F.3d 525 (5th Cir. 2019)..................................................................................................14, 22, 24, 48, 50
Carey v. Piphus, 435 U.S. 247 ......................................................................................................................12, 28
Carter v. HealthPort Technologies, LLC, 822 F.3d 47 (2d Cir. 2016).........................................................................................................2
Castro v. United States, 540 U.S. 375 (2003).................................................................................................................50
Ex parte Clear, 573 S.W.2d 224 (Tex. Crim. App. 1978) (en banc) ................................................................40
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985).................................................................................................................27
Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008) ...............................................................................................33
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Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602 (1993).................................................................................................................31
County of Sacramento v. Lewis, 523 U.S. 833 (1998).................................................................................................................34
Daves v. Dallas County, 341 F. Supp. 3d 688 (N.D. Tex. 2018) ..............................................................................34, 50
District of Columbia v. Heller, 554 U.S. 570 (2008).................................................................................................................15
Dorsey v. Portfolio Equities, Inc., 540 F.3d 333 (5th Cir. 2008) .....................................................................................................2
Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519 (5th Cir. 2008) ...................................................................................................36
Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980) ...................................................................................................42
Fields v. Henry County, 701 F.3d 180 (6th Cir. 2012) ...................................................................................................37
Fisher v. University of Texas at Austin, 570 U.S. 297 ................................................................................................................15, 19, 28
Foucha v. Louisiana, 504 U.S. 71 (1992).................................................................................................13, 14, 23, 34
Frazier v. Jordan, 457 F.2d 726 (5th Cir. 1972) .....................................................................12, 13, 24, 25, 28, 34
Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167 (2000).................................................................................................................48
Fuentes v. Shevin, 407 U.S. 67 (1972)...................................................................................................................31
Funk v. Stryker Corp., 631 F.3d 777 (5th Cir. 2011) .................................................................................................2, 5
Gagnon v. Scarpelli, 411 U.S. 778 (1973).....................................................................................................15, 30, 34
Genesis Healthcare, Corp. v. Symczyk, 569 U.S. 66 (2013)...................................................................................................................47
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Gerstein v. Pugh, 420 U.S. 103 (1975).................................................................................................................47
Graham v. Connor, 490 U.S. 386 (1989)...........................................................................................................32, 34
Green Valley Spcial Utility District v. City of Schertz, Tex., 2020 WL 4557844 (5th Cir. Aug. 7, 2020) (en banc) .......................................................41, 45
Guerra v. Garza, 987 S.W.2d 593 (Tex. Crim. App. 1999).................................................................................40
Harper v. Va. Dept. of Taxation, 509 U.S. 86 (1993).................................................................................1, 11, 12, 17, 18, 20, 21
Henry v. Cox, 520 S.W.3d 28 (Tex. 2017)......................................................................................................44
Hollis v. Lynch, 827 F.3d 436 (5th Cir. 2016) ...................................................................................................15
Houston Federation of Teachers, Local 2415 v. Houston Ind. Sch. Dist., 251 F. Supp. 3d 1168 (S.D. Tex.) ............................................................................................12
In re Humphrey, 19 Cal. App. 5th 1006 (Ct. App. 2018) (review pending) .....................................14, 22, 24, 25
Institute of Marine Mammal Studies v. Nat’l Marine Fisheries Serv., 23 F. Supp. 3d 705 (S.D. Miss. 2014)......................................................................................36
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).............................................................................................................35, 42
Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012).......................................................................................................20
Kuromiya v. United States, 37 F. Supp. 2d 717 (E.D. Pa. 1999) .........................................................................................28
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949)...............................................................................................41, 42, 44, 45
Lawrence v. Dunbar, 919 F.2d 1525 (5th Cir. 2001) .................................................................................................36
Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014) (en banc) .......................................................................13, 15, 23
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Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).................................................................................................................36
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994).................................................................................................................19
McMillian v. Monroe County, Ala., 520 U.S. 781 (1997).....................................................................................................42, 43, 44
McNeil v. Cmty. Prob. Servs., LLC, 1:18-cv-33, 2019 WL 633012 (M.D. Tenn. Feb. 14, 2019), aff’d on other grounds, 945 F.3d 991 (6th Cir. 2019) ..............................................................................14, 50
McNeil v. Community Probation Servs., LLC, 945 F.3d 991 (6th Cir. 2019) .............................................................................................41, 49
Montgomery v. Louisiana, 136 S.Ct. 718 (2016)....................................................................................................16, 20, 21
Morrissey v. Brewer, 408 U.S. 471 (1972)...............................................................................................14, 15, 31, 34
Northshore Development, Inc. v. Lee, 835 F.2d 580 (5th Cir. 1988) ...................................................................................................28
ODonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018) .......................................................................................18, 26, 27
ODonnell v. Harris County, 2017 WL 784899 (S.D. Tex. Mar. 1, 2017).......................................................................43, 44
ODonnell v. Harris County, 227 F. Supp. 3d 706 (S.D. Tex. 2016) ...............................................................................28, 48
ODonnell v. Harris County, 251 F. Supp. 3d 1052 (S.D. Tex. 2017) ...........................................................16, 17, 22, 25, 44
ODonnell v. Harris County, 321 F. Supp. 3d 763 (S.D. Tex. 2018) .....................................................................................18
ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018) 1, 1, 5, 6, 8, 12, 13, 16, 17, 18, 19, 22, 25, 26, 30, 31, 33, 34, 38, 41, 42, 43, 44, 46, 47, 49
ODonnell v. Harris County, Case No. 4:16-cv-01414 (S.D. Tex. June 25, 2018), Dkt. 421 ................................................17
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ODonnell v. Harris County, Case No. 4:16-cv-1414 (S.D. Tex. Nov. 21, 2019), Dkt. 708 ...................................................5
ODonnell v. Harris Cty., 260 F. Supp. 3d 810 (S.D. Tex. 2017) .....................................................................................49
Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) ................................................................................................................43
Preiser v. Rodriguez, 411 U.S. 475 (1973).................................................................................................................50
Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) .....................................12, 13, 18, 20, 21, 24, 25, 28, 33, 34, 37
Reno v. Flores, 507 U.S. 292 (1993)...........................................................................................................23, 24
Rosales-Mireles v. United States, 138 S. Ct. 1897 (2018).............................................................................................................26
Samele v. Zucker, 324 F. Supp. 3d 313 (E.D.N.Y. 2018) .....................................................................................36
Schultz v. Alabama, 330 F. Supp. 3d 1344 (N.D. Ala. 2018), appeal filed sub. nom. Hester v. Gentry, No. 18-13894 (11th Cir. Sept. 13, 2018) ........................................................14, 22, 50
Simpson v. Miller, 387 P.3d 1270 (Ariz. 2017), cert. denied sub nom. Arizona v. Martinez, 138 S. Ct. 146 (2017) ....................................................................................................................15, 24
Skinner v. Switzer, 562 U.S. 521 (2011)...........................................................................................................47, 48
Soldal v. Cook County, Ill., 506 U.S. 56 (1992)...................................................................................................................33
State v. Brown, 338 P.3d 1276 (N.M. 2014) .....................................................................................................22
Swarthout v. Cooke, 562 U.S. 216 (2011).................................................................................................................28
Tate v. Short, 401 U.S. 395 (1971)...........................................................................................................13, 25
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Turner v. Rogers, 564 U.S. 431 (2011)...........................................................................................................29, 31
Tyler v. Hillsdale Cty. Sheriff’s Dep’t., 837 F.3d 678 (6th Cir. 2016) (en banc) .............................................................................15, 37
United States v. James Daniel Good Real Prop., 510 U.S. 43 (1993)...................................................................................................................33
United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952)...................................................................................................................19
United States v. Leathers, 412 F.2d 169 (D.C. Cir. 1969) .................................................................................................22
United States v. Mantecon-Zayas, 949 F.2d 548 (1st Cir. 1991) ....................................................................................................22
United States v. Payan, 992 F.2d 1387 (5th Cir. 1993) .................................................................................................29
United States v. Salerno, 481 U.S. 739 (1987).........................1, 12, 13, 14, 16, 17, 20, 21, 22, 23, 24, 25, 29, 30, 33, 34
Valdez-Jimenez v. Eighth Judicial Dist. Court in & for Cty. of Clark, 460 P.3d 976 (Nev. 2020) ............................................................................................14, 22, 24
Vann v. Kempthorne, 534 F.3d 741 (D.C. Cir. 2008) ...........................................................................................42, 45
Walker v. City of Calhoun, 901 F.3d 1245 (11th Cir. 2018) ...............................................................................................50
Ward v. Hellerstedt, 753 F. App’x 236 (5th Cir. Oct. 16, 2018) ..............................................................................47
Washington v. Glucksberg, 521 U.S. 702 (1997)...........................................................................................................15, 23
Washington v. Harper, 494 U.S. 210 (1990)...............................................................................................11, 12, 15, 21
Williams v. Illinois, 399 U.S. .............................................................................................................................13, 25
Wolff v. McDonnell, 418 U.S. 539 (1974).................................................................................................................31
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Zablocki v. Redhail, 434 U.S. 374 (1978).................................................................................................................23
Zadvydas v. Davis, 533 U.S. 678 (2001)...........................................................................................................13, 34
Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030 (5th Cir. 1981) .................................................................................................36
Statutes 42 U.S.C. § 1983................................................................................................................48, 49, 50 Tex. Code Crim Pro. 17.03 ..............................................................................................................6 Tex. Gov’t Code § 54.852(a), (d) ..................................................................................................39 Tex. Gov’t Code § 54.856, (b) ...........................................................................................38, 39, 40 Tex. Gov’t Code § 74.091..............................................................................................................43 Tex. Gov’t Code § 74.093..............................................................................................................37 Tex. Gov’t Code § 75.401..............................................................................................................44
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State Intervenors and 20 District Judges (collectively “Movants”) make a variety of arguments that fail because they misunderstand Plaintiffs’ claims, misrepresent the Fifth Circuit’s decision in ODonnell v. Harris County, 892 F.3d 147 (5th Cir. 2018), and ignore bedrock legal precedent. See Dkt. 214 (State Intervenors); Dkt. 228 (District Judges).
First, Movants wrongly assert that Plaintiffs seek recognition of an absolute right to release. Plaintiffs recognize that the Constitution does not grant an absolute right to pretrial release or an absolute right to be free from wealth-based detention. They argue that (1) there is an “interest in [pretrial] liberty” that is “importan[t] and fundamental,” but that this interest, like the right against wealth-based detention articulated in Bearden, may be “subordinated to the greater needs of society” “in circumstances where the government’s interest is sufficiently weighty,” United States v. Salerno, 481 U.S. 739, 750–51 (1987); and (2) before it may infringe this interest, the government must provide substantive findings and procedural safeguards to justify “subordinat[ing]” such an “important and fundamental interest.” Movants conflate the undisputed fact that there is no absolute right to pretrial release with their unprecedented assertion that there is no liberty interest in pretrial release at all. This baseless contention would permit indefinite pretrial detention solely on a finding of probable cause. No court has ever agreed.
Second, Movants treat ODonnell as having answered every legal issue relating to bail. From this it is a short step to Movants’ mantra that if they are not violating ODonnell, then they cannot be violating the law. ODonnell involved only an interlocutory appeal of a preliminary injunction motion, which injunction addressed only some of the ODonnell plaintiffs’ constitutional claims. Neither this Court nor the Fifth Circuit addressed in ODonnell several issues raised by the ODonnell plaintiffs at the later summary judgment stage and raised here by the Plaintiffs, including the substantive findings required for the government to justify depriving a person’s interest in
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pretrial liberty, and whether that right and the right against wealth-based detention require the procedural safeguards of counsel and a heightened evidentiary standard. A court’s decision does not foreclose claims it does not address. Harper v. Va. Dept. of Taxation, 509 U.S. 86, 118 (1993).
Third, Movants do not move to dismiss Sheriff Gonzalez’s cross-claim against the District Judges for Declaratory Relief, which survives regardless of these Motions. See Dkt. 197 (Gonzalez Answer and Request for Declaratory Relief) ¶¶ 5–8 (requesting that the Court “declare his rights and obligations going forward in connection with the pre-trial detention of felony arrestees”).
I. Standard of Review In deciding a Rule 12(b)(6) motion, the Court must “accept[] all well-pleaded facts as true
and view[] those facts in the light most favorable to the plaintiffs.” Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 338 (5th Cir. 2008). A court must rely on the complaint and documents attached to it or referenced in it, and may also consider any “matters of which the court may take judicial notice.” Id.; Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011); id. (quoting Fed. R. Evid. 201(b)). Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction “come in two forms: facial attacks and factual attacks.” Brooks v. Snow, 313 F. Supp. 2d 654, 658 (S.D. Tex. 2004) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (5th Cir. 2001)). Plaintiffs opposing a factual challenge “need to come forward with evidence of their own” only if the evidence presented by the defendants “reveal[s] the existence of factual problems in the assertion of jurisdiction.” Carter v. HealthPort Technologies, LLC, 822 F.3d 47, 57 (2d Cir. 2016) (alterations omitted). “[P]laintiffs are entitled to rely on the allegations [] if the evidence proffered by the defendant is immaterial because it does not contradict plausible allegations that are themselves sufficient” to show subject-matter jurisdiction. Id. That is the circumstance here: Movants have presented evidence, but none of it contests the facts alleged in Plaintiffs’ Second Amended Complaint that demonstrate the Court’s subject matter jurisdiction. Thus, Movants have made a
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facial challenge to jurisdiction. In resolving it, the Court must assume Plaintiffs’ allegations are true and must assess whether the allegations are sufficient to invoke the Court’s jurisdiction. Id.
II. Nature and Stage of Proceedings Plaintiffs filed this lawsuit on January 21, 2019. Dkt. 1. The case was abated to permit
settlement discussion, which continued for about one year Dkts. 13, 14, 24, 29, 31. On March 27, 2020, after COVID-19 was declared a global pandemic, Plaintiffs filed an emergency Motion for TRO. Dkt. 32. On March 29, 2020, the Governor issued Executive Order GA-13, prohibiting the release on a personal bond of certain categories of people. The same day, the Governor, the State of Texas, and the Attorney General moved to intervene. Dkt. 38. The Court granted the motion. Dkt. 46. Plaintiffs filed a second Motion for TRO seeking to enjoin GA-13. Dkt. 53. On April 14, the Court denied Plaintiffs’ motions, stating that “disagreements appear to have been somewhat resolved” and local officials had made “commendable [] progress [] in safely reducing the [] Jail population during this dangerous time.” Dkt. 122 at 3. The Court declined to address the merits of Plaintiffs’ claims. Id. (“That comes later, on a fuller record.”); see also id. at 12. On May 6, Plaintiffs moved to lift the stay and filed an Amended Complaint adding two named Plaintiffs who were subject to GA-13. Dkts 139, 140, 140-1. The Court lifted the stay. Dkt. 152. Plaintiffs filed a Second Amended Complaint naming all Felony Judges as Defendants.1 The Sheriff and County Answered. Dkt. 197; Dkt. 209. Movants moved to dismiss. Dkt. 214, Dkt. 228.
III. Statement of Issues 1. Whether the Fourteenth Amendment protects interests in pretrial liberty and against
wealth-based detention. 2. Whether a finding that pretrial detention is necessary is required before those rights can be
constitutionally infringed.
1 On June 24, Judge Chuck Silverman and Judge Brian Warren had moved to intervene as Defendants. Dkts. 180, 181, 192. The Court granted the motions. Dkt. 191, 196.
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3. Whether the Constitution requires procedural safeguards to ensure the accuracy of the decision to detain, including notice, an adversarial hearing with counsel, an opportunity to be heard and to present and confront evidence, and findings on the record by clear and convincing evidence stating the reasons for detention.
4. Whether Plaintiffs have standing and their claims are not moot, and whether Movants have sovereign immunity.
IV. Factual Background A. The Harris County Felony Bail System For decades, Harris County has used a predetermined secured money bail schedule,
promulgated through administrative order by the Felony Judges, to determine financial conditions of pretrial release for felony arrestees. Dkt. 195-2 ¶ 80; Dkt. 1-4 (Felony Bond Schedule). Following arrest, and as soon as the scheduled amount is communicated to the person, the individual can pay the amount and, absent another basis for detention, will be released. Dkt. 1951 ¶¶ 89–93. The County and Sheriff will detain any person who does not pay. Id. ¶ 92; see also ¶¶ 152–53. In March and April 2020, under pressure to reduce the jail population in light of COVID19, the Judges promulgated additional, generally applicable orders designating certain categories of people for immediate release. Dkt. 214-7 (First Amended General Order Bond for Certain Offenses, April 2, 2020); Dkt. 32-6 (General Order Bond For Certain Offenses, March 20, 2020). The bail schedule’s predetermined amounts of money apply to everyone else. Dkt. 195-1 ¶ 80.
People arrested in Harris County are transported to the Joint Processing Center (“JPC”) where they are presented for a probable cause and bail proceeding before a Hearing Officer inside the jail. Id. ¶¶ 83, 96, 99–100. The Hearing Officer determines conditions of release. Id. ¶¶ 99, 105, 113. By order of the Felony Judges, the Public Defender’s Office (“PDO”) is authorized to represent felony arrestees at these proceedings for the limited purpose of arguing bail. Id. ¶ 101;
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Ex. A1–A18 (sample magistration videos);2 Ex. B (Order Appointing Public Defender for Art. 15.17 Bail Hearings).3 When determining conditions of release: Hearing Officers routinely do not make findings as to whether a person can pay, whether secured money bail will result in detention, whether detention is necessary, or whether less-restrictive conditions are adequate. Id. ¶¶ 102, 106;4 Ex. A1–A18; Ex. C (bail orders from hearings presented in Ex. A1–A18); see Appendix 1, column G. Because they do not make factual findings, they do not apply any evidentiary standard. Dkt. 195-1 ¶ 102; Ex. A1–A18; Ex. C. Sometimes, the person arrested is not even present at the hearing. See Ex. A6, A12, A15. When that happens, the person is not represented by counsel. Ex. A6, A12, A15; Ex. C at 13–14, 27–28, 35–36; Appendix 1, rows 6, 12, 15.
These hearings routinely result in the pretrial detention of people who are too poor to pay. Dkt. 195-1 ¶ 102. See, e.g., Appendix 1, row 7 (E.A. was homeless, allegedly stole a soda, and was detained on $20,000 secured bail for 147 days, when he pled guilty to a lesser-included misdemeanor, and was sentenced to 100 days with credit for time-served, i.e. 47 fewer days than he actually served (citing Ex. A7, Ex. C at 15–16, and Ex. E7)); id., row 6 (C.C. is homeless, had bond was set at $20,000 during magistration on 6/7/2019; she was not present at magistration and is still in jail (citing Ex. A6, Ex. C at 13–14, & Ex. E6)). Hearing Officers believe they may not impose non-monetary conditions in certain cases. Dkt. 195-1 ¶¶ 107–108, 117–18. For example, they routinely cite a Texas statute that they and the Judges interpret to bar Hearing Officers from
2 The bail hearing videos and exhibits referenced in this brief are publicly available. A majority of the 18 videos in Ex. A are from the dockets the State submitted with its Motion. Plaintiffs submit several additional, more recent hearings, which occurred during the pandemic. Like the others, they are recorded by Harris County and available publicly. This Court may take judicial notice of “publicly-available documents” and “matters of public record” without converting the motions to summary judgment motions. Funk, 631 F.3d at 783.
3 This Order as applied to misdemeanors was superseded by Section 40 of the ODonnell Consent Decree. ODonnell v. Harris County, Case No. 4:16-cv-1414 (S.D. Tex. Nov. 21, 2019), Dkt. 708 ¶ 40.
4 See also Ex. C at 5–6 (bail Order for Plaintiff Russell, stating “4/2, 2010, 2015, 61 years old, instructed RE DLB”); id. at 11–12 (bail Order for Plaintiff Wilson, stating “2019 conviction for PCS”); id. at 13–14 (bail Order for C.C. stating, “Bond revoked in misd.,” though records show she was released on bond in the concurrent misdemeanor case).
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releasing certain people on personal bonds without action by a Judge. Tex. Code Crim Pro. 17.03;
e.g., Ex. A8–A11, A15, A18 (denying personal bonds based on 17.03); see Appendix 1, rows 8–
11, 15, 18. And they often state that they are “referring” the personal bond decision to the Judge.
Ex. A1–A5, A12–A14, A16–A18; see Appendix 1, rows 1–5, 12–14, 16–18. Each bail decision is
apparently intended to be a detention order for people who cannot pay: in every case, the Hearing
Officer signs a document stating, “The Court ORDERS the defendant committed to the custody of
the Sheriff . . . until he posts the required bond or until further order[.]” Ex. C at 1, 3, 5, etc.
For decades, Hearing Officers adhered strictly to the bail schedule, supplemented by the
written and oral directives5 of the Judges, who control their employment.6 Id. Dkt. 195-1 ¶¶ 107–
108, 117–18. Although the Felony Judges purportedly rescinded these instructions in the middle
of ODonnell and replaced them with a new bail schedule, Hearing Officers continue to require
secured financial conditions of release without making findings about ability to pay, whether
pretrial detention is necessary, or the adequacy of alternative conditions; without applying any
evidentiary standard to any facts; and without explaining how any facts support any finding. Id. ¶
5 See Dkt. 32-8 (State Commission on Judicial Conduct Documents) at 30, 40, 49 (“Until March 27, 2017, several of the District Court Judges did not permit Hearing Officers to grant personal bonds[.]”); Dkt. 32-7 at 186-211 (Chart of written instructions from Felony Judges to Hearing Officers); id. at 189 (authorizing personal bonds only for arrestees who are “not homeless.”); id. (authorizing personal bonds only for arrestees who have “no prior criminal history”); id. at 190 (authorizing personal bonds only for arrestees who have a “confirm[ed] place to live”.); id. at 186211 (Multiple Judges answering “No.” to the question “Can the hearing officers grant pre-trial bonds?”); id. at 188 (authorizing personal bonds for some “[f]ull time students”); id. at 186 (“I don’t want any bonds lowered at [the magistration hearing]. Ok to raise it, but no lowering.”); id. at 187 (“Please set bond for felon in poss. of a weapon. Habitual offenders should be held w/out bond.”); Dkt. 32-8 at 11 (“No pre-trial bonds; no lowering of bonds.”).
6 See e.g., Dkt. 32-7 at 186 id. at 13, 17-18, 23 (Hagstette, Licata and Wallace violated the law “by strictly following directives not to issue personal bonds to defendants per the instructions of the judges in whose court the underlying cases were assigned.” The Hearing Officers’ “conduct was motivated by direct instructions from individual judges who played a role in [their] continued employment.”); Dkt. 32-7 at 35 (Hagstette: “The Hearing Officers serve many masters. The Hearing Officers exercise the discretion they can within the bounds set.”); Dkt. 32-8 at 11, 16, 21 (“[A] job description by the board of judges made clear the Hearing Officers are ‘at will employees,’ [and] that the Hearing Officers are the ‘delegates’ of the judges trying criminal cases.”); id. at 11 (Hearing Officers could “be dismissed at any time by the same board that appoints us.”); id. at 11, 16, 21 (from retired hearing officer) (“You may never, never ever give a PR bond to a defendant in any of the District courts. This would probably get you fired.”); id. at 12 (hearing officers “didn’t write the policies, but we had to follow them.”; “Could I do something? Probably by law, I could have. I don’t know if it would have been good for my career.”).
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118; Dkt. 1-4; Ex. A1–A18; Ex. C; see also Appendix 1, columns G–I. Felony Judges even preserve a written order on their current County website, Ex. D,7 stating that the bail schedule is binding prior to a bail hearing, id. at 7–8, ¶ I(I), and that at a bail hearing, Hearing Officers “shall set bail in accordance with the Bail Schedule,” id. at 5, ¶ I(D).
If, after magistration, an arrestee is still unable to purchase release from jail, she will be taken to a District Court. Dkt. 195-1 ¶ 124. Detained individuals are usually assigned a lawyer at this first appearance, but there is typically no review of the money bail amount. Id. E.g., Appendix 1, row 15 (bond was set during magistration at $200,000 in C.M.’s absence, without counsel; he was found indigent and appointed counsel, but has not been to court since February 3, 2020; his next court date is September 22; he filed a motion for a bail hearing on July 27, which hearing has apparently not been scheduled (citing Ex. A15, Ex. C at 36, and Ex. E15)). Sometimes, arrestees are not even brought into court. E.g. Appendix 1, row 12 (bond was set at $15,000 in D.V.’s absence, he had no lawyer at magistration, and he was “not brought up” at his first appearance when counsel was appointed (citing Ex. A12, Ex. C at 27–28, E12)). It is not possible to have a formal, on-the-record, adversarial bail hearing at that time. Dkt. 195-1 ¶ 124. Detained individuals typically remain in lock-up outside the courtroom. Id. ¶ 125. The case is almost always “reset,” meaning that another hearing is scheduled, typically weeks in the future. Id. People who cannot pay for their release remain in detention, usually without ever having been brought into a courtroom. Id. ¶ 126. If a person wishes to have an evidentiary hearing concerning the appropriateness of the secured bond amount, or the need to keep the person in a jail cell pending resolution of the case, or whether less-restrictive conditions of release are available, the person’s lawyer must file a motion and have a court proceeding scheduled for a later date. Id. ¶ 128. Pre-
7 Direct Filing Order, available at https://www.justex.net/Courts/Criminal/CriminalCourts.aspx (visited 8/27/2020).
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COVID-19, such a hearing was not likely to occur for more than a week. Id. ¶ 43, 128; Ex. F (docket schedules). Delays have worsened during the pandemic. E.g., Hrg. Tr. 7/6/2020 at 16; Hrg. Tr. 5/28/2020 at 9–14. This hearing would be the first opportunity to present witnesses or other evidence and the first time a judge even conceivably makes findings on the record regarding pretrial release or detention. Dkt. 195-1 ¶ 128.
Automatic use of secured bail causes significant harm, including worse case outcomes, wrongful convictions of people who plead guilty because it is the fastest way out of jail, racial disparities in convictions and jail population, family separation, and instability in employment, housing, medical care, and care for relatives.8 Id. ¶¶ 139–40, 144, 162, 163, 165 166 & n.49. Defendants have no basis to believe that money bail serves any government interest as well as less-restrictive alternatives that do not result in the mass pretrial detention of people who are poor. Movants have not even studied the question. Id. ¶¶ 155–61, 167.9
Since March 2020, people detained in the Harris County Jail face another irreparable harm: a heightened risk of contracting am uncurable, deadly disease. Id. ¶ 168. The Jail is ill-equipped to prevent the virus from spreading. Id. ¶ 170. On March 29, 2020, the Houston Chronicle reported that the first detained person in the Harris County Jail had tested positive for COVID-19. Id. ¶ 171. The same day, Governor Abbott issued Executive Order GA-13, which purports to prohibit anyone charged with a crime involving “violence” and anyone with a prior conviction for a crime involving “violence” (no matter how old the conviction and regardless of the current charge), from
8 ODonnell v. Harris Cty., 892 F.3d 147, 154–55 (5th Cir. 2018) (upholding findings on harms of pretrial detention). 9 ODonnell upheld this Court’s findings on the efficacy of secured bail as compared to unsecured bail and nonfinancial conditions, stating: “The court’s review of reams of empirical data suggested the opposite: that ‘release on secured financial conditions does not assure better rates of appearance or of law-abiding conduct before trial compared to release on unsecured bonds or nonfinancial conditions of supervision.’ Instead, the County’s true purpose was ‘to achieve pretrial detention of misdemeanor defendants who are too poor to pay, when those defendants would promptly be released if they could pay.’ In short, ‘secured money bail function[ed] as a pretrial detention order’ against the indigent misdemeanor arrestees.” ODonnell v. Harris Cty., 892 F.3d 147, 154 (5th Cir. 2018).
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being released on unsecured bail, regardless of any individualized proceedings or findings by a judge. Id. ¶ 172; Dkt. 39-1.10 After GA-13 was issued, the number of COVID-19 cases in the jail exploded. Id. ¶ 175. By August 20, 2020, thousands of inmates had tested positive, three had died,11 and four were in the hospital. Dkt. 251. Notwithstanding this Court’s portrayal of the situation, Dkt. 122 at 3, the jail population has increased.12
On March 20, 2020, the Judges promulgated a General Order authorizing the immediate post-arrest release on a personal bond of people charged with certain offenses. Dkt. 32-6. On April 2, 2020, they amended the Order to add additional offenses, but, consistent with GA-13, excluded anyone with “a prior conviction involving [] physical violence or the threat of physical violence,” among others. Dkt. 214-7. The Orders have done virtually nothing to decrease the jail population because of their many policy-based exclusions and because the Judges refuse to provide formal hearings at which they make the required findings. People who cannot pay secured bail wait weeks or months for any hope of an adversarial hearing to challenge pretrial detention.
B. Relevant Facts About the Named Plaintiffs On January 21, 2019, Dwight Russell, Johnnie Pierson, and Joseph Ortuno filed this civil rights class action on behalf of themselves and a class of similarly situated people. Dkt. 1. At that time, each was being detained due to inability to pay a secured money bail amount. Dkt. 1-1 ¶¶ 4, 7; Dkt. 1-2 ¶¶ 4–5, Dkt. 1-3 ¶¶ 4, 12–13; Ex. A(1)–(5). No judge had made a finding that their detention served any government interest. Dkt. 1-1 ¶¶ 5–6; Dkt. 1-2 ¶¶ 6–7; Dkt. 1-3 ¶ 5; Ex. A1–
10 Hearing Officers may not issue personal bonds under the Executive Order, even for “health or medical” reasons. Dkt. 53-1 at 4. Criminal penalties are associated with violation of GA-13. Hrg. Tr. 4/7/20 at 72:14–17, 22–25.
11 St. John Barned-Smith, A third Harris County jail inmate sick with COVID-19 has died (May 13, 2020), available at https://www.houstonchronicle.com/news/houston-texas/houston/article/A-third-Harris-County-jail-inmate-sickwith-15268499.php.
12 The Sheriff’s public dashboard shows that on June 10, there were 8133 people detained in the jail, including 5723 people detained pretrial on felony charges. On July 10, the numbers were 7975 and 5644. On August 10, the numbers were 8236 and 5708. And on Saturday, August 22, the numbers were 8274 and 5779. See Total Jail Population Stats, https://charts.hctx.net/dr00226/App/DR15AUG19All.
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A5; Ex. C at 1–12; see generally Appendix 1, rows 1–5. They faced weeks of detention prior to any opportunity to challenge those conditions at an individualized bail hearing, on the record with evidence and argument. Dkt. 195-1 ¶¶ 43, 128. The named Plaintiffs moved for class certification. Dkt. 2; see also Dkt. 11 (Amended Motion to Certify Class). Each Plaintiff eventually was released from pretrial custody. See Ex. E3 at 7 (released after pleading guilty); Ex. E2 at xx (released on a surety bond after two weeks of unconstitutional detention); Ex. E1 at xx (released on a surety bond after two months of unconstitutional detention). At any moment, thousands of people are in the transitory class. Dkt. 195-1 ¶¶ 180–81.13
On May 6, 2020, Plaintiffs amended their Complaint to add two named Plaintiffs— Christopher Clack and Maurice Wilson. They were detained in the jail, could not afford to purchase release, and were subject to the same policies. Dkt. 195-2 ¶¶ 11, 21, 22, 47–55, 57–64; Ex. A4– A5, Ex. C at 8–12; Appendix 1, rows 4–5. After GA-13 was issued, they were prohibited from release on a personal bond. Id. ¶¶ 56, 65. Mr. Pierson was also barred from release by GA-13. In March 2020, Mr. Pierson was alleged to have violated the terms of his deferred adjudication in a case arising after he sued. He was remanded to custody of the Harris County Jail, where he was detained from March 6 to April 7. Dkt. 66-5 (Declaration of Alex Bunin) ¶¶ 8–11. Relying on GA13, the DA’s Office objected to releasing him because of a prior “violent” conviction. Id. ¶ 10.
V. Summary of the Argument Plaintiffs allege violations of two substantive rights under the federal Constitution: the right
to pretrial liberty and the right against wealth-based detention. Plaintiffs seek substantive relief: an order stating that consideration of less-restrictive alternatives and a finding of necessity to detain are required prior to issuing or enforcing an order to pay unaffordable bail. Plaintiffs also
13 Jail Population Statistics, https://charts.hctx.net/dr00226.
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seek procedural relief: an order identifying the procedural protections required to ensure the accuracy of any decision to detain, including an adversarial, on-the-record hearing with counsel and application of the clear-and-convincing-evidence standard. Movants’ assertions regarding standing and mootness confuse those doctrines with the merits and fail under binding precedent. None of Movants’ other arguments have merit. The motions should be denied
VI. Argument A. Plaintiffs Seek Substantive and Procedural Relief for Violations of Their Federal Substantive Due Process and Equal Protection Rights Plaintiffs’ constitutional claims have both substantive and procedural components. “It is
axiomatic that procedural protections must be examined in terms of the substantive rights at stake.” See, e.g., Washington v. Harper, 494 U.S. 210, 220 (1990). The Court must “identify[] the contours of the substantive right” and then “decid[e] what procedural protections are necessary to protect that right. Id. Thus, in Harper, the Court recognized the liberty interest at issue—“avoiding the unwanted administration of antipsychotic drugs,” id.—and considered the “factual circumstance [that] must exist” before the government could infringe that interest, id. at 220, holding that a substantive finding that “the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest” is required. Id. at 227. Then, the Court considered “what procedural protections are necessary to ensure that the decision to medicate an inmate against his will is neither arbitrary nor erroneous under the standards we have discussed above.” Id. at 228. The Court held that the institution’s policy requiring “notice, the right to be present at an adversary hearing [presided over by a medical professional], and the right to present and cross-examine witnesses,” afforded sufficient procedural safeguards to protect the substantive interest at stake because they would adequately assure accurate factual findings about dangerous and medical interest, id. at 234.
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Here, Plaintiffs’ substantive rights flow from two separate lines of precedent. First, equal protection and due process forbid jailing a person solely because of her inability to make a payment. ODonnell v. Harris County, 892 F.3d 147, 161 (5th Cir. 2018); Bearden v. Georgia, 461 U.S. 600, 665 (1983); Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978); Frazier v. Jordan, 457 F.2d 726, 728 (5th Cir. 1972). Second, “substantive due process” protects an “interest in liberty” that is “fundamental.” United States v. Salerno, 481 U.S. 739, 750 (1987). In Salerno, the Supreme Court held that there is a “general rule of substantive due process that the government may not detain a person prior to judgment of guilt in a criminal trial.” Id. at 755 (“In our society liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.”). Like virtually all other individual rights, the rights in this case are not absolute; they can be infringed if certain “factual circumstance[s]” exist, Harper, 494 U.S. at 220, specifically, if the government demonstrates that pretrial detention is necessary because less-restrictive alternatives are inadequate to meet a compelling government interest in public safety or court appearance.
As in Harper, after identifying the substantive rights at issue and the factual circumstance that must exist to justify depriving them, the Court must identify the procedural safeguards required to prevent an “erroneous or arbitrary” deprivation of those interests. See Harper, 494 U.S. at 228; ODonnell, 892 F.3d at 157; Carey v. Piphus, 435 U.S. 247, 262 (“[The] purpose of procedural due process is to . . . minimize the risk of mistaken deprivations of protected interests.”). The safeguards required to ensure the accuracy of any finding that pretrial detention is necessary include notice, an opportunity to be heard and to present and confront evidence at an adversarial hearing with counsel, and findings on the record by clear and convincing evidence explaining the basis for detention. See Houston Federation of Teachers, Local 2415 v. Houston Ind. Sch. Dist., 251 F. Supp. 3d 1168, 1176 (S.D. Tex.) (“[P]rocedural due process rules are shaped by the risk of
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error inherent in the truth-finding process[.]” (quoting Carey, 453 U.S. at 259)). See infra Part VI(A)(5). It is uncontested that Defendants do not make these findings or provide such safeguards before detaining Plaintiffs. Dkt. 195-1 ¶¶ 102, 106, 127.
1. The Constitution protects a right against wealth-based detention The Equal Protection and Due Process Clauses protect a substantive right against wealthbased detention. Rainwater, 572 F.2d at 1057 (“The incarceration of those who cannot [pay money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.”).14 In ODonnell, the Fifth Circuit held that Harris County’s misdemeanor bail practices—in which “poor arrestees . . . are incarcerated where similarly situated wealthy arrestees are not, solely because the indigent cannot afford to pay a secured bond”—create a “basic injustice.” 892 F.3d at 162 (holding that heightened scrutiny applies when the government infringes the right against wealth-based detention and that Harris County failed to justify its practices under that scrutiny). For the same reasons, the County’s felony bail practices create the same “basic injustice.” Dkt. 195-1 ¶ 92.
2. The Constitution protects a “fundamental” interest in liberty This case involves a second substantive constitutional right: the “fundamental” federal interest in bodily liberty. Salerno, 481 U.S. at 750 (recognizing the “importance and fundamental nature” of “the individual’s strong interest in liberty”); Foucha v. Louisiana, 504 U.S. 71, 80 (1992) (“Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”) (citing Youngberg v. Romeo, 457 U.S. 307, 316 (1982)); Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (same); Lopez-Valenzuela v.
14 ODonnell, 892 F.3d at 161; Tate v. Short, 401 U.S. 395 (1971); Williams v. Illinois, 399 U.S. at 244; Bearden, 461 U.S. at 665; Frazier, 457 F.2d at 728; see also Brief of Conference of Chief Justices as Amicus Curiae in Support of Neither Party at 35, ODonnell, 2017 WL 3536467, at *24 (5th Cir. Aug. 9, 2017).
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Arpaio, 770 F.3d 772, 780 (9th Cir. 2014) (en banc) (applying strict scrutiny to Arizona pretrial detention law because it infringed on the “fundamental” right to pretrial liberty).15
The State asserts that “[e]very district court in this Circuit has rejected such a theory in the bail context.” Dkt. 214 at 25. If “such a theory” refers to Plaintiffs’ claim that their substantive due process right to pretrial liberty requires a finding of necessity and procedural safeguards prior to its infringement, Intervenors are wrong. For example, the Eastern District of Louisiana agreed with Plaintiffs in every respect. Caliste v. Cantrell, 329 F. Supp. 3d 296, 314, 320 (E.D. La. 2018) (holding that “[p]laintiffs have been deprived of their fundamental right to pretrial liberty”), aff’d on other grounds, 937 F.3d 525 (5th Cir. 2019) (equal protection and due process require, inter alia, a “determination of the necessity of pretrial detention”).
The State ignores both the binding law set forth above and numerous state supreme courts and district courts that have held that presumptively innocent people have a fundamental interest in bodily liberty protected by the Fourteenth Amendment. Valdez-Jimenez v. Eighth Judicial Dist. Court in & for Cty. of Clark, 460 P.3d 976, 984–85 (Nev. 2020); Brangan v. Commonwealth, 80 N.E.3d 949, 961 (Mass. 2017); Schultz v. Alabama, 330 F. Supp. 3d 1344, 1376 (N.D. Ala. 2018), appeal filed sub. nom. Hester v. Gentry, No. 18-13894 (11th Cir. Sept. 13, 2018); McNeil v. Cmty. Prob. Servs., LLC, 1:18-cv-33, 2019 WL 633012, at *14-15 (M.D. Tenn. Feb. 14, 2019), aff’d on other grounds, 945 F.3d 991 (6th Cir. 2019).16 The State does not even attempt to square its position with Salerno, Foucha, or the decades of precedent on which those cases rely.
15 See also In re Humphrey, 19 Cal. App. 5th 1006, 1049 (Ct. App. 2018) (review pending) (recognizing the “fundamental constitutional right to pretrial liberty”); Buffin v. City & Cty. of San Francisco, No. 15-CV-04959-YGR, 2018 WL 424362, at *6 (N.D. Cal. Jan. 16, 2018) (holding that pretrial detention “implicates plaintiffs’ fundamental right to liberty”); Brangan v. Commonwealth, 80 N.E.3d 949, 961 (Mass. 2017) (holding that the right to pretrial liberty is “fundamental”); Valdez-Jimenez v. Eighth Judicial Dist. Court in & for Cty. of Clark, 460 P.3d 976, 984–85 (Nev. 2020) (holding that “substantive due process principles” “mandated” the court’s “conclusion that bail may be imposed only where necessary”).
16 Even people whose liberty is diminished because they are on parole or probation have an interest in bodily liberty that the Fourteenth Amendment protects. Morrissey v. Brewer, 408 U.S. 471, 482 (1972) (holding that although a
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Most chilling, the State’s position—that there is no federal interest in bodily liberty prior to trial—would mean that Texas could pass a law requiring indefinite pretrial detention based solely on probable cause of every person arrested without any hearing and without a determination that detention served any purpose. According to the State, such a law would not violate the United States Constitution because federal law does not protect pretrial liberty at all. Both the Arizona Supreme Court and the Ninth Circuit struck down such laws under federal due process, even when they were narrowly targeted toward serious felony sexual offenses and felonies committed by noncitizens. Simpson v. Miller, 387 P.3d 1270, 1276-1277 (Ariz. 2017), cert. denied sub nom. Arizona v. Martinez, 138 S. Ct. 146 (2017); Lopez-Valenzuela, 770 F.3d at 780-781.
a. The interest in pretrial liberty is “fundamental” but not absolute
Movants fight a straw-man. They repeatedly assert that Plaintiffs seek a “right to be free from any form of wealth-based detention.” Dkt. 214 at 7 (emphasis added); see also id. at 8, 11, 12, 23–24; Dkt. 228 at 8–9, 23–25. But Plaintiffs acknowledge that there are almost always “conditions under which competing state interests might outweigh” even an individual interest that is “fundamental.” Harper, 494 U.S. at 220 (quoting Mills v. Rogers, 457 U.S. 291, 299 (1982)); Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (explaining that even “fundamental liberty interests” can be overcome).17 Thus, although “racial classifications” infringe Equal Protection rights, universities may use race in admissions if doing so is “necessary” to achieve a compelling interest in diversity. Fisher v. University of Texas at Austin, 570 U.S. 297, 311–12. Similarly,
parolee’s liberty is “indeterminate,” it “includes many of the core values of unqualified liberty,” and is protected by the Fourteenth Amendment.”); Gagnon v. Scarpelli, 411 U.S. 778 (1973) (extending Morrissey to probation); Bearden v. Georgia, 461 U.S. 660, 671 (1983) (affirming “the significant interest of the individual in remaining on probation”).
17 See also District of Columbia v. Heller, 554 U.S. 570, 626 (2008) (“Like most rights, the right secured by the Second Amendment is not unlimited.”); Tyler v. Hillsdale Cty. Sheriff’s Dep’t., 837 F.3d 678, 685 (6th Cir. 2016) (en banc) (holding that the right to bear arms “is not unlimited, just as the First Amendment’s right of free speech [is] not” (quoting Heller, 554 U.S. at 595)); Hollis v. Lynch, 827 F.3d 436, 444 (5th Cir. 2016) (same).
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children convicted of homicide have a substantive constitutional right against being sentenced to mandatory life without parole. Montgomery v. Louisiana, 136 S.Ct. 718, 726 (2016). But that right can be overcome if the government shows that the child is “irreparabl[y] corrupt[].” Id. at 736. The same is true of Plaintiffs’ interest in pretrial liberty. Salerno made clear that although Plaintiffs’ interest is “fundamental,” it “may . . . be subordinated to the greater needs of society” “in circumstances where the government’s interest is sufficiently weighty.” 481 U.S. at 750-51. The crux of Plaintiffs’ claims is merely that Defendants must demonstrate that “the government’s interest is sufficiently weighty” before depriving Plaintiffs of their rights.
b. ODonnell does not hold that there is no interest in pretrial liberty
Neither this Court nor the Fifth Circuit in ODonnell addressed the federal interest in pretrial liberty, which arises under substantive due process. Movants’ insistence to the contrary does not make it so. In fact, this Court already rejected Movants’ interpretation of ODonnell. In its preliminary injunction opinion in ODonnell, the Court stated that “plaintiffs’ claims and the court’s conclusions do not rely on substantive due process.” See ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1147 (S.D. Tex. 2017). The Court then engaged in a “procedural, not substantive, due process analysis” to determine the procedural protections necessary to protect a state-created liberty interest.18 See id. On appeal, the Fifth Circuit recognized that “[l]iberty interests protected by the due process clause can arise from two sources, the Due Process Clause itself and the laws of the States,” and stated that “[h]ere, our focus is the law of Texas.” 892 F.3d at 157 (emphasis
18 Plaintiffs do not allege a violation of a state-created liberty interest and do not seek a ruling on the findings or procedures required to protect any such right. Plaintiffs’ claims arise purely under the federal Constitution.
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added).19 The Fifth Circuit said nothing about the substantive right to bodily liberty. It did not cite
Salerno, let alone overrule it. Scholars have noted that ODonnell did not reach this question.
On remand, the ODonnell plaintiffs argued that the revised preliminary injunction should
include a requirement under federal due process that a judicial officer make a finding of necessity
before requiring unaffordable bail.20 ODonnell v. Harris County, Case No. 4:16-cv-01414 (S.D.
Tex. June 25, 2018), Dkt. 421 (Plaintiffs’ Response to Court Order Concerning the Proposed
Tentantive Injunction) at 6–7. The misdemeanor judges asserted that “Plaintiffs’ initial preliminary
injunction request was based only on a claim of procedural, not substantive, due process,” and
“the Fifth Circuit’s mandate prohibits [] preliminary relief based on any such substantive right.”
Id., Dkt. 420 (Fourteen Judges’ Response to the Court’s Proposed Amended Preliminary
Injunction) at 11. This Court agreed that ODonnell had not addressed the substantive due process
claim Plaintiffs were attempting to raise on remand:
Basing relief on substantive due process is improper at this stage. As this court noted . . ., “the plaintiffs’ claims and the court’s conclusions do not rely on substantive due process.” [] Similarly, the Fifth Circuit’s analysis and suggestions recognized only procedural due process and equal protection violations. ODonnell, 892 F.3d at 163.
19 Defendants’ comments in footnote 13 (Dkt. 228 at 24–25) misunderstand constitutional law. Plaintiffs are not arguing that their federal rights merit more protection than a different state-created liberty interest. The point is that this case raises different federal law issues than ODonnell—ODonnell did not have before it or issue a ruling on a federal substantive interest in pretrial liberty. Separately, whether or not other provisions of the Texas Constitution, like other state constitutions, are more protective than federal law (forbidding pretrial detention at all in some circumstances) is not a question for the federal courts, and Plaintiffs have conceded that the federal Constitution permits their pretrial detention after appropriate individualized findings and safeguards.
20 The ODonnell plaintiffs based their argument on language in this Court’s preliminary injunction opinion, and the Supreme Court’s decision in Harper and other cases explaining the relationship between substantive and procedural rights. See ODonnell, 251 F. Supp. 3d at 1140 (“[P]retrial detention of indigent defendants . . . is permissible only if the court finds, based on evidence and in a reasoned opinion, either that the defendant is not indigent and is refusing to pay in bad faith, or that no less restrictive alternative can reasonably meet the government’s compelling interest”); id. at 1145 (before requiring an unaffordable financial condition, a judicial officer must make a finding that wealthbased detention “is the only reasonable way to assure the arrestee’s appearance at hearings and law-abiding behavior before trial.”); see generally infra Part VI(A)(3), (5).
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ODonnell v. Harris County, 321 F. Supp. 3d 763, 774–75 (S.D. Tex. 2018). In rejecting a “substantive” preliminary injunction remedy in ODonnell II, the stay motions panel again made clear that plaintiffs’ preliminary injunction challenge was only to a “procedural harm.” ODonnell v. Goodhart, 900 F.3d 220, 228 (5th Cir. 2018).21
Movants ignore this history and repeatedly cite out-of-context the six-word phrase from ODonnell that “no such right is in view” to argue that ODonnell held there is no substantive due process interest in pretrial bodily liberty. But the Fifth Circuit was addressing the notion of an absolute right to pretrial release: it rejected the first preliminary injunction’s “outright elimination of secured bail for indigent misdemeanor arrestees,” which resulted in mandatory pretrial release. The court stated that mandatory release would make sense only “if one assumes a fundamental substantive due process right to be free from any form of wealth-based detention,” and that “no such right is in view.” 892 F.3d at 163 (emphases added). The court simply identified why the first injunction exceeded what Bearden and Rainwater require: it did not allow for detention, even when the government demonstrated that no alternative was available.
This is the key point: Plaintiffs do not argue that there is an absolute “right to be free from any form of wealth-based detention.” The question is what factual circumstances justify infringement of Plaintiffs’ interests, and what procedures sufficiently ensure the accuracy of a finding that those circumstances exist. See infra Part VI(A)(4) (a finding of necessity is required); Part VI(A)(5) (robust procedural safeguards are required to ensure the accuracy of that finding). Movants cannot rewrite the history of ODonnell and convert that case into one that overruled Supreme Court and Fifth Circuit precedent so that they can avoid litigating this issue. A court cannot issue binding precedent on an issue it did not address. Harper v. Va. Dept. of Taxation, 509
21 Defendants point to plaintiffs’ briefs in ODonnell, see Dkt. 228 at 24–25, in which plaintiffs asked for a different interpretation of ODonnell I. But this Court and the Fifth Circuit rejected plaintiffs’ requested interpretation.
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U.S. 86, 118 (1993); see also United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37–38 (1952). The Fifth Circuit did not address the findings and procedures required to overcome the fundamental right to liberty. Thus, nothing in ODonnell forecloses such a claim in this case.22
3. Violations of These Substantive Rights Require Substantive Remedies Movants’ position is nonsensical for another related reason: substantive rights cannot be protected through purely procedural remedies. The Supreme Court has repeatedly recognized that violations of substantive rights require substantive remedies. For example, in the context of race discrimination under the Fourteenth Amendment, the Court explained that “consideration of workable race-neutral alternatives”—i.e., a procedural remedy—“is of course necessary, but it is not sufficient to satisfy strict scrutiny: The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would” achieve the government’s compelling interest. Fisher, 570 U.S. at 312. If, after consideration of alternatives, a race-neutral alternative could achieve the government’s compelling interests, then the government will be prohibited from considering race, id.—which is substantive relief. Similarly, in the contexts of the substantive rights protected by the First and Second Amendments, the government cannot prohibit an individual from protesting or from possessing a firearm simply because the government holds a hearing at which it considers alternatives to such bans. If the hearing demonstrated that there was no interest served by the prohibition, or that the prohibition was not sufficiently tailored to the interest, then the prohibition would be unconstitutional, regardless of how procedurally robust the hearing. See Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 769–70 (1994) (prohibiting protests within 36 feet of an abortion clinic after considering alternative means of protecting access and finding that the “buffer zone [] burdens no more speech than necessary to accomplish the governmental interest”); id.
22 Nor does ODonnell foreclose Plaintiffs’ claims that the right against wealth-based detention requires counsel and application of the clear-and-convincing-evidence standard, which were not litigated at the preliminary stage.
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(rejecting other protest restrictions because they did “burden[] more speech than necessary to protect access”); Kachalsky v. County of Westchester, 701 F.3d 81, 98 (2d Cir. 2012) (upholding a handgun restriction after considering less-restrictive alternatives and finding that, because “widespread access to handguns in public increases the likelihood that felonies [of] death,” the infringement was “substantially related to the state’s important public safety interest”).
Likewise here: because substantive interests protect against unjustified wealth-based detention and pretrial detention, a purely procedural remedy (e.g. a hearing at which alternatives to wealth-based detention are considered) is insufficient to remedy the harm. Substantive relief, requiring a finding that factual circumstances exist to justify infringement of the right, is essential. That is precisely what Salerno, Bearden, and Rainwater all held. In Salerno, the Court upheld the Bail Reform Act because it required a judicial officer to make a finding, after an adversary hearing, “that no conditions of release can reasonably assure the safety of the community.” 481 U.S. at 750. In Bearden, the Court stated that a person may be detained due to inability to pay “[o]nly if the sentencing court determines that alternatives to imprisonment are not adequate[.]” 461 U.S. at 672 (emphasis added). And in Rainwater this Court had “no doubt” that if “appearance at trial could reasonably be assured by … alternate [conditions] of release, pretrial confinement for inability to post money bail would” be unconstitutional. 572 F.2d at 1058. A contrary approach would enable a court to hold a hearing on pretrial detention, determine that pretrial release was perfectly acceptable and that no interest is served by detention, but nonetheless order the person detained simply because the court held a hearing. Under Harper, the entire point of procedural safeguards is to sufficiently ensure the accuracy of the appropriate substantive finding.
ODonnell’s discussion of procedural requirements did not preclude substantive ones; it reflected the fact that many substantive holdings “ha[ve] a procedural component.” Montgomery
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v. Louisiana, 136 S. Ct. 718, 734 (2016). As Harper explained, where there is a substantive right, there must also be “minimum procedures … for determining that the individual’s liberty interest actually is outweighed in a particular instance.” 494 U.S. at 220. “[P]rocedural requirement[s are] necessary to implement a substantive guarantee.” Montgomery, 136 S. Ct. at 734. This basic pillar of constitutional adjudication is again confirmed by Bearden, Rainwater, and Salerno. Bearden recognized the procedural component of its substantive holding, stating that “it is fundamentally unfair to revoke probation automatically without considering whether adequate alternative methods of punishing the defendant are available.” 461 U.S. at 668–69. Rainwater concluded that “[t]he incarceration of those who cannot [meet a bail schedule], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection.” 572 F.2d at 1057. And Salerno recognized that government conduct infringing substantive rights “must still be implemented in a fair manner.” 481 U.S. at 746 (“This requirement has traditionally been referred to as ‘procedural’ due process.”); id. at 755 (“numerous procedural safeguards . . . must attend this adversary hearing” which might result in an individual’s detention).
ODonnell’s discussion of procedural requirements in the context of the state-created liberty interest at issue there does not mean that the sole constitutional constraint on pretrial detention is procedural. If Defendants violate Plaintiffs’ substantive rights, the Court must craft a substantive remedy, specifically, prospective relief ordering that pretrial detention absent a finding that the required “factual circumstances” exist to justify it violates the Fourteenth Amendment. See Harper, 494 U.S. at 820; Dkt. 195-1 at 50.
4. Pretrial detention is constitutionally permissible if it is necessary to serve a compelling government interest
Given the “fundamental” nature of the interest in pretrial bodily liberty, the government must demonstrate that detention is necessary to serve a compelling interest because less-restrictive
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alternatives are inadequate. These are the “factual circumstances” required to justify detention. Defendants require unattainable financial conditions of release that function as de facto detention orders without any such finding. Dkt. 195-1 ¶¶ 102, 106, 127; Ex. A1–A18; Ex. C; Appendix 1; Schultz, 330 F. Supp. 3d 1344 at 1376; Caliste, 329 F. Supp. 3d 296 at 320; Brangan, 80 N.E.3d at 963; Humphrey, 228 Cal. Rptr. 3d at 517; Valdez-Jimenez, 460 P.3d at 984–85.
a. An unattainable financial condition is the functional equivalent of an order of pretrial detention
Applying Salerno, every appellate court to consider the question has held that an order requiring an unattainable financial condition of release is a de facto order of pretrial detention. ODonnell, 892 F.3d at 162 (Defendants’ practices result in the “absolute deprivation of [indigent misdemeanor arrestees’] most basic liberty interests—freedom from incarceration”); see also, e.g., United States v. Leathers, 412 F.2d 169, 171 (D.C. Cir. 1969) (“[T]he setting of bond unreachable because of its amount would be tantamount to setting no conditions at all.”); United States v. Mantecon-Zayas, 949 F.2d 548, 550 (1st Cir. 1991);23 State v. Brown, 338 P.3d 1276, 1292 (N.M. 2014); Brangan, 80 N.E.3d at 963; Humphrey, 228 Cal. Rptr. 3d at 517. This Court reached the same conclusion, stating that when secured money bail is set “at unpayable amounts,” it operates “as [a] de facto pretrial detention order,” 251 F. Supp. 3d at 1150; id. at 1131, 1156, 1161, and held that Harris County had a “policy and practice of imposing secured money bail as de facto orders of pretrial detention.” Id. at 1059–60, aff’d as modified, 892 F.3d 147 (emphasis added).
23 “[O]nce a court finds itself in this situation—insisting on terms in a ‘release’ order that will cause [detention]— it must satisfy the procedural requirements for a valid detention order[.]” Mantecon-Zayas, 949 F.2d at 550.
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b. Pretrial detention requires the government to demonstrate necessity, regardless of whether the detention results from a transparent order or a de facto one
Pursuant to either the Bearden-Frazier-Rainwater wealth-based detention cases, or the fundamental right to pretrial liberty articulated in Salerno, an order to pay unaffordable bail that results in detention is unconstitutional unless the government demonstrates that less-restrictive alternatives are inadequate and pretrial jailing is necessary to serve a compelling government interest. Because a person’s “interest in liberty” is “fundamental,” the Supreme Court has held that it is a “‘general rule’ of substantive due process that the government may not detain a person prior to a judgment of guilt in a criminal trial.” Salerno, 481 U.S. at 750, 749. This right to pretrial liberty is not absolute (see supra Part VI(A)(2)(a)): the government may deprive a person of pretrial liberty if its interest is sufficiently compelling and the deprivation is narrowly tailored to serve that interest. Salerno, 481 U.S. at 749, 751 (describing the government interest in preventing serious pretrial crime as “compelling” and the statute as “careful[ly] delineat[ing] . . . the circumstances under which detention will be permitted”); Reno v. Flores, 507 U.S. 292, 301-302 (1993) (citing Salerno as part of its “line of cases which interprets … ‘due process of law’ to … forbid[] the government to infringe certain fundamental’ liberty interests … unless the infringement is narrowly tailored to serve a compelling state interest.”); Foucha, 504 U.S. at 81 (explaining that the statutory scheme Salerno addressed was “narrowly focused on a particularly acute problem in which the government interests [were] overwhelming.”); see also Washington v. Glucksberg, 521 U.S. 702, 721 (1997); Zablocki v. Redhail, 434 U.S. 374, 388 (1978).
In light of Reno and Foucha, the en banc Ninth Circuit held that “Salerno applied heightened scrutiny.” Lopez-Valenzuela, 770 F.3d at 780-781; id. at 780, meaning that the government must demonstrate that its “infringement [of pretrial liberty] is narrowly tailored to serve a compelling state interest.” Every appellate court to consider the question has agreed,
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including the Supreme Courts of Arizona, Nevada, and Massachusetts, as well as the ourt of Appeals of California. Simpson, 387 P.3d at 1276-1277 (“heightened scrutiny” applies where, as in Salerno, the “fundamental” “right to be free from bodily restraint” is implicated).24 Under these cases, the government must establish that pretrial detention using unattainable bail is “narrowly tailored to serve a compelling state interest.” Reno, 507 U.S. at 302; see also, e.g., Reem, 2017 WL 6765247, at *1 (“The due process clauses of the Fifth and Fourteenth Amendments bar pretrial detention unless detention is necessary to serve a compelling government interest.”).
Independently, government action that infringes the right against wealth-based detention must be necessary to serve a compelling interest. In Frazier, the Fifth Circuit invalidated a practice requiring an indigent person to either pay a fine or be jailed after conviction because the alternative jail term was not “necessary to promote a compelling governmental interest.” 457 F.2d at 728 (quotations omitted). Frazier explained that there were “far less onerous alternatives” that would satisfy the “state’s interest in collecting its fine revenue.” Id.; see id. at 729–30 (reviewing adequate alternatives available). Bearden similarly required “careful inquiry” into the state’s asserted interests and “the existence of alternative means for effectuating” those interests. 461 U.S. at 666, 667; id. at 672 (“Only if the sentencing court determines that alternatives to imprisonment are not adequate in a particular situation . . . may the State imprison a probationer[.]”); see also Rainwater, 572 F.2d at 1057 (explaining that the same principles apply prior to trial and the Constitution requires “meaningful consideration of . . . alternatives” to “incarceration of those who cannot” pay a financial condition of release, and a finding that secured money bail “is necessary to reasonably assure defendant’s presence at trial.” (emphasis added)). If the government’s interest in
24 Valdez-Jimenez, 460 P.3d at 984–85 (holding that unaffordable bail “resulting in continued detention . . . infringes on the individual’s [fundamental] liberty interest,” and “substantive due process requires [such] infringement be necessary”); Humphrey, 19 Cal. App. 5th at 1028, 1037 (same); Brangan, 80 N.E.3d at 962 (same); Caliste, 329 F. Supp. 3d 296 at 320 (same).
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“appearance at trial could reasonably be assured by … alternate [conditions] of release, pretrial confinement for inability to post money bail” is unconstitutional. Id. at 1058.25
ODonnell likewise held that “heightened scrutiny” applies to Harris County’s wealth-based bail practices. ODonnell, 892 F.3d at 161; id. at 157 (affirming this Court’s equal protection holding because detention due to inability to pay requires “‘meaningful consideration of other possible alternatives’” (quoting Rainwater, 572 F.2d at 1057)); id. (a court must explain why a “‘particular financial requirement is a necessary part of the conditions for release’ when setting a bond that a detainee cannot pay” (quoting United States v. McConnell, 842 F.2d 105, 110 (5th Cir. 1988) (emphasis added)))). Regardless of the substantive label, the cases are clear that depriving a person of liberty requires a finding that detention is necessary because less-restrictive alternatives are inadequate to meet the government’s interests in court appearance or public safety.26
c. The State is wrong that rational basis applies The State argues that “rational basis review applies” because Plaintiffs “received all bail process required by ODonnell.” See Dkt. 214 at 27–29 (citing ODonnell II). But this argument misunderstands that case. Neither ODonnell nor ODonnell II addressed the substantive findings and procedural protections to which Plaintiffs are entitled at a bail hearing—indeed, the motions panel did not cite Salerno, Williams, Tate, Bearden, or Rainwater—decisions it could not overrule and which are binding on this Court. ODonnell II instead addressed the type of scrutiny required
25 See also Buffin, 2018 WL 424362, at *8 (“[S]trict scrutiny applies to plaintiffs’ Due Process and Equal Protection claims.”); Brangan, 80 N.E.3d at 965 (holding that an order requiring unattainable bail must explain why “the defendant’s risk of flight is so great that no alternative, less restrictive financial or nonfinancial conditions will suffice to assure his or her presence at future court proceedings”); Humphrey, 19 Cal. App. 5th at 1026 (same).
26 Strict scrutiny and intermediate scrutiny are both forms of “heightened” scrutiny. ODonnell v. Harris County, 251 F. Supp. 3d 1052, 1138 (S.D. Tex. 2017). Neither Rainwater nor Frazier nor Bearden used the language of tiers of scrutiny, but all required consideration of less-restrictive alternatives and a finding that detention was necessary before the government could require an unattainable payment.
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for the first 48 hours of detention before a bail hearing. 900 F.3d at 228 (confining its analysis to
the first 48 hours of detention).
The motion panel’s comment in ODonnell II about rational basis review rested on a factual
assertion that does not apply here, specifically that people detained for up to 48 hours “do not face
the same dire prospects” as those facing “lengthy pretrial incarceration.” 900 F.3d at 228.27
Plaintiffs have alleged that their unconstitutional detention lasts weeks or months, Dkt. 195-1 ¶¶
38–43,28 and that even brief periods of pretrial detention inflict significant harm, id. ¶ 97 (“The
inmate processing center is notoriously crowded with people who are in moments of extreme crisis,
having just been arrested, separated from their children and families, and deprived of their
freedom. Some are suffering from painful withdrawal symptoms or mental health episodes. Many
are worried about missing shifts at their jobs or making rent payments.”);29 id. (“The risk of suicide
. . . is at its highest in the hours and days immediately following arrest.”); id. ¶ 10 (“Between 2009
and the present 125 people died in the Harris County Jail awaiting trial, including a woman this
month who committed suicide while being detained due to her inability to pay $3,000 money
bail.”);30 id. ¶ 9 (“[E]ven a couple of days in pretrial detention makes a person more likely to
27 That assertion is also wrong because it conflicts both with the Supreme Court’s statement two years ago that “‘[a]ny amount of actual jail time’ is significant” and “has exceptionally severe consequences for the incarcerated individual and for society,” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907 (2018), and with the factual record affirmed by ODonnell I, see ODonnell 251 F. Supp. 3d at 1121–22 (“As a consequence [of pretrial detention of the indigent], they often lose their jobs, may lose their housing, be forced to abandon their education, and likely are unable to make their child support payments.” (citation to record omitted)).
28 Plaintiffs have already amassed evidence of these delays, see Dkt. 32-4 ¶ 48; Dkt. 66-5 ¶ 2; Dkt. 74-1 ¶¶ 22–23, and intend to further demonstrate them through data analysis, depositions, and other discovery.
29 Dkt. 195-1 ¶ 97 (“Arrestees booked into the jail endure a lengthy, intrusive, and humiliating process that includes seizure of their property, bodily searches, personal questions about their physical health, and interviews requiring them to disclose private financial and mental health information. . . . The processing center is loud, dirty, and full of flies and noxious smells[.]”).
30 See also Elizabeth Zavala & Taylor Pettaway, Update: Police ID female inmate at Bexar County Jail dies in apparent suicide (July 20, 2020), available at https://www.chron.com/news/local/article/Woman-inmate-at-BexarCounty-Jail-dies-in-15419036.php#photo-19397855 (describing the suicide of a woman who was detained in Bexar County due to inability to pay $5,000); Keri Blakinger, Harris County jail inmate dies by suicide days after misdemeanor arrest (Jan. 16, 2019), available at https://www.chron.com/news/houston-texas/article/Harris-Countyjail-inmate-dies-by-suicide-days-13538819.php (Ms. Whited’s suicide marked the fifth in the jail in less than two years); Keri Blakinger, Harris County inmate hangs herself, marking jail’s 2nd apparent suicide in a month (Aug. 15,
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commit crimes in the future.”). These usual (and constitutionally intolerable) harms are heightened by COVID-19, which has infected at least 1,435 people detained in the jail, killing at least three people, and causing serious and perhaps lasting illness to others. Dkt. 195-1 ¶ 168; Dkt. 232 ¶ 4.31
To be sure, ODonnell II is not persuasive on the limited question it addressed: whether rational basis review or some form of heightened scrutiny applies to the first 48 hours of wealthbased detention. ODonnell II suggested that heightened scrutiny would be triggered in “the absence of meaningful consideration of … alternatives.” 900 F.3d at 226. The motion panel majority conflated two points that a merits panel would have corrected if the judges had not withdrawn their appeal: what government conduct triggers heightened scrutiny versus what government conduct satisfies heightened scrutiny. The scrutiny that applies in a given context is triggered by the nature of the right, not by what procedures the government uses to assess whether infringement of the right is justified. Were it otherwise, rational basis review (itself a substantive standard) would apply to every important constitutional right because “[a]n essential principle of due process” is that the government provide notice and an opportunity to be heard before depriving a person of “life, liberty, or property.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). Under the State’s approach, courts would apply rational-basis review, for example, to a university’s use of race-conscious admissions because the university has a process for considering race-neutral alternatives, even though the Court has stated that “[c]onsideration [of race-based
2018), available at https://www.chron.com/news/houston-texas/article/Harris-County-inmate-hangs-herself-marking13158942.php (Ms. Lyons was being detained pretrial on $1,500 secured bail for a non-violent, felony theft charge).
31 St. John Barned-Smith, A third Harris County jail inmate with COVID-19 has died (May 13, 2020), available at https://www.houstonchronicle.com/news/houston-texas/houston/article/A-third-Harris-County-jail-inmate-sickwith-15268499.php. See also post-COVID heart and brain problems linger, some coronavirus survivors find it’s a long haul to recovery (July 22, 2020), available at https://news.yahoo.com/as-post-covid-heart-and-brain-problemslinger-some-coronavirus-survivors-find-its-a-long-haul-to-recovery-165434453.html; Ed Yong, COVID-19 Can Last for Several Months (June 4, 2020), available at https://www.theatlantic.com/health/archive/2020/06/covid-19coronavirus-longterm-symptoms-months/612679/.
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alternatives] … is not sufficient to satisfy strict scrutiny.” See Fisher, 570 U.S. at 312. That is not the law.32
Regardless, ODonnell II is not binding precedent. Northshore Development, Inc. v. Lee, 835 F.2d 580, 583 (5th Cir. 1988) (“[A] motions panel decision is not binding precedent.”). And even if, generally, decisions of stay panels were binding, ODonnell II could not bind this Court to the extent it conflicts with ODonnell I, Frazier, Rainwater, and Bearden.
The Court need not wade into any potential conflict between ODonnell I and ODonnell II because Movants raise these merits issues as part of clearly erroneous mootness and standing arguments, and even if rational basis review applies to the first 48 hours of pretrial detention, Plaintiffs must have an opportunity to develop a record showing the irrationality of the secured bail schedule. Supra n.32
5. To prevent an erroneous deprivation of Plaintiffs’ substantive rights, Defendants must provide procedural protections
Procedural Due Process analysis “proceeds in two steps: We first ask whether there exists a liberty or property interest of which a person has been deprived, and if so we ask whether the procedures followed by the State were constitutionally sufficient.” Swarthout v. Cooke, 562 U.S. 216, 219 (2011) (citing Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989)). “Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.” Carey, 435 U.S. at 259 (recognizing “the risk of error inherent in the truth-finding process”).
32 And even if rational basis review applies, the Court should deny the motions to dismiss to allow Plaintiffs an opportunity to present evidence negating each conceivable rational basis. See ODonnell v. Harris County, 227 F. Supp. 3d 706, 730–31 (S.D. Tex. 2016) (“Even if the defendants were correct that rational-basis review applies, the court would still deny the motion to dismiss under 12(b)(6). . . . Courts are properly reluctant to dismiss without permitting plaintiffs to make a factual showing that a government policy is irrational.”); Kuromiya v. United States, 37 F. Supp. 2d 717, 729–30 (E.D. Pa. 1999) (denying 12(b)(6) motion arguing that claims failed rational basis review because “plaintiffs must at least be given the opportunity” to prove the challenged policies are irrational).
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Plaintiffs are deprived of two substantive liberty interests: their interest in not being detained solely because they cannot make a payment, see Bearden, 461 U.S. at 665 and their “fundamental” “interest in [pretrial] liberty.” Salerno, 481 U.S. at 750. The second step of the procedural-due-process analysis—determining the procedures required for a valid pretrial detention order—proceeds under Mathews v. Eldridge, in which a court must balance: (1) “the private interest”, (2) “the risk of an erroneous deprivation” absent each additional safeguard, and (3) the state’s interest in not providing it. 424 U.S. 319, 335 (1976). Plaintiffs are entitled to notice; an inquiry into and findings concerning ability to pay; an adversarial, evidentiary hearing with counsel; consideration of less-restrictive alternatives; and, if a transparent or de facto order of detention, findings on the record by clear and convincing evidence that detention is necessary.
a. When considering financial conditions of release, the government must determine ability to pay
When the government contemplates requiring a secured financial condition of pretrial release, it must provide procedures adequate to determine whether the monetary condition will operate as a detention order. The Supreme Court, the Fifth Circuit, and this Court have held that, if the government seeks to condition physical liberty on a payment, due process requires notice that financial information will be collected and notice of the significance of the financial information; an inquiry into the person’s ability to pay; and findings on the record as to whether the person can pay. See Turner v. Rogers, 564 U.S. 431, 447 (2011) (applying the Mathews test and holding that, before the state may jail a person for not paying child support, the government must provide notice that ability to pay is a “critical issue,” an opportunity to be heard, and “an express finding by the court that the defendant has the ability to pay”); Bearden, 461 U.S. at 673 (before the state can revoke probation for nonpayment, it must determine whether the person could afford to pay such that the nonpayment was willful); United States v. Payan, 992 F.2d 1387, 1396
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(5th Cir. 1993) (the “court must inquire into the reasons” the person did not pay and determine

whether she could afford to pay and willfully refused to do so); ODonnell, 251 F. Supp. 3d at

1144–45 (Harris County’s automatic use of secured money bail, without an inquiry into ability to

pay, presents an intolerably high risk of erroneous deprivation); id. at 1161. If, after notice and

inquiry, the government considers requiring a secured bail amount that the person cannot pay, then

further safeguards are required before the government may detain the person.

b. The government must provide additional safeguards when pretrial liberty is at stake.
The substantive rights to pretrial liberty and against wealth-based detention require

rigorous process to ensure the accuracy of any finding that preventive, pretrial detention is

necessary and to ensure that detention of presumptively innocent individuals remains the

“carefully limited exception.” Salerno, 481 U.S. at 755. Salerno upheld the procedural protections

required by the Bail Reform Act but emphasized that an order of detention under the Act may be

issued only after a “full-blown adversary hearing,” id. at 750, “findings of fact” by “clear and

convincing evidence,” and a “statement of reasons for a decision to detain,” id. at 752. Salerno

only considered the statute before it, but the Mathews test makes clear that due process requires safeguards similar to the provisions the Supreme Court emphasized when it upheld that law.33

i.

The government must provide notice, a prompt,

adversarial hearing, and findings on the record

The procedures due process requires prior to the deprivation of any liberty interest are well-

established. Most of them apply even in the post-conviction context, where a person’s liberty

interest is diminished. In Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), the Court explained that

33 Salerno addressed the procedural protections required for preventively detaining someone charged with certain particularly serious felony offenses, for only in such cases could the balance of interests that might permit deprivation of an individual’s “fundamental” right tilt in the government’s favor. 481 U.S. at 747, 750. Plaintiffs have not raised a claim here that federal due process prohibits pretrial detention of people charged with less-serious offenses.
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before revoking a convicted person’s probation, the government must still provide (a) “notice” of the critical issues to be decided; (b) “disclosure” of the evidence presented by the government; (c) an “opportunity to be heard in person and to present witnesses and documentary evidence”; (d) “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)”; (e) a “neutral and detached” factfinder; and (f) findings and reasons on the record of “the evidence relied on.” See also Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (holding that “the minimum requirements of due process” require the same six procedural protections before the government make revoke parole); Turner, 564 U.S. at 447– 48 (requiring “notice to the defendant that ‘ability to pay’ is a critical issue,” the opportunity to be heard, and findings on the record); see also, e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (“Parties whose rights are to be affected are entitled to be heard.”); Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 617 (1993) (“[D]ue process requires a ‘neutral and detached judge in the first instance.’” (quoting Ward v. Village of Monroeville¸409 U.S. 57, 61–62 (1972))); Wolff v. McDonnell, 418 U.S. 539, 564–65 (1974) (requiring a statement of reasons for revocation of good-time credits). Because a bail hearing implicates the fundamental right to bodily liberty prior to trial, each of these safeguards is required.
ii. The government must apply the clear-and-convincingevidence standard to any finding that detention is necessary
When the government seeks to infringe the fundamental right to bodily liberty prior to conviction, it bears a heightened evidentiary burden. That issue was not litigated in ODonnell. See ODonnell, Case No. 4:16-cv-1414 (S.D. Tex. June 11, 2018), Dkt. 402 (Plaintiffs’ Brief in Support of the Amended Preliminary Injunction Proposed by Plaintiffs and Defendant Judges No. 14 and No. 16) at 1 n.1; id., Dkt. 400 (Plaintiffs’ Motion for Partial Summary Judgment) at 21–28 (raising these procedural issues for the first time). Defendants routinely ignore these requirements. See
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Dkt. 195-1 ¶¶ 102, 106, 127; Ex. A1–A18; Ex. C. Movants do not contend that Harris County satisfies them. For this reason alone, the claim that procedural due process requires a heightened evidentiary standard at pretrial detention hearings cannot be dismissed. If Movants later contest this claim, the Court can resolve it on a full evidentiary record, applying the Mathews test.34
c. Defendants do not provide the required procedural safeguards Harris County and the Judges do not provide the procedural safeguards required to ensure the accuracy of pretrial detention decisions. Predetermined money bail amounts are required prior to any legal proceeding before a judicial officer. Dkt. 195-1 ¶¶ 80, 89–93; Dkt. 1-4. Although a proceeding occurs in the jail after arrest for those who cannot pay the amount set pursuant to the judges’ schedule, there is no notice of the important rights at stake in the proceeding. See Dkt. 228 (the Judges do not believe those rights exist). There are no findings on the record concerning ability to pay, the availability or adequacy of alternative conditions of release, or the necessity of detention in light of alternatives. Dkt. 195-1 ¶¶ 102, 106; Ex. A1–A18; Ex. C. No evidentiary standard, let alone the heightened evidentiary standard required by due process, is applied to any findings. Dkt. 195-1 ¶ 102; Ex. A1–A18; Ex. C. When bail hearings occur at all, typically weeks or months later, the Judges routinely fail to provide these protections. Dkt. 195-1 ¶ 127. B. Movants’ Other Arguments Fail
1. Plaintiffs Were Not Required to Proceed Under the Eighth Amendment Movants argue that Graham v. Connor, 490 U.S. 386 (1989), requires Plaintiffs to bring their claims under the Eighth Amendment. Dkt. 214 at 23–24, 25; Dkt. 228 at 28 n.16. They start by mischaracterizing Plaintiffs’ claims. Plaintiffs do not argue that bail is “set too high,” Dkt. 214 at 25; they recognize that secured bail, even unaffordable bail that results in pretrial detention, can
34 Procedural due process requires the government to provide counsel at bail hearings. Defendants also do not contest this aspect of Plaintiffs’ procedural due process claim.
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be a constitutional condition of release, even for indigent arrestees. Plaintiffs argue that when the use of secured bail results in a de facto order of pretrial detention, due process requires the government to justify the detention in the same way it must justify transparent orders of pretrial detention. Courts are unanimous in holding that the imposition of an unattainable financial condition of release is tantamount to ordering pretrial detention. Supra VI(A)(4)(a).
Binding precedent forecloses Movants’ argument. In Rainwater, the Fifth Circuit analyzed a challenge to Florida’s money-bail system under the Fourteenth Amendment, and held that “[t]he incarceration of those who cannot [pay secured bail schedule’s requirements], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.” Rainwater, 572 F.2d at 1057. This holding—that a challenge like Plaintiffs’ is cognizable under the Fourteenth Amendment—binds this Court, as it did the Fifth Circuit when it rejected the same argument in ODonnell. 892 F.3d at 157. The Supreme Court has repeatedly “rejected” the notion “that the applicability of one constitutional amendment pre-empts the guarantees of another.” United States v. James Daniel Good Real Prop., 510 U.S. 43, 49 (1993). “Certain wrongs affect more than a single right and, accordingly, can implicate more than one of the Constitution’s commands.” Soldal v. Cook County, Ill., 506 U.S. 56, 70 (1992); see also, e.g., Colorado Christian University v. Weaver, 534 F.3d 1245, 1266 (10th Cir. 2008) (recognizing that “statutes involving discrimination on the basis of religion” can arise under the First or Fourteenth Amendments). When a plaintiff invokes more than one constitutional provision, a court must “examine each [] in turn.” Soldal, 506 U.S. at 70.35 Salerno itself illustrates this point. Plaintiffs argued that pretrial detention violated both due process and the Excessive Bail Clause. 481 U.S. at 746. The Court analyzed the claim under both constitutional provisions and recognized the
35 Here plaintiffs have pressed only a Fourteenth Amendment claim, as is their prerogative.
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interest in pretrial liberty under “substantive due process.” See id. at 746–52 (explaining the “general rule of substantive due process” that protects pretrial liberty and the conditions under which it can be overcome), 752–55 (Eighth Amendment analysis).36
Although the Supreme Court has cautioned that reliance on substantive due process is improper in some contexts where challenged conduct is covered by a specific constitutional provision, see Graham, 490 U.S. at 393–94, that concern is not implicated here. Graham reflects only a “reluctan[ce] to expand the concept of substantive due process.” County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998). Plaintiffs’ claims involve no such expansion; they rely on two longstanding principles: that equal protection and substantive due process protect against wealthbased detention, see Bearden, 461 U.S. at 665; ODonnell, 892 F.3d at 161; Rainwater, 572 F.2d at 1057; Frazier, 457 F.2d at 728, and that substantive due process encompasses the “fundamental” interest in bodily liberty, see Foucha, 504 U.S. at 80; Zadvydas v. Davis, 533 U.S. 678, 690 (2001), including for people accused or convicted of crimes, Salerno, 481 U.S. at 750; Gagnon, 411 U.S. at 786; Morrissey, 408 U.S. at 489.
2. The State Misunderstands Plaintiffs’ Challenge to GA-13 GA-13 purports to suspend various state laws and judicial powers to prohibit individualized consideration of non-financial release for certain categories of people. See Dkt. 53-1 Plaintiffs’ challenge to GA-13 is not a separate claim. See Dkt. 195-1 ¶¶ 199–204 (Claims for Relief). Plaintiffs allege that enforcement of GA-13 violates the Fourteenth Amendment for the reasons Defendants’ other practices do: it requires the pretrial detention of people who cannot pay secured bail without a finding that detention serves any purpose, and even if a judicial officer finds that detention is not necessary. The relief Plaintiffs seek against GA-13 is consistent with the relief
36 Daves v. Dallas County, 341 F. Supp. 3d 688, 696 (N.D. Tex. 2018), which Defendants and Intervenors both cite, see Dkt. 228 at 28 n.16; Dkt. 214 at 25 n.124, was wrong on this point and cannot overrule binding precedent.
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they seek against Defendants’ other policies and practices. Id. If Plaintiffs prevail on their claim that pretrial detention is impermissible unless there is a finding that detention is necessary, such a ruling would prevent Defendants from enforcing GA-13 to the extent it conflicts with that relief. Relief identifying GA-13 is important to avoid confusion about whether to enforce the order if it violates the federal Constitution.
The State incorrectly asserts (with no support) that none of the Plaintiffs was denied a personal bond due to GA-13, see Dkt. 214 at 30, which points out the need for a fully developed factual record. GA-13 prohibited Defendants from releasing Mr. Clack and Mr. Wilson, Dkt. 1951 ¶¶ 70, 79, and the District Attorney objected to Mr. Pierson’s release on the basis of GA-13, Dkt. 66-5 (Declaration of Harris County Public Defender Alex Bunin) ¶¶ 8–11. GA-13 continues to cause the detention of members of the class every day, see Dkt. 214-7 (Judges’ Amended General Order, which was amended to conform to GA-13): the Sheriff and County continue to enforce GA13 against people arrested and detained in the jail, as required by the Judges’ General Order. Id.37
Again showing a basic misunderstanding of the case, the State asserts that “if Plaintiffs are still seeking to release arrestees due to COVID-19,” their claims are subject to the Prison Litigation Reform Act. Dkt. 214 at 30. Plaintiffs do not seek release. They seek an order requiring the government to justify pretrial detention. See supra Part VI(A)(4), (5).
3. Plaintiffs’ Claims Are Not Moot, and Plaintiffs Have Standing Movants confuse standing, mootness, and the merits. Dkt. 214 at 26; Dkt. 228 at 13–17. Although Movants submitted evidence in support of their jurisdictional arguments, none of it
37 Intervenors also cite a 1905 Supreme Court case, Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), to suggest that GA-13 is constitutional. Dkt. 214 at 30–31. This argument fails because, to the extent GA-13 infringes the federal fundamental interest in pretrial liberty, the Order would not be subject to Jacobson’s “reasonableness” inquiry. It also fails for all the reasons Plaintiffs previously explained. See Dkt. 88 (Plaintiffs’ Reply in Support of Motion for Temporary Restraining Order) at 13–15.
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contradicts Plaintiffs’ allegations relating to jurisdiction. (The evidence pertains to the merits and shows that, as Plaintiffs allege, Defendants do not provide the findings and safeguards that Plaintiffs contend are required.) Thus, the Court must rely solely on Plaintiffs’ allegations to assess jurisdiction. Lawrence, 919 F.2d at 1528–29. None of Movants’ arguments applies to the Sheriff’s counter-claim. The Sheriff unquestionably has standing.
“Standing and mootness are interrelated concepts, but are not to be confused.” Samele v. Zucker, 324 F. Supp. 3d 313, 327 (E.D.N.Y. 2018). “The doctrine of standing concerns an analysis of whether the plaintiff had a justiciable case when the complaint was filed, while the doctrine of mootness concerns a determination of whether the plaintiff continues to assert a justiciable case throughout every stage of the lawsuit.” Institute of Marine Mammal Studies v. Nat’l Marine Fisheries Serv., 23 F. Supp. 3d 705, 712 (S.D. Miss. 2014) (citing Kitty Hark Aircargo, Inc. v. Chao, 418 F.3d 453, 458 (5th Cir. 2005); Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030, 1041–42 (5th Cir. 1981). To demonstrate standing, a plaintiff must allege (1) an injury in fact, (2) a causal connection between the injury and the challenged conduct, and (3) the likelihood that a favorable decision would redress the injury at the time the Complaint was filed. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). To avoid mootness, plaintiffs must demonstrate that there are “adverse parties with sufficient legal interests to maintain the litigation” and that the parties continuously “have a personal stake in the outcome of the lawsuit.” Envtl. Conservation Org. v. City of Dallas, 529 F.3d 519, 527 (5th Cir. 2008) (quotations and citations omitted).
a. Plaintiffs Had Standing When the Complaint Was Filed i. Plaintiffs’ Injuries Are Traceable to the Felony Judges
Movants argue that Plaintiffs lack standing because (they assert) bail determinations are first made by Hearing Officers, whose decisions the Felony Judges cannot control. Dkt. 228 at 14–16. They ignore the bail schedule and General Orders. See Dkt. 195-1 ¶¶ 80, 89–93; Dkt. 1-4; Dkt.
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214-7. Their assertion conflicts with Plaintiffs’ allegations and publicly available materials showing that the Judges control what happens before the bail hearing. They also ignore Plaintiffs’ allegations that the Judges control what happens at the hearings, Dkt. 195-1 ¶¶ 107–108, 117–18; Ex. D ¶ I(D), and also in their own courtrooms, where they refuse as a matter of policy to provide timely, adversarial, on-the-record hearings or to make the required findings, Dkt. 195-1 ¶ 127.38
The Judges’ jurisdiction-wide bail policies—including the secured bail schedule and the General Orders—determine who is released and who is detained prior to a hearing. Dkt. 195-1 ¶¶ 34, 80, 89–93; Dkt. 214-7. Movants’ only response to this is their peculiar assertion that Plaintiffs do not challenge the bail schedule. See Dkt. 228 at 15. Plaintiffs’ challenge to wealth-based detention without required findings and safeguards includes a challenge to the automatic pretrial detention required by the bail schedule prior to a hearing (and, often, after the hearing, when Hearing Officers automatically apply it). See Dkt. 195-1 ¶¶ 199–204. The Felony Judges are proper defendants in that challenge because they promulgate that schedule.39
The Judges also control what happens at the initial bail hearings presided over by the Hearing Officers. See Dkt. 195-1 ¶¶ 107–108, 117–18; Ex. D ¶ I(D). Texas law grants judges broad discretion to promulgate post-arrest policies for their jurisdictions that are consistent with Texas law’s broad provisions regarding pretrial release and detention. See Tex. Gov’t Code § 74.093 (“The district and statutory county court judges in each county shall, by majority vote, adopt local
38 Of course, none of these arguments affect the Sheriff’s standing to seek a declaratory judgment from this Court about his duties and obligations under the Constitution.
39 Because Defendants and Intervenors do not move to dismiss this portion of Plaintiffs’ challenge, Plaintiffs will not address it fully here, except to point out that Defendants and Intervenors do not explain how the allegations would support a conclusion that the bail schedule passes constitutional muster. Plaintiffs’ Complaint alleges clearly—and Plaintiffs will prove after discovery—that the felony secured bail schedule fails any standard of scrutiny.
Defendants cite Fields v. Henry County, 701 F.3d 180, 184 (6th Cir. 2012), and Rainwater, 572 F.2d at 1057, with only unexplained parentheticals. Dkt. 228 at 15 n.10. Fields is irrelevant because that was an Eighth Amendment and Procedural Due Process case based on Tennessee law. And Rainwater did not approve of secured bail schedules. Nor does the case provide support for a finding that Defendants bail schedule in this case on these facts is constitutional under the applicable level of scrutiny.
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rules of administration.”), see also id. § 74.092. The Judges have power under these state laws to adopt policies governing post-arrest practices. Their motion ignores those statutes, from which the Judges derive their power to promulgate local rules (such as the bail schedule (Dkt. 1-4), the General Orders of March and April 2020 (Dkt. 32-6, Dkt. 214-7), and the Direct Filing Order (Ex. D)), as well as Texas Government Code § 54.856(b), which makes clear that nothing in §54.856(a) “limit[s] or impair[s] the jurisdiction of the court in which the complaint, information, or indictment is filed to review or alter the decision of the criminal law hearing officer.”40
These laws are reflected in longstanding local practice. For decades, Hearing Officers adhered strictly to the bail schedule, supplemented by written and oral directives from the Judges. Id.; supra notes 6 & 7. Although the Judges purportedly rescinded these instructions after the ODonnell lawsuit, Hearing Officers continue to require secured financial conditions in felony cases without the required findings and procedures, Dkt. 195-1 ¶ 118; Dkt. 1-4; Ex. A1–A18; Ex. C; Ex. D ¶ I(D); see generally Appendix 1, even as they make findings of necessity on the record and apply a heightened evidentiary standard in misdemeanor cases, see Ex. A19–20;41 Appendix 2.
The Hearing Officers treat misdemeanor and felony arrestees differently because they consider their felony bail practices to be controlled by the Felony Judges, just as their misdemeanor bail practices are controlled by the misdemeanor judges, who promulgated Rule 9 and other constitutional policies. Indeed, as soon as the misdemeanor judges promulgated Rule 9 in January 2019—and before this Court entered the Consent Decree in ODonnell—the Hearing Officers changed their misdemeanor bail practices to conform to Rule 9. ODonnell, Case No. 4:16-cv-1414 (S.D. Tex. Mar. 6, 2019), Dkt. 573 (Joint Motion for Entry of Proposed Order). The Hearing
40 As the Felony Judges’ policy document makes clear, their jurisdiction over a case begins after arrest, before the initial bail hearing, and is not interrupted by the bail hearing before a Hearing Officer. Ex. D ¶ I(A)(3)
41 Exhibits A19 and A20 provide two examples of Hearing Officers describing the more stringent, constitutional policies applied to people arrested for misdemeanors as compared to those arrested for felonies.
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Officers’ deference to the elected judges makes sense given Texas statutes that authorize the judges to hire and fire the Hearing Officers at will. See Tex. Gov’t Code § 54.852(a), (d); supra note 6. As Texas law and the history of Rule 9 show, local judges can order the Hearing Officers to provide the required findings and procedures. The Felony Judges choose not to, even as they issue general orders on bail policy that do not remedy the constitutional violations alleged. E.g., Dkt. 214-7.
Movants’ argument that the Felony Judges lack jurisdiction to address bail before an “arrestee seeks review or files a writ of habeas corpus in the state district court,” Dkt. 228 at 15, thus fails. In addition to the laws and practices described above, the same written order from the Judges that requires the Hearing Officers to follow the bail schedule explicitly states that the Felony Judges have jurisdiction over cases as soon as they are filed, i.e., shortly after arrest and prior to the bail hearing before a Hearing Officer. Ex. D ¶ I(A)(3); see also Tex. Gov’t. Code § 54.856(b). The Felony Judges themselves apparently disagree with their lawyers’ position. For example, in December 2019, a Hearing Officer ordered Ka Darian Smith released on a personal bond following a hearing. Three minutes later, in the middle of the same docket of bail hearings— and without notice or another hearing for Mr. Smith—Defendant Judge Randy Roll revoked the personal bond;42 see also Ex. G (ethics complaint against Defendant Franklin, describing her routine practice of revoking bond sua sponte). Discovery will shed more light on the prevalence of this practice, but Judge Roll’s and Judge Franklin’s conduct contradicts the assertion that the Judges lack jurisdiction over bail before an “arrestee seeks review or files a writ of habeas corpus in the state district court,” see Dkt. 228 at 15.43
42 Keri Blakinger, ‘A broken system in action’: Judge’s handling of bond in student’s case sparks criticism (Dec. 18, 2019), available at https://www.houstonchronicle.com/news/houston-texas/houston/article/A-broken-system-inaction-Judge-s-14914415.php.
43 Contrary to Defendants’ assertion in footnote 9, Dkt. 228 at 14, all Plaintiffs have adequately alleged that, at the moment the named Plaintiffs sued, they were subject to Defendants’ unconstitutional bail policies. Plaintiffs have further alleged that none of the Judges provides the constitutionally required findings and procedures, whether acting alone in their own courts, or promulgating uniform County policies. Dkt. 195-1 ¶¶ 102, 106, 127; Dkt. 214-7.
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The statutes Movants cite do not contradict this law or alter decades of actual experience in Harris County. See Dkt. 228 at 14–15 (citing Tex. Code Crim. Proc. art. 15.17 (setting forth basic duties of a bail-setting magistrate at the initial hearing); Tex. Gov’t Code § 54.733 (relevant only to magistrates in El Paso); Tex. Gov’t Code § 54.856 (Hearing Officers have “limited concurrent jurisdiction over criminal cases filed in the district courts,” including to determine bail); Tex. Code Crim. Proc. art. 2.09 (defining “Magistrate”)). The cases Movants cite also do not support their contention. See id. at 15 (citing Ex parte Clear, 573 S.W.2d 224, 229 (Tex. Crim. App. 1978) (en banc); Guerra v. Garza, 987 S.W.2d 593, 593–94 (Tex. Crim. App. 1999)). In Clear, a criminal case was filed in a Justice of the Peace court and a felony judge tried to intervene. In Harris County, felony cases are filed in criminal district court directly, and the district judges have jurisdiction over the cases from the moment of filing with concurrent jurisdiction for magistration residing also with Hearing Officers. See Tex. Gov’t. Code § 54.856(a), (b); Ex. D at ¶ 1(A)(3). And in Garza, a misdemeanor county judge was ordering people released from the jail, even though other judges had jurisdiction over those cases, some of which were felonies. Garza’s facts are nothing like this case, and Garza does not hold that the Felony Judges have been illegally promulgating bail policies for cases filed in their courts for decades.
Even if Defendants were correct that state law prohibits the Felony Judges from dictating the outcomes of particular individual bail decisions, they do not argue that they could not order Hearing Officers to provide the findings and procedures Plaintiffs seek. Like the misdemeanor judges, the Felony Judges could rescind their bail schedule and promulgate a rule analogous to Rule 9. Further, there is no law prohibiting the Judges from promulgating policies requiring Hearing Officers to release certain categories of people—which is what they have done for decades through the mandatory bail schedule requiring the release of everyone who can pay a
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predetermined amount—even if the Judges cannot constitutionally require the Hearing Officers to order detention.
None of Movants’ arguments affect Plaintiffs’ standing to challenge the Judges’ policies and practices in their own proceedings, including their failure to provide prompt on-the-record, adversarial, evidentiary bail hearings, and their refusal as a matter of policy to make a finding that detention is necessary when they require unaffordable money bail. Dkt. 195-1 ¶ 127.
ii. This Court Can Order Relief Against the Felony Judges That Will Redress the Harm
Movants cite footnote 11 of Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 691 n.11 (1949), to argue that “Plaintiffs’ claims against the District Judges are not redressable” because (they assert) this Court lacks authority to order the Felony Judges to issue a new bail schedule, rescind the old one, hold additional hearings, or release a person absent the required findings.44 Dkt. 228 at 16–17. Even if that argument were true, it would not affect this Court’s authority to grant complete relief by enjoining the Sheriff and the County. ODonnell, 892 F.3d at 165; McNeil v. Community Probation Servs., LLC, 945 F.3d 991, 994–95 (6th Cir. 2019).
But Movants’ argument is wrong anyway. As the Fifth Circuit noted in an en banc decision on August 7, 2020, the meaning and continuing viability of footnote 11 in Larson “is an unsettled question that has roused significant debate.” Green Valley Spcial Utility District v. City of Schertz, Tex., 2020 WL 4557844, at *7 n.21 (5th Cir. Aug. 7, 2020) (en banc) (citing Vann v. Kempthorne, 534 F.3d 741, 751–53 (D.C. Cir. 2008)). Movants ignore this debate and misrepresent the footnote in a crucial respect. They claim that “[s]overeign immunity bars constitutional claims” categorically if the relief requested would require the sovereign to take some affirmative action.
44 Defendants also argue that the felony judges “cannot release anyone” because “the Sheriff detains pretrial arrestees.” Dkt. 227 at 17. Semantics aside, Plaintiffs do not seek release as a remedy. See infra Part VI(B)(8).
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Dkt. 228 at 16–17. That is wrong. Larson states that “a suit may fail . . . if the relief requested . . . will require affirmative action[.]” 337 U.S. at 691 n.11 (emphasis added); see Vann, 534 F.3d at 752 (“[W]e begin by noting the Court’s use of may . . . rather than more commanding alternatives like must or will or shall.”). Assuming the dicta from Larson is not obsolete, the word “may” is essential to reconciling it with the many subsequent applications of Ex parte Young that authorized federal courts to “direct affirmative action” in some instances. Vann, 534 F.3d at 752.45
Whatever force the footnote may have in general, it does not apply here because, (1) as policymakers for the County, the Judges lack sovereign immunity, and, (2) even if they make policy for Texas, the Court can craft an injunction that avoids any potential Larson problem.46
1. Defendants are Policymakers for the County Misdemeanor judges in Texas are policymakers for the County when they act as a group to promulgate and enforce local administrative rules and “acquiesce[] in an unwritten, countywide process for setting bail.” ODonnell, 882 F.3d at 538. McMillian v. Monroe County, Ala., 520 U.S. 781 (1997), and Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980), compel the same conclusion with respect to Felony Judges. It would be incongruous to find that the Felony Judges act for Texas but the misdemeanor judges act for the County, when both groups promulgate
45 Additionally, Larson and the other cases Defendants cite involve suits against federal officials, and it is unclear whether footnote 11 in Larson applies to state officials. See Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure (4th ed. 2020), §3655 Actions Against Federal Agencies and Officers (addressing Larson only in the section of the treatise concerning suits against federal officials).
46 Defendants cite two out-of-circuit cases without analysis. See Dkt. 228 at 16 (citing Jacobson v. Florida Sec’y of State, 957 F.3d 1193, 1212 (11th Cir. 2020); United Tribe of Shawnee Indians v. United States, 253 F.3d 543, 548 (10th Cir. 2001)). Jacobson does not mention Larson, and United Tribe’s discussion of Larson is dicta. Neither changes the fact that if Defendants are County policymakers, sovereign immunity is unavailable, or that the Court can craft an injunction that avoids any potential Larson problem.
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analogous bail policies directing the same officials (the Sheriff and Hearing Officers) on the same issues in the same geographic location47 and are elected by the same voters.48
The Supreme Court explained in McMillian that whether a local official acts on behalf of the state or the county depends “on the definition of the official’s functions under relevant state law,” and must be determined with respect to the “particular area” or “issue” in question. 520 U.S. at 785–86; Brady v. Fort Bend Cnty., 145 F.3d 691, 699, 702 (5th Cir. 1998) (holding sheriff is county policymaker “with respect to the specific action at issue here”). As in ODonnell, the question here is whether the Felony Judges act for Harris County when they exercise their “broad authority to promulgate rules that will dictate post-arrest policies consistent with [] state law.” 882 F.3d at 538 (citing Tex. Gov’t Code § 75.403(f)).
The most important McMillian factor—and the only factor emphasized by the Fifth Circuit in ODonnell—is that state law affords the Felony Judges broad discretion to determine local rules governing bail practices. See ODonnell, 882 F.3d at 538. If the judges in a particular county choose to exercise that discretion in a way not required by Texas law but that violates federal law, their illegal policies constitute official policy for the county, not for Texas. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986) (holding that a county is liable under § 1983 when a policymaker makes “a deliberate choice to follow a course of action . . . from among various alternatives”). That is precisely what has happened in Harris County. Nothing in state law requires
47 See Tex. Gov’t Code § 74.091; id. § 74.093(a); Ex. D. See McMillian, 520 U.S. at 791 (the fact that the sheriff’s jurisdiction is limited to the county’s border weighed in favor of finding the sheriff a county official).
48 Each felony judge is elected by qualified voters in a judicial district that is limited to Harris County. Tex. Const. art. V, § 7 (West 2007); see also State District Courts, available at https://www.txcourts.gov/media/1445220/districtcourt-map-october-2019.pdf (Oct. 2019) (illustrating that Harris County is a single-county judicial district). See McMillian, 520 U.S. at 791 (finding it “important” that “the sheriff is elected locally by the voters in his county”).
This Court has already recognized that, although district judges act on behalf of the state when performing some functions, there is no “general rule that Texas district judges are always state actors,” and a “comparison of Texas district judges and county judges may well support a finding that, in the particular function of regulation countywide pretrial processes and bail settings, the district judges act as local policymakers.” ODonnell v. Harris County, 2017 WL 784899, at *3, *3 n.1 (S.D. Tex. Mar. 1, 2017).
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the Judges to promulgate a secured bail schedule or prohibits the judges from promulgating rules
requiring magistrates to conduct bail hearings in ways that would be constitutional. See ODonnell,
251 F. Supp. 3d at 1151 (the misdemeanor judges’ policies “are not required by Texas law”), aff’d,
882 F.3d 528. The Judges could make policy choices that are consistent with state law and that
comply with federal due process and equal protection—which is exactly what the misdemeanor
judges did in January 2019. See ODonnell v. Harris County, Case No. 4:16-cv-1414 (S.D. Tex.
Jan. 25, 2019), Dkt. 557 (Notice and Explanation of New Local Rule); id. Dkt. 557-1 (Amended
Local Rule 9.1). The Felony Judges have not done so, although three of them now say they wish
to do so. As the Fifth Circuit in ODonnell recognized, policies and practices relating to bail-setting
procedures that are not required by state law and that apply to all arrestees only within a given
county constitute official policy for the County. 882 F.3d at 538. None of the other McMillian
factors warrants deviating from ODonnell’s conclusion.49 Because the Felony Judges are County
policymakers for the relevant functions, the Court is not constrained by footnote 11 in Larson,
even if that ambiguous and criticized dicta is still good law.50
49 While the Court in McMillian ultimately held that the sheriffs were state officials, that was only because it concluded that several “important” points were outweighed by others. 520 U.S.. at 791–93. Those other points (the intent of the framers of the Alabama Constitution; that authority to impeach sheriffs rests with the Alabama State Supreme Court; and the existence of state case law interpreting the Constitution and its history to reveal the framers’ intent that sheriffs be considered state officers, McMillian, 520 U.S. at 787–89) do not tip the balance here. And although the Felony Judges can be recommended for removal by a state commission rather than county actors, Tex. Const. art. V, § 1-a, the historical context that gave this factor weight in McMillian is absent here. Moreover, Harris County budgets for and funds the court administrator system, Tex. Gov’t Code § 75.401, as well as any other officials “necessary to the administration of the judicial system,” Henry v. Cox, 520 S.W.3d 28, 36 (Tex. 2017).
In ODonnell, this Court considered the fact that the Governor fills vacancies for felony judges (as compared to the Harris County Commissioners Court, which fills vacancies for misdemeanor judges), and that only the Texas Supreme Court can remove felony judges (as compared to misdemeanor judges, who can also be removed by a felony judge), to be relevant to but not dispositive in deciding that the misdemeanor judges are County actors. ODonnell v. Harris Cty., Tex., No. CV H-16-1414, 2017 WL 784899, at *3 (S.D. Tex. Mar. 1, 2017) (denying County’s motion to reconsider). Here, these factors may be relevant, but cannot overcome the weight of the other factors pointing toward a conclusion that the Felony Judges, like misdemeanor judges, make bail policy on behalf of Harris County.
50 Defendants argue that Plaintiffs lack standing against the Felony Judges because Plaintiffs also have standing against the Sheriff. Dkt. 228 at 17. But there is no requirement that a plaintiff sue any particular person, or every person, who can redress the harm they are suffering. Whatever relief Plaintiffs have against they Sheriff does not foreclose them from obtaining relief against the Judges as well.
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2. The Court can issue an injunction that does not require the Judges to take any affirmative action
Were the Court constrained to do so by Larson, it could issue an injunction that redresses the constitutional violations but does not require the Felony Judges to take any affirmative action. In Green Valley, the Fifth Circuit left the Larson question “for another day” because it concluded that two forms of relief Plaintiffs sought “pass muster” even under the most controversial reading of Larson. 2020 WL 4557844, at *7 n.21. Here, the Court can issue an injunction prohibiting the felony judges from promulgating or acquiescing in any rule, policy, or practice that causes the pretrial detention of any individual solely due to inability to pay and without the procedural protections and substantive findings the Constitution requires. Such an order would “prevent the officer[s] from exercising any [discretionary] authority in violation of the [federal Constitution]” but would not compel the Judges to act in any specific way. Vann, 534, F.3d at 754. In Vann, the D.C. Circuit held that an analogous prohibition against a tribe avoided any Larson problem, explaining: “That the tribe might ultimately amend its constitution to bring its elections into conformance with federal law is irrelevant to our sovereign immunity analysis, because any such change would not be the direct result of judicial compulsion.” Id.. Likewise, if an order against the Felony Judges prompted them to promulgate constitutionally compliant rules and procedures, their “discretion will not be steered by the [federal] judicial hand.” Id.
Movants’ arguments have no bearing on available relief against the County and Sheriff. Even if the Court accepted the Felony Judges’ (wrong) argument, it could still issue affirmative injunctive relief against the Sheriff and the County to remedy the constitutional violations.
iii. Plaintiffs faced an “injury in fact” when they sued Movants’ injury-in-fact argument ignores the relation-back doctrine applicable in transitory class actions. Dkt. 228 at 13–14 (arguing that Plaintiffs lack standing because “[m]ost
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of the plaintiffs were released on bail well before filing their SAC against the District Judges”).
When Plaintiffs sued, Harris County and the Sheriff were currently enforcing against them de
facto orders of pretrial detention pursuant to policies and practices attributable to the Felony
Judges, just as the plaintiffs in ODonnell, when they sued, were subject to de facto orders of pretrial detention pursuant to the misdemeanor judges’ policies.51 Ongoing illegal confinement is
unquestionably an “injury” for standing purposes. Just as the First Amended Complaint in
ODonnell, adding the misdemeanor judges as defendants, related back to the initial complaint,
even though the named plaintiffs had been released from custody, the Second Amended Complaint
in this case, adding the Felony Judges as Defendants, relates back to the initial complaint.
There is no dispute that the named Plaintiffs were subject to the challenged Harris County
bail system when they sued, or that a ruling in their favor at that time would have ended the harm
they were suffering. That ends the standing debate.
b. Plaintiffs’ Claims Are Not Moot To the extent the Felony Judges “injury-in-fact” argument is a mootness argument, Dkt. 228
at 13–14, it still fails. The State also gestures at mootness, but confuses mootness with merits. Dkt.
214 at 26–27.
Plaintiffs’ class action falls under a well-established exception to general mootness rules for
claims that are “inherently transitory”; such claims would otherwise evade review. This case
51 Defendants state that when Plaintiffs amended their Complaint to add the judges as Defendants, named Plaintiff Christopher Clack was the only named Plaintiff still in Harris County custody. Dkt. 228 at 13 n.7. That is factually true, but legally irrelevant for the reasons explained in this section. Defendants make other misleading factual assertions in that footnote. For example, they state that “Clack claims his bond was not reduced after he filed a writ of habeas corpus and asked a district judge to review, but there are no allegations that the determination was made unconstitutionally.” Id. Mr. Clack did not file a writ of habeas corpus. His lawyer apparently sought an informal bond review, which occurred without any notice to him. See Dkt. 195-1 ¶68. Mr. Clack was not present during whatever informal conversation took place, and Mr. Clack was never informed of the reason he remained detained because no findings were made on the record. Id. Plaintiffs have alleged that an order to pay unattainable bond requires notice, an inquiry into and findings concerning ability to pay, consideration of alternatives, an opportunity to present and challenge evidence, and findings on the record by clear and convincing evidence. Id. ¶¶ 200, 202, 204. None of those procedural protections was afforded to Mr. Clack, which the Complaint clearly alleges. Id. ¶ 68.
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presents essentially the same scenario as County of Riverside v. McLaughlin, where the Supreme Court held that the claims of a class of people detained in jail without prompt probable cause determinations did not become moot when the claims of the named plaintiffs expired. 500 U.S. 44, 51-52 (1991); see also Genesis Healthcare, Corp. v. Symczyk, 569 U.S. 66, 76 (2013) (rejecting exception in labor case, but expressly noting the availability of exception to deal with “a class action challenging the constitutionality of temporary pretrial detentions”); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975) (“Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted.”); Ward v. Hellerstedt, 753 F. App’x 236, 243 (5th Cir. Oct. 16, 2018) (“[T]he expiration of all of Plaintiffs’ claims prior to the district court entering its class certification order did not have the effect of mooting this action as a whole.”). As in Riverside, the eventual release of the named Plaintiffs in this case did not end the controversy because a transitory class of thousands of people suffers constitutional harm on an ongoing basis. To the extent the State argues that Plaintiffs’ claims are moot because Defendants comply with ODonnell, the argument fails for the reason discussed at length above: Plaintiffs bring substantive and procedural claims that were not litigated or resolved in ODonnell. Supra Part VI(A)(2)(b).
4. Arguments Movants Advert to But Do Not Develop Are Waived In footnotes, Movants refer to judicial immunity and suggest that the Court should abstain under Rooker-Feldman. But “[a]rguments that are insufficiently addressed in the body of the brief [] are waived.” Bridas S.A.P.I.C. v. Gov’t of Turkmenistan, 345 F.3d 347, 356 n.7 (5th Cir. 2003). The Court should not dismiss Plaintiffs’ claims on the basis of a footnote. Regardless, the RookerFeldman doctrine does not apply. It is a “narrow” doctrine, applicable only to “cases . . . inviting district court review and rejection of a state court’s judgments.” Skinner v. Switzer, 562 U.S. 521, 532 (2011). Plaintiffs are not challenging any state court judgment in this case. Moreover, the
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doctrine does not preclude systemic challenges to the constitutionality of generally applicable rules, policies, and practices like those at issue in this case. Id. (“[A] state-court decision is not reviewable by lower federal courts, but a statute or rule governing the decision may be challenged in a federal action.”). This Court has already rejected judicial immunity for the functions of “promulgat[ing] written Rules of Court or oversee[ing] the unwritten customs and practices that could be corrected through the written Rules but are not.” ODonnell v. Harris County, 227 F. Supp. 3d 706, 757 (S.D. Tex. 2016), aff’d in relevant part, ODonnell, 892 F.3d at 155–56. Although Plaintiffs cannot seek an injunction against the Judges in their judicial capacity in the first instance, declaratory relief is available against them under Section 1983. See, e.g., Caliste, 329 F. Supp. 3d 296 at 320 (issuing declaratory relief against a judge in New Orleans).
In a single rhetorical question, the State questions whether Plaintiffs’ claims are moot because, they suggest, Harris County stopped its unconstitutional practices and Plaintiffs cannot “overcome the ‘presumption of good faith’” that Harris County “will not revert” to its prior practices. Dkt. 214 at 27. The State’s “argument” is undeveloped, and the State does not even attempt to meet its “heavy burden.” E.g., Friends of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000). The argument is also wrong. The unconstitutional conduct Plaintiffs allege continues. Three Felony Judges concede this explicitly, and the State does not dispute it; the State simply suggests that the Constitution does not require such findings. That is the definition of a controversy on the merits. Harris County and the Sheriff continue to play a critical role in the timing of and space available for bail hearings, provision of public defenders, and other logistics needed for a constitutional bail system. Thus, even if it were not waived, the State’s assumption that Harris County has stopped the unconstitutional conduct Plaintiffs allege fails as a factual matter, and certainly cannot be assumed for purposes of a motion to dismiss.
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5. Movants Do Not Have Sovereign Immunity Movants argue that they have sovereign immunity because the Felony Judges “do not enforce the state laws Plaintiffs challenge.” Dkt. 228 at 18–27. But, as noted, Plaintiffs do not challenge any Texas state laws; they challenge the judges’ own policies and practices. The remainder of Movants’ sovereign immunity argument conflates immunity with the merits of Plaintiffs’ claims and causation, both of which Plaintiffs have addressed above. See supra Part VI(A) (merits); Part VI(B)(3) (causation and redressability).
6. Plaintiffs’ Claims Against the Sheriff Are Proper The State argues that Plaintiffs’ claims against Sheriff Gonzalez are barred by ODonnell. Dkt. 214 at 31. The Fifth Circuit rejected this argument. Although the court held that the Sheriff was not a policymaker, it reinstated plaintiffs’ claims against him as an enforcement actor. ODonnell, 892 F.3d at 165 (authorizing the Sheriff “to decline to enforce orders requiring payment of prescheduled bail amounts as a condition of release . . . if the orders are not accompanied by a record showing that the required individual assessment was made and an opportunity for formal review was provided”). As Judge Sutton recently explained when affirming an injunction prohibiting a Tennessee sheriff from enforcing unconstitutional bail orders, “[t]here are plenty of cases allowing injunction actions like this one.” See McNeil, 945 F.3d at 996.
7. Plaintiffs Properly Brought Their Claims Under 42 U.S.C. § 1983 Habeas corpus is not the exclusive remedy for Plaintiffs’ claims. See Dkt. 228 at 27–30. In ODonnell, this Court remedied the systemic constitutional flaws in Harris County’s misdemeanor bail practices under Section 1983. Indeed, this Court explained at length why those claims were appropriately brought under Section 1983. E.g., ODonnell v. Harris Cty., 260 F. Supp. 3d 810, 815–18 (S.D. Tex. 2017). As in ODonnell, no Plaintiff has argued that he or she is entitled to pretrial release. Rather, Plaintiffs seek a determination of what findings must be made and what
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procedures must be afforded to justify pretrial detention. Numerous federal courts have granted

relief in similar Section 1983 cases challenging money bail systems. See, e.g., Daves, 341 F. Supp.

3d at 697; Caliste, 329 F. Supp. 3d 296 at 320; Schultz, 330 F. Supp. 3d 1344 at 1376; McNeil,

2019 WL 633012, at *15–16; Walker v. City of Calhoun, 901 F.3d 1245, 1272 (11th Cir. 2018).52

None of this is to say that individuals enduring life-threatening, ongoing, unconstitutional

confinement may not bring emergency habeas petitions to seek immediate release from custody.

But here, Plaintiffs chose not to seek release, but rather to request basic individualized proceedings

and an order that the government must justify its decision to detain them. This litigation choice

does not foreclose any person (or group of people) from seeking habeas relief in federal court—a

choice some of them may decide to make.

VII. Conclusion

For all of the foregoing reasons, the Court should deny the Motions to Dismiss.

Date: August 27, 2020

Respectfully Submitted,

/s/ Alec Karakatsanis /s/ Elizabeth Rossi Alec George Karakatsanis (Pro Hac Vice) alec@civilrightscorps.org Elizabeth Rossi (Pro Hac Vice) elizabeth@civilrightscorps.org Civil Rights Corps 1601 Connecticut Ave NW, Suite 800 Washington, DC 20009 Telephone: (202) 681-2721
/s/ Liyah Brown Mimi Marziani (Pro Hac Vice) Texas State Bar No. 24091906 mimi@texascivilrightsproject.org Liyah Brown (Pro Hac Vice)

/s/ Neal S. Manne Neal S. Manne Texas Bar No. 12937980 nmanne@susmangodfrey.com Lexie G. White Texas Bar No. 24048876 lwhite@susmangodfrey.com Joseph S. Grinstein Texas Bar No. 24002188 jgrinstein@susmangodfrey.com SUSMAN GODFREY L.L.P. 1000 Louisiana Street, Suite 5100 Houston, Texas 77002 Telephone: (713) 651-9366 Facsimile: (713) 654-6666

52 Even if this Court concluded that plaintiffs’ claims should have been brought in habeas, federal courts can treat the claims as if they had been. See Castro v. United States, 540 U.S. 375, 382-383 (2003). And in habeas, plaintiffs would be able to make their same claims without further, predicate proceedings in state court, because no state remedy would be “adequate and available” for claims of this nature. Preiser v. Rodriguez, 411 U.S. 475, 493 (1973).
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D.C. Bar No. 500149 liyah@texascivilrightsproject.org Peter Steffensen Texas State Bar No. 24106464 Southern District No. 3327006 peter@texascivilrightsproject.org Texas Civil Rights Project 2202 Alabama Street Houston, TX 77004 Telephone: 512-474-5073 ext. 118

/s/ Michael Gervais Michael Gervais (Pro Hac Vice) mgervais@susmangodfrey.com SUSMAN GODFREY L.L.P. 1900 Avenue of the Stars, #1400 Los Angeles, CA 90067 Telephone: (310) 789-3100

CERTIFICATE OF SERVICE I certify that on August 27, 2020 a true and correct copy of this document properly was served on counsel of record via electronic filing in accordance with the USDC, Southern District of Texas Procedures for Electronic Filing.

/s/ Elizabeth Rossi Elizabeth Rossi

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