Case 7:10-cv-00268 Document 1 Filed in TXSD on 07/26/10 Page 1 of 40

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

FRANCISCO DE LUNA and ELIZABETH DIAZ, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

HIDALGO COUNTY, TEXAS; GUADALUPE TREVINO, in his official capacity as Hidalgo County Sheriff; MARY ALICE PALACIOS, GILBERTO SAENZ, JESUS MORALES, BOBBY CONTRERAS, ROSA E. TREVINO, LUIS GARZA, ISMAEL OCHOA, CHARLIE ESPINOZA, E. “SPEEDY” JACKSON, in their official capacities as Hidalgo County Magistrates and Justices of the Peace,

CLASS ACTION COMPLAINT Civ.

Defendants.

PRELIMINARY STATEMENT 1. This class action lawsuit challenges the routine practice in Hidalgo County, Texas of jailing teens age seventeen and older in the adult county detention center—for days, weeks and sometimes months—because of their inability to pay fines and costs associated with missing school. In many cases, the teens’ failure to attend school occurred and was ticketed long before they turned seventeen, the age when adult criminal responsibility attaches in Texas. 2. Since January 2009, approximately 150 teens served time in Hidalgo County jail that may be attributed to unpaid fines for failure to attend school or other school-related misdemeanor offenses that are not supposed to be punishable by jail time. About 60 of these

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teens were jailed solely because of outstanding fines related to truancy and other school tickets, and half spent more than a week in the county jail.
3. The process by which many of these teens landed in jail spans excessive ticketing of underage students by public school police, adjudication in Hidalgo County justice courts, arrest by Hidalgo County peace officers, booking and processing by Hidalgo County Sheriff’s Office staff, commitment to jail by a Hidalgo County magistrate, and finally incarceration in the Hidalgo County Adult Detention Facility.
4. While the legal claims in this case challenge the County’s consistent failure to conduct indigency examinations prior to the confinement of individuals in jail to discharge unpaid fines and costs, the broader context for these unconstitutional practices amplifies their impact on children and families in Hidalgo County.
5. Texas law permits and encourages the assessment of multiple fines of up to $500 per ticket against students for chronic failure to attend school. On information and belief, between 2005 and 2009, the number of truancy or failure to attend school charges filed by Texas schools increased by more than 40 percent, from about 85,000 to 120,000. Excessive ticketing for school-related conduct can quickly amount to thousands of dollars in fines and places an onerous burden on low-income families.
6. The residents of Hidalgo County are among the poorest not just in Texas, but in the entire United States. The median per capita income in the County is $9,899, and 45.1 percent of children ages eighteen and under live in poverty.1
7. Education rates in the county are similarly depressed. The three cities that together comprise Hidalgo County—McAllen, Edinburg and Mission—were recently ranked 98th
1 U.S. Census Bureau, 2008 State and County Estimates, available at http://www.census.gov/did/www/saipe/downloads/estmod08/est08ALL.xls.
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among the country’s largest 100 metropolitan areas based on the proportion of residents aged 25 and older with a bachelor’s degree.2 The rate of attrition in Hidalgo County high schools is 45 percent.3 Acute poverty in the region has been directly correlated to low education rates.
8. The moniker “school to prison pipeline” refers to the process by which students who manifest even minor behavioral issues at school or commit non-violent status offenses such as truancy are adjudicated through a criminal or quasi-criminal process, leading to involvement with the juvenile justice system, which in turn is a significant predictor of involvement with the adult criminal justice system. Rather than increasing the likelihood that such students will complete school and graduate, excessive ticketing for failure to attend school, and aggressive enforcement of such tickets by courts, often drives students to drop out.4
9. The Named Plaintiffs are two low-income, eighteen-year-old residents of Hidalgo County whose trip through the pipeline ended in the Hidalgo County jail, where they were incarcerated for several weeks due to their inability to pay accumulated fines assessed for their truancy and school-related tickets.
10. The Named Plaintiffs allege that the actions, inactions, customs and practices of Hidalgo County magistrates and sheriff’s department staff in booking, processing, and adjudicating individuals with outstanding fines and costs, and in committing them to jail to discharge those debts, violates both the equal protection and due process guarantees of the
2 Brookings Inst. Metro. Policy Program, State of Metropolitan America: On the Front Lines of Demographic Transformation 108 (2010), available at http://www.brookings.edu/~/media/Files/Programs/Metro/state_of_metro_america/metro_america_report.pdf. 3 Annie E. Casey Found., Kids Count Data Center: Profile for Hidalgo County, available at http://datacenter.kidscount.org/data/bystate/stateprofile.aspx?state=TX&loc=6622 (last visited July 22, 2010). . 4 For background and data on the pipeline in Texas, see Texas Appleseed’s Texas’ School-to-Prison Pipeline: Drop-Out to Incarceration – The Impact of School Discipline and Zero Tolerance, available at http://www.texasappleseed.net/index.php?option=com_content&view=category&layout=blog&id=27&Itemid=265.
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Fourteenth Amendment to the United States Constitution. The Named Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 to enjoin those unconstitutional practices on behalf of similarly situated persons, and to seek compensation for their own emotional injury.
JURISDICTION AND VENUE 11. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 because this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. §§ 1343(a)(3) and (4) because this action seeks to redress the deprivation, under color of state law, of Plaintiffs’ civil rights and to recover damages and secure equitable or other relief for the violation of those rights. 12. This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure. 13. This Court has jurisdiction to grant injunctive relief pursuant to Rule 65 of the Federal Rules of Civil Procedure. 14. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) because one or more Defendants reside in this district and because a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
PARTIES I. Named Plaintiffs
15. Plaintiff Francisco De Luna is eighteen years old and lives in McAllen, Texas. Francisco was jailed in the Hidalgo County Adult Detention Facility for 18 days in January 2010 because of his inability to pay over $10,000 in fines assessed on more than 20 tickets for failure to attend school and other school-related rule violations dating back to 2005, when he was thirteen years old. He would have remained in jail for over 100 days if the public defender had
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not noticed Francisco’s case in a random review of jail logs and prepared a writ for his release. Although not currently enrolled, Francisco has not graduated from high school and has a statutory right to attend public school in Texas until the age of 21.
16. Plaintiff Elizabeth Diaz is eighteen years old and lives in Edinburg, Texas. Elizabeth was jailed in the Hidalgo County Adult Detention Facility for 18 days in FebruaryMarch 2010 because of her inability to pay over $1,600 in fines assessed on three tickets for failure to attend school dating back to 2006, when Elizabeth was fourteen years old. Elizabeth is enrolled in Johnny G. Economedes High School and hopes to graduate in December 2010. II. Defendants
17. Defendant Hidalgo County, a county in south Texas with a population of approximately 750,000, is a corporate and political entity organized pursuant to the Texas Local Government Code. Hidalgo County is a “person” for the purposes of 42 U.S.C. § 1983.
18. Defendant Hidalgo County Sheriff Guadalupe Trevino is the keeper of the county jail and the legal custodian of all individuals in the custody of the Hidalgo County Sheriff’s Office (HCSO). He supervises, oversees and is ultimately responsible for sheriff’s department officers and administrative staff who process, book and detain individuals at the county jail pursuant to court orders. Defendant Trevino’s compensation is paid by the County.
19. Defendant Hidalgo County Magistrates and Justices of the Peace—Mary Alice Palacios, Gilberto Saenz, Jesus Morales, Bobby Contreras, Rosa E. Trevino, Luis Garza, Ismael Ochoa, Charlie Espinoza, and E. “Speedy” Jackson—serve as Magistrates at the Hidalgo County jail on a rotating basis, performing arraignments and issuing process necessary to authorize the confinement of individuals at the jail. Justice of the peace compensation is paid by the County.
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20. The policies, practices, and conditions described herein result from specific decisions, policies, or customs of Defendants. Each Defendant has actual or constructive knowledge of the policies, practices, and conditions alleged here. Each Defendant has acted, and continues to act, under color of state law with respect to all matters alleged here. All individual Defendants are sued in their official capacities.
FACTS GIVING RISE TO CLAIMS FOR RELIEF I. Legal Consequences of Missing School in Hidalgo County
A. “Truancy” Is Different From “Failure to Attend School” 21. Chronic absence from school constitutes both the civil offense of “truancy” under the Texas Family Code, and the criminal offense of “failure to attend school” under the Texas Education Code (TEC). “Truancy” and “failure to attend school” are defined identically: as missing ten or more days or parts of days within a six-month period in the same school year, or three or more days or parts of days in a four-week period. While the definitions are the same, the consequences and procedural protections attached to each charge are quite different. 22. Only children under the age of seventeen may be charged with truancy under the Family Code, and the charge is handled by the juvenile court. A truancy charge is assigned the lowest-level sanction in the Family Code—no fine may be imposed, and the court may require counseling or community service, or simply provide assistance. A child charged with truancy is entitled to a court-appointed lawyer if indigent, and even a waiver of counsel requires the presence of an attorney. 23. Individuals of all ages who are required to attend public school may be charged with failure to attend school, a Class C misdemeanor punishable by a fine of up to $500 but not confinement in jail. When filed in county, justice or municipal courts, the adjudication of a
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charge of failure to attend school is governed by the Code of Criminal Procedure (CCP). There is no statutory entitlement to appointed counsel for indigent defendants charged with misdemeanors that are not supposed to be punishable by jail time. As a result, indigent teens charged with failure to attend school who are adjudicated by justice courts are not afforded counsel.
24. The Education Code gives school districts the option to either refer a student to juvenile court for truancy, or to file a complaint for failure to attend school against the student in county, justice or municipal court. School districts also have discretion to direct their complaints for failure to attend school and other school-related complaints to specific county, justice or municipal courts for adjudication.
B. The Pipeline from ECISD to Judge Mary Alice Palacios’s Court 25. On information and belief, school districts in Hidalgo County file charges of failure to attend school in justice courts at vastly higher rates than they refer students to juvenile court for truancy, with the result being that the county’s justice courts are the primary forum for adjudicating the issue of chronic school absences. 26. On information and belief, Judge Mary Alice Palacios—Hidalgo County Justice of the Peace, Precinct No. 4, Place 2—handles thousands of school-related misdemeanor charges each year, including the great majority of the county’s failure to attend school charges and all charges filed by Edinburg Consolidated Independent School District (ECISD). ECISD is the county’s largest school district by far, with over 30,000 students. 27. Palacios’s disproportionate share of failure to attend school filings in Hidalgo County has been noted in the press, criticized by the criminal district attorney, and considered by the County Judge and Commissioners’ Court.
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28. In 2008, Hidalgo County entered into interlocal cooperation agreements with the City of Edinburg and four public school districts in the county for the specific purpose of accommodating Judge Palacios’s needs for additional space for court hearings, and for clerks and juvenile case managers to manage her exploding school-related docket. In addition to ECISD, the Hidalgo, Donna, and Edcouch-Elsa independent school districts are parties to such agreements with the Hidalgo County and Edinburg. None of the other nine justices of the peace in Hidalgo County are the subject of interlocal agreements related to school-initiated misdemeanor charges.
29. The interlocal agreement between Hidalgo County and ECISD provides that ECISD will provide two full-time clerks, one truancy secretary and two case managers to staff Judge Palacios’s office “to assist in managing truancy cases from the District.” ECISD pays the salaries and benefits of these additional staff, while the county provides supervision related to the truancy docket in Judge Palacios’s court. The interlocal agreements between Hidalgo County and the other school districts provide two additional clerks to Palacios’s office under similar terms.
30. The interlocal agreement with ECISD provides that all fines related to charges of failure to attend school shall be split evenly between the County and the school district where the child attends school.
31. Because of the County’s cooperation with ECISD and other school districts in directing their truancy charges to Palacios and facilitating her expanding docket, many thousands of children in Hidalgo County have been processed by her court. The vast majority of the teens and young adults who are jailed in Hidalgo County for unpaid fines associated with failure to attend school or other school-related offenses are processed by Palacios’s court.
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II. Adjudication of Failure to Attend School Charges in Judge Palacios’s Court 32. In presiding over proceedings involving failure to attend school, justice courts
have many options at their disposal other than fines to punish teens and put them on a path toward better attendance and success at school. A justice of the peace can require the teen to perform community service or attend special programs designed to teach life skills or vocational training, or can order the suspension of the teen’s driver’s license or permit.
33. Consistent with its general powers, a justice court may also suspend sentencing and defer final disposition of failure to attend school charges for up to six months while the defendant completes various requirements. If the teen complies with the requirements, the charge must be dismissed; if they do not, the court must notify the defendant clearly in writing of that failure.
34. If judgment is entered and a sentence imposed, the justice court has discretion to reduce the amount of the fine, permit payment in installments, or waive the fine entirely upon a finding that the teen and her family are too poor to pay.
35. Finally, under certain circumstances, the justice court may transfer a teen with multiple failure to attend school charges to the juvenile court for processing and supervision.
36. On information and belief, Judge Palacios does not utilize the range of options available to her to fairly and efficiently resolve charges of failure to attend school, either through deferred adjudication and dismissal, or judgment and sentencing.
37. Plea documents, waivers, and other critical paperwork related to final disposition are missing from Palacios’s court records with respect to many charges. In addition, Palacios’s court frequently sends required notice to the wrong address, although the correct address is reflected in other court documents or public records.
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38. On information and belief, poor record-keeping and notice practices by Palacios’s staff cause confusion among teens and their parents about when, how, and whether charges have been resolved. Many teens and their parents make numerous visits to Palacios’s court, missing valuable days of work and school, without resolving their underlying charges, or without being aware that they have failed to do so
39. On information and belief, Palacios’s court consistently fails to provide children and parents with written notice, as required by statute, of their obligation to update the court in writing if their address should change while their charges remain pending.
40. On information and belief, after transferring an individual’s failure to attend school charges to Hidalgo County juvenile court, Palacios and the juvenile court fail to share essential information about the disposition of those charges, which often remain pending in Palacios’s court.
41. As a result of the practices described above, individuals whose failure to attend school charges were adjudicated by Palacios often carry numerous pending charges, sometimes dating back several years, when they reach their seventeenth birthday. This situation can lead to unexpectedly harsh consequences for the teen.
42. A person under seventeen may not be confined for failure to pay all or part of a fine or costs imposed for the conviction of a fine-only offense. Additionally, an adult generally may not be confined for offenses based on conduct alleged to have occurred before his or her seventeenth birthday.
43. However, if a charge based on underage conduct remains unadjudicated and pending before a justice court after an individual turns seventeen, the court may issue a Notice of
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Continuing Obligation to Appear (NCOA) pursuant to CCP Art. 45.060, ordering the individual’s appearance at a designated time, place and date to answer the charge.
44. Failure to appear at the hearing set in the NCOA is a Class C misdemeanor committed by an adult, so prosecution for that offense is governed by adult laws respecting issuance of an arrest warrant and imposition of a fine up to $500. It is an affirmative defense to prosecution for this offense that the individual did not receive the NCOA or was not informed of his or her obligation to keep the court informed of any address changes.
45. Palacios’s court is vigilant and aggressive about sending out NCOA notices for all pending charges as soon as a child turns seventeen. Her court sends a single notice listing all charges deemed to be unresolved by her staff and setting one appearance to answer all charges. If that appearance is missed, Palacios immediately issues arrest warrants on all the pending charges based on juvenile conduct.
46. On information and belief, many NCOA notices from Palacios’s court are sent to the wrong address and/or list charges that the teen and her parent were under the impression had been resolved—either in juvenile court or by Palacios. As a result, the NCOA process is like a ticking time bomb for some teens, who are unaware as they reach adulthood that they may owe thousands of dollars in unpaid fines related to old school tickets.
47. Many such teens have been confined at Hidalgo County jail because of their inability to pay those fines. III. Commitment to Hidalgo County Jail for Unpaid Fines
48. The jailing of indigent persons for non-payment of court-assessed fines is contrary to both Texas statute and the United States Constitution. Texas law requires courts to make a written determination at a hearing that a defendant is not indigent and has not made a
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good faith effort to discharge the outstanding debt through payment or community service, prior to committing that individual to jail for non-payment.
49. Notwithstanding this clear statutory and constitutional dictate, Hidalgo County maintains a consistent practice of jailing individuals who are too poor to immediately pay their outstanding fines, without giving them the option of community service or alternate payment arrangements.
50. The jailing of indigent persons for non-payment of fines creates a risk to lowincome persons of all ages in Hidalgo County, though teens carrying thousands of dollars in fines associated with truancy or other school-related conduct are particularly vulnerable to this practice. Seventeen- and eighteen-year-olds from poor families rarely have income sufficient to pay the multiple truancy fines that can result from over-aggressive school ticketing.
51. Hidalgo County Sheriff’s Office (HCSO) administrative staff process and book defendants upon arrival at the county jail in accordance with well-established practices and procedures that are ultimately controlled, directed and supervised on a daily basis by Sheriff Trevino.
52. Part of the booking process entails a search of electronic offender records to obtain information on all open warrants, prior convictions, and outstanding fines and costs associated with that defendant.
53. On information and belief, if documents or information related to open warrants or prior convictions is needed by the HCSO staff to complete the booking process, HCSO staff request such materials from staff at the originating court or other county departments.
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54. On information and belief, prior to arraignment before a county Magistrate, administrative staff will calculate the total amount in fines and costs owed by the defendant, including any additional costs associated with the defendant’s arrest and transportation to the jail.
55. By long-standing policy or custom, Hidalgo County utilizes a discharge rate of $100 per day in jail for defendants to “pay off” outstanding fines and costs. By statute, the minimum such discharge rate is $50 per 24-hour period.
56. Hidalgo County’s nine justices of the peace serve as Magistrates on a rotating basis, performing arraignments and issuing other process at the county jail. On information and belief, arraignments and hearings at the jail are performed in a courtroom where the Magistrate appears via an electronic broadcast system.
57. At a typical arraignment before the on-duty Magistrate, ten or more defendants are brought in handcuffed to each other and wearing jail clothes. Very little time is allotted to each defendant. On information and belief, defendants with unpaid fines and costs associated with open warrants or prior convictions are not processed at a separate hearing, but are handled as their name is called by the Magistrate.
58. On information and belief, after any necessary pleas are taken on pending charges, the Magistrate informs the defendant of any unpaid fines and costs and asks if the defendant is able to pay the amount owed.
59. If the defendant responds that he or she is not able to pay the outstanding fines or costs, the Magistrate informs the defendant of the number of days that would need to be served to discharge the unpaid debt, as calculated by HCSO staff.
60. The defendant is then committed to jail for the amount of time necessary to discharge the outstanding fines and costs. The Magistrate signs a Class “C” commitment order
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commanding the sheriff to commit the defendant to the Hidalgo County jail “to be released upon remaining in custody for the time required by law to satisfy the amount of such fines and costs…”
61. On information and belief, Hidalgo County Magistrates consistently fail to inquire about the defendant’s financial resources or income, or elicit any information relevant to his or her ability to pay the outstanding fines or costs, before committing the defendant to jail for nonpayment of fines and costs.
62. On information and belief, defendants are not asked to complete a questionnaire under oath concerning their financial resources before being committed to jail for non-payment of fines and costs.
63. On information and belief, before committing the defendant to jail for nonpayment of fines and costs, Hidalgo County Magistrates consistently fail to make a written determination that a defendant is not indigent and has not made a good faith effort to discharge his or her fines through payment or community service, as required by CCP Art. 45.046.
64. On information and belief, Hidalgo County Magistrates consistently fail to offer defendants the option of community service as a means of discharging their fines and costs, pursuant to CCP Art. 45.049.
65. On information and belief, Hidalgo County Magistrates consistently fail to offer defendants the option of paying their fines and costs in installments, or discharging their debt through other means.
66. On information and belief, bond is not available for individuals with unpaid fines and costs associated with prior convictions for failure to attend school, even if the individual was unaware of the prior conviction when she was taken into custody.
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67. If a defendant has been sentenced to a period of incarceration, continued confinement after the sentence is completed is necessary to discharge unpaid fines and costs. On information and belief, as each fine is discharged by days served—e.g., six days for $583— HCSO staff fill out a discharge slip for that particular offense.
68. Sheriff Trevino and the Hidalgo County justices of the peace who serve as Magistrates are all aware of the county’s long-standing administrative policies and practices with respect to the jailing of individuals for non-payment of fines and costs, including but not limited to the jailing of low-income teens for non-payment of truancy fines; and each of the individual Defendants acquiesces in carrying out those policies and practices.
69. Hidalgo County’s electronic record system, Able Term, does not clearly reveal how many individuals at any given time are confined in the county jail for the purpose of discharging unpaid fines and costs, generally or with respect to specific charges such as failure to attend school. However, an approximate number can be inferred from a combination of factors, such as type of offense, court of origin, and length of confinement in jail.
70. Based on approximately 14 months of electronic jail records showing individuals incarcerated in Hidalgo County jail with open warrants for failure to attend school from January 2009 to March 2010, at least 149 individuals during that time period served jail time that may be attributed to school-related tickets. At least 60 of these individuals were jailed with only truancy or other school-initiated charges, or other fine-only misdemeanors on their records; of these individuals, 50 percent were confined for more than a week.
71. From January 2009 to March 2010, at least 31 teens aged seventeen, and 20 teens aged eighteen were confined in Hidalgo County jail with nothing but fine-only offenses on their records, primarily truancy charges. On information and belief, these numbers may understate the
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actual number of teens jailed for non-payment because the jail’s electronic records omit at least one individual who was confined during this time period—Named Plaintiff Francisco De Luna.
72. On information and belief, Able Term jail reports or jail logs—showing individuals confined or recently processed, their arrest date, their date of birth, their charges, and their court of origin—are periodically made available or are available upon request to different county departments, such as the public defender’s office, the criminal district attorney’s office, and the justice courts.
73. It was by reviewing one of these jail logs that the County’s chief public defender Jaime Gonzalez discovered that Francisco De Luna had been confined for several weeks at the county jail for fine-only, school-related misdemeanor charges originating in Palacios’s court. IV. Named Plaintiffs and Proposed Class Representatives
A. Francisco De Luna i. Roles of ECISD and ECISD Police in pushing Francisco out of school and into the criminal justice system
74. Francisco De Luna is eighteen years old and lives in McAllen with his mother Elsa De Luna, his brother, his sister, and his sister’s four children. Francisco was born in Hidalgo County and attended schools in the Edinburg Consolidated Independent School District (ECISD) throughout his childhood.
75. Francisco suffers from attention-deficit hyperactivity disorder (ADHD), a condition causing inattention and impulsivity in children and adults. Francisco was first diagnosed and prescribed medication for ADHD in 1999, when he was in third grade. Elsa De Luna informed school officials of her son’s condition while he was still in elementary school, and the school nurses gave Francisco his medication until he reached middle school. When he began sixth grade at Harwell Middle School in the fall of 2003, the school refused to administer
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Francisco’s ADHD medication, which had to be taken after breakfast at around 10:00 a.m. Elsa had to rely on Francisco to take his medication on his own, which was not always reliable. Without his medication, Francisco found it difficult to focus at school, and his grades and attendance suffered.
76. On Christmas Eve 2004, when Francisco was thirteen, his father died unexpectedly of a heart attack. Francisco’s father had supported the family as a barber, and with his death the family’s finances became precarious. Elsa De Luna began to work longer hours as an hourly employee in the home health care industry to support her family.
77. Francisco incurred his first ticket at Harwell Middle School on April 7, 2005 for “failure to comply.” The narrative attached to the ticket states that Francisco had displayed a defiant attitude to school officials and “did not want to learn.” This purported violation of school rules by a thirteen-year-old who had just lost his father was written up by an ECISD police officer as a violation of TEC § 37.102 and a Class C misdemeanor.
78. Over the next two and a half years, before he turned sixteen, ECISD police ticketed Francisco a dozen times under TEC § 37.102 for rule violations such as wearing baggy pants, using vulgar language, and refusing to follow directives. In addition, during this same time period before his sixteenth birthday, Francisco received nine tickets from ECISD police and school authorities for failure to attend school under TEC § 25.094. At no point did Francisco’s actions threaten the safety of students or teaching staff, or constitute a criminal offense other than failure to attend school.
79. The Education Code was amended by the state legislature in 2007 to clarify that only rule violations related to the operation and parking of vehicles on school property constitute a criminal offense under TEC § 37.102. Four of Francisco’s rule violation tickets were issued
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after September 1, 2007, the effective date of the legislative changes to TEC § 37.102, meaning that there was no statutory basis for those criminal charges or the fines assessed in connection with those charges.
80. On information and belief, despite having been informed of Francisco’s ADHD diagnosis as early as 2000, over the next eight years, as Francisco increasingly struggled with behavioral issues and academic progress in ways that could easily be attributed to his condition, ECISD school officials never once sought to identify him as child with a behavioral disability or to develop an individualized educational program that could meet his needs. Even though school officials were aware of his father’s death, they did not offer counseling services or other support to help Francisco cope with this loss.
81. Rather, ECISD’s actions appear almost calculated to push Francisco out of the school system. Starting in early 2007 when he was attending Harwell Middle School, school officials began to repeatedly suspend Francisco to ECISD’s alternative education campus for 30 days or more at a stretch, for the same behavior and attendance issues that were causing him to be ticketed.
82. On information and belief, the social environment at ECISD’s Alternative Education Academy (AEA) is disruptive to learning and actually tends to encourage criminal activity and gang affiliation, especially in younger and more impressionable students. Francisco grew to hate his time at the AEA, where he was bored and felt there was no real teaching. On information and belief, Francisco received no academic credit for the more than three months he spent at the AEA in 2007, seriously impairing his progress toward graduation.
83. On two occasions, after being placed in the AEA and then being driven to drop out of school in discouragement, Francisco attempted to re-enroll at Economedes High School,
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where he still had friends with whom he wanted to graduate. Both times he was sent back to the AEA because he had not finished his placement there, according to school officials.
84. After years of being ticketed repeatedly by school police officers, being effectively excluded from the regular high school campus and any useful course of academic instruction, and being provided no support whatsoever for his medical and behavioral issues, Francisco finally stopped trying to attend school when he turned seventeen, in November 2008. On December 2, 2008, ECISD filed one last complaint against Francisco for failure to attend school.
ii. Adjudication of Francisco’s tickets in the Hidalgo County Justice Court and Juvenile Court
85. All of Francisco’s tickets were initially referred for adjudication to Hidalgo County Justice of the Peace Mary Alice Palacios. Francisco and his mother appeared before Judge Palacios on several occasions in connection with his tickets. In addition, they came to docket call as ordered at Palacios’s court at least two other times, with Elsa De Luna necessarily taking the entire day off work; but Judge Palacios did not show up.
86. On March 7, 2006 and again on November 16, 2006, Francisco and his mother signed documents entitled “Explanation and Waiver of Rights” in Palacios’s court with respect to two of his pending charges. The documents do not constitute valid waivers of the right to appointed counsel with respect to Francisco’s subsequent incarceration for inability to pay fines associated with these two charges.
87. On February 26, 2007, Elsa De Luna signed a document agreeing to pay off one ticket per month plus associated court costs for the next eleven months, or a monthly obligation ranging from $257 to $383. Elsa remembers being terrified when she signed the document because she did not know how she was going to pay the fines. She assumed she had no
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alternative but to sign. At this point, Elsa’s annual income for herself and two dependent children was less than $20,000.
88. During the course of 2007, however, all of Francisco’s pending charges were transferred to the Hidalgo County Juvenile Court. Elsa understood this transfer to obviate her need to pay the monthly fines to Palacios’s court.
89. During the spring and summer of 2008, as a condition of resolving Francisco’s pending charges, the juvenile court required him to perform community service, make progress toward his GED, and complete six months of supervised probation, which entailed a 6:00 p.m. curfew and several unannounced evening visits by a juvenile probation officer each month. On information and belief, Francisco satisfied these conditions. He performed community service at the University of Texas-Pan American, complied with the terms of his probation for six months, and began studying for his GED in the summer of 2008. Both Francisco and his mother remember signing or seeing juvenile court documents stating that Francisco was discharged of the fines associated with his ECISD tickets.
90. There are no documents in Francisco’s files at the justice court revealing the disposition of his charges in the juvenile court after the charges were transferred in 2007.
91. On December 17, 2008, one month after Francisco turned seventeen, Amanda Zak, a truancy case manager in Palacios’s court, signed and issued a Notice of Continuing Obligation to Appear (NCOA) with respect to 23 charges that the justice court deemed to be open and unresolved. The NCOA ordered Francisco to appear before Palacios on January 19, 2009 in connection with all 23 charges or a warrant would be issued for his arrest. Although there is no proof of service, the NCOA was apparently mailed to a residential address in Edinburg, Texas with the zip code 78539. In January 2009, Francisco and his family lived at that
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address, but the U.S. post office zip code for their neighborhood had changed to 78542 in the beginning of 2008.
92. Francisco and his mother did not receive the NCOA. 93. Francisco and his mother also never received written notice from the justice court, as required by statute, informing them of their obligation to notify the court if their address changed, and were never told of this obligation. 94. Francisco did not appear on January 19, 2009 as ordered in the NCOA. On January 21, 2009, Judge Palacios’s court staff prepared multiple arrest warrants for her signature, one for each allegedly still-pending school-related charge based on underage conduct. However, a complaint was not filed and a warrant was not issued based on the misdemeanor offense of failing to appear as ordered on January 19, 2009—the one offense based on adult conduct that is clearly authorized for adult prosecution by CCP Art. 45.060. 95. The assessed fine plus court costs associated with each warrant now ranged from $407 to $533. The total amount in fines for all Francisco’s charges was now over $10,000. More than half that amount was based on school rule violations that today would be nonticketable infractions. 96. Francisco and his mother received no communications from Palacios’s court after Francisco’s charges were referred to juvenile court in 2007. Until he was arrested and jailed, he was unaware that over 20 warrants had been issued for his arrest for non-payment of fines.
iii. Francisco’s commitment to jail by the Hidalgo County Sheriff’s Office and Magistrate for inability to pay outstanding fines
97. On January 11, 2010 at approximately 1:00 a.m., a Hidalgo County sheriff’s officer arrested Francisco and a friend for public intoxication as they emerged from a gas station
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convenience store in Edinburg, Texas. Public intoxication (PI) is a Class C misdemeanor, not punishable by jail time.
98. Francisco was booked and held overnight in county jail. The next morning he was told that he could post $160 bail and would be released. He called his mother with this news, and Elsa began to scrape together the bail money.
99. Later that morning, Francisco was taken to a hearing where Hidalgo County Justice of the Peace Rosa E. Trevino, the on-duty Magistrate that day, presided via an electronic broadcast system. Francisco was wearing an orange jumpsuit and was handcuffed to at least thirty other individuals. Security guards ringed the courtroom. Francisco remembers being confused and intimidated by his surroundings.
100. When his turn came, Judge Trevino informed Francisco in open court that in addition to the PI charge, there were 24 open warrants on him for failure to attend school and other school-related rule violations dating back several years. Francisco could not immediately process this information since he believed all his ECISD tickets to have been discharged in 2008 through juvenile court.
101. Trevino then asked Francisco how he wanted to plea. Francisco plead guilty, understanding his plea to apply only to the PI charge.
102. Trevino then told Francisco that he owed $11,140 in outstanding fines and asked if he could pay it. Francisco said that he could not. He was not informed and did not understand at that time that he would immediately be committed to jail for non-payment of fines.
103. Trevino did not inquire into Francisco’s financial resources or income, or elicit any other information relevant to his ability to pay the outstanding fines. Francisco was not asked to complete a questionnaire under oath concerning his financial resources.
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104. On information and belief, Trevino made no written determination that Francisco was not indigent and had failed to make a good faith effort to discharge the fines through payment or community service, as required by CCP Art. 45.046.
105. Trevino did not offer Francisco the option of community service as a means of discharging his fines, pursuant to CCP Art. 45.049.
106. Trevino did not offer Francisco the option of paying his fines in installments, or discharging his debt through other means.
107. Trevino proceeded to sign and stamp 25 commitment orders, dated January 11, 2010, authorizing Francisco’s confinement in Hidalgo County jail “for the time required by law to satisfy the amount of such fine and costs” as were assessed for each charge—including the 23 charges based on juvenile conduct identified in the NCOA, the last ECISD charge based on absences from school just after Francisco turned seventeen, and the PI charge.
108. Francisco’s jail records include a cover sheet time-stamped 2:37 a.m. on the morning of his arrest, on which there is a hand-written list of all his open warrants and how much jail time would be needed to discharge each fine at a rate of $100 per day. The total number of days to be served is denoted as “132”. A release date of May 22, 2010 is also noted, which is 132 days from Francisco’s arrest.
109. Other than the hearing before Judge Trevino, no other hearing was conducted about Francisco’s ability to pay outstanding fines prior to his commitment to jail for nonpayment.
110. Francisco’s jail records include a document entitled “Hidalgo County Sheriffs Department, Questions Regarding Attorney Information,” which appears to have been completed by an officer at the jail after an oral dialogue with Francisco. In response to the question “Can
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you afford an attorney?,” Francisco responded “No”. In response to the question “Do you want a Court Appointed Attorney?,” Francisco responded “Yes”.
111. Francisco was not asked to furnish any additional information about his financial resources or ability to afford an attorney.
112. Francisco was not provided appointed counsel at the hearing before Judge Trevino or at any other time immediately prior to his commitment to jail to discharge over $11,000 in fines.
113. At the time of his jailing, Francisco, a legal adult, was unemployed with no source of income. Elsa De Luna’s annual salary at the time of Francisco’s jailing was approximately $18,000.
114. Francisco remained in Hidalgo County jail for eighteen days, sharing a large cell with 24 adult men, including men who were there for serious felonies such drug distribution and assault. Francisco was scared and disturbed by the experience.
115. Francisco was released before serving the 132 days needed to discharge his fines because of the intervention of Hidalgo County Public Defender Jaime Gonzalez, who noticed Francisco’s confinement in a random review of jail logs. Gonzalez submitted a writ of habeas corpus to County Court at Law Judge Rudolfo Gonzalez, seeking Francisco’s release. Judge Gonzalez granted the writ on January 28, 2010 and discharged Francisco “from further illegal confinement” from all his offenses.
116. Francisco suffered psychological damage, humiliation, mental anguish, and emotional injury as a result of his incarceration and the process through which he was jailed.
117. Because of his confinement in jail, Francisco missed a long-scheduled appointment at a barber college to interview for financial aid. Since his release, he continues to
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prepare to take his GED exam. Francisco now hopes to attend South Texas Vocational Technical Institute to study to become a dental assistant.
B. Elizabeth Diaz i. Elizabeth’s ECISD ticketing for failure to attend school
118. Elizabeth Diaz is eighteen years old and lives in Edinburg with her sister and her mother Adelita Hernandez. Elizabeth was born in Hidalgo County and attended schools in ECISD throughout her childhood.
119. Elizabeth suffers from arthritis, osteoporosis and fibromyalgia. She was diagnosed with and prescribed multiple medications for these conditions at age ten and has taken some form of medication for them ever since. The pain associated with these conditions as well as necessary doctor’s appointments sometimes prevent Elizabeth from attending school.
120. Elizabeth also suffers from ADHD and bipolar disorder. She began seeking counseling for these conditions when she was about ten years old and was diagnosed at around age fourteen. Elizabeth has been prescribed and continues to take multiple medications for these conditions, as well. Both conditions sometimes make it difficult for Elizabeth to concentrate at school. Necessary doctor’s appointments sometimes prevent her from attending school altogether.
121. Elizabeth’s mother told ECISD school officials or medical staff about all of Elizabeth’s medical conditions soon after they were diagnosed. On information and belief, ECISD school officials never sought to identify Elizabeth as child with a behavioral disability or to develop an individualized educational program that could meet her needs.
122. Elizabeth was ticketed twice for failure to attend school within a three-month period in the fall of 2006, when she was fourteen years old and had just started attending high
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school at Edinburg North. Elizabeth was struggling with emotional issues at this time and attributes her absences in part to such problems. Twice, she has voluntarily committed herself to a behavioral health services program offered through ECISD schools for assistance with these issues.
123. Elizabeth received a third ticket for failure to attend school in February 2008, while still at Edinburg North. Elizabeth’s attendance and performance in school improved dramatically once she transferred from Edinburg North to Economedes High School in the fall of 2008.
124. On many occasions, Elizabeth’s mother or her doctors would write notes to excuse Elizabeth from school because of pain or medical appointments. After submitting the notes to the front desk upon her return to school, Elizabeth was not informed whether the excuses were properly recorded, accepted, or rejected as insufficient. She did not keep a copy of the notes. Elizabeth and her mother believe that many of her absences from school that led to her being ticketed should have been excused for medical reasons. There was no opportunity for her to contest this at school before being ticketed and ordered to appear at the justice court.
ii. Adjudication of Elizabeth’s tickets in the Hidalgo County Justice Court and Juvenile Court.
125. Elizabeth’s first three tickets were initially referred for adjudication to Hidalgo County Justice of the Peace Mary Alice Palacios. Elizabeth and her mother appeared before Judge Palacios on at least six different occasions in connection with these tickets. In addition, they came to docket call as ordered at Palacios’s court at least one time, with Adelita Hernandez necessarily taking the full day off from work; but Judge Palacios did not show up.
126. On December 12, 2006 and again on March 4, 2008, Elizabeth and her mother signed documents titled “Explanation and Waiver of Rights” in Palacios’s court with respect to
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two of her pending charges. The documents do not constitute valid waivers of the right to appointed counsel with respect to Elizabeth’s subsequent incarceration for inability to pay fines associated with these two charges.
127. On information and belief, in 2008, Elizabeth’s pending charges were transferred to the Hidalgo County Juvenile Court. The juvenile court required Elizabeth to perform about 60 hours of community service at the Boys and Girls Club in Edinburg and to comply with a term of supervised probation. Elizabeth believes that she completed these requirements in 2008. Additionally, because she did not receive any communications from Palacios’s court or the juvenile court for more than a year after her supervised probation, Elizabeth believed that she had been discharged of her pending charges.
128. There are no documents in Elizabeth’s files at the justice court reflecting the transfer to juvenile court or the status of her charges there.
129. On January 27, 2009, soon after Elizabeth turned seventeen, Amanda Zak, a truancy case manager in Palacios’s court, signed and issued a Notice of Continuing Obligation to Appear (NCOA) with respect to three charges that the justice court deemed to be open and unresolved. The NCOA ordered Elizabeth to appear before Palacios on February 23, 2009 in connection with all three charges or a warrant would be issued for her arrest. Although there is no proof of service, the NCOA was apparently mailed to a residential address in Edinburg, Texas where Elizabeth and her mother did not reside.
130. Elizabeth and her mother did not receive the NCOA. 131. Prior to sending the NCOA, at least three communications sent by Palacios’s court to Elizabeth and her mother at a different residential address had “returned to sender.”
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132. In January 2009, Elizabeth and her mother lived at an Edinburg address where they had resided since June 2008. On information and belief, the address had been listed in Adelita Hernandez’s state driver’s license records and other state and county records beginning in June 2008.
133. Elizabeth and her mother never received written notice from the justice court, as required by statute, informing them of their obligation to notify the court if their address changed, and were never told of this obligation.
134. Elizabeth did not appear on February 23, 2009 as ordered in the NCOA. That same day, Judge Palacios’s court staff prepared multiple arrest warrants for her signature, one for each allegedly still-pending failure to attend school charge based on underage conduct. However, a complaint was not filed and a warrant was not issued based on the misdemeanor offense of failing to appear as ordered on February 23, 2009—the one offense based on adult conduct that is clearly authorized for adult prosecution by CCP Art. 45.060.
135. The assessed fines plus court costs associated with each warrant were $533, $533, and $537, respectively. The total in fines for all of Elizabeth’s charges was now over $1,600.
136. On January 28, 2010, a fourth complaint of failure to attend school was filed against Elizabeth by Information Resource Referral Assistance, Inc. (IRRA), the charter school she was attending, based on absences occurring between October 2009 and January 2010. When she appeared at truancy court on February 25, 2010 in connection with this last ticket, Elizabeth was unaware that warrants had been issued for her arrest on the three earlier tickets.
iii. Elizabeth’s commitment to jail by the Hidalgo County Sheriff’s Office and Magistrate for inability to pay outstanding fines
137. Elizabeth and her mother appeared at the municipal court building at noon on February 25, 2010 after receiving a summons from Palacios’s truancy clerk James Johnson.
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Judge Palacios was not present. Marcella Cherry, a case manager from Palacios’s court, handled the appearance.
138. When Cherry called Elizabeth’s case, she immediately presented her with a document entitled “Explanation/Waiver of Rights and Plea” in relation to the most recent charge, which Elizabeth signed. This document does not constitute a valid waiver of the right to appointed counsel with respect to Elizabeth’s subsequent incarceration for inability to pay fines associated with her first three charges for failure to attend school.
139. After presenting Elizabeth with this document, Cherry opened a file containing the original tickets for Elizabeth’s three earlier charges. Cherry asked if Elizabeth was aware that she had outstanding fines. Elizabeth was surprised and confused because she thought the earlier charges had been resolved. Cherry asked if Elizabeth was able to pay the $1,603 in fines she owed on the earlier charges. Elizabeth stated that she was not able to pay.
140. Cherry then told Elizabeth to wait in a room outside the courtroom while Cherry called the constable’s office to come and take Elizabeth to jail. Adelita Hernandez pleaded with Cherry to let Elizabeth pay in installments or perform community service in lieu of serving jail time. Although Elizabeth was permitted to perform community service to discharge the most recent ticket, Cherry stated that the only options with respect to the earlier charges were immediate payment or jail time.
141. Hernandez asked Cherry how many days her daughter would need to serve to discharge her fines. Cherry told her that Elizabeth would need to serve 16 days in jail. Elizabeth eventually told her mother to leave, stating, “Mom, I don’t want you to see me in handcuffs.”
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142. An officer from Hidalgo County Constable Precinct 4 came to the municipal court building and arrested Elizabeth and took her to jail, where she was kept in a holding cell until 5:00 a.m. the next morning for processing and booking.
143. The next morning when Hernandez called the jail to inquire about her daughter’s status and whether she had received her medication in jail, the sheriff’s office employee with whom she spoke told Hernandez that, with the addition of various costs, the amount owed was significantly more than $1,603 and that Elizabeth would need to serve 18 days in jail to fully discharge the fines.
144. On the morning of February 26, 2010, Elizabeth was taken to a hearing where Hidalgo County Justice of the Peace Bobby Contreras, the on-duty Magistrate that day, presided via an electronic broadcast system. Elizabeth was handcuffed and in a jumpsuit. Contreras addressed Elizabeth, read her charges, and informed her that bond was not available. Elizabeth was not given an opportunity to speak.
145. Contreras proceeded to sign and stamp three commitment orders, dated February 26, 2010, authorizing Elizabeth’s confinement in Hidalgo County jail “for the time required by law to satisfy the amount of such fine and costs” as were assessed for her three failure to attend school charges from 2006-2008. Each commitment order sentences Elizabeth to 6 full days in jail.
146. Contreras did not inquire into Elizabeth’s financial resources or income, or elicit any other information relevant to her ability to pay the outstanding fines. Elizabeth was not asked to complete a questionnaire under oath concerning her financial resources.
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147. On information and belief, Contreras made no written determination that Elizabeth was not indigent and had failed to make a good faith effort to discharge the fines through payment or community service, as required by CCP Art. 45.046.
148. Contreras did not offer Elizabeth the option of community service as a means of discharging her first three fines, pursuant to CCP Art. 45.049.
149. Contreras did not offer Elizabeth the option of paying her first three fines in installments, or discharging her debt through other means.
150. Other than the hearing before Judge Contreras, no other hearing was conducted about Elizabeth’s ability to pay outstanding fines prior to her commitment to jail for nonpayment.
151. Elizabeth’s jail records include a document entitled “Hidalgo County Sheriffs Department, Questions Regarding Attorney Information,” which appears to have been completed by an officer at the jail after an oral dialogue with Elizabeth. In response to the question “Can you afford an attorney?,” Elizabeth responded “No”. In response to the question “Do you want a Court Appointed Attorney?,” Elizabeth responded “Yes”.
152. Elizabeth was not asked to furnish any additional information about her financial resources or ability to afford an attorney.
153. Elizabeth was not provided appointed counsel at the hearing before Judge Contreras or at any other time immediately prior to her commitment to jail to discharge over $1,600 in fines.
154. At the time of her jailing, Elizabeth, a legal adult, was unemployed. Her only source of income is Supplemental Security Income (SSI) benefits of approximately $5,600 per year. Adelita Hernandez, who has been unable to work for medical reasons since 2007, also
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receives SSI benefits as her only source of income. At the time of Elizabeth’s jailing, Hernandez received approximately $10,500 annually in SSI income.
155. Elizabeth’s mother brought all of Elizabeth’s medications to the jail by the evening of February 25, 2010 and told HCSO staff how to administer them. But Elizabeth did not receive any of her necessary medications until March 5, 2010—a full week after she was committed to jail. Elizabeth’s prescriptions require daily administration, except for her methotrexate injections, which occur once per week.
156. Elizabeth remained in Hidalgo County jail for eighteen days, sharing a large cell with other adult women, including women who were there for murder, drug distribution, prostitution, and human trafficking. Elizabeth was frightened and disturbed by the experience.
157. Elizabeth suffered psychological damage, humiliation, mental anguish, and emotional injury as a result of her incarceration and the process through which she was jailed.
158. Elizabeth was released on March 14, 2010, the day before Edinburg schools closed for spring break. On the following Monday, March 22, Elizabeth and her mother tried to re-enroll Elizabeth at IRRA, the charter school she had been attending prior to being jailed. However, because of her absence from school while she was in jail, IRRA had revoked her enrollment for the remainder of the school year.
159. The Texas Assessment of Knowledge and Skills (TAKS) tests were administered at IRRA on Monday, March 1, 2010, while Elizabeth was in jail. Students are required to take the TAKS tests before graduating from public high school in Texas. Elizabeth had planned to graduate in August 2010 but now is unable to do so because she missed her TAKS tests and lost credits from the spring semester because of her jailing.
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160. Elizabeth is currently enrolled at Economedes High School and hopes to graduate in December 2010. After graduation, she wants to attend South Texas College and then transfer to University of Texas Pan-American to study law or business.
CLASS ACTION ALLEGATIONS 161. Plaintiffs bring all declaratory and injunctive claims set forth in this Complaint on their own behalf and on behalf of all similarly situated persons pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs seek to represent the following class: All individuals who have been or may in the future be adjudicated or processed for commitment to jail for unpaid fines or costs, pursuant to the provisions of Texas Code of Criminal Procedure Art. 45.046, while in the custody of the Hidalgo County Sheriff’s Office. 162. Members of the Proposed Class have been and may be subjected to violations of their constitutional and statutory rights by all individual Defendants sued in their official capacity, as described in this Complaint. The Named Plaintiffs represent members of the Proposed Class in seeking declaratory and injunctive relief to eliminate Defendants’ actions, policies and practices that deprive them of those rights. 163. On information and belief, the Proposed Class is so numerous, and membership in the class so fluid, that joinder of all members is impracticable. 164. Common questions of law and fact exist as to all members of the Proposed Class. These questions include but are not limited to: whether Defendant Magistrates consistently fail to make a written determination as to indigency prior to committing an individual to jail for nonpayment of fines and costs; whether Defendant Magistrates consistently fail to offer indigent defendants the options of paying their fines and costs in installments or discharging their debt
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through community service; whether Defendant Sheriff Trevino oversees and directs numerous HCSO administrative staff and officers in processing and carrying out the commitment of indigent persons to the county jail for non-payment of fines and costs; and whether Defendant Hidalgo County maintains a custom or policy of confining individuals in jail for non-payment of fines and costs without required factual determinations as to indigency.
165. The Named Plaintiffs’ claims are typical of the claims of the members of the Proposed Class, and the Named Plaintiffs and their counsel will fairly and adequately represent the interests of the members of the Proposed Class.
166. All Defendants have acted and refused to act on grounds generally applicable to the members of the Proposed Class, such that final injunctive and declaratory relief is appropriate with respect to the class as a whole.
167. The injuries suffered by the Named Plaintiffs and the members of the Proposed Class as a result of the policies and practices of all Defendants are capable of repetition, yet may evade review, thereby rendering class relief appropriate.
FIRST CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF Procedural Due Process: Confinement in Jail Due to Inability to Pay Fine
(Fourteenth Amendment to the U.S. Constitution) 168. Plaintiffs incorporate paragraphs 1 through 167 as set forth above. 169. This claim is brought on behalf of the Named Plaintiffs and the members of the Proposed Class. 170. By consistently failing, prior to committing an individual to jail for non-payment of fines and costs, to make a factual determination that the individual is not indigent and has not made a good faith effort to discharge his or her outstanding debt, Defendant Magistrates have violated and continue to violate Plaintiffs’ right to due process of law, as guaranteed by the Due
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Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
171. By consistently failing, prior to committing an individual to jail for non-payment of fines and costs, to offer the individual alternatives to immediate incarceration such as community service or an installment payment plan, Defendant Magistrates have violated and continue to violate Plaintiffs’ right to due process of law, as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
172. By supervising, controlling and directing Hidalgo County Sheriff’s Office administrative staff and officers who process, book and ultimately confine individuals in the Hidalgo County jail for non-payment of fines and costs without necessary indigency examinations, Defendant Sheriff Trevino has violated and continues to violate Plaintiffs’ right to due process of law, as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
173. All Defendants’ policies, practices, acts, and omissions in processing and adjudicating individuals for commitment to the county jail for non-payment of fines and costs without necessary indigency examinations and despite the inability of many such individuals to pay their outstanding debt violate Plaintiffs’ right to due process of law, as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
174. All Defendants’ policies, practices, acts, and omissions place Plaintiffs at continuing and foreseeable risk of being committed to Hidalgo County jail for non-payment of fines and costs despite their inability to discharge such financial obligations.
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175. Plaintiffs seek prospective injunctive relief because they have no plain, adequate or complete remedy at law to prevent future injury caused by confinement in jail in violation of their constitutional rights.
SECOND CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF Equal Protection: Confinement in Jail Due to Inability to Pay Fine (Fourteenth Amendment to the U.S. Constitution)
176. Plaintiffs incorporate paragraphs 1 through 167 as set forth above. 177. This claim is brought on behalf of the Named Plaintiffs and the members of the Proposed Class. 178. By consistently failing, prior to committing an individual to jail for non-payment of fines and costs, to make a factual determination that the individual is not indigent and has not made a good faith effort to discharge his or her outstanding debt, Defendant Magistrates have violated and continue to violate Plaintiffs’ right to be free of discrimination based on economic status, as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 179. By consistently failing, prior to committing an individual to jail for non-payment of fines and costs, to offer the individual alternatives to immediate incarceration such as community service or an installment payment plan, Defendant Magistrates have violated and continue to violate Plaintiffs’ right to be free of discrimination based on economic status, as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 180. By supervising, controlling and directing Hidalgo County Sheriff’s Office administrative staff and officers who process, book and ultimately confine individuals in the Hidalgo County jail for non-payment of fines and costs without necessary indigency
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examinations, Defendant Sheriff Trevino has violated and continues to violate Plaintiffs’ right to be free of discrimination based on economic status, as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
181. All Defendants’ policies, practices, acts, and omissions in processing and adjudicating individuals for commitment to the county jail for non-payment of fines and costs without necessary indigency examinations and despite the inability of many such individuals to pay their outstanding debt violate Plaintiffs’ right to be free of discrimination based on economic status, as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
182. For all relevant purposes, all individuals processed for commitment to jail for unpaid fines and costs in Hidalgo County are similarly situated with respect to their right to due process of law. There exists no legitimate governmental reason to jail individuals who are financially unable to pay outstanding fines and costs, while permitting individuals who have the financial means to pay such fines and costs to avoid being jailed for the same offenses.
183. All Defendants’ policies, practices, acts, and omissions place Plaintiffs at continuing and foreseeable risk of being committed to Hidalgo County jail for non-payment of fines and costs despite their inability to discharge such financial obligations.
184. Plaintiffs seek prospective injunctive relief because they have no plain, adequate or complete remedy at law to prevent future injury caused by confinement in jail in violation of their constitutional rights.
DAMAGES CLAIM ON BEHALF OF NAMED PLAINTIFFS Equal Protection and Procedural Due Process: Confinement in Jail Due to Inability to Pay Fine (Fourteenth Amendments to the U.S. Constitution)
185. Plaintiffs incorporate paragraphs 1 through 167 as set forth above.
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186. This claim is brought on behalf of the Named Plaintiffs. 187. The policies, practices, acts, and omissions of Hidalgo County Sheriff’s Office staff, Hidalgo County Magistrates and other Hidalgo County employees in processing and adjudicating Francisco De Luna and Elizabeth Diaz for commitment to the county jail for nonpayment of fines and costs without necessary indigency examinations and despite the inability of these individuals to pay their outstanding debt were carried out pursuant to an implicit or explicit municipal policy or custom. 188. The policies, practices, acts, and omissions of Hidalgo County Sheriff’s Office staff, Hidalgo County Magistrates and other Hidalgo County employees in processing and adjudicating Francisco De Luna and Elizabeth Diaz for commitment to the county jail for nonpayment of fines and costs without necessary indigency examinations and despite the inability of these individuals to pay their outstanding debt violated their right to due process and their right to be free of discrimination based on economic status, as guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 189. As a proximate result of Defendant Hidalgo County’s policy or custom regarding the commitment of individuals to jail for non-payment of fines and costs, Francisco De Luna and Elizabeth Diaz have suffered psychological damage, humiliation, mental anguish, and emotional injury. They seek compensatory damages to redress Defendant’s violations of their federal constitutional rights.
DEMAND FOR JURY TRIAL 190. The Named Plaintiffs respectfully demand a jury trial on their individual damages claims.
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PRAYER FOR RELIEF 191. Wherefore, Plaintiffs respectfully request that this Court grant the following relief: a. Issue an order certifying the Proposed Class and certify this case to proceed as a class
action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure; b. Issue a judgment declaring that Defendants’ policies, practices, acts and omissions
described herein are unlawful and violate Plaintiffs’ rights under the Constitution and laws of the United States; c. Permanently enjoin Defendants, their subordinates, agents, employees, successors, and all others acting in concert with them, from subjecting Plaintiffs to the unconstitutional and unlawful practices described herein; d. Issue injunctive relief sufficient to reform those practices; e. Award compensatory damages for humiliation, emotional distress and other injuries sustained by the Named Plaintiffs; f. Grant Plaintiffs their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988; and g. Grant such other and further relief as this Court deems just and proper.

Dated: July 26, 2010

Attorneys for Plaintiffs
s/ Lisa Graybill
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS
Lisa Graybill (Attorney-in-Charge) Legal Director

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Texas Bar No. 24054454 Southern District Bar No. 784838 Gouri Bhat Texas Bar. No. 24071145 P.O. Box. 12905 Austin, Texas 78711 Tel: (512) 478-7300 Fax: (512) 478-7303 Michael A. Caddell Texas Bar No. 03576700 Cynthia B. Chapman Texas Bar. No. 007963339 Dana B. Levy Texas Bar No. 24031869 Clay A Morton Texas Bar No. 24056011 CADDELL & CHAPMAN 1331 Lamar St., Suite 1070 Houston, Texas 77010
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

FRANCISCO DE LUNA and ELIZABETH DIAZ, Individually and on Behalf of Others Similarly Situated,
Plaintiffs,
v.
HIDALGO COUNTY, TEXAS; MARY ALICE PALACIOS; GILBERTO SAENZ; JESUS MORALES; BOBBY CONTRERAS; ROSA E. TREVIÑO; LUIS GARZA; ISMAEL OCHOA; CHARLIE ESPINOSA; E. “SPEEDY” JACKSON; In Their Official Capacities as Hidalgo County Magistrates and Justices of the Peace,
Defendants.

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CIVIL ACTION NO. 7:10-CV-00268

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JURY

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DEFENDANTS’ OPPOSED MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT OF SAME
TO THE HONORALBE JUDGE OF SAID COURT: COMES NOW, Defendants, Hidalgo County, Texas; Mary Alice Palacios;
Gilberto Saenz; Jesus Morales; Bobby Contreras; Rosa A. Treviño; Luis Garza; Ismael Ochoa; Charlie Espinosa; E. “Speedy” Jackson; In Their Official Capacities as Hidalgo County Magistrates and Justices of the Peace and pursuant to FRCP 56, files this, their Opposed Motion for Summary Judgment and Memorandum of Law in Support of Same and would show the Court as follows:

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I. STATEMENT OF PLAINTIFFS’ ALLEGATIONS AND PROCEDURAL HISTORY
1. This lawsuit was filed on July 26, 2010 by two adult residents of Hidalgo County, Texas, Francisco De Luna and Elizabeth Diaz. Both the original and amended complaints are over forty pages long and encompass 193 separate paragraphs. However, after reviewing all of the pleading and contextual background, Plaintiffs’ entire lawsuit can be reduced to the following contention: that they were incarcerated in the Hidalgo County jail because of an inability to pay fines for Class “C” misdemeanors without the County’s determination of their indigent status, as prescribed by Texas Code of Criminal Procedure §45.046, and, consequently, without the opportunity to receive alternative methods of satisfying their fines. Plaintiffs allege that they are among a larger class of individuals who have been similarly wronged and have, therefore, filed a class action suit. Thus, all of the superfluous pleading and factual allegations can be condensed by the small portion of Plaintiff’s complaint which identifies the potential class as follows:
Plaintiffs bring all declaratory and injunctive claims set forth in this Complaint on their own behalf and on behalf of all similarly situated persons pursuant to Rules 23(a) and 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs seek to represent the following class:
All individuals who have been or may in the future be adjudicated or processed for commitment to jail for unpaid fines or costs, pursuant to the provisions of Texas Code of Criminal Procedure Art. 45.046, while in the custody of the Hidalgo County Sheriff’s Office. [Exhibit A, Plaintiffs First Amended Complaint ¶167] 2. The Plaintiffs request injunctive and declaratory relief, alleging both due process and equal protection violations, as set out as follows: By consistently failing, prior to committing an individual to jail for nonpayment of fines and costs, to make a factual determination that the
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individual is not indigent and has not made a good faith effort to discharge his or her outstanding debt, Defendant Magistrates have violated and continue to violate Plaintiffs’ right to due process of law, as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. [Exhibit A, Plaintiffs’ First Amended Complaint ¶ 170].
By consistently failing, prior to committing an individual to jail for nonpayment of fines and costs, to offer the individual alternatives to immediate incarceration such as community service or an installment payment plan, Defendant Magistrates have violated and continue to violate Plaintiffs’ right to due process of law, as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. [Exhibit A, Plaintiffs’ First Amended Complaint ¶ 171].
By supervising, controlling and directing Hidalgo County Sheriff’s Office administrative staff and officers who process, book and ultimately confine individuals in the Hidalgo County jail for non-payment of fines and costs without necessary indigency examinations, Defendant Sheriff Treviño has violated and continues to violate Plaintiffs’ right to due process of law, as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. [Exhibit A, Plaintiffs’ First Amended Complaint ¶ 172].
All Defendants’ policies, practices, acts, and omissions in processing and adjudicating individuals for commitment to the county jail for nonpayment of fines and costs without necessary indigency examinations and despite the inability of many such individuals to pay their outstanding debt violate Plaintiffs’ right to due process of law, as guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. [Exhibit A, Plaintiffs’ First Amended Complaint ¶ 173].
All Defendants’ policies, practices, acts, and omissions place Plaintiffs at continuing and foreseeable risk of being committed to Hidalgo County jail for non-payment of fines and costs despite their inability to discharge such financial obligations. [Exhibit A, Plaintiffs’ First Amended Complaint ¶ 174].
Plaintiffs seek prospective injunctive relief because they have no plain, adequate or complete remedy at law to prevent future injury caused by confinement in jail in violation of their constitutional rights. [Exhibit A, Plaintiffs’ First Amended Complaint ¶ 175].
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3. The Plaintiff’s allegations as set out above are identical for their equal protection and damages claims. On June 24, 2011, this Court entered an order granting the Defendants’ 12(b) Motions to Dismiss thereby completely dismissing the Hidalgo County Sheriff, Lupe Treviño, from the lawsuit and dismissing all claims except the Plaintiffs’ claim for declaratory relief against the nine individual justices of the peace (“JP’s”). Hidalgo County remains a defendant for both injunctive and declaratory relief as well as for the two named Plaintiffs’ claims for monetary damages. Despite over 35 pages of contextual allegations and other factual assertions, including lengthy portions of irrelevant material regarding school truancy, the quoted allegations in the paragraphs above serve as the sole potential basis of any recovery asserted by the Plaintiffs. In fact, Plaintiffs themselves have asserted repeatedly that all of the other assertions are not relevant, as in Plaintiffs’ counsel’s letter of February 15, 2011, in which she stated stated without equivocation that “the underlying description of school ticketing in the complaint is contextual, not relevant to the claims states.” [Exhibit I]. Thus, it is important to note that although the allegations that Hidalgo County and its JP’s were enforcing a policy of “jailing teens . . . because of their inability to pay fines and costs associated with missing school” may grab headlines in the local newspaper, they are completely baseless and superfluous, as they fail to provide either context or factual support for Plaintiffs’ claims. [Exhibit A, p. 1]. This case is not about a practice of putting school children in jail for truancy, as the ACLU’s smear campaign through the newspaper would lead one to believe. No one under age seventeen, the age that the Texas Penal Code defines as an “adult,” went to jail. Furthermore, no one was jailed for merely missing school. This case is about the allegation that the County routinely jails adults for Class “C”
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misdemeanors without either conducting an indigency examination or offering alternative sentencing. The evidence in this case squarely contradicts these accusations and, in fact, will reflect that the County and its JP’s followed both Texas statutory law and the Constitution of the United States, as interpreted by the Supreme Court, in every single respect.
II. STATEMENT OF FACTS 4. Both De Luna and Diaz attended school within the Edinburg Consolidated Independent School District (“ECISD”). While both De Luna and Diaz were juveniles, they were ticketed by ECISD for a variety of violations associated with their conduct at school. Diaz was ticketed on four occasions between 2006 and 2009 for failure to attend school, a violation of Texas Education Code 25.094 and punishable by a fine of not more than $500. TEX. CODE CRIM. P. §25.094. De Luna was ticketed on multiple occasions between May 2005 and December 2008, and the records demonstrate that his offenses included both failure to attend school and failure to comply with school directives. These offenses are Class “C” misdemeanors under the Texas Education Code, which initially posed no threat of incarceration of any kind, whether or not they paid the fine, because a juvenile in Texas cannot be incarcerated for a Class “C” offense. 5. It is undisputed that the Plaintiffs pled guilty to each and every offense, and the Plaintiffs’ complaint further concedes that there is no evidence that Diaz or De Luna ever satisfied the underlying obligations, while they were juveniles, either through payment or via some other alternative form of sentencing, despite having been given the opportunity to do so. Failing to satisfy these Class “C” offenses carried no further penalty while the Plaintiffs remained juveniles, again because the courts in Texas have no
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power to incarcerate a juvenile for a fine-only offense. So as to reduce the confusion created by the ACLU’s press campaign, Defendants reiterate that at no time was either Plaintiff incarcerated as a juvenile for any of these offenses.
6. The offenses remained unadjudicated and, thus, lay dormant while Plaintiffs were juveniles. Under Texas law, however, offenses incurred by juveniles that are unsatisfied when they become an adult upon turning seventeen do not simply disappear. Texas law requires that the judge presiding over unresolved cases such as these notify the former juveniles and newly classified adults of their continuing obligation to appear for offenses incurred as juveniles. Thus, a Notice of Continuing Obligation to Appear (“NCOA”) is mailed to the defendant’s last known address, instructing him or her to appear and answer for the unsatisfied juvenile offenses. NCOA’s were sent to both Mr. De Luna and Ms. Diaz after they turned seventeen years of age. Although Diaz claims that she did not receive a NCOA, she did acknowledge receiving a notice to appear for her fourth ticket in 2009.
7. At approximately 11:35 p.m. on January 10, 2010, De Luna was arrested, as an adult, for public intoxication. He was taken and booked into the Hidalgo County jail, and approximately six hours later he was arraigned before Justice of the Peace Rosa Treviño. At the time he was arraigned, he received the admonishments required by Miranda, the Texas Code of Criminal Procedure, and the Hidalgo County Local Rules. De Luna waived his right to counsel and pled guilty both to the public intoxication and the juvenile fines. When asked if he had any questions with regard to his fines he clearly responded “no.” Mr. De Luna has admitted in deposition that at no time did he ever tell anyone, including Judge Treviño, that he was indigent. It is also clear that in addition to
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failing to raise his indigent status, he also failed to request any type of alternative sentence. Although Mr. De Luna may now regret his decision, he had the absolute right, as recognized by Texas Code of Criminal Procedure 1.14, to waive all of his rights, including that of an indigency determination and alternative sentencing. After exercising that right, he was sentenced to 132 days in jail, as an adult, for his unsatisfied Class “C” offenses.
8. After she turned seventeen, Elizabeth Diaz received a notice in the mail from Judge Mary Alice Palacios’s court regarding her fourth ticket for failure to attend school. She appeared, as required, on February 25, 2011 and was told of the offense and the penalty. When she expressed that she could not pay the ticket, she was offered an alternative sentencing arrangement whereby she would pay the fine in installments until April 25, 2010, when it would be paid in full. She accepted the alternative sentencing arrangement. Ultimately, she returned to Judge Palacios’s court, notified the court that she could not pay at all, and requested community service instead. In the most defendant-friendly indigency examination possible, Judge Palacios’s court took Ms. Diaz at her word that she was indigent, found that she could not pay the fine, and granted her second request for alternative sentencing by allowing her to perform community service. When she could not complete the community service by the original deadline, the Court again accommodated her by providing a 30-day extension. She finally completed 40 hours of community service at the Hidalgo County Historical Museum by May 10, 2010. On the same day that she requested and received alternative sentencing for her fourth ticket, however, County records indicated that she had warrants for failure to appear on the three prior unadjudicated tickets for the exact same offense when she was a juvenile.
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It is essential to consider Ms. Diaz’s state of mind at this crucial moment. She had actual knowledge of how to satisfy a fine in lieu of serving time in jail, because she had already benefitted from the process of raising her indigent status receiving alternative sentencing. At that point, as Judge Palacios’s staff turned her attention to the other three charges, they explained to Diaz that she had three options on the outstanding warrants. She could do community service of over 100 hours, she could do the time in jail, or, as Diaz already knew, she could extend the time for payment of her fines. By the time the three warrants were discovered, however, Judge Palacios was no longer present, so she could not rescind the warrants. Judge Palacios’s staff notified Diaz that she had to be taken into custody by the deputy constable office on her three outstanding warrants and that she would have another opportunity to arrange for alternative sentencing for those offenses when she was arraigned by JP Bobby Contreras the next morning. Although she had been fully apprised of all her options, and despite having requested and received the alternative sentencing of community service and extended payment plans for the fourth offense, she never raised the issue of her indigent status with JP Contreras at her arraignment for the other three offenses. As with the case of Mr. De Luna, she apparently decided to exercise her right under TCCP 1.14 to waive her right to alternative sentencing.
III. SUMMARY JUDGMENT EVIDENCE 9. Defendants rely upon the following summary judgment evidence: Exhibit A: Plaintiff’s First Amended Complaint; Exhibit B: Affidavit of Robert Leal
Attachment 1: Community Service Documents; Exhibit C: Transcript of Elizabeth Diaz Arraignment;
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Exhibit D: Transcript of Francisco De Luna’s Arraignment;

Exhibit E: Interrogatory Responses of Elizabeth Diaz;

Exhibit F: Interrogatory Responses of Francisco De Luna;

Exhibit G: Transcript excerpts of Elizabeth Diaz Deposition;

Exhibit H: Transcript excerpts of Francisco De Luna Depositions;

Exhibit I: Dana Levy letter, February 15, 2011;

Exhibit J:

Trial transcript of Lee Roy Treviño March 8, 2011 w/Exhibit showing denial of alternative sentencing;

Exhibit K: Diaz Production, Bates #000002-000043;

Exhibit L: Affidavit of Marcella Cherry

Attachments 1-5: Elizabeth Diaz Court Records;

Exhibit M: JP Indigency Documents;

Exhibit N: “Pay or Lay: Tate v. Short Revisited,” Texas Prosecutor, Vol. 33, No. 4 (July/August 2003); and

Exhibit O: Transcript excerpt of Stephen A. Thorne Ph.D. Deposition;

IV. ARGUMENT AND AUTHORITIES

A. Summary Judgment Standard

10. Although described as a “drastic remedy,” it is apparent that summary

judgment is no longer truly disfavored as a procedural shortcut, but instead, recognized as

an integral part of the rules and trial process as a whole. Celotex Corp. v. Catrett, 477

U.S. 317, 327, 106 S.Ct. 2548 (1986), Central Corp. v. Research Products Corp., 272

Wis. 2d 561, 574, 681 N.W. 2d 178 (2004). In Matsushita Elec. Indus., Co., Ltd. v.

Zenith Radio Corp. 475 U.S. 574, 106 S. Ct. 1348 (1986), Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 106 S.Ct. 2505 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317,

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106 S.Ct. 2548 (1986), the Supreme Court of the United States, for the first time, equated the summary judgment standard to that applied to directed verdicts. The new standard was to be, “whether, after considering all evidence in a light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law.” See Celotex, 106 S.Ct. at 2552.
11. Thus unlike in a Motion to Dismiss under FRCP 12(b)(6), where a nonmovant must only demonstrate that it has pled a cause of action and facts to support the claim upon which it could prevail, a respondent in a FRCP 56 Summary Judgment proceeding has a different, more onerous burden that requires actual proof. The Supreme Court outlined the principals that are utilized in determining if summary judgment is appropriate: (1) the party moving for the summary judgment must meet an initial burden of showing that no genuine issue of material fact exists, and this burden may be met by pointing to the absence of support for an essential element of the plaintiff’s case; (2) the substantive law governing the cases will determine what issues are material; (3) if the moving party meets its burden, the party opposing the motion must present affirmative evidence and must produce more than a mere scintilla of evidence to overcome the motion; and (4) the court does not need to look to the entire record to establish whether a genuine issue exists requiring trial, but need only look to those portions of the record to which the parties cite to the court. Celotex, 106 S.Ct. at 2552-55; See also 3 ATLA’s Litigating Tort Cases § 31.3. To defeat a motion for summary judgment on a certain claim or element, Rule 56(c) requires the respondent to show that a “genuine” dispute remains as to that issue. The non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
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Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The 1986 trilogy of decisions from the Supreme Court makes it clear that a dispute is genuine only if the evidence that the non-movant presents is competent, admissible, and such that a reasonable jury could use it as support to return a verdict for the nonmoving party. See Matsushita Elec. Indus. Co., Ltd., v. Zenith Radio Corp., 475 US 574, 586-86, 106. S.Ct. 1348 (1986); Anderson, 477 U.S. at 248, 10 S.Ct. 2505. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ ” Matsushita, 475 U.S. at 586-87, 106 S.Ct. 1348. Furthermore, a movant may raise the lack of competent evidence to support an element of a party’s claim or defense as grounds for summary judgment under Rule 56(c). The Supreme Court has explained that a movant for summary judgment need not support its motion with evidence negating the opponent's case. Rather, once the movant establishes that there is an absence of evidence to support the non-movant's case, the burden shifts to the non-movant to make a sufficient showing establishing each element as to which that party will have the burden of proof at trial. Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548. Summary judgment is appropriate when the non-moving party has failed to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof at trial. See FED.R.CIV.P. 56(c); Celotex, 477 U.S. at 323, 106 S.Ct. 2548. With this standard in place, the first inquiry is, simply: what are the issues? B. Plaintiffs Cannot Raise Genuine Issues of Material Fact With Regard to Any
Element of Their Claims 12. To meet their burden to defeat Defendants’ Motion for Summary Judgment, Plaintiffs must submit evidence that creates genuine issues of material fact to support the following elements of a claim under 42 U.S.C. §1983: (1) the conduct
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complained of was committed by a person acting under color of state law; and (2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or the laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 331–32, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). When analyzing the first element of a section 1983 claim against a municipality or governmental entity, the court must decide if the governmental entity promulgated “an official policy, practice, or custom,” which could subject it to section 1983 liability. See Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 690–94, 98 S.Ct. 2018, 2035–37, 56 L.Ed.2d 611 (1978). Thus, the essential elements of Plaintiffs’ claims are: (1) that Defendants promulgated an official policy, practice, or custom that serves as the moving force behind Plaintiffs’ constitutional deprivations; (2) that Defendants in fact violated the Plaintiffs’ constitutional rights; and (3) that Defendants’ violation of Plaintiffs’ constitutional rights caused them to suffer damages. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 331–32, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Monell v. Dept. of Social Services of City of New York, 436 U.S. 658, 690–94, 98 S.Ct. 2018, 2035–37, 56 L.Ed.2d 611 (1978). Plaintiffs’ inability to develop any evidence to support these essential elements is fatal to their claims.
1. Essential Element No. 1: Plaintiffs Cannot Provide Evidence of an “Official Policy, Practice, or Custom” Violative of the Constitution
13. Plaintiffs first must demonstrate that the constitutional deprivation they suffered was the result of an official policy, practice, or custom promulgated by Hidalgo County. It is well settled that not every alleged tort or wrong constitutes a violation of a
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civil right that is actionable under 42 U.S.C. § 1983. Paul v. Davis, 424 U.S. 693 (1976); Collins v. City of Harker Heights, Texas, 916 F.2d. 284 (5th Cir. 1990); Green v. McKaskle, 788 F.2d. 1116 (5th Cir. 1986). Furthermore, even if a plaintiff establishes a violation of his or her civil rights, liability may not attach. See, e.g., Mouille v. City of Live Oak, 918 F.2d 548, 551 (5th Cir.1990); Pfannstiel v. City of Marion, 918 F.2d 1178, 1183 (5th Cir.1990). A governmental unit cannot be vicariously liable under a theory of respondeat superior on claims asserted against it under the Federal Civil Rights Acts. Monell v. New York City Department Of Social Services, 436 U.S. 658 (1978); Scofield v. City of Hillsborough, 862 F.2d 759 (9th Cir. 1988); Meehan v. County of Los Angeles, 856 F.2d 102 (9th Cir. 1988); Wilson v. City of North Little Rock, 801 F.2d 316 (8th Cir. 1986). Liability can be established against a governmental unit under The Federal Civil Rights Act only if the governmental entity promulgated “an official policy, practice, or custom,” which could subject it to section 1983 liability. Monell, 436 U.S. at 690–94, 98 S.Ct. at 2035–37. The Fifth Circuit has defined an “official policy” for the purposes of section 1983 liability to be either: (1) a policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's law-making officers or by an official to whom the lawmakers have delegated policy-making authority; or (2) a persistent widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir.1984). Further, the entity's policy or custom must have been the "moving force" behind the alleged deprivation. Monell, 436 U.S. at 694, 98 S.Ct. at 2037.
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14. This "custom or policy" requirement is essential, because in construing the due process clause violations, the United States Supreme Court has held that mere negligent acts by state actors do not effect a "deprivation" of due process rights. Davidson v. Cannon, 474 U.S. 344, 347 (1986); Daniels v. Williams, 474 U.S. 327, 333 (1986). Thus, when the foregoing case law is applied, it could generate a result in which a plaintiff’s constitutional rights were violated because they “slipped through the cracks,” so to speak, and yet no liability attaches against the governmental entity under 42 U.S.C. § 1983. This is because an isolated event, such as the one forming the basis of the instant lawsuit, does not establish a widespread custom or practice. See, e.g., City of St. Louis v. Praprotnik, 485 U.S. 107 (1988); Pembaur v. Cincinnati, 475 U.S. 469 (1986); City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985); Monell v. New York City Department Of Social Services, 436 U.S. 658 (1978); Rodriguez v. Avita, 871 F.2d 552 (5th Cir. 1989); Ramie v. City of Hedwig Village, 765 F.2d 490 (5th Cir. 1985); Bennett v. City of Slidell, 735 F.2d 861 (5th Cir. 1984); Languirand v. Hayden, 717 F.2d 220 (5th Cir. 1983); Davis v. City of Ellensburg, 869 F.2d 1230 (9th Cir. 1989); Fargo v. City of San Juan Bautista, 857 F.2d 638 (9th Cir. 1988); Johnson v. Panizzo, 664 F.Supp. 336 (D.C. 111. 1987).
15. As defined by the case law, therefore, the first issue requires a showing of some kind of county-wide policy that is established, implemented, and enforced by Hidalgo County that deprives persons of their procedural due process rights under the U.S. Constitution. Defendants unequivocally assert that no evidence exists. Plaintiffs have focused all of their efforts on the wrong issue. They seek to somehow prove that because they may have “slipped through” a procedural “crack” or otherwise been
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incarcerated when they should not have been, that such an occurrence gives rise to an actionable claim. The case law cited above clearly renders such a theory inadequate to establish liability under 42 U.S.C. § 1983, however. Plaintiffs have failed to demonstrate that an act or omission by the justices of the peace (“JP’s”), and specifically Bobby Contreras and/or Rosa Treviño, was the product of a countywide policy to incarcerate Class “C” defendants who cannot pay a fine without giving a proper indigency hearing and offering alternative sentencing. No such policy exists, and the Plaintiffs can present no evidence that any County official or law-making officer officially adopted such a policy.
16. Plaintiffs will inevitably argue that although possibly not officially adopted, the practice of ignoring the right to an indigency screening and alternative sentencing was so widespread that it constituted a custom that represented the County’s policy. To prove “custom or usage,” however, Plaintiffs must demonstrate the following: (1) the existence of a continuing, widespread, persistent pattern of unconstitutional misconduct by the governmental entity's employees; (2) deliberate indifference to authorization of such conduct by the governmental entity's policymaking officials after notice to the officials of that misconduct; and (3) the plaintiff's injury by acts pursuant to the governmental entity's custom. Jane Doe A v. Special Sch. Dist. of St. Louis County, 901 F.2d 642, 646 (8th Cir.1990) [emphasis added]. Thus, a key component to Plaintiffs’ burden is to present evidence that Hidalgo County and its JP’s were deliberately indifferent to the alleged deprivation of their constitutional rights. The standard of deliberate indifference is high. Alton v. Texas A & M University, 168 F.3d 196, 201 (5th Cir.1999) (citing Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 218 (5th Cir.1998)).
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Actions and decisions by officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate indifference and do not divest officials of qualified immunity. Id. To demonstrate deliberate indifference, a plaintiff must show (1) a grave risk of harm, (2) the defendant's actual or constructive knowledge of that risk, and (3) his or her failure to take easily available measures to address the risk. Camilo–Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir.1998), cert. denied, Hoyos v. Camilo–Robles, 525 U.S. 1105, 119 S.Ct. 872, 142 L.Ed.2d 773 (1999) (citing Manarite v. City of Springfield, 957 F.2d 953, 956 (1st Cir.), cert. denied, 506 U.S. 837, 113 S.Ct. 113, 121 L.Ed.2d 70 (1992)). Plaintiffs have developed absolutely zero evidence, through discovery or otherwise, to support a claim that any defendant acted with deliberate indifference in enforcing a custom that deprived Class “C” defendants of an indigency screening once raised or that anyone notified any County official of that indigents were being ignored.
17. All of the evidence, in fact, contradicts Plaintiffs’ contentions. Defendants’ summary judgment evidence reflects that a constitutionally-sound policy, in fact, exists and is followed. The policy is simply that when a defendant properly raises indigency, the JP’s take the defendant at his or her word and provide alternative means to satisfy the fine. [See Exhibit M]. Attached as Exhibit M and incorporated by reference is a package of 72 random files taken from the nine JP courts that all reflect cases in which a defendant charged with a Class “C” misdemeanor requested and received community service. Many of these cases were adjudicated before the ACLU filed this lawsuit. These constitute evidence of Hidalgo County’s policy to provide alternative sentencing in lieu of jail for defendants who are convicted of a fine-only offense.
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18. In light of the County’s actual policy, the Court must consider that the burden upon Plaintiffs to show another municipal policy or custom that is the moving force behind the constitutional deprivation is a heavy one. The law is clear that, for the sake of argument, any JP, including Judge Contreras in Ms. Diaz’s case or Judge Treviño in Mr. De Luna’s case, failed to properly screen for indigency in violation of the law, these isolated constitutional deprivations still do not give rise to a 1983 claim. Moreover, even if the County had such a policy, if the acts of the Defendants did not serve to deprive the Plaintiffs of a constitutional right, they cannot prevail. As the Defendants will show, both Plaintiffs failed to take the affirmative action necessary to trigger an indigency hearing. Therefore, they cannot establish any liability or wrongdoing on the part of Hidalgo County or the individual JP’s for the simple reason that their constitutional rights were not violated.
2. Essential Element No. 2: Plaintiffs Can Provide No Evidence That Defendants Actually Violated Their Constitutional Rights
19. It seems obvious that to prevail, Plaintiffs must establish that the County’s policy or procedure resulted in an actual violation of their constitutional rights. Even if a municipality does have an actionable policy or custom, no liability attaches if the official or officer acting for the governmental unit did not violate a constitutional right. Heller v. City of Los Angeles, 475 U.S. 796 (1986); Monell v. .New York City Department of Social Services, supra. As Plaintiffs have pled the case, therefore, they must demonstrate that the County failed to screen for indigency after it was properly raised.
20. The focus of the Plaintiffs’ case has been upon the requirements of Texas Code of Criminal Procedure (“TCCP”) §45.046 that requires an indigency screening prior to incarceration for non-payment of a Class “C” misdemeanor fine. What the Plaintiffs
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have ignored, however, is that indigency under TCCP §45.046 has not been given as hallowed a legal status of other constitutional rights, such as the Fifth Amendment right to counsel. Unlike this, and other Miranda-prescribed rights, the law does not require the government to advise a defendant of the right to declare his indigent status. Not to be confused with the indigent defendant’s right to counsel, the mandates of TCCP §45.046 apply only when a defendant asserts indigency in the context of the inability to pay a fine. In Tate v. Short, 401 U.S. 395, 398, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), the U.S. Supreme Court held that the Constitution prohibits a state from imposing a fine as a sentence and then automatically converting the fine to a jail term if an indigent defendant cannot immediately make payment in full. The holding in Tate was reaffirmed in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). But the Fifth Circuit Court of Appeals has ruled that Tate and Bearden are based on the assumption that a defendant must have appeared before the court and asserted his indigency. See Sorrells v. Warner, 21 F.3d 1109, 1112 (5th Cir. 1994); Garcia v. City of Abilene, 890 F.2d 773, 776 (5th Cir. 1989). In Garcia the Plaintiff contended that the City of Abilene had violated TCCP 45.06 (the statutory provision in 1989 that allowed a county or city to impose a fine) and had violated the principles established in Tate and Bearden by attempting to jail her solely because she could not pay her fines. In analyzing TCCP §45.52, which was enacted shortly after the Tate decision and, thus, is the substantively identical predecessor to the current TCCP §45.046, the Fifth Circuit Court of Appeals rejected her claim stating:
Mrs. Garcia contends that the City of Abilene violated the principles established in Tate and Bearden by attempting to jail her solely because she could not pay her fines. However, these cases rest on the assumption that the indigent appears before the court to assert his inability to pay.
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Even assuming an individual who is fined is too poor to pay, if he does not appear and assert his indigency, the court cannot inquire into his reasons for not paying and offer alternatives. Garcia v. City of Abilene, 890 F.2d 773, 776 (5th Cir. 1989) [emphasis added]. The Fifth Circuit reiterated its ruling in Garcia that the defendant, not the magistrate, has the obligation to raise indigency before his right to a written determination of indigency and alternative sentencing is triggered, ruling: The exhibits attached to Sorrells's complaint reflect that Sorrells never personally advised the county officials of his indigence, but that he merely contested the legal validity of the capiases issued. Therefore, Reeves did not unlawfully arrest Sorrells under the clearly established law because Sorrells had failed to assert his indigence in response to the orders to pay the fines. Sorrells v. Warner, 21 F.3d 1109, 1112 (5th Cir. 1994). Had the ACLU bothered to investigate the law before it filed suit, it would not only have found the above case law and decades-old statute, but it would have also discovered what the Defendants discovered: that there is no mechanism in Texas for investigating indigency and the burden to raise the issue is, again, on the defendant, not the magistrate. [See Exhibit N]. 21. The Fifth Circuit’s decisions in Sorrels and Garcia require that a plaintiff who sues based upon his or her incarceration for a fine-only offense despite indigent status must first prove that he or she timely asserted indigency. All that is required of the municipal or judicial defendant until that point is to give the defendant an opportunity to assert that he or she could not pay the fine. See, e.g., Doe v. Angelina County 733 F. Supp. 245 (E.D. Tex. 1990). It remains undisputed that Hidalgo County provides every arrestee with an arraignment, which provides each with a forum to assert his or her constitutional rights. This opportunity that was afforded to each Plaintiff. The parties agree that both Plaintiffs were promptly arraigned, read their rights and given the
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opportunity to speak directly to a magistrate. [Exhibit B, C, and D]. Because their assertion of indigency at that point is a prerequisite to assert their claims, the Plaintiffs must provide evidence of the second issue in this case. To wit, did the Plaintiffs assert their indigency when given the opportunity to do so at their arraignment?
22. Fortunately, video recordings exist of each of the Plaintiff’s arraignments, which provide irrefutable evidence that both Plaintiffs clearly failed to raise indigency at that crucial moment. Defendants have attached transcripts of those arraignments hereto as Exhibits C and D, and incorporate them by reference. As one reviews the arraignment proceedings, one discovers that both Plaintiffs were first given the opportunity to assert indigency when they were immediately admonished regarding their right to receive a appointment of counsel if they could not afford one. [Exhibit C and D]. Both declined counsel, however, and in the process obviated any suspicion that they were indigent. [Exhibit C and D]. Had they even pled “not guilty” to the fines, that alone would have stopped the sentencing process and allowed them to post bond. Instead, both Plaintiffs were read their rights in English and Spanish, declined them and then proceeded to plead out.
23. Mr. De Luna was given the opportunity to ask any questions he may have had and was provided much more than an ample opportunity to raise indigency. [Exhibit D, pp. 5-7]. Even if, for some reason, he had not thought to do so, he remained in the room to wintess a defendant named Arnulfo Garza Ramirez, who was charged with contributing to truancy, specifically assert his indigency response to Judge Rosa Treviño’s sentence and directly inquire what alternative arrangement he could pursue to satisfy the fine. [Exhibit D, p. 12]. In doing so in plain view of Mr. De Luna, Mr.
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Ramirez provided him with a perfect example of how to raise indigency, which would have led to the same result for him as experienced by Mr. Ramirez: being released that very day and being ordered to consult with Judge Palacios regarding how he could obtain alternative sentencing given his indigent status. In short, the key to obtaining an indigency screening is appearing and simply raising the issue as required by Garcia and Sorrels, which then triggers the County’s policy to automatically provide the opportunity to obtain alternative sentencing. In Mr. De Luna’s case, he failed to do so despite a clear opportunity and immediate example of exactly what to do. Applying Garcia and Sorrels, his failure in this regard precludes his claim under 42 U.S.C. §1983.
24. Elizabeth Diaz’s complaint is more puzzling, because the record clearly reflects not only that she was aware of her right to raise indigency and the opportunity for alternative sentencing, but also that she was offered alternative sentencing and accepted it for one of the charges against her. Any confusion is dispelled, however, by the fact that the Court offered her the opportunity for alternative sentencing on three other charges as well, but she declined it despite having all of her alternatives explained, and instead elected to do the time in jail. [Exhibit B and L].
25. Ms. Diaz was given the opportunity to assert indigency twice. When she appeared in Judge Palacios’s Court, the judge’s staff, without the judge even being present, implemented the court’s policy to allow for alternative sentencing if the defendant stated that he or she could not pay a fine on a Class “C” charge. [Exhibit B]. As stated, Ms. Diaz raised indigency as to the first charge, which court staffer Marcella Cherry communicated to Judge Palacios, who took her at her word and offered to allow Ms. Diaz to pay the fine in installments. [Exhibit B]. When Ms. Diaz indicated she
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could not fulfill her obligation under the payment plan to which she had agreed, Judge Palacios ultimately converted the payment plan into the alternative sentence of community service. [Exhibit B, Attachment 1, Exhibit L]. At the second opportunity to assert her indigent status, when she was arraigned before Judge Bobby Contreras for the three additional charges, she chose not to do so. She evidently chose to serve the time in jail instead of working it off in what to her may have seemed like countless hours of community service, because she never told Judge Contreras that she was indigent. [Exhibits B and C]. We may never understand why she made this decision, but what stands as an uncontroverted fact is that Ms. Diaz knew of the procedure by which she could plead indigence and receive an alternative sentence in lieu of incarceration because she had been through the process once already. Yet despite this second opportunity, before she ever pled to the offenses, to raise indigency and assert any of the options explained to her by Marcella Cherry, she simply chose not to do so.
26. This practice of screening for indigency is the policy in Judge Palacios’s court as it is throughout the other eight JP courts. For example, Lee Roy Treviño, a Class “C” defendant, and one of the people on the list provided by the Plaintiff’s as a potential plaintiff in a class action case [Exhibit K, Diaz Bates Stamp #000020], admits that Judge Palacios offered him a payment plan and community service, but he declined because he did not want his mom doing work. [Exhibit J]. In most instances, once they raise the issue as required by law, Class “C” defendants are not given a rigorous screening. Rather, their indigence is presumed, and they are offered alternative means to satisfy the fine. Another example is the case of the aforementioned Mr. Arnulfo Garza Ramirez, who raised his inability to pay with Judge Treviño at the same arraignment as
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Mr. De Luna, was taken at his word as to his indigency and released that day [Exhibit K: Diaz Bates Stamp #000035]. Furthermore, Defendants have provided evidence of 72 other examples of Class “C” defendants who asserted their indigency and automatically received community service or some other means of satisfying their fine in lieu of jail from all nine Hidalgo County JP courts, before and after this lawsuit was filed. [See Exhibit M].
27. As Garcia and Sorrels hold, Plaintiffs cannot state a valid claim under 42 U.S.C. §1983 because they can provide no evidence that they raised indigency when given the forum and opportunity to do so. In fact, the arraignment videos provide irrefutable proof that they did not raise their indigent status, which consequently failed to trigger TCCP 45.046 or a right to alternative sentencing as espoused by Bearden and Tate. Simply put, their respective failures to raise indigency are fatal to their claim of a procedural due process violation under the United States Constitution and, by extension, to the claims asserted in this lawsuit. Although Plaintiffs are mistakenly asserting that they perfected their right to alternative sentencing, they are ignoring another absolute right that they asserted at their respective arraignments: the right to waive their rights. Texas Code of Code of Criminal Procedure 1.14(a) states, “the defendant in a criminal prosecution for any offense may waive any rights secured him by law . . .” The Fifth Circuit has established that the obligation to raise indigency rests squarely with the defendants. If they raise indigency, the County’s obligation is then to ensure that they are provided alternative sentencing if a screening proves they are indigent. If they do not assert indigency, however, and assert their right under TCCP 1.14(a) to waive their right to alternative sentencing, as in the case of Mr. De Luna and Ms. Diaz, no constitutional
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violation has occurred as a matter of law, and the Court is compelled to grant Defendants’ Motion for Summary Judgment in its entirety.
3. Essential Element No. 3: Plaintiffs Cannot Provide Any Evidence that Defendants Caused Them Any Damages
28. Plaintiffs’ most recent amended complaint requests three types of relief: declaratory relief, injunctive relief, and monetary damages. In this case, the Plaintiffs have asserted that the only parties seeking monetary relief are the two named Plaintiffs. In addition, Plaintiffs have made no effort to certify a class, so as the case is now postured, in light of the court’s Order Granting Defendants’ 12(b) Motions to Dismiss, the Plaintiffs seek only declaratory relief against the nine JP’s and injunctive, declaratory and monetary damages from Hidalgo County. Plaintiffs’ claims for monetary damages are divided between pecuniary and non-pecuniary. Pecuniary damages are for past and future lost wages, and actual dollars lost as a result of constitutional deprivations. Nonpecuniary damages are most common in the form of mental anguish and emotional distress damages, which are recoverable under the post-Civil War Civil Rights Acts, 42 U.S.C. §§1981, 1983. Patterson v. McLean Credit Union, 491 U.S. 164, 182 n. 4 (1989) (42 U.S.C. §1981); Hafer v. Melo, 502 U.S. 21, 31 (1991) (42 U.S.C. §1983). 22. In this case, it is clear that the named Plaintiffs have zero pecuniary damages, as they have testified under oath. Neither Plaintiff was employed at the time of their incarceration, and neither Plaintiff suffered any monetary loss as a result of being incarcerated. [Exhibit G pp. 10-13; Exhibit H, p. 9]. This is corroborated by their sworn interrogatory answers, which means that their sole basis for monetary damages is based on emotional distress. [Exhibit E, p. 3 & Exhibit F, p. 3].
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29. In order to recover damages for emotional distress, Plaintiffs must prove proximate cause between the alleged wrongful incarceration and the emotional distress. Further, there must be proof of the emotional distress itself. As set out herein below, Plaintiffs can show no proximate cause, because in this case the Plaintiff’s either agreed to the incarceration, in the case of Diaz, or completely failed to raise indigency and admitted that they did not, in the case of De Luna.
a. Diaz Destroyed Both Her Liability and Her Damage Claim By Opting for Incarceration As Opposed to Alternative Sentencing
30. It is uncontroverted that Elizabeth Diaz appeared in Judge Palacios’s court and was apprised of both the charges against her and the fines she faced if found guilty. It is further undisputed that she asked for alternative sentencing, was taken at her word that she was indigent, and ultimately received both a payment and plan and community service. [Exhibit B, Attachment 1, Exhibit L]. She did not even have to appear before the judge, who was not on the bench that day. The court’s policy of dealing with indigency was not only established and clear, but also capable of being instituted by the court’s non-judicial staff, subject only to Judge Palacios’s approval. [Exhibits B and L]. Ms. Diaz was given the opportunity to perform community service, declined it, and now wants the Court to believe that the court’s staff would offer her alternative sentencing for one offense, yet deny it to her for the three other identical charges. Ms. Diaz asserts this fiction despite the fact that, upon her request numerous times, the court accommodated her requests to modify her sentence through payment plans and extensions of time to complete that alternative sentence. When she went up for her arraignment before Judge Contreras, she had already decided what she was going to do. At her arraignment, she
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waived counsel and made no effort to assert indigency or to request any of the alternatives provided to her by Judge Palacios’s staff. Having been given the opportunity for an alternative sentence and been found to be indigent without the requirement of any proof of financial resources or lack there of, Ms. Diaz fails to fall within the prohibitions of TCCP 45.046 or the Supreme Court case law as articulated in Tate and Bearden. Furthermore, the issues raised in both Garcia and Sorrells do not come into play, because she was given alternative sentencing options. Because Defendants provided her with procedural due process in this manner, therefore, there was no constitutional violation that proximately caused their damages.
b. De Luna Cannot Prove that He Suffered Damages (1) De Luna’s Admission That He made No Effort to Raise Indigency at His Arraignment Despite the Clear Opportunity to Do So Precludes Both His Liability and Damage Claim
31. De Luna was arraigned approximately five to six hours after his arrest. [Exhibit H, pp. 38-39]. He has admitted in his deposition that he had not taken his prescription medication and when he doesn’t do so he has a hard time being focused. [Exhibit H, pp. 38-39]. His arraignment video and subsequent transcript of that process reveals that Judge Rosa Treviño read Mr. De Luna his rights in English and in Spanish, and that he acknowledged that he heard and understood his rights, including the right to request that an attorney be appointed. He testified in his deposition that he neither filled out nor remembered answering the attorney request form that was a part of his jail record, but he did confirm that Judge Treviño read him his rights and that he did not question her as to any of his rights or ask that they be repeated. [Exhibit H. pp. 87]. After Mr. De Luna’s rights were read, Judge Treviño then addressed each individual defendant, read
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the charge, made sure they understood the charge and then offered each defendant the opportunity to address the court and raise any issues, including counsel and indigency. [Exhibit D]. Mr. De Luna was read each truancy charge, the amount of the fine and then pled guilty. After he pled guilty he was again given the opportunity to address the court and raise any question he had, including the fact that he could not pay the fine. He did not do so. [Exhibit D, pp. 6-7; Exhibit H, pp. 30-31]. As in the case of Ms. Diaz, Mr. De Luna was provided with the constitutionally appropriate level of due process, as interpreted by the Fifth Circuit in Garcia and Sorrels. His failure to raise his indigent status when given the opportunity precludes a finding of a constitutional violation, thereby obviating the contention that Defendants proximately caused his damages. As the Court considers causation, however, it may want to consult with Plaintiffs’ expert in this case, Stephen A. Thorne, Ph.D.
2. Plaintiffs’ Expert Cannot Identify Any Damages Suffered by De Luna
32. Dr. Thorne is a psychologist who evaluated both Plaintiffs for purposes of establishing their non-pecuniary damages in this suit. In his deposition, Dr. Thorne testified that Mr. De Luna did not suffer any mental or psychological trauma as a result of the incarceration about which he complains, as follows:
Q: Did you find any indication that Frank is suffering from posttraumatic stress syndrome?
A: No. Q: And I mean this in the most affectionate way. Did you find any
indication that Frank was suffering from stress of any kind? A: I mean, I wouldn’t say stress. I mean, I believe his mom that it
probably maybe changed his social patters a little bit, but I don’t
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think there’s any kind of significant clinical stress or anxiety or anything like that.
* * * Q: Let me ask you, then: In terms of evaluating Francisco’s
psychological functioning for purposes of damages in this case, what can you tell me about how he’s been damaged? A: From the detainment? Q: Yeah. A: You know, again, I think – I think that kind of stuff probably affects all of us at some level. I mean, again, I think there’s probably something to it. He changed his social habits a little bit. But I don’t – I can’t point to any damages that – that I think are the result of his being detained. [Exhibit O, pp. 181-82, pp. 184-85] [Emphasis Added]. Thus, Mr. De Luna’s own expert obviates his claim for damages.
V. CONCLUSION 33. There exists no genuine dispute as to one crucial fact: neither Mr. De Luna nor Ms. Diaz raised the issue of indigency when given the opportunity to do so before the court at their respective arraignments. In evaluating this dispositive issue, the Court must be mindful of the distinction between an indigent defendant’s right to appointment of counsel, which is not at issue in this suit, and an indigent defendant’s right to alternative sentencing in lieu of incarceration. Plaintiffs would have the Court believe that the right to declare indigency for purposes of obtaining alternative sentencing must be included in the litany of Miranda warnings prescribed by the Supreme Court. This is not the case. The law does not require a court to inquire of every defendant faced with a fine if he or she is indigent, nor does it require that the state advise a defendant of the right to declare indigent status. The Fifth Circuit has established that the obligation to
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provide alternative sentencing to an indigent is triggered only when the defendant raises the issue of indigency. See Garcia v. City of Abilene, 890 F.2d at 776; see also Sorrells v. Warner, 21 F.3d at 1112. A municipal defendant’s obligation is merely to ensure that there is a forum for a defendant to raise indigency, if he or she so wishes. See Doe v. Angelina County 733 F. Supp. 245 (E.D. Tex. 1990). Hidalgo County provides that forum, as is evidenced by Mr. De Luna’s own arraignment and in the statements of Arnulfo Ramirez Garza at that very hearing. His actions, which were witnessed by Mr. De Luna, are so significant to this Court’s inquiry that they bear repeating. Mr. Garza was picked up for a Class “C”, but he also had an outstanding warrant from Judge Mary Alice Palacios, the same judge that issued the warrants on Mr. De Luna. As the court can see, when he was asked if he had questions, Mr. Garza immediately explained that he could not pay the fine and that he wanted the opportunity to work out something with the court. He admitted repeatedly that he was guilty, but he wanted to arrange for some kind of alternative sentencing. Initially, Judge Treviño thought he was arrested for his contribution to truancy violation, and would be released for time served, but it was then made apparent that was not the case. Judge Treviño then made arrangements for him to contact Judge Palacios’s court, and he was out of jail that same day. [Exhibit D, pp 12, Exhibit K: Diaz bates stamp #000035]. This same opportunity was offered to the following defendants, who were also released shortly after they expressed their inability to pay a fine at their arraignment:
• Andrea Rodriquez, booked in on January 29, 2009 and released January 30, 2009. She had nine counts of failure to attend (“FTA”) and two other Class “C” misdemeanors. [Exhibit K, Diaz bates stamp #000003]
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• Edgar Certa, booked in on February 5, 2009 and released the same day. He had three counts of FTA and a theft charge. [Exhibit K, Diaz bates stamp #000004]
• Fernando Lopez Silva, booked in on March 9, 2009 and released March 10, 2009. He had six outstanding Class “C” misdemeanors of which one was FTA. [Exhibit K, Diaz bates stamp #000008]
• Patricia Morales, booked in on May 29, 2009 and released on May 30, 2009. She had 7 Class “C” counts including one FTA. [Exhibit K, Diaz bates stamp #000015]
• Ruby Estrada, booked in on June 2, 2009 and released the same day. She had two FTA’s [Exhibit K, Diaz bates stamp #000016]
• Raymond Jesus Garza, booked in on September 15, 2009 and released the same day, he had seven FTA’s. [Exhibit K, Diaz bates stamp #000025]
• Gabrille Nicole Gonzalez Nino, booked in on December 14, 2009 and released December 15, 2009. She had four Class “C”’s including 3 FTA’s. [Exhibit K, Diaz bates stamp #000035]
These are just a few of the hundreds, if not thousands, of examples of how the County’s system of providing alternative sentencing for indigents works at the Class “C” level, when indigency is raised properly and timely by the defendant. There is no systematic incarceration of Class “C” misdemeanor defendants without an indigency hearing, and in almost every case set out above, the judges took the defendant at his or her word, without subjecting them to a screening procedure. Mr. De Luna and Ms. Diaz had the exact same opportunity as these other defendants, and yet they failed to raise indigency at their respective arraignments. When a Class “C” Defendant raises indigency, every single JP court has a clear policy of providing alternative sentencing and does so freely. [Exhibit M]. The Plaintiffs’ failure to raise indigency did not trigger the County’s obligation to provide alternative sentencing. Thus, no constitutional violation occurred.
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34. Although it is not their burden to do so, Defendants respectfully assert that they have disproved the elements of Plaintiffs’ claim under 42 U.S.C. §1983. Plaintiffs’ burden is to present evidence of (1) an official policy, practice, or custom (2) that served as the moving force behind a constitutional deprivation (3) and that caused Plaintiffs’ damages. Defendants argue that Plaintiffs cannot present any evidence to support any one of these elements, let alone all three. Furthermore, Defendants have affirmatively proved the following: (1) that Hidalgo County’s has a policy in place that follows the Texas Code of Criminal Procedure and passes constitutional muster under Tate, Bearden, Garcia, and Sorrels; (2) that Defendants exercised their right to waive their right to alternative sentencing due to their indigency; (3) that, therefore, their procedural due process rights under the Fourteenth Amendment were not violated; and (4) that consequently they cannot prove that anything the Defendants did or failed to do caused their damages, which in the case of Mr. De Luna have been conclusively disavowed.
35. The Plaintiffs’ burden is extremely high. Even if this Court believes that the County or its JP’s were not careful enough with the Plaintiffs and they “slipped through the cracks,” leading to constitutional violations, that is not enough to sustain their §1983 claims against Defendants. This is because mere negligent acts or omissions are not enough to support liability. Plaintiffs must present evidence of deliberate indifference on behalf of everyone that interacted with Plaintiffs before their incarceration, which constitutes a higher burden of proof even than that of gross negligence. Plaintiffs cannot meet this standard, meaning that their claims are barred as a matter of law. Because Plaintiffs cannot raise an genuine issue of material fact as to each
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and every element of their claims, therefore, Defendants’ Motion for Summary Judgment must be granted in its entirety.

OF COUNSEL: Ortiz & Millin, L.P.
OF COUNSEL: Weitz Morgan PLLC

Respectfully submitted,
____________________________________ JOHN . ILALIMN V I State ar oB. N 24005166 Federal D o I N 24026 1305 ast oElanaN oop, Luite S F McAllen, exas T 78504 (956) 456877(956) 1368341-fax) (
MARK . EAITZW State ar oB. N 21116500 Southern District ID No. 102493 100 Congress Avenue, Suite 2000 Austin, exas T 78701 Tel: 512) 8935(904Fax: 512) 2238(560-
ATTORNEYS IN CHARGE FOR DEFENDANTS, HIDALGO COUNTY, TEXAS; GUADALUPE TREVINO, IN HIS OFFICIAL CAPACITY AS HIDALGO COUNTY SHERIFF; MARY ALICE PALACIOS; GILBERTO SAENZ; JESUS MORALES; BOBBY CONTRERAS; ROSA A. TREVINO; LUIS GARZA; ISMAEL OCHOA; CHARLIE ESPINOSA; E. “SPEEDY” JACKSON; IN THEIR OFFICIAL CAPACITIES AS HIDALGO COUNTY MAGISTRATES AND JUSTICES OF THE PEACE
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Case 7:10-cv-00268 Document 74 Filed in TXSD on 10/18/11 Page 33 of 33 CERTIFICATE OF SERVICE
I certify that a copy of the foregoing pleading was served on Courtney Bowie and Mike Caddell, who are the attorneys in charge for Plaintiffs, Francisco De Luna and Elizabeth Diaz, Individually and on Behalf of All Others Similarly Situated, via electronic mail on October 18 2011.
____________________________________ JOHN . ILALIMN V I
CERTIFICATE OF CONFERENCE I certify that on the 18th day of October 2011, I conferred, in good faith, with counsel for Plaintiffs in an unsuccessful attempt to reach an agreement regarding the foregoing Opposed Motion for Summary Judgment and Memorandum in Support of Same. Counsel for Plaintiffs have expressed that they are opposed to same.
____________________________________ JOHN . ILALIMN V I
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 Case 7:10-cv-00268 Document 50 Filed in TXSD on 06/24/11 Page 1 of 15

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

FRANCISCO DE LUNA, et al,
Plaintiffs, VS.
HIDALGO COUNTY, TEXAS, et al,
Defendants.

§ § § § CIVIL ACTION NO. M-10-268 § § § §

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND DENYING DEFENDANTS’ MOTION TO STRIKE

I. Factual and Procedural Background

Now before the Court are the Motion to Dismiss pursuant to Federal Rules of Civil

Procedure 12(b)(6) and 12(b)(1) and the Motion to Strike pursuant to Rule 12(f) filed by

Defendants Hidalgo County, Texas (“the County”); Guadalupe Trevino, in his official capacity

as Hidalgo County Sheriff (“the Sheriff”); and Mary Alice Palacios, Gilberto Saenz, Jesus

Morales, Bobby Contreras, Rosa E. Trevino, Luis Garza, Ismael Ochoa, Charlie Espinosa, and E.

“Speedy” Jackson, in their official capacities as Hidalgo County Magistrates and Justices of the

Peace (“the Judicial Defendants”). (Doc. 24). Plaintiffs Francisco De Luna and Elizabeth Diaz,

individually and on behalf of all others similarly situated, challenge Defendants’ alleged federal

constitutional violations through this suit brought pursuant to 42 U.S.C. § 1983. (Doc. 23-1).

Plaintiffs claim that by consistently jailing individuals aged 17 and older for the non-payment of

fines and associated costs without making a determination of indigency and good faith effort to

discharge the outstanding debt, and without offering alternatives to incarceration, Defendants

violate procedural due process and the guaranteed equal protection right to be free of

discrimination based on economic status. Id. at ¶¶ 1, 168-89.

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Plaintiffs De Luna and Diaz, both 18 years old at the time this lawsuit was filed, were allegedly ordered incarcerated by Judicial Defendants Trevino and Contreras, respectively,1 after each Plaintiff failed to appear pursuant to a “Notice of Continuing Obligation to Appear” (“NCOA”) issued pursuant to Texas Code of Criminal Procedure Article 45.060. Id. at ¶¶ 43, 91, 94, 107, 129, 134, 145. Soon after each Plaintiff turned 17 years old, a case manager for Judicial Defendant Palacios issued the NCOA for the purpose of requiring Plaintiffs to answer to outstanding charges for fine-only offenses based on underage conduct. Id. at ¶¶ 91, 129. The charges consisted of tickets issued to De Luna for school rule violations under the former and current versions of Texas Education Code § 37.102 and tickets issued to De Luna and Diaz for failure to attend school under Texas Education Code § 25.094. Id. at ¶¶ 77-79, 84, 122-23. The tickets were initially referred for adjudication to Palacios and then transferred to the Hidalgo County juvenile court, where Plaintiffs believed the charges were resolved. Id. at ¶¶ 85, 88-89, 125, 127. However, no document in Plaintiffs’ files at the justice court reveals the disposition of the charges in the juvenile court, leading to the issuance of the NCOA by Palacios’s staff. Id. at ¶¶ 90-91, 128-29. Neither Plaintiff received the NCOA, apparently because Palacios’s staff mailed it to an incorrect address. Id. at ¶¶ 91-92, 129-30.2 When De Luna and Diaz failed to appear pursuant to the NCOA, Palacios signed separate arrest warrants for each of their pending charges. Id. at ¶¶ 44, 94, 134. Subsequent to Plaintiffs’ arrests, the Magistrates presiding over their cases did not inquire into Plaintiffs’ ability to pay the outstanding fines or make a written determination of indigency and good faith effort to discharge the fines as required by Texas
1 Plaintiffs allege that all nine Judicial Defendants are Hidalgo County Justices of the Peace who serve as Magistrates at the Hidalgo County Jail “on a rotating basis, performing arraignments and issuing process necessary to authorize the confinement of individuals in the jail.” (Doc. 23-1 at ¶ 19). 2 Plaintiffs allege that neither De Luna nor Diaz received written notice from the justice court, as required by statute, informing them of their obligation to notify the court if their address changed, and that they were never told of this obligation. Id. at ¶¶ 93, 133.
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Code of Criminal Procedure Article 45.046. Id. at ¶¶ 103-04, 146-47. Further, the Magistrates failed to offer Plaintiffs the opportunity to discharge the fines through community service, as is authorized under Texas Code of Criminal Procedure Article 45.049, or to pay the fines in installments or discharge the debt through other means. Id. at ¶¶ 105-06, 148-49. Instead, the Magistrates signed commitment orders authorizing Plaintiffs’ confinement in the Hidalgo County jail “‘for the time required by law to satisfy the amount of such fines and costs’” as were assessed for each charge. Id. at ¶¶ 107, 145. De Luna and Diaz each served 18 days in jail. Id. at ¶¶ 114, 156.3
Plaintiffs allege that the above practices are “routine” and seek to represent a proposed class consisting of “[a]ll individuals who have been or may in the future be adjudicated or processed for commitment to jail for unpaid fines or costs, pursuant to the provisions of Texas Code of Criminal Procedure Art. 45.046, while in the custody of the Hidalgo County Sheriff’s Office.” Id. at ¶¶ 1, 161. On their own behalf and on behalf of the class, Plaintiffs seek declaratory and injunctive relief against the Judicial Defendants and the Sheriff. Id. at ¶¶ 16884, 191. More specifically, Plaintiffs seek a judgment declaring as unconstitutional and enjoining the following practices: the Judicial Defendants’ practice of ordering the incarceration of persons for the non-payment of fines and associated costs without making a determination of indigency and good faith effort to discharge the outstanding debt, and without offering alternatives to incarceration; and the Sheriff’s practice of processing, booking, and confining persons under these circumstances. Id. On their own behalf, the named Plaintiffs also seek money damages from the County for the alleged “psychological damage, humiliation, mental 3 Plaintiffs allege that De Luna served less than the full 132 days needed to discharge his fines due to the intervention of the Hidalgo County Public Defender, who noticed De Luna’s confinement in a random review of jail logs and submitted a writ of habeas corpus seeking his release. (Doc. 23-1 at ¶ 115). A County Court at Law Judge granted the writ and discharged De Luna “‘from further illegal confinement’” for his offenses. Id.
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anguish, and emotional injury” they suffered as a result of the County’s “policy or custom” regarding the commitment of persons to jail for non-payment of fines. Id. at ¶¶ 186-89, 191. The named Plaintiffs further seek expungement of their criminal records with respect to their school-related charges and incarcerations pursuant to those charges. Id. at ¶ 191. Finally, Plaintiffs request attorney’s fees pursuant to 42 U.S.C. § 1988. Id.
Through their Motion to Dismiss, Defendants request the dismissal of only Plaintiffs’ classwide claims for declaratory and injunctive relief against the Judicial Defendants and the Sheriff on grounds of absolute judicial immunity (the Judicial Defendants), absolute quasijudicial immunity (the Sheriff), and Eleventh Amendment immunity (all individual Defendants). (Doc. 24).4 In the alternative, Defendants ask to dismiss the individual Defendants as “unnecessary” parties because Plaintiffs can secure complete relief from the remaining Defendant, the County. Id. Defendants also argue in the alternative that Judicial Defendants Morales and Jackson should be dismissed as Defendants because they do not participate as Magistrates on a rotating basis and therefore do not conduct the hearings at which the alleged constitutional violations occur. Id. Through their Motion to Strike, Defendants seek to strike portions of Plaintiffs’ pleading as “immaterial” to the due process and equal protection claims asserted. Id. For the reasons set forth below, the Court finds that the Motion to Dismiss should be granted insofar as it requests the dismissal of Plaintiffs’ claims for injunctive relief against the Judicial Defendants and the dismissal of the Sheriff as a party, and that the Motion should be denied in all other respects. Also for the reasons explained herein, the Court finds that Defendants’ Motion to Strike should be denied in its entirety.
4 The Court recognizes that the Motion to Dismiss provides substantial argument regarding the Judicial Defendants’ and the Sheriff’s absolute immunity from suit for money damages under § 1983. (Doc. 24). However, the Court need not address this argument because Plaintiffs’ First Amended Complaint makes clear that they seek money damages only against the County. (Doc. 23; Doc. 23-1 at ¶ 186).
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II. Motion to Dismiss A. Standard of Review
The applicable standard of review for a motion to dismiss for failure to state a claim under Rule 12(b)(6) is the same as the standard governing a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction. Benton v. United States, 960 F.2d 19, 21 (5th Cir. 1992). To survive a motion to dismiss under these rules, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008) (applying Twombly “plausible set of facts” standard of review to Rule 12(b)(1) motion). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555 (internal citations and footnote omitted). B. Absolute Immunity and Amendment to § 1983
In resolving Defendants’ Motion, it is first important to reiterate that Plaintiffs have sued the Judicial Defendants and the Sheriff in their official capacities only. “The performance of official duties creates two potential liabilities, individual-capacity liability for the person and official-capacity liability for the municipality.” Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 484 (5th Cir. 2000). A suit against a defendant in his official capacity “‘generally represent[s] only another way of pleading an action against an entity of which an officer is an agent.’” Id. at 483 (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985)). “Accordingly, a § 1983 suit naming defendants only in their ‘official capacity’ does not involve personal liability to the individual defendant.” Id. Concomitantly, defenses such as absolute immunity that only protect defendants in their individual capacities are not available in official-
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capacity suits. Id.; see also Graham, 473 U.S. at 166-67. Still, as Defendants point out, § 1983 was amended in 1996 to provide that “in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983 (emphasis added); see (Docs. 24, 31). This language does not exclude official-capacity claims from its application. Further, in Bauer v. Texas, 341 F.3d 352, 357 (5th Cir. 2003), the Fifth Circuit recognized that the plaintiff had sought only declaratory relief against a judge sued in his official capacity in light of the amendment to § 1983. The Court thus agrees with Defendants that Plaintiffs cannot seek injunctive relief against the Judicial Defendants, whether sued individually or in their official capacities, for acts or omissions taken in their judicial capacities because they have not alleged or shown that the statutory exceptions apply, i.e., that a declaratory decree has been violated or declaratory relief is otherwise unavailable. See (Docs. 24, 31). Further, the language of the amendment, Bauer, and additional authority located by the Court instruct that declaratory relief remains available in suits against judicial officers under § 1983. See Bolin v. Story, 225 F.3d 1234, 1242 (11th Cir. 2000) (amendment limits relief available to declaratory relief); Brandon E. ex. rel. Listenbee v. Reynolds, 201 F.3d 194, 198 (3d Cir. 2000) (amendment was “not intended to alter the availability of declaratory relief against judicial officers.”).
Plaintiffs argue that their claims for injunctive relief (or if not otherwise available, declaratory relief) should not be dismissed because § 1983 provides for their dismissal only if the challenged acts or omissions were taken in a “judicial” capacity and these Defendants’ “action(s) in failing to inquire into the financial resources of the Plaintiffs prior to their confinement in the Hidalgo County jail is administrative in nature…” (Doc. 30). Cases addressing judicial
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immunity provide that “‘[w]hether an act by a judge is a ‘judicial’ one relate[s] to the nature of the act itself, i.e., whether it is a function normally performed by a judge, and to the expectations of the parties, i.e., whether they dealt with the judge in his judicial capacity.’” Davis v. Tarrant Cnty., 565 F.3d 214, 222 (5th Cir. 2009) (quoting Mireles v. Waco, 502 U.S. 9, 12 (1991)). “‘[T]he relevant inquiry is the ‘nature’ and ‘function’ of the act, not the ‘act itself.’ In other words, [a court should] look to the particular act’s relation to a general function normally performed by a judge....’” Id. (quoting Mireles, 502 U.S. at 13). The Fifth Circuit has adopted a four-part test for determining whether a judge’s acts are judicial in nature: “(1) whether the precise act complained of is a normal judicial function; (2) whether the acts occurred in the courtroom or appropriate adjunct spaces such as the judge’s chambers; (3) whether the controversy centered around a case pending before the court; and (4) whether the acts arose directly out of a visit to the judge in his official capacity.” Id. at 222-23 (citing Ballard v. Wall, 413 F.3d 510, 515 (5th Cir. 2005)). “These factors are broadly construed in favor of immunity.” Id. at 223 (citing same).
The plaintiff in Davis, a criminal defense attorney practicing primarily in Tarrant County, filed suit after the county’s criminal district judges denied his application to be included on the list of attorneys eligible for court appointment in county felony cases. Id. at 216. The plaintiff sued the defendant judges and the county under § 1983, asserting that the establishment and implementation of a policy for the appointment of counsel and the denial of the plaintiff’s application violated his due process and equal protection rights. Id. at 216-17. The court held after applying the above-described legal standard that the challenged act of “selecting applicants for inclusion on a rotating list of attorneys eligible for court appointments is inextricably linked to and cannot be separated from the act of appointing counsel in a particular case, which is
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clearly a judicial act, and therefore…the judges’ acts at issue in this suit must be considered to be protected by judicial immunity.” Id. at 226. Plaintiffs claim that the challenged acts at issue here are less like Davis and more akin to those addressed in Morrison v. Lipscomb, 877 F.2d 463, 465-66 (6th Cir.1989), in which the Sixth Circuit determined that judicial immunity did not bar a constitutional challenge to a chief judge’s declaration of a holiday moratorium on the issuance of writs of restitution. The court determined that the moratorium constituted an administrative rather than a judicial act because it was a general order not connected to any particular litigation that did not alter the rights and liabilities of any parties but rather instructed court personnel on how to process the petitions made to the court. Morrison, 877 F.2d at 466. According to Plaintiffs, the Judicial Defendants’ “policy” of failing to inquire into indigency is similarly administrative because it “means that no decision related to indigency determination remains to be made in individual adjudications.” (Doc. 30).
The Court finds Plaintiffs’ attempted factual distinction unavailing. The Judicial Defendants’ alleged failure to make indigency determinations or offer alternatives to incarceration prior to committing individuals to jail for non-payment of fines are acts or omissions occurring during a commitment hearing, indisputably a function normally performed by a judge. See TEX. CODE CRIM. PROC. Art. 45.046. The hearing occurred in a courtroom setting, directly concerned the adjudication of individual cases before the court, and arose directly out of an appearance before the Judicial Defendants acting in their official capacities as Magistrates. Through their claims for declaratory and injunctive relief against the Judicial Defendants, Plaintiffs are challenging acts or omissions taken within the Defendants’ judicial capacities.
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For the above reasons, the Court finds that Plaintiffs are statutorily barred from seeking injunctive relief, but not declaratory relief, against the Judicial Defendants in their official capacities. The statutory bar to suit for injunctive relief does not facially apply to the Sheriff, however, and the Court is bound by the holding in Turner that “absolute quasi-judicial immunity…[is] unavailable in official-capacity suits.” Turner, 229 F.3d at 483; accord VanHorn v. Oelschlager, 502 F.3d 775, 779 (8th Cir. 2007) (“Case law from our sister circuits…supports the conclusion that absolute, quasi-judicial immunity only extends to claims against defendants sued in their individual—not official—capacities.”). Therefore, Plaintiffs may not seek dismissal of their official-capacity claims against the Sheriff on these grounds. C. Eleventh Amendment Immunity
The Court now turns to Defendants’ alternate argument that the individual Defendants are immune from suit under the Eleventh Amendment. (Doc. 24). It is well-settled that the Eleventh Amendment to the U.S. Constitution bars claims against the State of Texas brought pursuant to § 1983. E.g., Aguilar v. Tex. Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir. 1998). Counties do not enjoy the same immunity. See Crane v. State of Tex., 759 F.2d 412, 432 (5th Cir. 1985). Again, Plaintiffs’ official-capacity claims against the Judicial Defendants and the Sheriff are in effect claims against the entities of which these individuals are agents. “‘A local judge acting in his or her judicial capacity is not considered a local government official whose actions are attributable to the county.’” Davis, 565 F.3d at 227 (quoting Krueger v. Reimer, 66 F.3d 75, 77 (5th Cir. 1995)). Rather, “Texas judges are entitled to Eleventh Amendment immunity for claims asserted against them in their official capacities as state actors,” subject to the well-settled exception that “the Eleventh Amendment does not bar claims for prospective relief against state officials acting in their official capacity.” Id. Plaintiffs seek only prospective relief against the
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Judicial Defendants in their official capacities as judges, and therefore the Eleventh Amendment does not bar the claims against them.
With respect to the Sheriff, it is clear that in carrying out the alleged unconstitutional practice of jailing individuals for non-payment of fines under the circumstances presented here, this Defendant was acting as an agent of the County. See Crane, 759 F.2d at 432 (individual defendants sued under § 1983 for roles they played in establishing and implementing unconstitutional county policy of issuing misdemeanor arrest warrants without probable cause acted as county and not state officials). Plaintiffs’ allegations do not suggest that the Sheriff took any action on behalf of the State of Texas—in fact, Plaintiffs allege that the challenged incarcerations violate state law—and thus Plaintiffs’ official-capacity claims against this Defendant equate to claims against the County itself. See id. (“The system [the defendants] created and controlled violated Texas law; thus, it can scarcely be said to represent the official policy of the State of Texas.”). Therefore, the Sheriff in his official capacity is not immune to suit under the Eleventh Amendment.5 D. Dismissal of Individual Defendants as “Unnecessary” Parties
Defendants support their final argument—that the individual Defendants should be dismissed as parties to the action because the County has also been sued—by appealing to federal rules that govern the required and permissive joinder of parties, not their dismissal. See (Doc. 24); FED. R. CIV. P. 19, 20. Further, for the reasons explained supra, the Court cannot dismiss the Judicial Defendants as “unnecessary” parties because the claims against them do not equate to claims against the County. In contrast, the official-capacity claims against the Sheriff are in reality claims against the County, and under these circumstances case law permits this
5 Even were the Sheriff considered a state actor, the Eleventh Amendment would not bar a request for prospective relief against him. See Davis, 565 F.3d at 227.
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Defendant’s dismissal on the asserted basis that his presence in this suit is unnecessary. See, e.g., Johnson v. City of Houston, 2010 WL 3909929, at *6 (S.D.Tex. Sept. 30, 2010) (§ 1983 official-capacity claims against police chief dismissed pursuant to Rule 12(b)(6) motion because city also named as defendant). The Court will therefore dismiss the Sheriff as a party to this action and construe the claims against him as asserted against the County. E. Judicial Defendants Morales and Jackson
In the alternative, Plaintiffs ask the Court to dismiss Judicial Defendants Morales and Jackson because they “factually have no liability,” in that they do not participate as Magistrates on a rotating basis and therefore never have the opportunity to conduct the commitment hearings at which the alleged unconstitutional acts or omissions occur. (Doc. 24). The Court is confined to the pleadings in evaluating whether Plaintiffs have stated a claim against these Defendants, and Defendants present no evidence of the alleged “facts” that would convert the Motion into one for summary judgment. See FED. R. CIV. P. 12(d). Therefore, Plaintiffs’ alternate request to dismiss Morales and Jackson must be denied. III. Motion to Strike
Defendants’ Motion to Strike requests that the Court strike portions of Plaintiffs’ complaint under Rule 12(f), which allows a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” FED. R. CIV. P. 12(f); see (Doc. 24). Rule 12(f) motions to strike are generally disfavored and should not be granted unless the challenged portions of the pleading “have no possible relation to the controversy and may cause prejudice to one of the parties.” E.g., Am. S. Ins. Co. v. Buckley, 748 F.Supp.2d 610, 626 (E.D.Tex. 2010); see also Augustus v. Bd. of Pub. Instruction of Escambia Cnty., 306 F.2d 862, 868 (5th Cir. 1962) (motion to strike is “‘a drastic remedy to be resorted to only when
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required for the purposes of justice’” and “‘should be granted only when the pleading to be stricken has no possible relation to the controversy’”) (quoting Brown v. Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953)). Also, “[a] disputed question of fact cannot be decided on [a] motion to strike.” Augustus, 306 F.2d at 868.
Defendants first challenge the allegations contained in ¶¶ 1-9, 15-16, 21-47, 70-96, 112, 118-43, and 153 of Plaintiffs’ pleading as immaterial, and therefore potentially scandalous, because they pertain to the nature of the fines imposed on individuals and how they were incurred, and to the deprivation of counsel, not to the only alleged due process and equal protection violations at issue—that is, the failure to conduct indigency determinations and offer alternatives to incarceration. (Doc. 24). The specific paragraphs challenged on this basis include Plaintiffs’ summary of the lawsuit contained within the “Preliminary Statement” section of the complaint (¶¶ 1-9), the paragraphs identifying the named Plaintiffs in the “Parties” section (¶¶ 15-16), and those allegations in the “Facts” section which detail the following: the legal consequences of failure to attend school charges in Hidalgo County and how those charges are adjudicated in Palacios’s court (¶¶ 21-47); the estimated number of individuals incarcerated for school-related tickets (¶¶ 70-73); how De Luna and Diaz acquired their school-related charges and how those charges were adjudicated in the justice and juvenile courts (¶¶ 74-96, 118-43); and that each named Plaintiff lacked counsel at the commitment hearing and immediately prior to their incarcerations (¶¶ 112, 153). Although the Court agrees with Defendants that the abovecited allegations do not directly concern the alleged unconstitutional conduct occurring at the commitment hearings and after, these allegations underlie the asserted need for prospective relief on a classwide basis and are potentially relevant to a determination of the damages sustained by the named Plaintiffs. The Court cannot say that the allegations have no possible relation to the
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case, nor is their description of the backdrop against which the alleged due process and equal protection violations occur so prejudicial as to justify striking them from the complaint.
In the alternative, Defendants advance more specific reasons for why the Court should strike the allegations contained in ¶¶ 1, 80-84, 87, 99, 100, 114, 118-24, 141, 154, 156, and 160 of the complaint. (Doc. 24). Defendants challenge ¶ 1, in which Plaintiffs describe the lawsuit as addressing the jailing of “teens age seventeen and older,” as “immaterial and misleading” because persons aged 17 and older are legally classified as adults. Id. The Court finds that the age of persons incarcerated is relevant insofar as it underscores the asserted need for classwide relief, as Plaintiffs go on to allege that persons routinely become subject to arrest and then incarceration for non-payment of school-related, fine-only offenses after failing to appear pursuant to the NCOA sent by Palacios’s court soon after they turn 17. See (Doc. 23-1 at ¶¶ 4147). Further, that the opening paragraph of a lengthy complaint does not affirmatively state that persons aged 17 and older are adults is not somehow misleading, given that Plaintiffs’ ensuing allegations acknowledge this fact. See id.
Defendants also claim that the allegations in ¶¶ 80-84 and 118-24 should be stricken as immaterial because they relate only to the treatment of the named Plaintiffs by Edinburg Consolidated School District, a non-party to this suit. (Doc. 24). The Court finds that these paragraphs provide background regarding the school-related charges against De Luna and Diaz that eventually formed the bases for their respective incarcerations, and therefore are not so irrelevant as to require the Court to strike them from the complaint.
Defendants also challenge as immaterial the allegations set forth in ¶¶ 99, 100, 114, 141, and 156 that relate to the mental state and experiences of the named Plaintiffs when they were arrested, brought before the Magistrate for the commitment hearing, and incarcerated, and that
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allege the length of De Luna’s detention, which are obviously relevant to Plaintiffs’ request for mental anguish damages and should not be stricken. Id.6 Defendants further contend that allegations in ¶ 87 relating to the mental state of De Luna’s mother at the time she signed a document agreeing to pay off her son’s school tickets in installments, and in ¶ 154 regarding the financial condition of Diaz’s mother, are immaterial. Id. The Court disagrees, given that the lawsuit directly concerns the Magistrates’ alleged failure to determine whether the teenage children of these individuals had the ability to pay the fines assessed against them and whether they had made a good faith effort to discharge the fines. Finally, Defendants ask to strike ¶ 160, which contains allegations regarding Diaz’s current enrollment in school and future educational plans, as immaterial. Id. These allegations are potentially relevant to Diaz’s claim to damages as a result of her incarceration, and are not prejudicial. In sum, the Court finds that Defendants’ Motion to Strike must be denied in its entirety. IV. Conclusion
For the foregoing reasons, the Court hereby ORDERS that Defendants’ Motion to Dismiss is hereby GRANTED in part as follows: Plaintiffs’ claims for injunctive relief against the Judicial Defendants are hereby DISMISSED; and Defendant Guadalupe Trevino, in his official capacity as Hidalgo County Sheriff, is hereby DISMISSED as a party to this suit and the claims for declaratory and injunctive relief against this Defendant are deemed to be asserted against the County. Defendants’ Motion to Dismiss is hereby DENIED in all other respects and
6 Defendants also challenge ¶ 100 as “false” because it states that De Luna believed that his tickets for school-related charges had been discharged through juvenile court when in reality “court records show Mr. De Luna and his family repeatedly refused the services of the juvenile court.” (Doc. 24). Clearly, the Court cannot strike this allegation on the grounds that Defendants dispute its factual accuracy. See Augustus, 306 F.2d at 868.
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Case 7:10-cv-00268 Document 50 Filed in TXSD on 06/24/11 Page 15 of 15 Plaintiffs may proceed with their claims for declaratory relief against the Judicial Defendants and their claims against the County.
Also for the foregoing reasons, the Court hereby ORDERS that Defendants’ Motion to Strike is hereby DENIED.
SO ORDERED this 24th day of June, 2011, at McAllen, Texas. ___________________________________ Randy Crane United States District Judge
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

FRANCISCO DE LUNA, et al,
Plaintiffs, VS.
HIDALGO COUNTY, TEXAS, et al,
Defendants.

§ § § § CIVIL ACTION NO. M-10-268 § § § §

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANTS’ MOTION FOR DENIAL
OF CLASS CERTIFICATION, GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND APPOINTMENT OF COUNSEL

I. Introduction

Now before the Court are Defendants’ Motion for Summary Judgment (Doc. 74);

Defendants’ Motion for Denial of Class Certification (Doc. 87); Plaintiffs’ Motion for Summary

Judgment (Doc. 90); and Plaintiffs’ Motion for Class Certification and Appointment of Counsel

(Doc. 91). Plaintiffs Francisco De Luna and Elizabeth Diaz, individually and on behalf of all

others similarly situated and pursuant to 42 U.S.C. § 1983, bring this suit to challenge alleged

violations of their federal due process and equal protection rights by Mary Alice Palacios,

Gilberto Saenz, Jesus Morales, Bobby Contreras, Rosa E. Trevino, Luis Garza, Ismael Ochoa,

Charlie Espinosa, and E. “Speedy” Jackson, all sued in their official capacities, and by Hidalgo County. (Doc. 23-1).1 At the time the lawsuit was filed, all nine of the individual Defendants

were Hidalgo County Justices of the Peace (“JP”), seven of whom served on a rotating basis as

Magistrates performing arraignments and authorizing the commitment of persons to the County
1 Plaintiffs’ official capacity claims against Hidalgo County Sheriff Guadalupe Trevino were dismissed by the Court as redundant of those against the County. (Doc. 50).

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Jail.2 Soon after each of the named Plaintiffs turned 17 years old, JP Palacios mailed to their last-known addresses a notice to appear to answer to outstanding charges for failure to attend school and other school-rule violations committed when they were minors. When each Plaintiff failed to appear, Palacios issued separate arrest warrants for each of the charges. Plaintiffs were eventually committed to jail by order of the Magistrates presiding at their arraignments, and incarcerated for more than two weeks in the County Jail, for their failure to satisfy the accumulated fines and costs assessed against them for the school-related charges. It is undisputed that both Plaintiffs were indigent at the time of their incarcerations.
Plaintiffs filed suit on July 26, 2010 and amended their complaint on November 9, 2010, seeking to represent the following proposed class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2):
All individuals who have been or may in the future be adjudicated or processed for commitment to jail for unpaid fines or costs, pursuant to the provisions of Texas Code of Criminal Procedure Art. 45.046, while in the custody of the Hidalgo County Sheriff’s Office. (Doc. 1 at ¶ 161; Doc. 23-1 at ¶ 161).3 On their own behalf and on behalf of the class, Plaintiffs seek declaratory relief against the Magistrates and declaratory and injunctive relief against the County. (Doc. 23-1 at ¶¶ 161-84, 191).4 Specifically, Plaintiffs seek a declaration that the Magistrates’ alleged practice of ordering the incarceration of persons for nonpayment of fines and costs without determining whether they are indigent and have made a good faith effort to discharge the outstanding debt, and without offering alternatives to incarceration, violates the procedural due process and equal protection guarantees of Fourteenth Amendment to the U.S.
2 The Court will hereinafter refer to the individual Defendants as JPs and/or Magistrates. 3 Plaintiffs’ class definitions and allegations are identical in both complaints. See (Doc. 1 at ¶¶ 161-84; Doc. 23-1 at ¶¶ 161-84). 4 The Court dismissed Plaintiffs’ claims for injunctive relief against the Magistrates as barred by judicial immunity. (Doc. 50).
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Constitution. Id. at ¶¶ 168-84, 191. Plaintiffs also seek a judgment declaring as unconstitutional and enjoining the County’s alleged practice of processing, booking, and confining persons under these circumstances. Id. On their own behalf only, Plaintiffs seek damages from the County for its alleged violations of Plaintiffs’ constitutional rights. Id. at ¶¶ 185-89, 191.
Defendants filed the Motion for Summary Judgment on all claims against them on October 18, 2011, followed by the Motion for Denial of Class Certification on November 7, 2011. (Docs. 74, 87). Plaintiffs responded with their Motion for Summary Judgment and Motion for Class Certification and Appointment of Counsel, both filed on November 10, 2011. (Docs. 90, 91). Upon review of the parties’ Motions and responsive briefing, in light of the record and the relevant law, the Court finds that class certification must be denied and that Plaintiffs’ individual claims for declaratory and injunctive relief against the Magistrates and the County must be dismissed because Plaintiffs lack standing to request this relief, either on their own behalf or on behalf of the class. As to the named Plaintiffs’ remaining claim for damages against the County, the Court finds that De Luna and Diaz are entitled to summary judgment on the claim that the County violated their federal due process and equal protection rights by failing to afford them an affirmative indigency determination before incarcerating them for their failure to pay fines and costs, but that De Luna may obtain only nominal damages resulting from his unconstitutional incarceration and that Diaz’s entitlement to compensatory damages presents genuine issues of material fact that cannot be resolved on summary judgment.
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II. Summary Judgment and Class Certification Evidence5 A. Plaintiff De Luna 1. Underlying “Class C” Offenses
The “Class C,” fine-only misdemeanors underlying De Luna’s challenged incarceration include tickets for violations of the Texas Education Code, such as failure to attend school and failure to comply with school directives. (Doc. 90, Ex. 12); see TEX. EDUC. CODE §§ 25.094(e), 37.102(c), 37.124(b).6 De Luna received the tickets from 2005 through 2007 while attending school within the Edinburg Consolidated Independent School District (“ECISD”). (Doc. 90, Ex. 12). De Luna appeared before the Hidalgo County JP Court, and more specifically Defendant Palacios, on two separate occasions and signed an “Explanation and Waiver of Rights” form acknowledging and waiving his rights to remain silent, to a trial by jury, to face the state’s witnesses and to bring his own witnesses, and to be represented by an attorney. (Doc. 90, Ex. 11). De Luna’s mother, Elsa De Luna, also signed the forms, agreeing to be responsible for any fees and costs assessed against De Luna. See id. In 2007, Palacios transferred the tickets to the Hidalgo County Juvenile Court. (Doc. 90, Ex. 13). The parties dispute whether the tickets were resolved in the Juvenile Court. (Docs. 74, 90, 105).
5 Plaintiffs and Defendants object to certain exhibits submitted in support of their respective Motions for Summary Judgment. (Docs. 90, 105). All of those objections are discussed herein, with the exception that the Court need not address Defendants’ objections to exhibits that the Court finds unnecessary to consider in setting forth the contextual and determinative evidence in this case. (Doc. 105; see Doc. 90, Exs. 5, 8, 14, 26, 27). 6 The Court overrules Defendants’ “relevance” objections to the copies of De Luna’s tickets and other evidence submitted by Plaintiffs relating to the adjudication of their underlying charges, as this evidence provides necessary context to Plaintiffs’ individual and class-wide claims. (Doc. 105; see Doc. 90, Exs. 12, 13, 18, 19, 29).
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2. Notice of Continuing Obligation to Appear It is undisputed that De Luna could not be incarcerated as a juvenile for the ticketed
offenses. See TEX. CODE CRIM. P. Art. 45.060(a). However, the Texas Code of Criminal Procedure provides in relevant part as follows:
(b) On or after an individual’s 17th birthday, if the court has used all available procedures under this chapter to secure the individual’s appearance to answer allegations made before the individual’s 17th birthday, the court may issue a notice of continuing obligation to appear by personal service or by mail to the last known address and residence of the individual. The notice must order the individual to appear at a designated time, place, and date to answer the allegations detailed in the notice. (c) Failure to appear as ordered by the notice under Subsection (b) is a Class C misdemeanor independent of Section 38.10, Penal Code, and Section 543.003, Transportation Code. (d) It is an affirmative defense to prosecution under Subsection (c) that the individual…did not receive notice as required by Subsection (b). …. Id. Art. 45.060(b)-(d). Under this authority, Palacios issued a “Notice of Continuing Obligation to Appear” (“NCOA”) to De Luna on December 17, 2008, soon after he turned 17 years old. (Doc. 90, Ex. 29). De Luna claims that he did not receive the NCOA. (Doc. 90; see Doc. 90, Ex. 10 at pp. 6-7). When De Luna did not appear in response to the NCOA, Palacios issued a separate “capias pro fine,” or arrest warrant, for each of the school-related tickets. (Doc. 90, Ex. 6 at pp. 90-91). 3. Arrest Approximately two years later, on January 11, 2010, De Luna was arrested as an adult for public intoxication and taken to the Hidalgo County Jail. (Doc. 74 at ¶ 7; Doc. 90; Doc. 90, Ex. 15 at ¶ 5). Elsa De Luna states in her affidavit that she spoke with jail officials over the phone who told her that De Luna “had over $10,000 in truancy tickets and that he had to pay them or
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stay 101 days.” (Doc. 90, Ex. 15 at ¶ 6). When Ms. De Luna explained that her son had already

served probation for truancy and that “those ticket cases were over,” she was instructed to call

Palacios’s court. Id. Ms. De Luna states that “I contacted her court and they would not listen to

me. I do not remember who I spoke to, but I was told that my son had to pay the entire amount or stay in jail for 101 days.” Id.7

Plaintiffs contend that De Luna “asserted his indigency” during the booking process by

answering “no” to the question of whether he could afford an attorney on a form entitled,

“Hidalgo County Sheriffs Department Questions Regarding Attorney Information.” (Doc. 90; Doc. 90, Ex. 16).8 When questioned during his deposition, De Luna stated that he told “no one”

at the Sheriff’s Office that he could not afford to pay his tickets. (Doc. 74, Ex. H at pp. 30-31).

4. Arraignment

Soon after his arrest, De Luna was arraigned, or “magistrated,” by Defendant Trevino via

videoconference. (Doc. 90, Exs. 10, 17). Trevino began the arraignments by providing all of the

defendants present, including De Luna, with the required admonishments regarding their rights

to the assistance and appointment of counsel, to remain silent, and to have a trial. (Doc. 90, Ex.

10 at p. 2). The defendants collectively acknowledged that they understood these rights. Id.

Trevino then proceeded to call each defendant individually. Id. With respect to De Luna, the

transcript of the arraignment provides in relevant part as follows:

Trevino:

You were brought in on a public intoxication…plus you have over 20 cases with Mary Alice Palacios.

7 Defendants object to this portion of Ms. De Luna’s affidavit as containing hearsay, but what jail officials and the court told her are admissible as admissions by party-opponents. (Doc. 105); see FED. R. CIV. P. 801(d)(2). 8 The Court overrules Defendants’ objections to the copy of this form as containing hearsay and lacking in authentication, as deposition testimony discussed infra indicates that it is a standard County form. (Doc. 105); see FED. R. EVID. 803(5), 901(b)(1). Further, Defendants cannot seriously contest the authenticity of a form produced by the County itself.
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De Luna: …. Trevino: De Luna: Trevino: De Luna: Trevino:
De Luna: Trevino:
De Luna: Trevino:

Yes ma’am.
Were you aware that you had all these arrest warrants with Mary Alice Palacios?
Ugh…no I never…I didn’t get anything.
Did you ever go before Mary Alice Palacios?
Yes ma’am.
Ok. Well she assessed fines but I guess you never went back to pay them so she assessed warrants these are outstanding warrants that you have with Judge Palacios. You have one from 2008, they are all from 2008. The first one is on a failure to comply with directives, excessive tardiness, failure to attend school, fail to attend school, fail to attend school, fail to attend school, fail to attend school, fail to attend school, failure to comply with directives, fail to comply with directives, fail to attend school, fail to comply with directives, fail to attend school, fail to comply with directives, fail to comply with directives, abusive language in school, abusive language in school, fail to comply with directives, abusive language in school, rules and penalties, fail to comply with directives, disruption of class, fail to attend school, fail to attend school, guilty or not guilty?
Guilty.
Ok. For the 1st P.I. the court is going to assess a $200 fine, and then I am going to give you the amounts that Mary Alice Palacios is assessing $407 for the first fail to attend, $407 for the excessive tardiness, $533 for the fail to attend, $533 for the fail to attend, $533 for the fail to attend, $533 for the fail to attend, $533 for the fail to attend, $533 for the fail to attend, $416 for fail to comply with directives, fail to comply with directives $416, fail to attend school $533, fail to comply with directives $416, fail to attend school $533, fail to comply with directives $416, fail to comply with directives $416, abusive language at school $416, abusive language at school $416, fail to comply with directives…[$]416, abusive language $416, rules and penalties $416, fail to comply with directives $416, disruption of class $416, fail to attend school $533, fail to attend school $537. Do you have any questions?
Umm. No ma’am.
Thank you Sir.

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Id. at pp. 6-8. De Luna admitted in his deposition, as the transcript reflects, that he did not tell Trevino that he could not afford to pay the tickets. (Doc. 74, Ex. H at pp. 30-31). Trevino signed 25 separate Class C commitment orders, one for the public intoxication charge and 24 for the school-related tickets, committing De Luna to jail for “the time required by law to satisfy the amount of such fine and costs.” (Doc. 90, Ex. 18). The Sheriff’s Office calculates this time at $100 per day. (Doc. 90, Ex. 3 at p. 42; Ex. 9 at pp. 64-65). 5. Incarceration and Damages
Plaintiffs allege and Defendants do not dispute that De Luna was incarcerated in the Hidalgo County Jail for 18 days, which was less than the full amount of time necessary to discharge his fines due to the intervention of the County Public Defender, who submitted a writ of habeas corpus and secured De Luna’s release “from further illegal confinement.” (Doc. 23-1 at ¶¶ 114-15). Plaintiffs submit the report of psychologist Stephen Thorne, Ph.D., in support of their contention that De Luna suffered “anxiety and fear” during his time in jail. (Doc. 90; Doc. 90, Ex. 23). Dr. Thorne’s report concludes that “while Mr. De Luna does not endorse or describe specific psychiatric impairment resulting from his January 2010 detainment in the Hidalgo County Jail, it does seem reasonable to infer that his overall social functioning, as well as his motivation to engage in healthy and prosocial activities outside of the home, has, in some ways, been impacted by the circumstances relating to his detainment.” (Doc. 90, Ex. 23). When asked at his deposition if De Luna suffered from posttraumatic stress, Dr. Thorne responded, “no.” (Doc. 77, Ex. O at pp. 181-82). When asked if De Luna suffered from stress of any kind as a result of his incarceration, Dr. Thorne responded that he “probably maybe changed his social patterns a little bit, but I don’t think there’s any kind of significant clinical stress or anxiety or
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anything like that.” Id. at p. 182. He went on to say that “I can’t point to any damages…that I think are the result of his being detained.” Id. at p. 185. B. Plaintiff Diaz 1. First Three Underlying Class C Offenses and NCOA
The evidence reflects that in 2006, ECISD issued two tickets to Diaz for failure to attend school, and that Diaz was ticketed again in 2008 for the same offense. (Doc. 90, Ex. 20 at pp. 8, 25; Ex. 21 at ¶ 3; Doc. 74, Ex. B; Doc. 75, Ex. L); see TEX. EDUC. CODE § 25.094.9 Diaz appeared before the Hidalgo County JP Court, and more specifically Palacios, in December 2006 and March 2008 and signed an “Explanation and Waiver of Rights” form on each occasion. (Doc. 90, Ex. 11; Ex. 20 at p. 11). By also signing the form, Diaz’s mother, Adelita Hernandez, agreed to be responsible for any fees and costs assessed against Diaz. Id. Hernandez states in her affidavit that she was under the impression that these fines were resolved “because [Diaz’s] absences from school were due to health problems and should have been excused.” (Doc. 90, Ex. 21 at ¶ 4).10 However, Plaintiffs do not directly dispute that Diaz did not satisfy the fines associated with the tickets, or any alternate sentencing afforded, while she was a juvenile. See also (Doc. 90, Ex. 20). On January 27, 2009, soon after Diaz turned 17 years old, Palacios issued the NCOA ordering Diaz to appear to answer to the three outstanding charges. (Doc. 90, Ex. 20 at p. 33; Ex. 29). Plaintiffs claim that Diaz did not receive the NCOA because the address the court had for her was incorrect. (Doc. 90; Doc. 90, Ex. 21 at ¶ 4). When Diaz did not appear
9 For the reasons stated supra, the Court overrules Defendants’ objections to the copy of Diaz’s “court file” as containing hearsay and lacking in authentication. (Doc. 105); see n. 8. 10 Defendants object to Ms. Hernandez’s statements about her “impression” as lacking the requisite personal knowledge. (Doc. 105). However, the Court is only considering the statements as indication of Ms. Hernandez’s state of mind at the time, and does so to reinforce that Plaintiffs have not produced evidence to dispute that Diaz’s charges were not resolved.
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as required by the NCOA, Palacios issued a capias pro fine for each of the tickets. (Doc. 90, Ex.
20 at p. 23; Doc. 74, Ex. B; Doc. 75, Ex. L).
2. Final Underlying Class C Offense and Arrest
Apparently in late 2009, the charter school Diaz was attending issued her another ticket
for failure to attend school. (Doc. 90; Doc. 74, Ex. B; Doc. 75, Ex. L; Doc. 90, Ex. 21 at ¶ 3). In
response to a summons related to this ticket, both Diaz and Hernandez appeared at the Municipal
Court on February 25, 2010. (Doc. 74, Ex. B; Doc. 75, Ex. L; Doc. 75, Ex. L at Attachment 1;
Doc. 90, Ex. 21 at ¶ 3). Diaz did not appear before Palacios, who was present in chambers but
not “on the bench”; rather, she spoke directly to Palacios’s staff. (Doc. 74, Ex. B; Doc. 75, Ex.
L; Doc. 90, Ex. 6 at pp. 63-67; Doc. 90, Ex. 21 at ¶ 3). The affidavits of Palacios’s Court
Coordinator, Robert Leal,11 and staff member, Marcella Cherry, and the evidence attached,
reflect that Diaz did not contest the latest charge but indicated to the staff that she needed more
time to pay the fine. (Doc. 74, Ex. B; Doc. 74, Ex. B at Attachment 2; Doc. 75, Ex. L; Doc. 75,
Ex. L at Attachment 2). Cherry states that she informed Diaz that “a payment plan was an
acceptable option for satisfying the sentence on a Class C charge for failure to attend school,”
11 Plaintiffs object to the Court’s consideration of Leal’s affidavit on the grounds that he lacks personal knowledge to state that “we [Palacios’s court] comply with the law and statute in everyway (sic),” and to explain the interaction between Diaz and Palacios’s staff on February 25, 2010. (Doc. 90; see Doc. 74, Ex. B); FED. R. CIV. P. 56(c)(4) (“An affidavit…used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”). Obviously, any statement by Leal regarding the lawfulness of Palacios’s court procedures is a conclusion of law that is entitled to no evidentiary weight. Further, Leal admitted in his deposition that Diaz “dealt more with Marcella Cherry” and “interacted with Marcella Cherry” regarding the charges on which Diaz had outstanding warrants, and therefore the Court agrees with Plaintiffs that he lacks personal knowledge to state what occurred with regard to the disposition of those charges. (Doc. 90, Ex. 6 at p. 67). However, Leal’s testimony indicates that he does have personal knowledge of what occurred when Diaz appeared before the staff in response to the summons on the final charge—that is, before the staff discovered the existence of the warrants. (Doc. 90, Ex. 6 at pp. 63-67). Further, his statements regarding the disposition of Diaz’s final charge are supported by the evidence attached to his affidavit. (Doc. 74, Ex. B at Attachments 1-3). Therefore, the Court will consider the statements in Leal’s affidavit to the extent that they relate to the disposition of the final charge.
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but that only Palacios could approve the alternative sentence. (Doc. 75, Ex. L). Cherry took Diaz’s request for an alternative sentence to Palacios, who was in chambers, and Palacios approved it. (Doc. 75, Ex. L; see also Doc. 74, Ex. B). Diaz signed an “Explanation/Waiver of Rights and Plea” form acknowledging and waiving her rights and pleading guilty to the offense and Palacios entered a “Judgement and Sentence” requiring payment of the assessed fine and costs of $387.00 by April 25, 2010. (Doc. 74, Ex. B at Attachment 2; Doc. 75, Ex. L at Attachment 2).
Sometime after Palacios had approved the extended time for payment and left the office, her staff discovered that Diaz had three outstanding warrants on her prior tickets for failure to attend. (Doc. 74, Ex. B; Doc. 75, Ex. L; Doc. 90, Ex. 6 at pp. 63-67; Doc. 90, Ex. 21 at ¶ 3). Cherry told Diaz, who was still present, that the fines totaled $1,605.00. (Doc. 75, Ex. L). Cherry indicates in her affidavit that she did not inform Diaz of the option to pay by installment because she believed that Diaz “was already aware of the ability to do a payment plan,” but states that she did inform Diaz that she could satisfy the fines by performing over 100 hours of community service or by serving time in jail at a rate of $100 per day. Id. Cherry states that because only Palacios could approve an alternative sentence, Cherry attempted to reach Palacios three or four times but was unsuccessful. Id. Cherry was therefore unable to release Diaz and told her that she would have to appear before the arraigning judge for sentencing. Id. Cherry states that “[b]efore she was taken into custody by a local deputy constable I explained to Ms Diaz and her mother that if the arraigning judge ordered her to serve time for the outstanding warrants and if she didn’t think she would be able to pay the fine and costs by April 25th on the newer case, she could go by our office and petition for community service.” Id. In contrast, Hernandez states that she and Diaz both asked Cherry to allow them to pay the fines for the 2006
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and 2008 tickets in installments “or with a bond,” but Cherry “insisted that Elizabeth pay the amount in full, or be immediately jailed for the old fines.” (Doc. 90, Ex. 21).12

Plaintiffs claim that Diaz, like De Luna, asserted her indigency during the booking

process by answering “no” to the question of whether she could afford an attorney on the prescribed from. (Doc. 90; Doc. 90, Ex. 16).13

3. Arraignment

The next day, Diaz was arraigned before Defendant Contreras via videoconference.

(Doc. 90, Exs. 17, 22). Contreras began by admonishing all of the defendants present, including

Diaz, regarding their rights to the assistance and appointment of counsel and to remain silent,

and then addressed each defendant individually. (Doc. 90, Ex. 22 at p. 2). With respect to Diaz,

the transcript of the arraignment provides in full as follows:

Judge:

Elizabeth Diaz? Elizabeth, (Spanish) you have three ([E]nglish) citations. (Spanish) um (English) for failure to attend school. (Spanish) the fine (English) is $533, $583, (Spanish) and (English) $587. (Spanish) Take a seat please.

Id. at p. 4. As the transcript reflects, Diaz did not tell Contreras that she was indigent. Contreras

proceeded to sign three separate Class C commitment orders to jail Diaz for the time necessary to

satisfy her fines. (Doc. 90, Ex. 18).

12 Defendants object to this portion of Hernandez’s affidavit as containing hearsay, but what Cherry told Hernandez is admissible as an admission by a party-opponent. (Doc. 105); see FED. R. CIV. P. 801(d)(2). Defendants also claim that Hernandez lacks personal knowledge to attest to what Cherry told Diaz after Hernandez left the room to avoid seeing Diaz handcuffed, but the Court cannot discern from the record which statements may have been made after that time. (Doc. 105). Further, even if inadmissible the Court need not accept Cherry’s version of what she told Hernandez and Diaz for the purpose of determining whether summary judgment is appropriate. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000) (although court should review summary judgment record as a whole, “it must disregard all evidence favorable to the moving party that the jury is not required to believe”). 13 See n. 8.
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4. Incarceration and Damages Hernandez states that neither she nor Diaz had the money to pay the fines, and therefore
Diaz remained in jail for 18 days to satisfy her debt. (Doc. 90, Ex. 21 at ¶ 4). Plaintiffs claim, without reference to admissible or attached evidence, that Diaz was “un-enrolled” from her charter school while incarcerated. (Doc. 90).14 Hernandez also attests that Diaz missed taking the “TAKS” (Texas Assessment of Knowledge and Skills) test. (Doc. 90, Ex. 21 at ¶ 5). Plaintiffs further claim, with reference to the challenged report of Dr. Thorne and portions of Diaz’s deposition, that Diaz experienced abuse of a “sexual nature” by her cell mates while she was incarcerated. (Doc. 90; Doc. 90, Ex. 23; Ex. 28 at pp. 162-65). Plaintiffs also assert that Diaz continues to suffer from depression and post-traumatic stress disorder (“PTSD”) as a result of her incarceration in February 2010, and point to Dr. Thorne’s conclusion that the trauma resulting from her detention “has significantly impacted her life and functioning.” Id. (emphasis in original). Defendants question Diaz’s credibility regarding any claim that she suffered physical harm during her incarceration, pointing to her interrogatory response that she did not. (Doc. 105; Doc. 74, Ex. E at Response to Interrogatory No. 11). Defendants also object to Dr. Thorne’s opinion under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 591 (1993), discussed more fully infra. (Doc. 105). 5. Final Disposition of Fourth Ticket
After her release from jail, on March 22, 2010, Diaz returned to Palacios’s office and submitted a written motion stating her inability to pay the fine assessed for her fourth ticket and requesting the alternative sentence of community service. (Doc. 74, Ex. B; Doc. 74, Ex. B at Attachment 3; Doc. 75, Ex. L; Doc. 75, Ex. L at Attachment 3). Palacios granted the request by
14 The Court sustains Defendants’ objection that Hernandez’s statement about what school officials told her over the phone is inadmissible hearsay. (Doc. 105; see Doc. 90, Ex. 21 at ¶ 5).
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ordering Diaz to serve 40 hours of community service by April 9, 2010 in lieu of paying the fine. Id.; see also (Doc. 74, Ex. B at Attachment 1; Doc. 75, Ex. L at Attachments 4, 5). Four days later, on March 26, 2010, Diaz returned to Palacios’s office to request more time to complete her service hours. (Doc. 75, Ex. L; Doc. 75, Ex. L at Attachment 5). Palacios granted the request and gave Diaz a new completion date of May 10, 2010. (Doc. 74, Ex. B at Attachment 1; Doc. 75, Ex. L; Doc. 75, Ex. L at Attachments 4, 5). Diaz completed the hours and the case was closed on April 19, 2010. (Doc. 75, Ex. L at Attachment 5). C. Incarceration for Nonpayment of Fines in Hidalgo County
Defendants object to all evidence concerning how the named Plaintiffs’ and other proposed class members’ school tickets were eventually converted into warrants, emphasizing that this case concerns only whether Defendants provide proper indigency screenings before incarcerating adults for Class C misdemeanors. (Doc. 105). Although Defendants correctly assess the substance of Plaintiffs’ individual and classwide claims, the Court overrules Defendants’ “relevance” objections, finding that this evidence provides necessary context to the claims. It is undisputed that while serving as JP, Palacios adjudicated a large number of failure to attend school and other school-rule citations by local law enforcement. (Doc. 90, Ex. 6 at pp. 14, 31, 123, 130). Palacios’s Court Coordinator Leal testified that if a student and his or her parent signed the “Explanation and Waiver of Rights” form after meeting with Palacios’s staff, and then appeared before Palacios and pleaded guilty, Palacios imposed a set fine for the offense but simultaneously “suspended” or “waived” the fine pending the student’s completion of the terms of deferred adjudication that Palacios found appropriate for each individual case. Id. at pp. 25-26, 38-40, 44, 82-83, 154-58, 167. If Palacios’s court determined that the student had not completed the terms by his or her 17th birthday, the staff mailed to the student’s last-known
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address the “Notice of Continuing Obligation to Appear” on a specified date to answer to the outstanding charges. Id. at pp. 88-90, 127-28. If the student failed to appear in response to the NCOA, Palacios issued a capias pro fine authorizing the student’s incarceration. Id. at pp. 56-59, 88, 91. Once issued, the capias pro fine remained in the County system so that if the student, now an adult, were eventually charged with another offense, the Sheriff’s Office would have notice of the warrant. Id. at p. 61. County Sheriff Guadalupe Trevino testified that the Sheriff’s Office considers a capias pro fine issued from a JP to be “an order from the magistrate…to take [the defendant] into custody and deliver her to our county jail until she either pays the fine or the warrant is recalled….” (Doc. 90, Ex. 9 at p. 22). Upon arrest, the defendant is booked into the County Jail and arraignment occurs there within 48 hours. (Doc. 90, Ex. 3 at pp. 26-27; Ex. 9 at p. 52). Although Leal testified that Palacios told students and parents at their JP court appearances that she would consider their inability to pay the assessed fines, he also indicated that it was incumbent upon the student or parent to directly inform Palacios or her staff that they were unable to pay. (Doc. 90, Ex. 6 at pp. 40-41, 68, 164-65). No affirmative inquiry into indigence occurred before the issuance of the capias pro fine or before booking, either on the part of Palacios or the Sheriff’s Office. Id. at pp. 68, 117-18.
As explained infra, Plaintiffs take the position that the requirements of Texas Code of Criminal Procedure Article 45.046 mirror what due process and equal protection require—that is, that Defendants conduct an affirmative indigence screening before incarcerating any person charged with a Class C misdemeanor, fine-only offense. (Doc. 90). Defendants admit and the record establishes that they do not provide this in every case; rather, they contend that the burden falls upon the defendant to affirmatively raise his or her inability to pay. (Docs. 74, 105; Doc. 90, Exs. 4, 7). The parties dispute what constitutes “raising” indigency, with Plaintiffs pointing
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to the Sheriff’s Office booking form on which a defendant states that he or she cannot afford an attorney as sufficient to alert Defendants to that person’s inability to pay a fine, and with Defendants essentially arguing that the defendant must contact the office of the JP from whom the charges arose to make alternate sentencing arrangements, and/or voice his or her inability to pay the fine at arraignment. (Docs. 74, 90, 105). All of the relevant deposition testimony indicates that the “Hidalgo County Sheriff’s Office Questions Regarding Attorney Information” to which Plaintiffs appeal is completed by a Sheriff’s Office employee during the booking process, and no evidence exists that any interaction occurs between the Sheriff’s Office and the arraigning Magistrate concerning the content of this form. (Doc. 90, Ex. 3 at pp. 53-55; Ex. 6 at pp. 107-08; Ex. 9 at pp. 46-50). Instead, the information contained within the form is either communicated by the Sheriff’s Office to the “indigent defense” office, or those defendants who request appointed counsel at arraignment “stay and talk to the indigent defense department….” (Doc. 90, Ex. 3 at p. 54-55; Ex. 6 at p. 93-97; Ex. 9 at p. 59). The indigent defense office is not under the jurisdiction the Sheriff’s Office, but has an office space located next to the “magistration room” where arraignments occur. (Doc. 90, Ex. 3 at pp. 39-40; Ex. 6 at p. 97; Ex. 9 at pp. 48, 59).
County employee Bertha Garza, who testified to her knowledge of the booking process and who worked as an arraignment officer, indicated that arraignment is the only means through which a Class C defendant, once arrested, can be discharged. (Doc. 90, Ex. 3 at pp. 21-22, 27, 33-34, 45).15 After arrest and during booking, Sheriff’s Office personnel calculate the
15 Defendants object to Plaintiffs’ use of Garza’s deposition testimony, contending that Garza was only produced as a designated representative “to discuss the rotating magistrate system in Hidalgo County” and has no personal knowledge to testify as to the JPs/Magistrates’ procedures regarding Class C offenses and indigency screenings. (Doc. 105). The Court finds upon review of the entirety of Garza’s deposition that she has the requisite personal knowledge to make those statements referenced by the Court in its Order and overrules Defendants’ objections.
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defendant’s release date based on the amount of the fine at a rate of $100 per day. (Doc. 90, Ex. 3 at p. 42-44; Ex. 9 at pp. 64-65). Leal testified that during the Class C arraignments at which Palacios presided,
she would not ask if they were indigent or if they had money to pay or not, she notified them why they’re there, there’s a fine amount that would be paid, and if they couldn’t pay it, that they would be granted time served. We usually relied on them to let us know. The same way in…our court proceedings for truancy, we would rely on pretty much the same procedure. If you don’t tell me you’re not able to pay, I can’t know that. (Doc. 90, Ex. 6 at p. 54). Leal further stated that if a defendant claimed indigency, “then we would take out the proper forms and take it before the judge [to] get the judge’s approval [of an alternative sentence].” Id. at p. 55. Garza, who witnessed arraignments, indicated that the few defendants who told the Magistrates that they were unable to pay their fines and opted not to do jail time were referred to the JP who issued their warrants for the purpose of making alternative sentencing arrangements. (Doc. 90, Ex. 3 at pp. 27-29, 70-73). When asked if she had “ever seen a defendant say that they cannot pay or cannot afford a fine and then see the judge send them to jail anyway,” Garza responded, “No.” Id. at pp. 70-71. However, Garza had no knowledge of how or whether those defendants made alternate arrangements and were released. Id. at p. 73-74. Defendants argue that it is the routine practice of all of the JPs/Magistrates to assume that those defendants who “raise” indigency within Defendants’ definition are in fact indigent, and to offer sentencing options. (Docs. 74, 105). The evidence on which Defendants rely consists of a sampling of files taken from the nine JP courts showing that defendants charged with Class C misdemeanors received community service or some other means of satisfying their fines, both before and after the filing of Plaintiffs’ action. (Doc. 74, Ex. M). Other examples include various individuals who appear on a list of persons arraigned and incarcerated for Class C
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offenses from January 2009 through March 2010, and who Plaintiffs argue are potential class members. (Doc. 90, Ex. 2).16 One of them, Arnulfo Ramirez Garza, was arraigned with De Luna. (Doc. 90, Ex. 2 at p. 35; Doc. 90, Ex. 10). After De Luna pleaded guilty, Garza indicated to Magistrate Trevino that he wanted to make payment arrangements to satisfy the $357 fine assessed by Palacios. (Doc. 90, Ex. 10 at pp. 11-13). Trevino responded that Palacios would be notified and Garza was released that day. (Doc. 90, Ex. 2 at p. 35; Doc. 90, Ex. 10 at p. 13). Another Class C defendant who appears on the list, Lee Roy Trevino, attested that he could not pay the fines assessed against him and was offered a community service option but decided to serve jail time instead. (Doc. 90, Ex. 2 at p. 20; Doc. 90, Ex. J). Defendants point to other Class C defendants on the list who had multiple charges and were released soon after arraignment, apparently asking the Court to assume that they secured their release by expressing their inability to pay and accepting alternative sentencing. (Doc. 105). Defendants also have offered the virtually identical affidavits of seven of the JPs/Magistrates named as parties to this suit, excluding Palacios and Espinosa, stating that “I am aware of my obligation under the law to screen persons who tell me that they are indigent to determine if they are in fact indigent, and if so to offer a sentence alternative other than incarceration for a fine only offense.” (Doc. 105, Ex. C). Each Defendant further attests,
I have never incarcerated a defendant for a fine on a Class C misdemeanor that raised his or her indigency as reason for not paying…. Alternative sentencing is always allowed for anyone who wishes to opt for a sentence that does not involve paying the fine. All any defendant need do is indicate they cannot or do not want to pay the fine. Id. Defendants offer the supplemental affidavit of Leal to attest to Palacios’s adherence to the practice described in the other Defendants’ affidavits. Id. It is undisputed that any Class C defendant who fails to request and then choose alternative sentencing is incarcerated in the
16 Defendants object to Plaintiffs’ characterization of this exhibit but not to its admissibility. (Doc. 105).
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County Jail until the fines are satisfied at a rate of $100 per day, pursuant to the authority of a Class C commitment order signed by the Magistrate and executed by the Sheriff’s Office. (Doc. 90, Exs. 4, 7; Ex. 9 at pp. 63-64). Sheriff Trevino testified that he had “no idea” whether community service was an option for defendants jailed for nonpayment of fines, and that based on his personal experience, “if a person cannot pay a fine and it is a Class C misdemeanor,…and they have already been convicted and assessed that fine, then they will spend a specific time in jail to pay off the fine in lieu of the fine.” (Doc. 90, Ex. 9 at pp. 74-75). III. Plaintiffs’ Individual and Class-Wide § 1983 Claims A. Claims for Declaratory and Injunctive Relief
Again, Plaintiffs on their own behalf and on behalf of the proposed class invoke § 1983 to seek declaratory relief against the Magistrates in their official capacities and declaratory and injunctive relief against the County for the federal due process and equal protection violations alleged. Although these claims initially survived Defendants’ motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court’s reexamination of the claims in the context of the instant Motions brought to light an issue not previously addressed by the parties—that is, whether the named Plaintiffs have standing to bring claims for declaratory or injunctive relief, either individually or in a representative capacity. More specifically, the Court finds it necessary to consider whether Plaintiffs face the kind of “real and immediate threat” necessary to confer standing. See Bauer v. Texas, 341 F.3d 352, 358 (5th Cir. 2003) (court may consider issue of standing sua sponte). As such, the Court ordered supplemental briefing on this issue, which the parties have provided. (Docs. 107, 109-112).
“It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an
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actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). “To demonstrate that a case or controversy exists to meet the Article III standing requirement when a plaintiff is seeking injunctive or declaratory relief, a plaintiff must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future.” Bauer, 341 F.3d at 358 (citing Lyons, supra). The plaintiff must allege facts from which a “substantial and continuing controversy” between two adverse parties may be reasonably inferred. Id. “[T]he continuing controversy may not be conjectural, hypothetical, or contingent; it must be real and immediate, and create a definite, rather than speculative threat of future injury.” Id. “‘Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief…if unaccompanied by any continuing, present adverse effects.’” Id. (quoting Lyons, 461 U.S. 95 (1983)). “To obtain equitable relief for past wrongs, a plaintiff must demonstrate either continuing harm or a real and immediate threat of repeated injury in the future.” Id. “Similar reasoning has been applied to suits for declaratory judgments.” Id. (citing Ashcroft v. Mattis, 431 U.S. 171 (1977); Golden v. Zwickler, 394 U.S. 103 (1969)). If a named Plaintiff fails to establish standing, “he or she may not seek relief on behalf of himself or herself or any other member of [a] class.” James v. City of Dallas, 254 F.3d 551, 563 (5th Cir. 2001) (citing O’Shea v. Littleton, 414 U.S. 488 (1974)).
To demonstrate their standing to obtain an order declaring as unconstitutional and enjoining Defendants’ challenged practices, Plaintiffs must show that they face a “real and immediate” threat that while indigent, they will again be charged with a Class C, fine-only offense and then arrested and incarcerated solely because they are unable to pay the fine, and without being afforded the affirmative indigency screening they allege is constitutionally required. Each Plaintiff offers a virtually identical affidavit stating that “I affirm that I was
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indigent during the events at issue in this case and remain indigent to this day. In…2010 I was jailed for failure to pay fines assessed in connection with multiple Class C misdemeanor charges without Defendants having provided any determination as to my ability to pay. Additionally, despite my indigence, I was not provided any alternatives for payment prior to being incarcerated.” (Doc. 110, Ex. 1 at ¶ 3; Doc. 112, Ex. 1 at ¶ 3). De Luna further states that “I do not currently work and dropped out of high school. My job prospects are very bad right now.” (Doc. 112, Ex. 1 at ¶ 4). Diaz simply states, “I do not work or go to school.” (Doc. 110, Ex. 1 at ¶ 4). Although Defendants take issue with Plaintiffs’ dim predictions of their economic futures, even assuming that Plaintiffs are likely to be indigent for the foreseeable future, they must still show a real and immediate threat that they will again be charged with a Class C misdemeanor. Plaintiffs first argue that they can make this showing because “they each have faced multiple such charges in the past.” (Doc. 110). Again, De Luna faced 25 Class C charges, and Diaz faced three, when they were arrested, arraigned, and incarcerated for their failure to pay fines assessed for those charges. Id. What Plaintiffs overlook, and Defendants point out, is that all but one of the 28 charges were for school-related tickets. (Doc. 109). As described in detail above, the manner in which those tickets were adjudicated in the JP and juvenile courts, leading to the issuance of the NCOAs and ensuing capiases pro fine, resulted in each Plaintiff becoming subject to arrest for failure to pay accumulated fines on multiple offenses. By the time suit was filed, Plaintiffs no longer faced the threat of tickets for school-rule violations, nor does the record indicate that any ticketed offenses remain unadjudicated. Defendants characterize Plaintiffs’ entire lawsuit as a circuitous attempt to target Palacios’s actions in adjudicating the schoolrelated tickets, and therefore argue that Plaintiffs cannot show standing because they face no possibility of similar injury by Palacios in the future, especially since she has been suspended
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from office. (Doc. 109; Doc. 109, Ex. A); see, e.g., Bauer, 341 F.3d at 358 (“This court has often held that plaintiffs lack standing to seek prospective relief against judges where the likelihood of future encounters is speculative.”). The Court agrees that Plaintiffs will never be arrested on the authority of capiases pro fine issued for their failure to appear in response to NCOAs to answer to juvenile conduct, which makes highly unlikely that they will ever find themselves facing the level of fines that led to their incarcerations in 2010.
Nonetheless, Plaintiffs cite to various state code and city ordinance provisions and U.S. Department of Justice (“DOJ”) statistics to argue that Class C misdemeanor charges in the area where Plaintiffs live include such common offenses, and that individuals in the United States and especially Hispanics and young adults were so frequently stopped and ticketed for traffic offenses in 2008, that Plaintiffs “certainly face a ‘real and immediate threat’ of finding themselves charged with Class C misdemeanors within which traffic tickets constitute merely one of a myriad of categories.” (Doc. 110). The Court finds these arguments unpersuasive. First, that the authority exists to charge an individual residing in Edinburg for conduct classified as a Class C misdemeanor by state or local law does not in itself demonstrate a substantial likelihood that local law enforcement will in fact charge Plaintiffs with these offenses in the near future. Further, the DOJ report to which Plaintiffs cite contains nationwide statistics on traffic stops in a given year that cannot be extrapolated to one particular county in a manner sufficient to persuade that Plaintiffs themselves are soon likely to be stopped and ticketed. Notably, Plaintiffs cite to no case, and the Court has located none, in which standing was conferred based on the threat of a future criminal charge or arrest. In fact, the Supreme Court has held the opposite. The Court in O’Shea, supra, explained that “it seems to us that attempting to anticipate whether and when [the plaintiffs] will be charged with a crime and will be made to appear before
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[the defendant magistrate or circuit court judge] takes us into the area of speculation and conjecture,” and concluded that the plaintiffs lacked standing to enjoin the defendants’ alleged discriminatory bond-setting, sentencing, and jury-fee practices, either on their own behalf or on behalf of a class. O’Shea, 414 U.S. at 676-77. Relying in part on O’Shea, the Supreme Court in Lyons, supra, found that the plaintiff had no standing to obtain injunctive relief against the use of chokeholds by City of Los Angeles police officers. Lyons, 461 U.S. at 101-10. The Court reasoned: “[t]hat Lyons may have been illegally choked by the police…, while presumably affording Lyons standing to claim damages against the individual officers and perhaps against the City, does nothing to establish a real and immediate threat that he would again be stopped for a traffic violation, or for any other offense, by an officer or officers who would illegally choke him into unconsciousness without any provocation or resistance on his part.” Id. at 105. Plaintiffs claim that the Supreme Court “did not quarrel” with the Ninth Circuit’s “suggestion” in the decision under review that “the chances of being stopped by a policeman for an alleged motor vehicle violation are fairly good” and therefore meet the requirements of a case or controversy. (Doc. 110); Lyons v. City of Los Angeles, 615 F.2d 1243, 1246-47 (9th Cir. 1980). However, the Court does not read the Supreme Court’s reversal of that decision as implicitly recognizing that the likelihood of a future traffic stop can confer standing; the Supreme Court merely stated that “even assuming that Lyons would again be stopped for a traffic or other violation in the reasonably near future, it is untenable to assert…that strangleholds are applied by the Los Angeles police to every citizen who is stopped or arrested regardless of the conduct of the person stopped.” Lyons, 461 U.S. at 108 (emphasis added). Similarly, the Court cannot find a substantial likelihood that Plaintiffs will be stopped and then ticketed for a traffic violation (or any other Class C violation), and that the conduct underlying the charge will be such that the fine
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will exceed the amount either Plaintiff is able to pay. Admittedly, the County-wide practice that Plaintiffs challenge as unconstitutional is more certain in its application than the alleged chokehold policy in Lyons; regardless of the merits of that challenge, Defendants concede that they do not provide an indigency determination to every person charged with a Class C, fineonly misdemeanor. But Plaintiffs’ showing that they will again be incarcerated pursuant to this alleged policy depends on so many contingencies, most of which are speculative to varying degrees, that the Court cannot find that Plaintiffs have the requisite standing to obtain the equitable relief they seek, either on their own behalf or on behalf of the proposed class. Therefore, class certification must be denied and the named Plaintiffs’ claims against the Magistrates and all but their damages claim against the County must be dismissed. This does not mean, as the Supreme Court recognized, that “‘federal law will exercise no deterrent effect in these circumstances’”; for one, the legality of the practices Plaintiffs allege to be unconstitutional can be determined in their action for damages under § 1983. Lyons, 461 U.S. at 112-13 (quoting O’Shea, 414 U.S. at 503). B. Claim for Damages 1. Summary Judgment Standard of Review
A district court must grant summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A fact is material if it might affect the outcome of the lawsuit under the governing law, and a fact is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A party moving for summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings and materials in the record, if any, which
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it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); FED. R. CIV. P. 56(a), (c). Once the moving party carries its burden, the burden shifts to the nonmovant to go beyond the pleadings and provide specific facts showing the existence of a genuine issue for trial. Celotex, 477 U.S. at 324; FED. R. CIV. P. 56(c), (e). In conducting its review of the summary judgment record, the court “may not make credibility determinations or weigh the evidence” and must resolve doubts and reasonable inferences regarding the facts in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 255; Dean v. City of Shreveport, 438 F.3d 448, 454 (5th Cir. 2006). However, the nonmovant cannot satisfy its burden with “conclusory allegations, unsubstantiated assertions, or ‘only a scintilla of evidence.’” Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)); see also Brown v. City of Houston, 337 F.3d 539, 541 (5th Cir. 2003) (“Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.”). 2. Liability under § 1983
On their own behalf only, Plaintiffs seek damages from the County for incarcerating them for their failure to pay fines for Class C misdemeanors without affording them an affirmative indigency determination. To prevail on their § 1983 claim for damages, Plaintiffs must show that (1) the offending conduct was committed by a person acting under color of state law; and (2) the conduct deprived the plaintiff of rights secured by the Constitution. Bauer, 341 F.3d at 357. The County is a “person” who may be sued under § 1983, but not because it employs a tortfeasor—that is, it cannot be held liable on a respondeat superior theory. See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 690-91 (1978). Rather, to establish that the
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County acted under color of state law, Plaintiffs must show that it adopted an official policy that is the moving force behind the claimed constitutional violations. See, e.g., Duvall v. Dallas Cnty., 631 F.3d 203, 209 (5th Cir. 2011) (citing Monell, 436 U.S. at 694). 3. Official Policy
Defendants’ Motion for Summary Judgment first disputes that the requisite official policy exists in the present case. (Doc. 74). The Fifth Circuit has defined “official policy” as follows:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or 2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984). Plaintiffs assert that the County’s challenged practice falls under the second definition—that is, that the County has a custom of “jailing indigent individuals for their inability to pay outstanding fines without conducting indigency determinations.” (Doc. 90). Although acknowledging in their first-filed Motion that “Plaintiffs will inevitably argue that…the practice of ignoring the right to an indigency screening and alternative sentencing was so widespread that it constituted a custom,” Defendants argue that Plaintiffs can only show the existence of a custom by proving that it was adopted through “deliberate indifference.” (Doc. 74). They do so by relying on a single case from outside this Circuit, but more applicable Fifth Circuit precedent directs that the custom itself must be unconstitutional or, if not, “must have been adopted ‘with deliberate indifference to the known or obvious fact that…constitutional violations would result.’” James v. Harris Cnty., 577 F.3d 612,
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617 (5th Cir. 2009) (quoting Johnson v. Deep E. Tex. Reg’l Narcotics Trafficking Task Force, 379 F.3d 293, 309 (5th Cir. 2004)). “Unlike the deliberate indifference standard applied to individual employees, this standard is an objective one; it considers not only what the policymaker actually knew, but what he should have known, given the facts and circumstances surrounding the official policy and its impact on the plaintiff’s rights.” Lawson v. Dallas Cnty., 286 F.3d 257, 264 (5th Cir. 2002). In sum, the Court must conduct the deliberate indifference inquiry if it concludes that the County had a facially harmless policy that is nonetheless linked to a constitutional violation. See id. at 263 (citing Monell, 436 U.S. at 690-94).
No party disputes, and “[i]t has long been recognized that, in Texas, the county sheriff is the county’s final policy maker in the area of law enforcement….” Turner v. Upton County, 915 F.2d 133, 136 (5th Cir.1990) (citing Briscoe, 619 F.2d at 404). Sheriff Trevino in fact confirmed in his deposition testimony that “as sheriff I am in charge of everything that occurs in [the County Jail],” including “[p]olicy creation, the execution, [and] the implementation.” (Doc. 90, Ex. 9 at p. 31). As set forth in detail above, the Sheriff also testified that the Sheriff’s Office considers a capias pro fine issued from a JP to be an order to take the defendant into custody until he or she pays the fine or the warrant is recalled. Thus, upon arrest, the defendant is booked into the County Jail to await arraignment. If the arraigning Magistrate issues a Class C commitment order, the defendant is jailed until he or she has served the amount of time necessary to pay the fine as calculated by the Sheriff’s Office. Although the Sheriff’s Office uses a form during the booking process to record a defendant’s response to the question of whether he or she can afford an attorney, it does not inquire into whether the defendant can pay the fines assessed. Rather, it simply calculates the amount of time the defendant must serve in jail to satisfy the fines. Further, the Court finds undisputed that the JPs/Magistrates, before
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issuing a capias pro fine or a Class C commitment order, do not consider whether the defendant can pay the fines or whether the defendant has made a good faith effort to satisfy them, or offer alternative sentencing, unless the defendant directly raises his or her inability to pay with the JP and/or arraigning Magistrate. Therefore, if the defendant does not request and then choose alternative sentencing, the County jails the defendant pursuant to the authority of the Magistrate’s order. Based on the above, the Court finds no genuine dispute regarding the common and well-settled custom in place: the County jails individuals charged with Class C, fine-only offenses who have failed to directly inform the JP and/or arraigning Magistrate of their inability to pay the assessed fines. In fact, Defendants admit that this custom exists and spend most of their efforts arguing that it does not violate the Constitution, a question that the Court will now consider. (Doc. 90, Exs. 4, 7; Docs. 74, 105). 4. Constitutional Deprivation
Although, as discussed infra, Defendants claim that a proper indigency determination was in fact made in Diaz’s case and that both Plaintiffs chose to go to jail, the parties’ principal dispute in this case is whether the County must affirmatively determine indigency in every case or only when a defendant affirmatively “raises” his or her own inability to pay. Plaintiffs effectively equate the requirements of Article 45.046 with those of due process and equal protection, appealing to the U.S. Supreme Court’s decision in Williams v. Illinois, 399 U.S. 235 (1970), and its progeny. (Doc. 90). Pointing to two Fifth Circuit cases that interpret this authority, Defendants respond that a defendant must first raise his inability to pay, and be denied the opportunity to serve an alternate sentence, for any constitutional violation to exist. (Doc. 74). In order to resolve the parties’ dispute, the Court must consider in detail each of the cases on which the parties rely and their relation to the provisions of Article 45.046.
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In Williams, the Supreme Court confronted the “narrow issue” of “whether an indigent may be continued in confinement beyond the maximum term specified by statute because of his failure to satisfy the monetary provisions of the sentence.” Williams, 399 U.S. at 236. Williams was convicted of petty theft and received the maximum sentence under Illinois law, consisting of one year of imprisonment and a $500 fine. Id. He was also taxed $5 in court costs. Id. The judgment directed, as permitted by statute, that if the petitioner was in default of the payment of the fine at the expiration of the one-year sentence, he should remain in jail to “work off” the monetary obligations at the rate of $5 per day. Id. While still an inmate in the county jail, Williams petitioned the sentencing judge to vacate that portion of the order requiring that he remain imprisoned for nonpayment of the fines and costs, contending that he was indigent at all stages of the proceedings, could not satisfy the money portion of the sentence, and upon release would be able to earn the funds to make payment. Id. at 237. On appeal of the dismissal of his petition, the Supreme Court observed that default imprisonment for failure to pay fines “has traditionally been justified on the ground it is a coercive device to ensure obedience to the judgment of the court” and “may always be avoided by payment of the fine.” Id. at 240. The Court found that this was “an illusory choice for Williams or any indigent,” and therefore “the Illinois statute in operative effect exposes only indigents to the risk of imprisonment beyond the statutory maximum.” Id. at 242. The Court concluded:
We have no occasion to reach the question whether a State is precluded in any other circumstances from holding an indigent accountable for a fine by use of a penal sanction. We hold only that the Equal Protection Clause of the Fourteenth Amendment requires that the statutory ceiling placed on imprisonment for any substantive offense be the same for all defendants irrespective of their economic status. The State is not powerless to enforce judgments against those financially unable to pay a fine; indeed, a different result would amount to inverse discrimination since it would enable an indigent to avoid both the fine and imprisonment for nonpayment whereas other defendants must always suffer one or the other conviction.
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It is unnecessary for us to canvass the numerous alternatives to which the State [by] legislative enactment—or judges within the scope of their authority—may resort in order to avoid imprisoning an indigent beyond the statutory maximum for involuntary nonpayment of a fine or court costs…. The State is free to choose from among the variety of solutions already proposed and, of course, it may devise new ones. Id. at 244-45.17 The Court noted Williams’s proposal that payment be collected in installments, which was a solution utilized in some states, as well as his suggestion that the trial judge require indigents “to do specified work during the day to satisfy the fine.” Id. n.21. The Supreme Court in Tate v. Short, 401 U.S. 395 (1971), went beyond the narrow question presented in Williams to consider whether imprisonment of indigents for offenses punishable by fine only implicated equal protection. After accumulating fines of $425 on nine convictions for traffic offenses, Tate was committed to a municipal prison farm pursuant to the authority of the Texas Code of Criminal Procedure and a city ordinance requiring that he remain there to satisfy the fines at the rate of $5 per day. Tate, 401 U.S. at 396-97. After 21 days in custody, Tate was released on bond when he applied to the county criminal court for a writ of habeas corpus alleging that he was too poor to pay the accumulated fines. Id. at 397. The State stipulated to Tate’s indigency at the habeas hearing but the court denied the application and the Texas Court of Criminal Appeals affirmed, stating that it was overruling Tate’s objection that his imprisonment was unconstitutional because he was too poor to pay the fines. Id. n.1. Relying principally on its decision in Williams, the Supreme Court held that Tate’s imprisonment for nonpayment “constitutes precisely the same unconstitutional discrimination since, like Williams, [Tate] was subject to imprisonment solely because of his indigency.” Id. at 397-98. The Court adopted the view previously espoused by four members of the Court that “‘the same
17 The Court noted that the purpose of incarceration for failure to pay court costs appeared to be the same, and that imprisoning an indigent beyond the maximum statutory term for failure to pay court costs also violates equal protection. Williams, 399 U.S. at 244 n.20.
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constitutional defect condemned in Williams also inheres in jailing an indigent for failing to make immediate payment of any fine…. In each case, the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full.’” Id. at 398 (quoting Morris v. Schoonfield, 399 U.S. 508 (1970)). Consistent with its observation in Williams, the Court noted that “[t]here are, however, other alternatives to which the State may constitutionally resort to serve its concededly valid interest in enforcing payment of fines.” Id. at 399. The Court stated in conclusion:
We emphasize that our holding today does not suggest any constitutional infirmity in imprisonment of a defendant with the means to pay a fine who refuses or neglects to do so. Nor is our decision to be understood as precluding imprisonment as an enforcement method when alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fines by those means; the determination of the constitutionality of imprisonment in that circumstance must await the presentation of a concrete case. Id. at 400-01. On remand to the Texas Court of Criminal Appeals, that court noted that “[i]t now appears that the Legislature has provided ‘alternative means’ for collection of fines and costs from defendants” through its revisions of the Texas Code of Criminal Procedure, including the article now renumbered as Article 45.046. See Ex parte Tate, 471 S.W.2d 404, 406 (Tex. Crim. App. 1971); see also (Doc. 76, Ex. N at p. 19). That article, which is central to Plaintiffs’ claims in this suit, provides in relevant part as follows: (a) When a judgment and sentence have been entered against a defendant and the defendant defaults in the discharge of the judgment, the judge may order the defendant confined in jail until discharged by law if the judge at a hearing makes a written determination that: (1) the defendant is not indigent and has failed to make a good faith effort to discharge the fine and costs; or (2) the defendant is indigent and:
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(A) has failed to make a good faith effort to discharge the fines and costs under Article 45.049 [authorizing community service in satisfaction of fines or costs]; and (B) could have discharged the fines and costs under Article 45.049 without experiencing any undue hardship. …. TEX. CODE CRIM. P. Art. 45.046. Although Defendants complain that Plaintiffs are attempting to conflate Article 45.046 and the requirements of due process and equal protection, it is clear that this provision was a response to the Supreme Court’s decision in Tate. Further, it tracks the constitutional requirements enunciated in Bearden v. Georgia, 461 U.S. 660 (1983), in which the Supreme Court revisited Williams and Tate when considering “whether the Fourteenth Amendment prohibits a State from revoking an indigent defendant’s probation for failure to pay a fine and restitution.” Bearden, 461 U.S. at 661. As a condition of Bearden’s sentence of probation for felony burglary and theft charges to which he pled guilty, the trial court ordered him to pay a $500 fine and $250 in restitution in installments. Id. at 662. After making the first two payments and shortly before the balance came due, Bearden notified the probation office that he was going to be late with his payment because he could not find a job. Id. at 662-63. After an evidentiary hearing, the trial court revoked Bearden’s probation for failure to pay the fine and restitution and sentenced him to serve the remaining portion of the probationary period in jail. Id. at 663. On appeal of the denial of his claim that his imprisonment violated the Equal Protection Clause of the Fourteenth Amendment, the Court first noted its holdings in Williams and Tate as well as cases it which it had recognized limits on the protections afforded to indigents and explained that “[d]ue process and equal protection principles converge in the Court’s analysis in these cases.” Id. at pp. 664-65. The Court concluded as follows: We hold, therefore, that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer
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willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternate measures of punishment other than imprisonment. Only if alternate measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.
Id. at 672-73. Specific to the case before it, the Court determined that “[b]y sentencing
[Bearden] to imprisonment simply because he could not pay the fine, without considering the
reasons for the inability to pay or the propriety of reducing the fine or extending the time for
payments or making alternative orders, the court automatically [and thus unconstitutionally]
turned a fine into a prison sentence.” Id. at 674.
Plaintiffs construe the above authority as requiring an affirmative determination of
indigency, good faith effort to pay, and alternatives to incarceration in each case in which a
defendant faces jail time for failure to pay fines, and for obvious reasons: the Supreme Court
spoke of the constitutional infirmity inherent in “automatically” turning a fine into jail time
“solely” because a defendant cannot pay. Perhaps most notably, in Bearden the Court stated that
the sentencing court “must inquire” into a defendant’s reasons for nonpayment and, if the
defendant cannot pay despite sufficient good faith efforts to do so, the court “must consider
alternate measures of punishment.” Only if these alternate measures are inadequate may the
court then incarcerate the defendant without intruding upon fundamental fairness. Defendants
point out that each petitioner in the relevant line of Supreme Court cases “raised” his inability to
pay: Williams through a petition to the sentencing judge while he was incarcerated, Tate through
a writ of habeas corpus after spending time in custody, and Bearden at a probation revocation
hearing. (Doc. 105). Therefore, Defendants argue, these cases support the position that the
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burden is on the defendant to tell the court that he is indigent. Id. However, whether or not the petitioners in these cases raised their indigency with the sentencing courts would have had no effect on the determination of their sentences, as the courts did not consider indigency as a bar to automatic jail time for nonpayment. Because each of these petitioners challenged the failure to consider indigency in determining a proper sentence, Supreme Court authority now exists to safeguard the rights of indigents facing incarceration for nonpayment of fines. In any event, as there is no precise language in these cases stating that a petitioner has or does not have the burden to tell the sentencing court that he cannot pay a fine before the court inquires into indigency, Defendants argue that the Court should look to more applicable Fifth Circuit precedent for guidance. (Docs. 74, 105). The first case to which Defendants cite is Garcia v. Abilene, 890 F.2d 773 (5th Cir. 1989), in which Garcia filed suit under § 1983 against the City of Abilene, Texas and its municipal court judge alleging that the city’s fine collection system was unconstitutional as applied to her. The city issued a citation to Garcia for failure to restrain her dog, and over the course of the next several months Garcia continuously failed to appear before the court to respond to this and additional failure to appear citations. Garcia, 890 F.2d at 77475. Eventually, after Garcia did not appear to explain her default in the payment of an assessed fine and costs totaling $102, which the court had allowed her to pay in installments, a warrant for her arrest was issued. Id. at 775. Garcia was never arrested or incarcerated, but filed suit alleging that the city through the judge unconstitutionally discriminated against her based on her economic status by attempting to imprison her for failure to pay the fine. Id. On appeal of the trial court’s directed verdict in favor of the city, and upon consideration of Tate and Bearden, the Fifth Circuit affirmed. Id. at 775-76. In doing so, as Defendants emphasize, the Court observed that “[Tate and Bearden] rest on the assumption that the indigent appears before the court to
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assert his inability to pay. Even assuming an individual is too poor to pay, if he does not appear and assert his indigency, the court cannot inquire into his reasons for not paying and offer alternatives.” Id. at 776. Although in isolation this language may appear to support Defendants’ position, the Fifth Circuit’s observation is unremarkable; it is obvious that if a person never appears in court, the court has no occasion to inquire into indigency. Thus, the Court does not read Garcia to mean that once a defendant has appeared before the court, the defendant must affirmatively raise his or her inability to pay before the court has any obligation to consider indigency in determining an appropriate sentence.
Defendants also appeal to the Fifth Circuit’s unpublished opinion in Sorrells v. Warner, 21 F.3d 1109, 1994 WL 171697 (5th Cir. Apr. 28, 1994), involving a § 1983 action filed against Hayes County, Texas and its county judge and constable in which the plaintiff Sorrells alleged that he was illegally arrested and detained for his failure to pay outstanding fines resulting from his conviction for the offenses of speeding and failure to appear. After the trial judge issued two capiases for Sorrells’s arrest due to his failure to pay the fines, Sorrells was advised of the warrants but actively avoided arrest, instead communicating with the county judge in writing. Sorrells, 1994 WL 171697 at *1. Notably, he advised the judge that he would pay the total amount due when notified of that amount, but upon notification filed a motion to quash the capiases based on legal defects in the documents. Id. at *1, *3 n.8. He was eventually arrested pursuant to the instructions of the county judge and subsequently filed charges of avoiding and resisting arrest. Id. at *1. Citing to the court’s observation in Garcia that “Tate is based on the assumption that the defendant has appeared before the court and asserted his indigency,” the court determined that Sorrells’s arrest was not unlawful because he did not advise county officials of his indigence and merely contested the legal validity of the capiases. Id. at *3 (citing
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Garcia, 890 F.2d at 776). Sorrells lends some support to Defendants’ position, as the court was concerned with Sorrells’s failure to tell anyone that he was indigent. However, the court’s opinion gives some indication that its concern was further legitimized by the fact that Sorrells had represented to the county judge that he would pay the total amount due. See id. at *3 n.8. Further, noticeably absent from this decision is any consideration of Bearden, which contains the Supreme Court’s most explicit language concerning the obligations of a sentencing court to inquire into indigency before ordering a defendant jailed for nonpayment. Sorrells does not persuade the Court that the defendant must raise indigency in order to trigger those obligations.
As Plaintiffs observe, at least one district court has refrained from interpreting Supreme Court and Fifth Circuit precedent in the manner urged by Defendants. In Doe v. Angelina County, 733 F.Supp. 245 (E.D.Tex. 1990), the plaintiff sued Angelina County, Texas and its sheriff under § 1983 on the grounds that his incarceration in the county jail for failure to pay assessed fines violated his federal due process and equal protection rights. The plaintiff was arrested for the misdemeanor offense of hunting without a license, pled guilty before the justice of the peace, and was taken to the county to jail “to make a bond or pay, or…stay.” Doe, 733 F.Supp. at 248-49. While the plaintiff was being processed at the jail, officials discovered an outstanding capias warrant for his arrest for failure to pay a $268 fine assessed as a result of a prior conviction. Id. at 249. When the plaintiff could not pay that fine, county officials made the determination to jail him immediately for the period necessary to “lay out” the fine. Id. at 255. The plaintiff was not taken before a magistrate, no factual determination was made concerning the reasons for his failure to pay the fine, and no consideration was given to alternatives to incarceration. Id. Noting the language in Bearden that “‘[d]ue process and equal protection principles converge’” in Supreme Court cases relating to the treatment of criminal defendants
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sentenced to monetary sanctions, the district court explained that Bearden “assumes that the principles grounding [those prior holdings] require some form of a pre-deprivation procedure for determining the reasons a party has failed to pay a fine or restitution.” Id. at 253 (quoting Bearden, 461 U.S. at 665). The court also described the Fifth Circuit’s observation in Garcia— that a court cannot inquire into a defendant’s reasons for not paying and offer alternatives if the defendant does not appear—as “premised upon the existence of such procedures.” Id. (citing Garcia, 890 F.2d at 776). The court summarized the “straightforward” and “compelling” reasons for requiring a pre-deprivation procedure as follows:
Clearly, an important liberty interest is implicated when the state determines to incarcerate a person for failure to pay a fine. This fact, coupled with the likelihood of unconstitutional conduct in the absence of process, clearly requires the institution of some form of pre-incarceration legal process for determining the reasons for a party’s failure to pay a fine. Absent such a procedure, a government entity that immediately converts a fine into a jail term when a party fails to pay that fine deprives the imprisoned party of liberty without due process of law. Government conduct of this sort is unlawful whatever the economic status of the incarcerated person. Id. at 254. In response to the jailer’s claim that the plaintiff “elected” to lay out his fine, the court found that the plaintiff could not have “waived” a right to process of which he was never informed. Id. at 255. Further, the court found that it was the practice of jail officials to immediately incarcerate persons arrested on the authority of capiases pro fine if they could not pay the fines upon arrest, that the scope of the sheriff’s grant of authority included implementation of procedures for processing persons arrested and brought to jail on the basis of capiases, and that “the sheriff’s acquiescence in unsound and legally insufficient procedures effectively created a county policy for which the county is liable.” Id. at 256. Turning to the case at hand, the Court finds that the authority discussed above persuades that before a person charged with a Class C, fine-only offense may be incarcerated by Hidalgo County for the failure to pay assessed fines and costs, this deprivation of liberty must be
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preceded by some form of process that allows for a determination as to whether the person is indigent and has made a good faith effort to discharge the fines, and whether alternatives to incarceration are available. Although in contrast to Doe, persons charged with Class C misdemeanors in Hidalgo County appear before a Magistrate before the issuance of a Class C commitment order, the absence of any inquiry into a defendant’s indigency unless the defendant “raises” it of his or her own accord does not provide the process due. It is well-settled that before a government entity may deprive a person of a constitutionally protected interest, it must provide both “notice and opportunity for hearing appropriate to the nature of the case.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). “[P]rocess which is a mere gesture is not due process.” Id. at 315. The process in place in Hidalgo County clearly risks that defendants who do not think to “speak up” during arraignment about their inability to pay fines may be jailed solely by reason of their indigency, which the Constitution clearly prohibits. See Doe, 733 F.Supp. at 254 (“In the absence of some procedure for determining the reasons for a party’s failure to pay a fine, it is difficult to conceive how a governmental entity will avoid discriminating against indigents on the basis of their respective economic statuses.”). By way of example, after De Luna pled guilty to the multiple charges and after Magistrate Trevino listed the multiple fines assessed, Trevino asked De Luna, “Do you have any questions?” In Diaz’s case, Magistrate Contreras simply listed Diaz’s citations and then said, “Take a seat please.” Setting aside what either Plaintiff may have subjectively known at this point, the Court does not accept Defendants’ suggestion that any person in this situation would articulate his or her inability to pay. Rather, due process requires a forum in which defendants’ reasons for failing to pay are considered before committing them to jail. In sum, the County’s policy of jailing individuals charged with Class C, fine-only offenses who have failed to directly inform the JP and/or
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arraigning Magistrate of their indigency violates due process, and in cases where the defendant is in fact indigent, equal protection. Even assuming that this policy is not facially unconstitutional, the County through its policymaker should have known and was and continues to be deliberately indifferent to the obvious fact that some indigent persons will not directly raise their inability to pay and will be incarcerated solely, and unconstitutionally, because they are indigent. Thus, the County may be held liable for the policy in place. 5. Other Issues Raised by Parties on Liability and Damages
Having resolved the parties’ dispute as to whether an affirmative determination of indigency is required prior to incarcerating persons charged with Class C misdemeanors for nonpayment of fines, the Court now turns to Defendants’ additional arguments as to why County policy did not violate the named Plaintiffs’ constitutional rights. First, Defendants contend that Diaz actually “raised” her indigency to JP Palacios through her staff, was offered and accepted community service for one of her charges, and was instructed or knew that she could obtain the same disposition of her additional charges if she alerted the arraigning Magistrate. (Docs. 74, 105). She did not, and therefore Defendants claim that she chose to go to jail. Id. Plaintiffs claim that Diaz and De Luna “raised” their indigency by responding to the booking form questions that they could not afford an attorney and wanted one appointed, and in De Luna’s case through his mother who called JP Palacios’s office. (Doc. 90). Defendants dispute that the booking form constitutes raising indigency and additionally argue that De Luna knew by observing another defendant at arraignment that he could avoid jail time by telling the Magistrate that he could not pay his fines. (Docs. 74, 105). Defendants also argue that Plaintiffs waived their right to an indigency determination by waiving the rights of which they were informed and by pleading guilty to the charged offenses. Id. As noted supra, Defendants also contend that
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neither Plaintiff can show damages resulting from any alleged constitutional violation because Dr. Thorne could not point to any damages suffered by De Luna and his opinion regarding the damages suffered by Diaz should be excluded under Rule 702 and Daubert. Id.
The Court will first dispose of the issues that present no genuine dispute. Based on the evidence provided, the Court finds that Plaintiffs’ answers on the booking form that they could not afford an attorney and wanted one appointed do not equate to an affirmative representation to the County, JP Palacios, or the arraigning Magistrates that they could not pay their fines;18 for the same reason, neither De Luna nor Diaz can be held to have “waived” his or her right to an affirmative indigency determination by waiving the right to counsel at arraignment. Generally speaking, to be enforceable, a waiver of constitutional rights must be “voluntary, knowing, and intelligently made,” or “an intentional relinquishment or abandonment of a known right or privilege.” D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 185-86 (1972) (internal quotations and citations omitted). “[A] waiver of constitutional rights in any context must, at the very least, be clear.” Fuentes v. Shevin, 407 U.S. 67, 95 (1983). The Court cannot accept that either Plaintiff’s waiver of various constitutional rights of which they were explicitly informed constitutes a waiver of their right to a process in which the reasons for their inability to pay would be considered. The Court also rejects Defendants’ suggestion that De Luna subjectively knew that he could request an alternate sentence and chose not to do so based on an exchange that occurred between Magistrate Trevino and another defendant after De Luna pled guilty to the charges against him. Finally, the Court agrees that in the complete absence of any other evidence regarding the damages suffered by De Luna as a result of his unconstitutional incarceration, Dr. Thorne’s testimony that “I can’t point to any damages…that I think are the
18 Notably, the record provides no evidence that JP Palacios or the arraigning Magistrates had any knowledge of Plaintiffs’ responses on the form.
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result of [De Luna’s] being detained” forecloses an award of anything other than nominal damages for this Plaintiff. Plaintiffs’ pleading requests an award of “compensatory damages to the Named Plaintiffs only for humiliation, emotional distress and other injuries sustained by them.” (Doc. 23-1 at ¶ 191).19 It is well-settled that a plaintiff suing under § 1983 is entitled to compensatory damages only upon proof of actual injury, and that “[m]ere proof of the violation of a [constitutional] right will not support such an award.” Familias Unidas v. Briscoe, 619 F.2d 391, 402 (5th Cir. 1980) (citing Carey v. Piphus, 435 U.S. 247 (1978)); see also Brady v. Fort Bend Cnty., 145 F.3d 691, 718 (5th Cir. 1998) (quoting Carey, 435 U.S. at 264 n.20) (“The Supreme Court has long required [in § 1983 cases] that compensatory damages for emotional distress ‘be supported by competent evidence concerning the injury.’”). However, a plaintiff may recover nominal damages when his constitutional rights have been violated and he is unable to prove actual injury. Williams v. Kaufman Cnty., 352 F.3d 994, 1014-15 (5th Cir. 2003). Therefore, the Court will award De Luna nominal damages in the amount of $1.00 for the County’s unconstitutional deprivation of De Luna’s liberty in violation of his due process and equal protection rights.
An issue on which a genuine dispute does exist is whether Diaz knew that she could tell Magistrate Contreras that she could not pay the fines on her three outstanding charges and obtain either a payment plan or community service. Hernandez’s and Cherry’s affidavits, and the undisputed fact that prior to arraignment Diaz secured an extension for payment on another of her charges, raise a genuine fact question as to whether Diaz knew of her options or was even
19 Plaintiffs do not contest Defendants’ argument that neither De Luna nor Diaz were employed at the time of incarceration, and therefore the sole basis for monetary damages is Plaintiffs’ emotional distress. See (Docs. 74, 90, 106).
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given those options on her remaining charges.20 If Diaz knew that she could avoid jail by stating to the Magistrate at arraignment that she could not pay the fines and intentionally chose to go to jail, this does not so much amount to waiver of the process due as it implicates whether she suffered any damages as a result of the failure to provide an affirmative indigency determination. In other words, if she chose to serve time rather than pay the accumulated fines or work the number of community service hours that would be required, she suffered no more than nominal damages as result of the County incarcerating her for failure to pay the fines without having afforded her the proper indigency screening. The above-stated factual questions must be resolved by a jury.
Assuming that Diaz did not know of the County’s policy or choose to go to jail instead of requesting an alternate sentencing, the Court turns to whether Dr. Thorne’s opinion can be considered in determining her compensatory damages. Rule 702 permits opinion testimony from a “qualified” expert if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. FED. R. EVID. 702. Defendants do not challenge Dr. Thorne’s qualifications, but rather ask the Court to strike his opinion as inadmissible under Rule 702 and Daubert because it would not assist the trier of fact and is unreliable. (Doc. 105). In Daubert, “the Supreme Court assigned to trial courts the responsibility of determining whether expert testimony under Rule 702 is ‘not only relevant, but reliable.’” See Hathaway v. Bazan, 507 F.3d 312, 317 (5th Cir. 2007) (quoting 20 According to Hernandez, Cherry stated that Diaz had to pay in full or go to jail, in apparent contravention of County policy.
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Daubert, 509 U.S. at 589). The court determines relevance by asking whether the expert testimony will assist the trier of fact to understand or determine a fact in issue. See Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003) (citing Daubert, 509 U.S. at 591-92). The reliability determination requires the court to make “‘a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Hathaway, 507 F.3d at 317 (quoting Daubert, 509 U.S. at 592–93). In determining reliability, the court may consider “the extent to which a given technique can be tested, whether the technique is subject to peer review and publication, any known potential rate of error, the existence and maintenance of standards governing operation of the technique, and, finally, whether the method has been generally accepted in the relevant scientific community.” Hathaway, 507 F.3d at 318 (citing Daubert, 509 U.S. at 593-94). “These factors are not mandatory or exclusive; the district court must decide whether the factors discussed in Daubert are appropriate, use them as a starting point, and then ascertain if other factors should be considered.” Id. at 318 (citing Black v. Food Lion, 171 F.3d 308, 311–12 (5th Cir. 1999)). For example, another factor that may be considered is “[w]hether the expert has adequately accounted for obvious alternative explanations.” FED. R. EVID. 702 advisory committee’s note (2000 Amendments). The trial court should take care not to apply the reliability factors too strictly and “transform a Daubert hearing into a trial on the merits.” Pipitone v. Biomatrix, Inc., 288 F.3d 239, 250 (5th Cir. 2002). The court’s role under Daubert is not intended to replace the adversary system: “‘[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.’” Id. (quoting Daubert, 509 U.S. at 596).
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Dr. Thorne evaluated Diaz on May 11, 2011 for approximately six hours during which time he administered the Minnesota Multiphasic Personality Iventory-2-Restructured Form (“MMPI-2-RF”), the Millon Clinical Multiaxial Inventory-Third Edition (“MCMI-III”), the Personality Assessment Inventory (“PAI”), the Child and Adolescent Self-Rating Scale, the Adolescent Self-Assessment Inventory, the Beck Anxiety Inventory (“BAI”), and the Trauma Symptom Inventory (“TSI”). (Doc. 90, Ex. 23 at Ex. A). Based on Dr. Thorne’s interview with Diaz and her mother, the results of the tests administered, and his consideration of Diaz’s therapeutic “progress notes” and medical records, Dr. Thorne’s report concludes that “[r]esults from the current psychological testing…are, in some ways, consistent with those individuals attempting to exaggerate the nature and severity of their psychological symptoms.” Id.21 He finds that “such possible symptom exaggeration may be attributed to her current lawsuit, her current level of psychological tension and hopelessness, a ‘cry for help,’ or a combination of each of these factors.” Id. He further states, however, that this possibility “in no way suggests she is not currently experiencing legitimate psychological tension/stress/discomfort, and it is this examiner’s opinion that Ms. Diaz has experienced a good deal of psychological tension and turmoil during (and since) the time she was detained in the Hidalgo County jail in February of 2010.” Id. Dr. Thorne describes in detail the bases for this opinion, including among other things Diaz’s statements to him that it “broke her heart” that her mother had to “see her in orange,” that while incarcerated other inmates touched or attempted to touch her in a sexual manner, and that “the worst thing” was that her detention prevented her from graduating with her class, which “is something you can’t take back.” Id. Dr. Thorne concludes with the opinion that Diaz meets the diagnostic criteria for PTSD, and that “it seems reasonable to infer that Ms. 21 Dr. Thorne specifies that the MMPI-2-RF should not necessarily be considered valid and the MCMI-III and PAI should not be interpreted due to the possibility that Diaz was exaggerating her psychiatric symptoms. (Doc. 90, Ex. 23 at Ex. A).
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Diaz’s current psychological distress/impairment (as well as social impairment) is, at least in part, the result of her emotional response to having been detained,” “though it should also be acknowledged that various other stressors and psychological factors (e.g., her personality structure and various cognitive patterns developed, in large part, prior to the alleged assault/harassment, her history of substance abuse, and various family issues/conflicts) may also be negatively impacting Ms. Diaz’s current functioning.” Id. Further, “despite attempts to manage/treat her various stressors/symptoms associated with the trauma resulting from her…detainment, it seems likely the trauma experienced…has significantly impacted her life and functioning.” Id. (emphasis in original).
Defendants do not attack the methodology or techniques used by Dr. Thorne in arriving at this opinion, but instead challenge the opinion on two main grounds: (1) Diaz’s lack of credibility; and (2) Dr. Thorne’s inability to say with any reasonable degree of medical or scientific certainty that any of the psychological symptoms suffered by Diaz were proximately caused by her incarceration. (Doc. 105). At Dr. Thorne’s deposition, Defendants confronted him with records demonstrating that subsequent to Diaz’s detention, no mental health provider had noted her incarceration or that it had affected her in a negative way until she spoke to Dr. Thorne in the context of this lawsuit. (Doc. 105, Ex. B at pp. 74-97). Defendants also pointed out to Dr. Thorne that after the date of his evaluation, Diaz testified in her deposition that she did not trust anyone, even her psychologist, to which Dr. Thorne responded that he would “like to explore that with her more” and could not “rule out” that she may have been telling him a story to accomplish a goal in this lawsuit. Id. at pp. 178-81. Defendants further directed Dr. Thorne to Diaz’s interrogatory response that she suffered no physical harm, which Defendants claim conflicts with her statements as reflected in the report. (Doc. 105; Doc. 105, Ex. B at p. 157; see
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also Doc. 74, Ex. E at Response to Interrogatory No. 11). Defendants characterize all of the above as casting doubt on Diaz’s credibility and therefore the bases on which Dr. Thorne formulated his opinion, thus warranting exclusion of his opinion under Rule 702 and Daubert. (Doc. 105). The Court agrees that Diaz’s previous records, lack of trust, and interrogatory response are relevant, in varying degrees, to assessing her credibility, but cannot accept Defendants’ position that Dr. Thorne’s report is therefore inadmissible. Had Dr. Thorne disregarded the possibility that Diaz was exaggerating the nature of her symptoms in formulating his opinion, the Court might find otherwise, but in fact Dr. Thorne repeatedly recognized this possibility and in doing so “has adequately accounted for obvious alternative explanations,” itself a factor used to determine reliability. The Court cannot take on the role of fact-finder in fulfilling its role under Daubert, and must allow the jury to determine Diaz’s credibility and the weight to be given to Dr. Thorne’s report. In this regard, Defendants’ use of the adversary process can adequately address their concerns.
Defendants also attack the reliability of Dr. Thorne’s opinion on the basis that he cannot say with the requisite degree of certainty that Diaz’s time in jail is the proximate cause of any emotional distress. (Doc. 105). In doing so, Defendants chiefly cite to the substantive law of Texas which does not apply in a § 1983 case. See id. In any event, the Court finds that Dr. Thorne’s opinion that some of Diaz’s reported symptoms were at least in part due to her emotional response to her detention is based on reliable methods of psychological evaluation. Further, Dr. Thorne stated in his deposition, consistent with his report, that “I think [Diaz] has PTSD, and I think part of her trauma response and part of her current psychological functioning is undoubtedly related to that detainment.” (Doc. 105, Ex. B at p. 133) (emphasis added). Therefore, Dr. Thorne has not, as Defendants allege, failed to state that Diaz’s incarceration was
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more likely than not a factual cause of her alleged harm. (Doc. 105); see RESTATEMENT (THIRD) OF TORTS § 26 cmt. l (2007) (“So long as the defendant’s tortious conduct was more likely than not a factual cause of the harm, the plaintiff has established the element of factual cause.”) (emphasis in original).22 It is worth noting here that although corroboration through expert or other testimony may often be required, “in certain cases a plaintiff’s testimony alone may be sufficient proof of mental damages” in a § 1983 case. Brady, 145 F.3d at 720. Although they fail to do so with respect to De Luna, Plaintiffs point to some deposition testimony by Diaz and statements by her mother that are relevant to her claimed damages. (Doc. 90, Ex. 21 at ¶ 5; Ex. 28 at pp. 162-65; see also Doc. 111, Ex. B at pp. 251-52). This evidence can be better considered by a jury, and tested by Defendants, if accompanied by Dr. Thorne’s admission that other stressors and psychological factors may also be negatively impacting Diaz’s current emotional state. In sum, Dr. Thorne’s opinion is sufficiently reliable to be admitted and also relevant, in that it will assist the jury in determining the degree to which Diaz suffered damages as a result of her incarceration. Therefore, the Court will not strike his opinion and will allow the issue of Diaz’s damages to be determined by the fact-finder. IV. Conclusion
For the foregoing reasons, the Court hereby ORDERS that Defendants’ Motion for Denial of Class Certification (Doc. 87) is GRANTED and Plaintiff’s Motion for Class Certification and Appointment of Counsel (Doc. 91) is DENIED.
The Court further ORDERS that Defendants’ Motion for Summary Judgment (Doc. 74) is GRANTED IN PART as to the named Plaintiffs’ claims for declaratory and injunctive relief against the individual Defendants and the County and Plaintiff De Luna’s claim for
22 Although Defendants generally argue that Dr. Thorne’s opinion does not meet the test for proximate cause under Texas law, they focus on the “cause in fact” element of that test. (Doc. 105).
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compensatory damages against the County. In all other respects, Defendants’ Motion for Summary Judgment is DENIED.
The Court further ORDERS that Plaintiffs’ Motion for Summary Judgment (Doc. 90) is GRANTED IN PART as to Plaintiffs’ claims that the County violated their federal due process and equal protection rights by failing to conduct an affirmative indigency determination before incarcerating them for nonpayment of fines and costs. In all other respects, Plaintiffs’ Motion for Summary Judgment is DENIED.
The Court further ORDERS that Plaintiff De Luna is entitled to recover nominal damages in the amount of $1.00 resulting from the County’s deprivation of his constitutional rights.
Plaintiff Diaz’s claim for compensatory damages presents genuine issues of material fact that cannot be resolved on summary judgment.
SO ORDERED this 15th day of February, 2012, at McAllen, Texas. ___________________________________ Randy Crane United States District Judge
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 Case 7:10-cv-00268 Document 90 Filed in TXSD on 11/10/11 Page 1 of 39

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

FRANCISCO DE LUNA and ELIZABETH DIAZ, individually and on behalf of all others similarly situated,

Plaintiffs,

v.

HIDALGO COUNTY, TEXAS; GUADALUPE TREVINO, in his official capacity as Hidalgo County Sheriff; MARY ALICE PALACIOS, GILBERTO SAENZ, JESUS MORALES, BOBBY CONTRERAS, ROSA E. TREVINO, LUIS GARZA, ISMAEL OCHOA, CHARLIE ESPINOZA, E. “SPEEDY” JACKSON, in their official capacities as Hidalgo County Magistrates and Justices of the Peace,

CIVIL ACTION NO. 7:10-CV-00268

Defendants.

PLAINTIFFS’ OPPOSED MOTION AND MEMORANDUM IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT AND BRIEF IN OPPOSITION
TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56, Plaintiffs Francisco De Luna and Elizabeth Diaz and all similarly situated individuals file this Motion and Memorandum of Law in Support of their Motion For Summary Judgment and in Opposition to Defendants’ Motion for Summary Judgment, and as grounds state the following:
SUMMARY OF ARGUMENT Plaintiffs Francisco De Luna and Elizabeth Diaz (“Plaintiffs”) are entitled to summary judgment on the question of whether Defendants’ custom of jailing individuals for non-payment of fines without providing an indigency hearing constitutes a violation

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of the Due Process and Equal Protection Clauses of the United States Constitution. It is undisputed that the Plaintiffs are indigent, and it is undisputed that Hidalgo County never, at any point when Diaz and De Luna were juveniles or adults, did an indigency determination prior to incarcerating both for non-payment of fines associated with truancy. It is undisputed that the County made no effort to determine whether or not the failure to pay by either client was willful. Indeed, the only substantive dispute is whether the Defendants are required by law to affirmatively offer individuals an indigency hearing before incarcerating them for non-payment of fines. Because the conversion of fines into jail time without a determination of indigency or an inquiry into whether or not the failure to pay is willful is unconstitutional, Plaintiffs are entitled to summary judgment.
Defendants’ motion for summary judgment should be denied because it is predicated on a mistaken interpretation of applicable law. Specifically, Defendants erroneously assert that Plaintiffs themselves are responsible for their incarceration for non-payment of fines because they did not assert their indigency at the point of arraignment. Dkt. 74, (Def.’s Opp’d Motion for Summ. J. hereinafter “Def. Br.” ¶ 20). Defendants conflate both statutory and constitutional requirements with this assertion.
Texas Code of Criminal Procedure § 45.046 states that a “judge may order [a] defendant confined in jail until [a defaulted judgment has been] discharged by law if the judge at a hearing makes a written determination that: (1) the defendant is not indigent and has failed to make a good faith effort to discharge the fine and costs; or (2) the defendant is indigent and: (A) has failed to make a good faith effort to discharge the fines and costs under Article 45.049; and (B) could have discharged the fines and costs under
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Article 45.049 without experiencing any undue hardship.” See TEX. CODE CRIM. PRO. ANN. art. 45.046 (2009), Attached as Ex. 1.
This statute and its legislative history are consistent with the Supreme Court’s governing holdings in Tate and Bearden, which make it clear that automatic imprisonment for defaulting on court-ordered fines is unconstitutional economic discrimination, Tate v. Short, 401 U.S. 395, 398 (1971), and that thus, fairness requires a hearing or a determination regarding indigency and a defendant’s willful failure to pay prior to incarceration for non-payment. Bearden v. Georgia, 461 U.S. 660, 668-69 (1983). Subsequent to Tate, Texas Legislature revised a number of statutes, including TEX. CODE CRIM. PRO. ANN. art. 45.03 and 45.046. See e.g., Ex parte Stephens, 468 S.W.2d 813 (Tex. App. Ct. 1971); Ex parte Tate, 445 S.W.2d 210 (Tex. Crim. App. 1969); see also Ex parte Scott, 471 S.W.2d 54, 55 (Tex. Crim. App. 1971). These legislative revisions implement the Supreme Court’s holding in Tate by providing for ‘alternative means,' such as installment payments of fines and costs for defendants who cannot afford to pay the fine in full. Id. The revision of Article 43.03 includes the same language on the same subject, outside of Justice and Municipal courts. See TEX. CODE CRIM. PRO. ANN. § 43.03 (2009); see also Ex parte Stephens, 468 S.W.2d 813 (Tex. App. Ct. 1971).
The defendants’ reliance on Garcia v. City of Abilene, 890 F.2d 773 (5th Cir. 1989), and its progeny is misplaced for two reasons. First, unlike the defendant in Garcia, the Plaintiffs here asserted their indigency. Second, even if the Plaintiffs had not asserted their indigency, Garcia is inapplicable because applies only narrowly to extreme examples of individuals who fail to appear in court at any time that would allow the court
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an opportunity to conduct an indigency determination and assess alternate means of discharging fines. Garcia does not impose a requirement that criminal defendants that do appear at relevant court hearings give up their constitutional rights if they unwittingly miss whatever fleeting opportunity might exist during the course of that appearance to raise them.
Because there is no material issue of disputed fact and the law supports Plaintiffs’ position, Plaintiff’ motion for summary judgment should be granted and Defendants’ motion for summary judgment should be denied.
I. STANDARD OF LAW Summary judgment is appropriate if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). Cross motions for summary judgment do not alter the basic Rule 56 standard, but rather simply require that the court determine whether either of the parties deserves judgment as a matter of law on the facts that are not disputed. Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir. 1980); Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir.1996). The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record “which [the moving party] believes demonstrates the absence of a genuine issue of material fact” with respect to issues on which the moving party bears the burden of proof at trial. See Celotex, 477 U.S. 323; Martinez v. Schlumber, Ltd., 338 F.3d 407, 411 (5th Cir. 2003); P. Borgades-Account B, L.P. v. Air Products, L.P., 369 F.Supp.2d 860, 864 (E.D. Tex.
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2004). The moving party meets its initial burden by showing that the “evidence in the record would not permit the nonmovant to carry its burden of proof at trial.” Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir. 1998). While a genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party[,]” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), the moving party need not negate the elements of the nonmovant's case. Wallace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996).
Once a moving party has met its burden, “an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, [rather] the adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial.” FED. R. CIV. P. 56(c). The adverse party must present specific facts which show “the existence of a ‘genuine’ issue concerning every essential component of its case.” Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998).
All inferences must be drawn and reasonable doubts resolved in favor of the adverse party. Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5 (1990)(citing Anderson, 477 U.S. at 255). Evidentiary disputes must be construed in favor of the adverse party, but “only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts[,]” Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999).
If an adverse party completely fails to make a showing sufficient to establish an essential element of that party's case on which it will bear the burden of proof at trial, then all other facts are rendered immaterial and the moving party is entitled to summary judgment. Celotex, 477 U.S. at 322-23.
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II. STATEMENT OF FACTS Plaintiffs filed this action on behalf of themselves and others similarly situated on
July 26, 2010 seeking, among other things, declaratory and injunctive relief to stop Defendant Hidalgo County’s practice of jailing Class C misdemeanants under CCP 45.046 immediately for their alleged non-payment of fines without conducting indigency determinations. See Dkt. 1, ¶ 10, Complaint.
1. Overview of Defendant Hidalgo County’s Practices Defendant Hidalgo County does not dispute Plaintiffs’ assertion that it routinely jails individuals for non-payment of fines without conducting indigency determinations. See Ex.2, (Spreadsheet); Ex. 4 (Def. Supplemental Answer to Interrogatory No. 2). Although Texas Code of Criminal Procedure § 45.046 requires a judge to make a written determination of indigency prior to incarceration for non-payment of fines, it is undisputed that Defendants have no affirmative procedures in place to ensure compliance with the statute. Indeed, Defendant Hidalgo County asserts that its courts cannot inquire into a defendant’s reasons for not paying. See Ex. 4 (Supp. Int). (“Even assuming an individual who is fined is too poor to pay, if he does not appear and assert his indigency, the court cannot inquire into his reasons for not paying and offer alternatives.”). These undisputed facts are consistent with Hidalgo County’s position that the burden to assert indigency is on the individual. Accordingly, Hidalgo County does not conduct indigency determinations when children are assessed fines for school misconduct as minors. Leal Dep., 40:6-13. And indigency determinations are rarely, if ever, conducted when individuals arrested at the age of 17 for outstanding school fines are magistrated or arraigned. Leal Dep., 54:1-13.
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In fact, it is undisputed that indigency determinations rarely, if ever, occur for any individual being arraigned. See Ex. 3, (Deposition of Bertha Garza “Garza Dep.”, 39:1624). These practices affect thousands. Ex. 24 (“Justice of the Peace Fine List”). Indeed, the number of individuals in Hidalgo County subject to the truancy court that generates the majority of the fines at issue in this case is by itself in the thousands. See Ex. 5; Leal Dep., 64:21.
According to the Defendants, the number of indigency determinations conducted or required is entirely dependent on the number individuals who assert their indigency after they are arrested and taken to jail. See Ex. 4 (Def. Supp. Int. Resp.). Also according to the Defendants, an individual’s appearance before a judge is a mere formality. See Garza Dep., 44:24-45:23. In other words, such appearances do not serve as a forum through which a judge makes meaningful substantive assessments, such as indigency determinations. Indeed, prior to an arraignment for failure to pay fines, without reference to any judicial hearings or assessments, and even prior to a judge’s signature on the Class C Commitment Order, Defendants calculate the time the indigent individual must spend in jail to pay off those fines at the rate of $100 per day. Garza Dep. 43:13-15;44:1545:19;72:20-21. There is no attempt to ascertain indigency, appoint counsel, or assign alternative sentences. See Garza Dep. 39:16-41:20.
Defendants’ practices have a particularly pronounced effect on young adult residents of Hidalgo County. It is undisputed that the County has a practice of issuing Notices of Continuing Obligations to Appear (“NCOA”) to individuals who accrued truancy tickets while minors and who continue to have fines in the court records when they turn 17. Dkt. 74, ¶ 6; Ex. 7 (Defendants’ Response to Requests for Admission).
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The NCOAs are sent to the address on file with the court, although those addresses may no longer be valid. Leal Dep. 128:8-22. If an individual fails to appear, a warrant in the form of a capias pro fine is issued. The number of individuals caught up in this process is daunting. In fact, over 7,000 Class warrants were issued from Mary Alice Palacios’s court alone an 18-month period. Ex. 8 (Activity Report for Justice Courts – Hidalgo County Precinct 4, Place 2). Once warrants are issued, if individuals appear in the truancy court for another ticket or are arrested on another charge, they are then told to pay the outstanding fines or committed to jail to discharge them. Trevino Dep. 22:8-15. When individuals are booked into jail, they fill out a number of forms, including a form regarding the appointment of counsel for indigent inmates. Garza Dep. 54:1-20. Magistration or arraignment is held at the Hidalgo County Jail within 24-48 hours of arrest. Trevino Dep. 52:3-7. Generally, there are no indigency determinations of any kind during the arraignment. Garza Dep. 57:15-17.
2. Application of the Defendants’ Practices to Francisco De Luna and Elizabeth Diaz.
Elizabeth Diaz (“Elizabeth”) and Francisco De Luna (“Francisco”) are young adults who were jailed by Hidalgo County pursuant to the practices described above for the non-payment of school-related conduct and truancy fines despite being indigent and unable to pay. As set forth in detail below, Plaintiffs were automatically incarcerated without being given a hearing or judicial consideration of these issues by Hidalgo County.
As juveniles, both individual Plaintiffs missed school or were issued school conduct-related fines and were required to attend hearings in which they ostensibly pled
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guilty to missing school. Ex. 11 (“Waivers”). Fines were assessed against both Plaintiffs for missing school, triggering Plaintiffs’ parents’ obligation to pay the fines, but the Plaintiffs were warned only of possible juvenile court consequences as a result of pleading guilty to the charges being brought against them for the school conduct. Ex. 11 (“Waivers”). Plaintiffs were never told that unresolved fines in their juvenile records would automatically trigger Notices to Continue to Appear (“NCOA”) upon Plaintiffs’ turning 17, or that failure to appear in court could result in arrest regardless of whether or not it was received notice to appear was received. Ex. 29 (NCOA). Hidalgo County did not issue proper judgment and sentence for the fines once Elizabeth and Francisco reached 17 years old. Ex. 11 (Waivers). There was no hearing assessing repayment of the “Failure to Attend School” fines to Elizabeth and Francisco, and neither Plaintiff was provided notice of his or her obligation to the court or possible arrest. The warrants that were issued for failing to comply with the NCOA converted the non-payment of fines into an automatically jailable offense as warrants issued for nonappearance, regardless of whether the NCOA notification had been received. See Leal Dep p. 128:14-22; Trevino Dep. 24:10-14.
Francisco De Luna Beginning on April 7, 2005 and ending in 2007, Francisco De Luna was issued a number of school-related tickets for misbehavior ranging for conduct such as disruption of class, failure to comply with directives, abusive language in school, and failure to attend school. See Exhibit 12 (Francisco’s School Tickets). All of his tickets were transferred to juvenile court. See Ex. 13 (Orders of Justice Court Transferring Cases to Juvenile Court). In all, Francisco received 24 tickets through December 2007 and they
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were all transferred to juvenile court. Exs. 12; 13. The juvenile court opened a case in November 2007 and ordered Francisco to be on probation. See Ex. 15 (Aff. of E. De Luna). Francisco’s mother never heard from the juvenile court again and Francisco continued to go to school through November of 2008 so that his probation would expire. They believed it had. Ex. 15 (Aff. of E. De Luna).
Even though his cases had been transferred to juvenile court and resolved through probation, the court of Justice of the Peace Mary Alice Palacios, Precinct 4, Place 2, issued a “birthday letter” or a Notice of Continuing Obligation to Appear after Francisco De Luna turned 17 on December 17, 2008. Ex. 29 (NCOA). Francisco never received the letter. Ex. 10, (Transcript of De Luna Arraignment). He did not appear and warrants for his arrest were issued for each of the school-related fines the court believed was outstanding. Ex. 6, (Leal Dep 90:21-25-91:1-15). Prior to issuing the capias pro fines, which are arrest warrants, Mary Alice Palacios’s court made no attempt to determine whether or not Francisco’s case had been resolved by the juvenile court. Leal Dep. 91:115. Furthermore, there is no record of any attempt – outside of one Notice of Continuing Obligation to Appear sent shortly after his 17th birthday -- to reach Francisco to inquire into his ability to pay, his willingness to pay, or the resolution of his juvenile court case.
Over two years later, on January 11, 2010, Francisco was arrested for public intoxication and taken to the Hidalgo County Jail. Def. Br. 74, ¶ 7. His mother, Elsa De Luna, spoke to jail officials shortly after he was arrested and was told that she needed approximately a small amount of money to bail him out of jail. See Ex. 15 (E. De Luna Aff.), ¶ 5. After his mother gathered the money to bail him out of jail for public intoxication, she called back and learned that she needed over $10,000 for “county
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charges.” Ex. 15 (E. De Luna Aff.) at ¶ 6. Elsa De Luna thought that Francisco’s school case had been resolved by the juvenile court and so informed the jail. Ms. De Luna was instructed to contact the issuing court of Mary Alice Palacios to try to arrange a payment plan or some other arrangement to allow Francisco to be released from jail. Ex. 15, (De Luna Aff.) ¶ 6. However, Palacios’s court would not permit staggered payment or service in exchange for jail time. Ex. 15, ¶ 6.
Francisco asserted his indigency by requesting a lawyer and answering “no” to the question of whether or not he could afford an attorney on the “Hidalgo County Sheriff’s Department Question[naire] Regarding Attorney Information.” See Ex. 16 (Sheriff’s Department Indigency Forms). The indigency questionnaires are filled out as part of the booking process. Trevino Dep. 47:22-48:6; Garza Dep. 39:22-24. This form was completed by a Hidalgo County Sheriff’s Department employee with the badge number 3949. Ex. 16.
After booking, Francisco spent the evening in jail and was brought to arraignment or magistration the next morning, where he was informed that there were twenty-four warrants open on him for school-related violations, all fine-only, non-jailable offenses. Ex. 10 (De Luna Transcript).
The video1 of Francisco’s arraignment began with Justice of the Peace Rosa Trevino reciting the general rights of all of the individuals who were being arraigned at the jail that morning. Ex. 17 (Video of Arraignments). The rights specified were, among others, the right to hire an attorney; the right to have an attorney present prior to and during any interview and questioning by peace officers or attorneys representing the
1 Arraignments that take place at the jail are generally done via videoconference so that judge does not have to go to the jail. See Trevino Dep. 53:18-54:13.
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state; and the right to remain silent. Ex. 17; See also Ex. 10 (Transcript of De Luna Arraignment).
Judge Trevino’s recitation of rights was followed by a number of arraignments where every single individual pleads guilty and no one was represented by an attorney. Exs. 17, 10. In fact, the transcript demonstrates that Francisco’s entire transaction with Judge Trevino lasted only a few minutes and mostly entailed her recital of fines that had already been assessed against Francisco by Mary Alice Palacios’s court. Exs. 10, 17. She then proceeded to sign 25 separate orders committing Mr. De Luna to jail for 101 days, the time necessary to “lay out” his fines at $100 per day. See Ex. 18 (Class C Commitment Orders). The Sheriff’s Department calculated the amount of time that Francisco had to serve. Garza Dep. 42:7-9.
It is undisputed that Judge Trevino made no attempt to determine whether or not Mr. De Luna could afford to pay the fines before committing him, nor did she offer him any alternatives to immediate commitment. Ex. 10 (Transcript of De Luna Hearing). There was no inquiry into whether or not Francisco’s failure to pay was willful. Exs. 10, 17. During the 18 days that he was incarcerated, Francisco suffered anxiety and fear. See De Luna Dep., 20:11-25; Ex. 23 (Expert Report and Disclosure of Thorne hereinafter “Expert Report”).
Elizabeth Diaz It is not disputed that Elizabeth Diaz is indigent. Dkt. 74, Ex. L. She was issued 3 school tickets beginning in November 2006 for failure to attend school. See Ex. 20 (Diaz Truancy Court Records). Throughout 2008, Elizabeth and her mother were ordered to appear at Precinct 4, Place 2 before Judge Mary Alice Palacios, but the judge
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rescheduled or court was cancelled. She was never given notice that she had to keep her address updated with the court. On January 27, 2009 a Notice of Continuing Obligation to Appear was issued ordering Elizabeth to appear in court. Ex. 29. Elizabeth did not receive it because the address the court had for her was incorrect. Ex. 27. In December 2009, IRRA – the charter school Elizabeth was attending -- issued a school ticket to Elizabeth for failure to attend. See Ex. 20 (Diaz Truancy Records). Elizabeth Diaz and her mother, Adelita Hernandez, appeared at municipal court on February 25, 2010 in response to the truancy summons related to the ticket from IRRA; Elizabeth was informed that she owed $1,603 in outstanding fines based on earlier charges on schoolrelated, fine-only misdemeanors. Ex. 21, (A. Hernandez Aff.). Elizabeth saw Judge Palacios regarding the new ticket. Def. Br., Ex. L. (Aff. of M. Cherry).
It is not disputed that Elizabeth did not see Judge Palacios regarding the schoolrelated charges for which warrants had been issued. Def. Br. 74, Ex. L. Nor is it disputed that Marcella Cherry (the court coordinator Elizabeth interacted with on February 25, 2010) did not want the responsibility of a “red-flagged warrant” individual being let free. Def. Br., Ex. L. As a result, Marcella Cherry or other court personnel alerted the Sheriff’s department that Elizabeth had outstanding warrants and Elizabeth was taken to jail. Def. Br., Ex. L. Although Ms. Diaz and her mother informed court officials that they could not afford to pay the fines, and inquired about community service options, Ms. Diaz was nonetheless immediately taken to Hidalgo County Jail from the courthouse when her warrants for fines were discovered. Def. Br., Ex. L.
After Elizabeth arrived at jail, she was arraigned and Justice of the Peace Bobby Contreras subsequently signed three orders committing her to jail to “lay out” the unpaid
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fines, without making any attempt to determine whether Ms. Diaz could afford to pay the fines or offering her any alternatives to immediate commitment. Ex. 18 (Commitment Orders); Ex. 22 (Transcript of Diaz Arraignment).
In addition to being involuntarily un-enrolled from her charter school while incarcerated in February 2010 (Diaz Dep, 288:4-7), Elizabeth Diaz suffered emotional harm from her incarceration in Hidalgo County jail in February 2010. See Ex. 23, (Expert Report). While incarcerated in the Hidalgo County jail in February 2010, she was “physically and verbally abused” by her cell mates. Ex. 28 (Diaz Dep. excerpt); see also Diaz Dep. 183: 7-9. The physical abuse she suffered was sexual in nature. Ex. 23 (Expert Report). She continues to suffer depression and PTSD as a result of her incarceration in February 2010. Ex. 23 (Expert Report); Diaz Dep. 251:18-15-252:1.
3. The Role of the Sheriff’s Department in Jailing Indigent Individuals Generally and Plaintiffs Specifically Guadalupe Trevino is the Sheriff of Hidalgo County. He oversees the Hidalgo
County Jail and is in charge of everything that occurs at the jail, including “[p]olicy creation, the execution, and implementation.” Trevino Dep. 31:10-14. He has held this position for 7 years. Trevino Dep. 8:20-21. Some individuals, like the plaintiffs and those listed in Exhibit 2, accused of the non-payment of fines and other Class C misdemeanors are committed to his jail.
There is a presumption in Hidalgo County that if an individual is physically in the Hidalgo County Jail, the individual is already convicted. Trevino Dep., p. 65:12-19. The County practice is to commit to jail, the individual identified on an executed capias pro fine issued from a Justice of the Peace. See Trevino Dep, 21-22. The Class C
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Commitment Orders are also considered arrest warrants. See Trevino Dep. p. 63:21-24. They are different from capias pro fines because the Sheriff’s Department considers an individual convicted once one of these has been issued. Trevino Dep. 64:1-4. As a result, when a Class C Commitment Order is entered, the Sheriff’s department jails the individual until he or she satisfies the fine or costs with the money or jail time…at $100 per day. Trevino Dep. 64:17-18. They will arrest an individual for the non-payment of when a capias pro fine is issued. Trevino Dep. 63:21-24.
4. The Hidalgo County Arraignment Process Magistration, or arraignment, is uniform in Hidalgo County. See Ex. 7 (Def.
Response to Requests for Production). Arraignment is handled by seven of the nine magistrates who rotate through handling all of the arraignments or magistrations per week for a week at a time. Leal Dep. 54:1-13. When conducting magistration or arraignment, Justices of the Peace rarely make indigency determinations. See Garza Dep. 39:16-24.
The fact that indigency determinations are rarely conducted is something that the County is aware of. Ex. 7 (Def. Response to Requests for Admissions). For a three year period, the defendants could not produce 50 written indigency determinations. See Def. Br., Ex. M. Instead, they produced 72 jail files – attached as Exhibit M to the Defendant’s Brief – only 41 of which contain determinations of indigency. Id. The County’s policy with respect to jailing indigent individuals for the non-payment of fines is that it will jail an “indigent adult defendant charged with a Class C Misdemeanor, who has pled guilty, has been assessed a fine and has subsequently failed to pay the fine, . . . immediately. If the defendant cannot pay the fine upon subsequent arrest and thereafter
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fails to raise the issue of his or her indigence as required by the case law construing indigency incarceration in Texas as set out in Garcia v. City of Abilene and Sorrells v. Warner, a magistrate, consistent with Code of Criminal Procedure § 45.046, can commit that defendant to jail. . .”. Ex. 7 (Def. Response to Request for Admissions).
III. The Plaintiffs’ Motion for Summary Judgment Should Be Granted Because The Defendants’ Practice of Jailing Indigent Defendants for Non-Payment of Fines without Indigency Determinations Violates the Equal Protection Clause and the Due Process Clause.
The facts described above show that Hidalgo County’s practice of jailing individuals without an indigency determination is generally unconstitutional, and unconstitutional as applied to the Named Plaintiffs. All the plaintiffs need to prove to prevail on a § 1983 claim against the municipality, is: (1) that the conduct complained of was committed by a person acting under the color of state law; and (2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
To establish municipal liability under § 1983 the Plaintiffs need to demonstrate that the “deprivation of a right protected by the Constitution or federal law is caused by an official policy.” Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). There are essentially five avenues for establishing local government liability under § 1983. A plaintiff may assert liability based on: (1) an illegal official governmental policy or decision; (2) an illegal custom or practice within the government; (3) a custom or policy of inadequate training, supervision, discipline, screening, or hiring; (4) illegal conduct of an official with final policymaking authority; or (5) a municipality's
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ratification of illegal acts. See Lopez v. City of Houston, 2005 WL 1770938 (S.D.Tex. July 25, 2005) (Emphasis Added) citing Monell v. Dep't of Social Servs. of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). As detailed below, the Plaintiffs have proven municipal liability for the County’s unconstitutional practice of jailing individuals for non-payment of fines without the benefit of indigency determinations.
1. The County’s Practice was Under of Color of Law for Monell Purposes. The conduct Plaintiffs complain of is “under color of law” because the Plaintiffs
can demonstrate the existence of a “custom” of the municipality which caused the constitutional violation at issue. Monell v. Dep’t of Social Servs. of City of New York, 463 U.S. 658, 694 (1978). In determining the appropriateness of claims against municipalities, “[t]he Court in Monell held that local governments may be the targets of a § 1983 action where official policy or governmental custom is responsible for a deprivation of rights protected by the constitution… .” Bennet v. City of Slidell, 728 F.2d 762, 766 (5th Cir. 1984) (Emphasis Added).
The “plaintiff[s] must show that there was either an official policy or an unofficial custom, adopted by the municipality, that was the moving force behind the claimed constitutional violation.” Duvall v. Dallas C’ty, Tx., 631 F.3d 203, 209 (5th Cir. 2011) (Emphasis Added); see also Bennet, 728 F.2d at 767 (finding “the Supreme Court to require that the offending policy (including policy embodied in custom) be the policy or custom of the city government…if that city is to be subject to liability as an actor under § 1983).
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Here, the Defendants’ practice of jailing indigent individuals for their inability to pay outstanding fines without conducting indigency determinations falls into the category of “custom” or “practice” that warrants municipal liability because it is persistent and widespread among all of the Justice and Municipal Courts. See Ex. 2 (Spreadsheet). Courts define “custom” as “evidence of a persistent widespread practice of government officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents government policy.” Arshad v. Congemi, No. 08-30061, 2009 WL 585633 at *8 (5th Cir. Mar. 9, 2009) (citing Burge v. st. Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003)); see also Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984).
With this definition in mind, if the Defendants only incarcerated individuals for the non-payment of fines from one municipal or justice court, there would be little evidence that the illegal practice the Plaintiffs complain of is a custom or policy. Ex. 2; Ex. 24. However, it is undisputed that individuals are incarcerated for the non-payment of fines that originate throughout Hidalgo County’s justice and municipal courts and that arraignment is uniform. Exs. 2, 7. Therefore, the practice of jailing individuals for the non-payment of fines without an indigency determination is a Hidalgo County custom.
In order to render a municipality liable “[a]ctual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority.” Webster, 735 F.2d at 841; see also Bennet, 728 F.2d at 768 (finding that “the persistent conduct must be attributable to the source of policy or law of the city, its governing body.”). Again, the Defendants had both actual and constructive knowledge of the widespread practice of the
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justice and municipal court custom of jailing individuals for the non-payment of fines without conducting indigency determinations.
The Justice of the Peace courts, at least one of which heard 500 truancy cases per day, were engaged in issuing warrants that were questioned by the County’s most senior lawyer over five years ago. See Leal Dep. 130:12-15; pp. 138-140. The County was actually aware that fines were converting to warrants because a parent complained about his treatment in the justice court of Mary Alice Palacios and as a result, the District Attorney sent a letter to the County Commissioners in or around 2000. See Leal Dep. pp. 135-139. The district attorney’s complaints involved the court’s jurisdiction, the clerks’ exercise of judicial discretion, and salaries. Leal Dep. pp. 135-9.
The parent contacted the County District Attorney when his daughter was “detained” on school grounds by a school law enforcement officer. Leal Dep. p. 135-9; See also Ex. 25 (complaint of Tony Castillo). She was in the courtroom – presumably at the school – waiting for the judge so the judge could see her. Leal Dep. p. 136 The parent attempted to remove her from the school courtroom, but the “court” officials were detaining her on a “warrant.” Leal Dep. p 137. The parent contacted the District Attorney and the District Attorney addressed his issues with the validity of the truancy court with the [county] commissioners. Leal Dep. p. 138.
Despite the fact that the District Attorney requested that the truancy courts stop issuing arrest, the County persisted and continued doing. Leal Dep, 139:4-17. To date, the practice continues. Ex. 4 (Defs’ Supp. Interrog).
Furthermore, the County continues to ratify the practice by claiming that the conversion of fines to jail time is permissible if the defendant – at arraignment – does not
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verbally assert indigency when a judge asks him if he understands the charges and fines assessed. See Ex. 4 (Def.’s Supp. Interrog); Ex. 7 (Def. Response to Requests for Admissions).
This ratification, on the part of the county, is all that is required for municipal liability to attach. See Lopez (noting that liability may be based on “a municipality’s ratification of illegal acts). Given the County’s actual and constructive knowledge of the practice, coupled with its ratification, municipal liability for Monell purposes has attached.
2. The Plaintiffs have Established that the Custom of Hidalgo County Violates Both the Due Process and the Equal Protection Clause of the Constitution. In addition to demonstrating that the County is a state actor for § 1983
purposes, the Plaintiffs are also entitled to prevail on their claim, and thus be entitled to summary judgment, because Hidalgo County’s custom of jailing individuals for nonpayment of fines without the benefit of a hearing on the issuance of the fines, themselves, or on the ability or willingness to pay the fines violates both the Due Process and the Equal Protection clause of the Constitution. Tate v. Short, 401 U.S. 392 (1971), and its progeny lay a foundation for requiring the procedural protection of indigent debtors facing imprisonment for unpaid fines. See Tate at 398. A fine cannot be automatically converted to jail time without a hearing. Id. A deprivation of liberty must be accompanied by notice and an opportunity for hearing “appropriate to the nature of the case.” See e.g. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
Nothing permits a municipality to impose a fine as a sentence and automatically convert it into a jail term. See Tate at 398 (“the Constitution prohibits the State from imposing a fine as a sentence and then automatically converting it into a jail term solely
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because the defendant is indigent and cannot forthwith pay the fine in full.”). Jailing an individual simply because he or she cannot afford to pay a fine amounts to discrimination based on economic status—a clear violation of Equal Protection because the poor, forced into jail, are punished much more severely than their wealthier counterparts who can pay their fines. Id. at 399 (finding that the “statutory ceiling cannot, consistently with the Equal Protection Clause, limit the punishment to payment of the fine if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine.”).
Texas addressed the Supreme Court’s decision in Tate with strong legislative policy permitting municipal and justice courts to incarcerate individuals for fine-related offenses that occurred prior to their 17th birthday only after a written determination of indigency. See Ex. 1 (45.046) (Emphasis Added). The plain language of the statute requires that this be done by a judge prior to incarceration. Ex. 1. The defendants consistently argue that they are free to ignore this statute and its plain language if a defendant does not raise indigency. Ex. 4 (Def. Supp. Interrog); Dkt. 74, (Def. Br.); Dkt 87 (Opposition to Motion for Class Cert.) (stating that “[t]he focus of the Plaintiffs’ case has been upon the requirements of Texas Code of Criminal Procedure (TCCP) §45.046 . . . In order for the mandates of TCCP §45.046 to apply one must assert indigency in the context of the inability to pay.”). However, nothing in the language of § 45.046 suggests that an individual arrested pursuant to this statute must assert indigency prior to an indigency determination being conducted by a judge. See Ex. 1.
Bearden reveals the manner in which ‘[d]ue process and equal protection principles converge’ in cases relating to the treatment of criminal defendants where those
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defendants are sentenced to monetary sanctions and fails to meet their financial obligations.” Id. “[T]he nature of the individual interest affected by the determination to jail a party for failure to pay a fine or restitution clearly supports the requirement of sufficient legal process.” Id. The defendants do not dispute that they do not follow the plain language of CCP § 45.046, which requires a written indigency determination prior to incarceration. Ex. 7. Rather, they argue that, despite the plain language of the text, they are not required to do one unless the defendant raises the issue. Ex. 7. As a result, Plaintiffs are entitled to judgment as a matter of law.
The County attempts to justify its process by claiming that juveniles plead guilty to the crimes, such as failure to attend school, when they are originally assessed and they are therefore accepting responsibility for the crimes. However, their process fails to recognize the difference between the consequence of a juvenile plea of guilty and the assignment of adult penalties for that plea and that transfer from one to the other requires a process. See Kent v. United States, 383 U.S. 541, 557 (1966) (recognizing due process required that juvenile was entitled to counsel and a hearing prior to transfer of his case from juvenile to adult court where “the difference between five years’ confinement and the death sentence” were potentially at stake); Barker v. Estelle, 913 F.2d 1433, 1440 (9th Cir. 1990) (affirming Kent and noting that it “held that due process requires that, before a juvenile can be transferred to an adult court, the juvenile must be given a hearing, effective assistance of counsel, access to records relied on by the court, and a statement of reasons for the juvenile court decision.”). While Kent and cases discussing juvenile transfer generally deal with the rights of juveniles who will be tried in an adult court
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rather than youth court, the due process principles are applicable here because the defendants’ rely upon the Plaintiffs’ convictions as juveniles to justify jailing them as adults. See Ex. 11(Waivers); Ex. 7 (Def. Resp. to Requests for Admission). If they are to be jailed for fines that they admitted to as juveniles, the level of process they are due must be increased. See Kent at 557 (discussing difference in consequences between the two courts and holding that due process requires more protection for juveniles subjecting themselves to incarceration than those subject to juvenile courts).
Here, despite clear constitutional requirements, there is very little process afforded young adults who are jailed for outstanding truancy or school-related warrants. At no point, after the imposition of the fine upon the Plaintiffs and those like them, does the Hidalgo County court system automatically examine the Plaintiffs’ ability to pay. Ex. 7 (Def. Resp. to Requests for Admissions). In the event that a capias pro fine is issued, there is no automatic inquiry into why payment was not made. Ex. 7 (Def. Resp. to Requests for Admissions). Despite the fact that CCP 45.046 provides a mechanism to prevent juveniles from being placed in jail for fines assessed against their parents, Hidalgo County converts responsibility for the fine from the adult to the child without ever ensuring that the child receives notice of the responsibility. Given that the failure to pay leads to immediate incarceration, Hidalgo County’s practice violates the due process clause.
3. The Plaintiffs Were Damaged by the County’s Unconstitutional Practices. Both Plaintiffs were harmed as a result of having their constitutional rights
violated. Lewis v. Woods, 848 F.2d 649, 651 (5th Cir.1988)( “[a] violation of constitutional rights is never de minimis, a phrase meaning so small or trifling that the
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law takes no count of it.”). By generally being incarcerated and deprived of their liberty as a result of the County’s practice of jailing them for the non-payment of fines without the benefit of an indigency determination, both were harmed and are entitled to compensatory and nominal damages. With regard to compensatory damages, “‘the basic purpose’ of § 1983 damages is ‘to compensate persons for injuries that are caused by the deprivation of constitutional rights.’” Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 307 n. 9 (1986) (quoting Carey v. Piphus, 435 U.S. 247, 254 (1978).
In addition, while illegally held in the Hidalgo County jail for the non-payment of school-related truancy fines Elizabeth was sexually assaulted. Diaz Dep. pp. 162-165; Ex. 23 (Expert Report). As a result of the incarceration, the undisputed expert testimony is that Elizabeth continues to suffer emotional harm as a result of her incarceration in February 2010 and is now suffering from posttraumatic stress disorder (PTSD). See Ex. 23 (Expert Report). And the trauma she experienced by being detained has “significantly impacted her life and functioning.” Ex. 23. (Expert Report). But for the County’s practice of jailing individuals who are issued fines as juveniles without the benefit of indigency determinations, neither Elizabeth nor Francisco would have suffered the harm of incarceration or the resulting emotional harm resulting from the incarceration.
Because the undisputed facts support the Plaintiffs § 1983 allegations, that Hidalgo County justice and municipal courts engaged in a custom that was ratified by the County Commissioners and carried out by the Sheriff, and that custom is unconstitutional, the Plaintiffs’ motion for summary judgment should be granted.
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IV. The Defendants’ Motion for Summary Judgment Should Be Denied Because It Is Not Supported By Evidence and Genuine Issues of Material Fact are Disputed.
The defendants’ motion for summary judgment should be denied for procedural and substantive reasons. The defendants brief is procedurally deficient and should be denied because it is not supported by citations to the record and some of the evidence submitted is inadmissible or otherwise unreliable. FED. R. CIV. PRO. 56. Unsupported allegations and conclusions without supporting evidence warrant dismissal of a motion for summary judgment. See generally Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir. 1980). Also, genuine issues of material fact are disputed and the defendants’ position is unsupported by the law. As a result, summary judgment for the defendants should not be granted. FED. R. CIV. PRO. 56.
a. The Defendants’ Motion is Not Supported by Citations to the Record as Required by Rule 56 (c). None of the defendants’ assertions of law or fact in Section II of their brief are
supported by citations to the record. See Def. Brief, Section II, pp 5-8. This alone makes their motion subject to dismissal. See Smith v. Brenoettsy, 158 F.3d 908, 911 (5th Cir.1998)(“The movant [for summary judgment] meets its initial burden by showing that the “evidence in the record would not permit the nonmovant to carry its burden of proof at trial.”) (Emphasis Added). The defendants’ brief is only partially and incomprehensibly supported by citations to “particular parts of materials in the record, including depositions, documents, . . .” as required by the rule regarding summary judgment. FED. R. CIV. PRO. 56(c)(1)(A). Furthermore, in ruling on a summary
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judgment motion, the trial court is only obliged to consider the material cited by a party in the motion paper. See FED. R. CIV. PRO. 56 (c) (3) (“The court need consider only the cited materials, but may consider the other materials in the record.”). Despite attaching thousands of pages without directing the court to a particular page or document within their exhibits, the defendants cite documents and affidavits that are either inaccurate or do not actually support the positions stated in their motion. Therefore, the defendants’ motion for summary judgment should be dismissed as unsupported by the evidence in the following ways.
b. Defendants’ Brief Contains Unsupported Statements of Fact and Inaccurate Statements of Law.
The defendants claim in their facts that “[i]t is undisputed that the Plaintiffs pled guilty to each and every offense, and the Plaintiffs’ complaint further concedes that there is no evidence that Diaz or De Luna ever satisfied the underlying obligations, while they were juveniles, either through payment or via some other alternative sentencing, despite having been given the opportunity to do so.” There are no citations to the record to support this allegation and a number of the “facts” alleged in this statement are inaccurate. First, the Plaintiffs’ Complaint clearly articulates that De Luna thought that he was pleading guilty to a charge of public intoxication. Dkt. 1, ¶ 100-101 (“Francisco plead guilty, understanding his plea to apply only to the PI charge.”). Second, there is evidence that De Luna satisfied his underlying obligations with the transfer of those obligations to juvenile court. De Luna’s mother understood his underlying obligations to be resolved through the juvenile court. Ex. 15, (Aff. of E. De Luna), ¶ 3. Third, it is
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disputed that either client was given an opportunity to resolve their obligations that they did not take advantage of. Ex. 15, (Aff. of E. De Luna), ¶ 3.
Next, the defendants claim that “the offenses remain unadjudicated, and, thus, lay dormant while Plaintiffs were juveniles.” Def. Br. at 6, ¶ 6. There is no citation for this statement and it is an inaccurate statement of law and fact. De Luna’s case was adjudicated in the juvenile court. See Ex. 14 (Palacios’ First Motion for New Trial), pp. 39-40. Mr. De Luna’s juvenile record was an exhibit to the criminal trial of Judge Palacios and to her First Motion for a New Trial and demonstrates that the case was adjudicated there. Ex. 14.
The defendants inaccurately assert that “Texas law requires that the judge presiding over unresolved cases such as these notify the former juveniles and newly classified adults of their continuing obligation to appear for offenses incurred as juveniles.” Def. Br., p. 6, ¶ 6. This is a false statement. The language of the relevant statute is Tex. Code of Criminal Procedure 45.060. It states that “(a)…an individual may not be taken into secured custody for offenses alleged to have occurred before the individual's 17th birthday” and “(b) [o]n or after an individual's 17th birthday, if the court has used all available procedures under this chapter to secure the individual's appearance to answer allegations made before the individual's 17th birthday, the court may issue a notice of continuing obligation to appear by personal service or by mail to the last known address and residence of the individual. The notice must order the individual to appear at a designated time, place, and date to answer the allegations detailed in the notice.” The defendants’ characterization of the judge’s duty as mandatory is inaccurate and
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misleading. Furthermore, non-receipt of the notice is an affirmative defense to imprisonment. See Ex. 1.
The Defendants cite an article from Texas Prosecutor magazine to support the position that the burden is on the criminal defendant to assert indigency when being incarcerated for non-payment of a fine-only offense. Def. Br., Ex. N. However, the article actually states that “Texas law is silent as to a judge’s responsibility to inquire about a defendant’s indigence,” creating the presumption that the burden is on the criminal defendant to bring the issue to the courts’ attention. Def. Br., Ex. N.
Finally, the defendants assert that De Luna waived his right to counsel and pled guilty to both public intoxication and the juvenile fine. Def. Br. at 6 ¶ 7. This is a mixed question of law and fact. The Plaintiffs have never conceded that the mass arraignments conducted in Hidalgo County where all of the inmates to be arraigned are read a list of rights and asked if they understand them constitutes a valid, knowing waiver of rights. Furthermore, the document entitled “Explanation and Waiver of Rights” De Luna and others signed as juveniles where he admitted guilt to the underlying school charges is not a document that can be used to allow a juvenile to waive his rights with regard to the alleged underlying charge turning into a fine and automatic jail time. Ex. 11 (De Luna Waiver). On that document, signed without the assistance of counsel, nowhere on the waiver was Francisco warned that he would responsible for the fines. Ex. 11 (Waiver). Rather, his mother signed the form signed “enter[ing] an appearance for all purposes, including the assessment of fees and costs (In [sic] the case of a parent or legal guardian only).” Ex. 11 (Waiver). Francisco was warned that if he violated the court’s order “a Contempt charge” could be filed in juvenile court. Ex.11 (Waiver). Therefore, the
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defendants’ assertion that Francisco pled guilty to the charges regarding the fines is inaccurate. Indeed, if the defendants are referring to Francisco’s alleged waiver in the arraignment, the video evidence demonstrates that if was neither knowing nor voluntary and Texas courts have reversed convictions where there is no record to show that a defendant was adequately warned about the dangers and disadvantages of selfrepresentation along with the failure to adequately inquire into defendant's capacity to voluntarily and intelligently waive his right to counsel. Gesselin v. State, 600 S.W.2d 309, 313-14 (Tx. Ct. Crim. App. 1980); Monasco v. State 2010 WL 4214765 unreported (Tx. Ct. Crim. App. 2010) citing Blankenship v. State, 673 S.W.2d 578, 583 (Tex. Ct. Crim. App.1984).
In the case of De Luna, had an inquiry into his ability to waive his rights been done, the court would have learned that he suffers from severe ADHD and struggled with learning issues in school. Ex. 30 (De Luna Educational Record).2 This would bear upon his ability to knowingly and voluntarily waive his rights in the case of the alleged waiver of rights at the arraignment. See Ex. 17 (Video). When De Luna pleads, it is not clear whether or not Judge Trevino was asking about the fines, the public intoxication, or both. As a result, the defendants have not established that Francisco knowingly and voluntarily waived his rights and pled guilty as an undisputed fact.
c. The Affidavit of Robert Leal is Not Based Upon Personal Knowledge. Affidavits supporting motions for summary judgment must be based upon
personal knowledge, set out facts that would be admissible, and show that that the affiant is competent to testify on the matter stated. See FED. R. CIV. PRO. 56 (c)(4). The
2 De Luna’s educational records demonstrate that he received special education services in school because his ADHD affected his ability to learn.
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defendants attached an affidavit of Court Administrator Robert Leal which contains a number of statements regarding subjects about which Mr. Leal was deposed and about which he could not possibly have personal knowledge. See Def. Br., Ex. 3 (Leal Aff.). Specifically, in his affidavit, Mr. Leal asserts that “[JP 4-2] compl[ies] with the law and statute [regarding the incarceration of the indigent] in everyway.” Def. Br., Ex. 3 at 2. This amounts to impermissible speculation regarding a legal fact that cannot be grounded in personal knowledge of the law because Mr. Leal only completed high school. See Leal Dep. p. 12. Mr. Leal’s assertion that the truancy court in Hidalgo County complies with the law is a conclusion of law that he is not qualified to make as a lay person with no formal legal training. See L.E. Eguia v. Tompkins, 756 F.2d 1130, 1136 (5th Cir. 1985) (failing to “condone the use of” . . .an affidavit where the affiant lacked knowledge of “at least one of [the] facts”). Courts have “long recognized that mere statements of conclusions of law or ultimate fact cannot shift the summary judgment burden to the nonmovant [for summary judgment].” Galindo v. Precision American Corp., 754 F.2d 1212, (Tex. App. Ct. 1985) citing Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir.1978); Benton-Volvo-Metairie, Inc. v. Volvo Southwest, Inc., 479 F.2d 135, 138-39 (5th Cir.1973) (nonmovant survives motion for summary judgment, without countering movant's showing, where movant's affidavit “set forth only ultimate facts or conclusions”); FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2738 (1983).
Finally, Leal’s affidavit states that Elizabeth Diaz appeared “and Judge Palacios was present in chambers” and “she then indicated she could not pay the fine and needed more time” cannot be based upon personal knowledge. Def. Br., Ex. B (Leal Aff.). At his deposition taken on September 28, 2011, Mr. Leal stated that he was not in a position
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to testify as to whether or not Elizabeth asserted her indigency when he was directly asked about it. Leal Dep. 68:15-19. His testimony was that “she dealt more with Marcella Cherry” and that Elizabeth “interacted with Marcella Cherry.” Leal Dep. 67:711. He states that he “showed up,” but that he was checking in and not interacting with Elizabeth. Leal Dep. 67:7-11.
d. There is a Genuine Issue of Material Fact Disputed by the Plaintiffs that Prevents the Entry of Summary Judgment in Favor of the Defendants. The defendants’ motion should be denied because there are material facts in their
brief that are disputed. Facts are “material” if they are “facts that might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Here, as mentioned throughout, the Plaintiffs claims revolve around the County’s incarceration of individuals in Hidalgo County for the non-payment of fines without any inquiry into why the fine was not paid or whether or not the individual is capable of paying it in violation of the Supreme Court’s holdings that such inquiries are required to avoid equal protection and due process violations. See, e.g., Tate; Bearden. The application of these rulings in Texas CCP 45.046 is also at issue in this case. The defendants’ position is that despite these decisions and the Texas Code, a criminal defendant may be immediately incarcerated for non-payment of fines if he does not assert indigency. The defendant also claim their practice is not widespread or endorsed, thus there is no municipal liability. Not only are the defendants’ facts disputed, the evidence supports the Plaintiffs’ position.
The Plaintiffs Asserted Their Indigency.
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First, both Elizabeth and Francisco asserted indigency to Hidalgo County officials when they were questioned about their financial ability to afford a lawyer. Ex. 16. (Sheriff’s Dept. Indigency Forms). An assertion of indigency is not required or contemplated by 45.046, but in the context of asking for a lawyer – stating you can not afford one, prompts an examination of your financial means in both law and fact.
Furthermore, it is undisputed that Elizabeth Diaz asserted her indigency to Marcella Cherry, court official that she appeared before, and that they took her word for it. See Def. Br., p. 7, ¶ 8 (“Judge Palacios’s court took Ms. Diaz at her word that she was indigent.”). The only indigency assertion that is disputed is Francisco’s, but his jail records contain the documentation of his request for counsel and his assertion that he cannot afford counsel. Ex. 16. In addition, Francisco’s mother called the issuing court to attempt to pay the fines in installments – indicating the family’s inability to pay – but was not permitted to do anything less than pay the full amount. Ex. 15 (Aff. of E. De Luna).
The Plaintiffs’ assertions of indigency completely undermine Defendants’ legal claim. Hidalgo County’s position is that it only does indigency determinations when an individual alerts the court to his or her indigency. Ex. 4. Both Plaintiffs did this, but it had no effect on the “pay or lay” system in effect in Hidalgo County. Because this issue is disputed and material, judgment cannot be entered in favor of the Defendants. FED. R. CIV. PRO. 56(c).
e. The Defendants Do Not Have Evidence to Support Their Motion For Summary Judgment.
The defendants have offered no proof of the major factual assertions that support their motion for summary judgment. Their motion is based upon the assertion that a
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“constitutionally-sound” (sic) policy is in place in Hidalgo County and that its JPs “take the defendant at his or her word and provide alternative means to satisfy [a] fine” if a defendant asserts indigency.” Def. Br., p. 16. The defendants’ other major argument is supported by the unsupported allegation that the Plaintiffs did not assert their indigency. Dkt. 74, p. 17. Both are unsupported by the evidence and disputed by the Plaintiffs. Where a motion for summary judgment is filed by defendant and the parties submit contradictory evidence, doubts are to be resolved in favor of the non-moving party. See Palmer v. BRG of Ga., Inc., 498 U.S. 46, 49 n. 5 (1990) (citing Anderson, 477 U.S. at 255). The evidence is construed “in favor of the nonmoving party, however, only when an actual controversy exists, that is, when both parties have submitted evidence of contradictory facts[,]” Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999), but only reasonable inferences will be drawn from the evidence in favor of the nonmoving party. Eastman Kodak Co. v. Image Tech, Servs., Inc., 504 U.S. 451, 469 n. 14 (1992). Where one party submits no evidence at all, the fact may be viewed as undisputed in favor of the party that submitted evidence. Fed. R. Civ. Pro. 56 (e)(2) (“If a party fails to properly support an assertion of fact . . . the court may consider the fact undisputed for purposes of the motion.”). Here, where the evidence of the Plaintiffs contradicts the Defendants’ major legal claim – that the Plaintiffs did not assert indigency – summary judgment must be denied because the evidence must be construed in favor of the non-moving party.
c. The Defendants Are Not Entitled to Judgment as a Matter of Law. The defendants’ motion is premised upon the fact that Garcia v. City of Abilene, 890 F. 2d 773 (5th Cir. 1989), and the case that follows it, Sorrells, are applicable to this case.
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In addition to the factual dispute described above, Garcia cannot be read to permit the immediate incarceration of individuals for non-payment of fines. The facts of both Garcia and Sorrells are unique. And the Texas Code of Criminal Procedure governing the issuance of capias pro fines (or warrants) for the arrest of individuals accused of crimes committed before the age of 17 does not invoke either case or the proposition that the defendant has an obligation to assert his or her indigency in order to benefit from this Constitutional protection. See Ex. 1, (CCP 45.046).
The current state of the constitutional law regarding indigency determinations requires that, prior to incarceration for non-payment of a fine, a judge determine whether or not: 1) the individual can pay; and 2) whether or not the individual has made an effort to pay. Bearden at 662. Bearden v. Georgia rearticulates the Equal Protection principle in Tate – that the inability to pay a fine cannot automatically be converted to imprisonment for indigent defendants, but extends the rights of indigents by requiring a hearing before revoking the probation of an indigent who is unable to pay his outstanding fines that will explore the reasons for non-payment and alternatives for satisfying debt. See Bearden, 461 U.S. 660, 662 (1983) (holding that the “the trial court erred in automatically revoking probation because petitioner could not pay his fine, without determining that petitioner had not made sufficient bona fide efforts to pay, and finding that alternative forms of punishment would be inadequate to meet the States penalogical interests.”) (Emphasis Added).
Bearden and Tate are valid and controlling precedent in the Fifth Circuit. See Doe v. Angelina, 733 F. Supp. 245, 253 (E.D. Tex. 1990). Their prohibition against
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precisely the system in place in Hidalgo County was followed the district court in by Doe v. Angelina, 733 F. Supp. 245, 253 (E.D. Tex. 1990).
The Defendants’ reliance on Garcia and Sorrells is misplaced and their interpretation of both is inaccurate. In Garcia, the petitioner had never been incarcerated, but she alleged that the City of Abilene “discriminated against her based on her economic status” even though she failed to ever go to court, make an appearance, or cooperate in any manner with the court making it impossible for the court to conduct an indigency determination prior to her incarceration. Id. at 775. She was never incarcerated, so there was no hearing. Id. The Fifth Circuit affirmed the district court’s failure to find a civil rights violation in this case however, the decision was based on the facts of the case and it never strayed away from the principles of Tate and Bearden regarding treatment of indigents. Id. at 775-6. Likewise, Sorrells is a fact-specific unpublished opinion, which, like Garcia, does not overrule Tate or Bearden and must be read in conjunction with them. The plaintiff’s claim in Sorrells is focused on the constitutionality of the issuance of the capias pro fine and the defendant’s subsequent arrest, given the fact that the police knew that he [Sorrells]was indigent. The unpublished district court decision in Sorrells is not binding, but is nevertheless it is easily distinguishable because the Plaintiff class does not argue that they are entitled to an indigency determination prior to the issuance of a capias3 – unlike Sorrells – the issue here is that once a defendant is arrested for nonpayment of fines a judge is obligated, pursuant to 45.046, to determine if the defendant is indigent and/or whether or not the non-payment of the fine is willful. See Ex. 1, CCP
3 The Plaintiffs do not argue that an indigency determination at the time the fine is issued is an unconstitutional process. Rather, if no indigency determination has ever been done, then an indigency determination must be done prior to incarceration.
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45.046. The scenario described in Sorrells is completely different from the one at hand and factually distinguishable.
The body of law in this area has evolved with two things remaining. Prior to incarceration for non-payment of fine, there must be some indication that the nonpayment was willful if the defendant is indigent. The Texas Legislature has addressed this issue in Texas with CCP 45.046 and the plain language of the statute requires that written indigency determinations be made prior to incarceration for non-payment of fines. 45.046. There is no indication that defendants must raise the issue with the court in order to benefit from the constitutional protections implicated. See Ex. 1 (45.046). Therefore, defendants’ reliance on Garcia and its progeny is misplaced and their motion for summary judgment should be denied because they have violated the Constitutional rights of the Plaintiffs and the Plaintiff Class.
CONCLUSION For the reasons stated herein, the Plaintiffs respectfully request that the Court deny the Defendants Motion for Summary Judgment and grant the Plaintiffs’ Motion for Summary Judgment.
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Respectfully submitted this the 10th day of November by:
___/s/ _Courtney A. Bowie__________ Courtney A. Bowie, Esq. (#1120127) Miss. Bar No. 102528 Attorney-in-Charge American Civil Liberties Union Foundation Racial Justice Program 125 Broad St., 18th Floor New York, NY10004 cbowie@aclu.org Phone: 212-549-2682 Fax: 212-549-2654
Dana B. Levy, Esq., Texas Bar No. 24031869 Michael Caddell, Esq., Texas Bar No. 03576700 Caddell & Chapman 1331 Lamar Street, suite 1070 Houston, Texas77010
CERTIFICATE OF SERVICE I hereby certify that on November 10, 2011, the foregoing document was served on all counsel of record by via the ECF filing system.
/s Courtney Bowie Courtney A. Bowie
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
FRANCISCO DE LUNA and ELIZABETH DIAZ, individually and on behalf of all others similarly situated,
Plaintiffs, v. HIDALGO COUNTY, TEXAS; GUADALUPE TREVINO, in his official CIVIL ACTION NO. 7:10-CV-00268 capacity as Hidalgo County Sheriff; MARY ALICE PALACIOS, GILBERTO SAENZ, JESUS MORALES, BOBBY CONTRERAS, ROSA E. TREVINO, LUIS GARZA, ISMAEL OCHOA, CHARLIE ESPINOZA, E. “SPEEDY” JACKSON, in their official capacities as Hidalgo County Magistrates and Justices of the Peace,
Defendants.
ORDER GRANTING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT The Court has considered the parties’ motion and hereby GRANTS the Plaintiffs’
Motion for Summary Judgment and DENIES the Defendants’ Motion for Summary Judgment.
SIGNED this the _______ day of _____________, 2011.
JUDGE RANDY CRANE PRESIDING
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APPENDIX – INDEX OF DOCUMENTS TO PLAINTIFFS’ MOTION FOR AND

OPPOSITION TO SUMMARY JUDGMENT

Exhibit 1 Exhibit 2
Exhibit 3 Exhibit 4 Exhibit 5 Exhibit 6 Exhibit 7 Exhibit 8
Exhibit 9 Exhibit 10 Exhibit 11 Exhibit 12 Exhibit 13
Exhibit 14 Exhibit 15 Exhibit 16 Exhibit 17 Exhibit 18 Exhibit 19
Exhibit 20 Exhibit 21 Exhibit 22 Exhibit 23 Exhibit 24 Exhibit 25 Exhibit 26
Exhibit 27 Exhibit 28 Exhibit 29 Exhibit 30

Texas Code of Criminal Procedure § 45.046 Spreadsheet of Individuals Committed to Jail for NonPayment of Fines
Deposition of Bertha Garza Defendants’ Supplemental Answers to Interrogatories The Monitor - School gym doubles as juvenile courtroom Deposition of Roberto Leal Defendants' Response to Plaintiffs' Requests for Admissions Activity Report for Justice Courts - Hidalgo Precinct 4 Place 2 Deposition of Guadalupe Trevino Jr. Transcript of De Luna Arraignment Explanation and Waiver of Rights for De Luna and Diaz Francisco’s School Tickets Orders of Justice Court Transferring Caseof De Luna to Juvenile Court
Palacios’ First Mot. For New Trial Affidavit of Elsa De Luna Sheriff’s Dept. Indigency Forms for De Luna and Diaz Videos of De Luna and Diaz Arraignments Class 'C' Commitment Orders Edinburg CISD Warning to Elizabeth Diaz dated November 29, 2006
Elizabeth's Truancy Court Records Affidavit of Adelita Hernandez Elizabeth Diaz Arraignment Transcript Expert Report(s) and Disclosure of Dr. Thorne JP Fine List Supplemental Response to Request for Production Complaint against Judge Mary Alice Palacios from Tony Castillo Jr
Return to Sender Envelope Deposition of Elizabeth Diaz, pp. 162-165 Notices of Continuing Obligation to Appear Educational Record of Francisco De Luna

39

 
 U.S. District Court SOUTHERN DISTRICT OF TEXAS (McAllen) CIVIL DOCKET FOR CASE #: 7:10−cv−00268

CLOSED,MAG

De Luna et al v. Hidalgo County et al Assigned to: Judge Randy Crane Cause: 42:1983 Civil Rights Act
Plaintiff Francisco De Luna individually and behalf of all others similarly situated

Date Filed: 07/26/2010 Date Terminated: 04/30/2012 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Lisa Graybill Attorney at Law 1005 Edgecliff Terrace Austin, TX 78704 512−971−2927 Email: lisagraybill@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clayton Alan Morton Morgan, Lewis &Bockius, LLP 1000 Louisiana St. Suite 4000 Houston, TX 77002 713−890−5117 Fax: 713−890−5001 Email: cam@caddellchapman.com (Inactive) ATTORNEY TO BE NOTICED
Courtney Alyssa Bowie ACLU Foundation Racial Justice Project 125 Broad Street 18TH Floor New York, NY 10004 212−549−2682 Email: cbowie@aclu.org ATTORNEY TO BE NOTICED
Cynthia B Chapman Caddell Chapman 1331 Lamar Ste 1070 Houston, Tx 77010 713−751−0400 Fax: 713−751−0906 Email: cbc@caddellchapman.com ATTORNEY TO BE NOTICED
Dana Brooke Levy Caddell Chapman PC 1331 Lamar, Ste 1070 Houston, TX 77010 713−751−0400 Email: dbl@caddellchapman.com ATTORNEY TO BE NOTICED
Gouri Narayan Bhat Berk Law PLLC 4408 Camacho Street Austin, TX 78723

Plaintiff
Elizabeth Diaz individually and behalf of all others similarly situated

(512) 785−5144 Fax: (512) 814−2010 Email: gouri@berklawdc.com TERMINATED: 04/01/2011 ATTORNEY TO BE NOTICED
Mark Stewart Whitburn Whitburn &Pevsner, PLLC P.O. Box 270247 Austin, TX 78727 682/521−4789 Fax: 512/519−2098 Email: marwhit13@gmail.com ATTORNEY TO BE NOTICED
Michael A Caddell Caddell &Chapman 1331 Lamar Ste 1070 Houston, TX 77010 713−751−0400 Fax: 713−751−0906 Email: mac@caddellchapman.com ATTORNEY TO BE NOTICED
represented by Lisa Graybill (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Clayton Alan Morton Caddell &Chapman 1331 Lamar Suite 1070 Houston, TX 77010 713−751−0400 Fax: 713−751−0906 Email: cam@caddellchapman.com (Inactive) ATTORNEY TO BE NOTICED
Courtney Alyssa Bowie (See above for address) ATTORNEY TO BE NOTICED
Cynthia B Chapman (See above for address) ATTORNEY TO BE NOTICED
Dana Brooke Levy (See above for address) ATTORNEY TO BE NOTICED
Gouri Narayan Bhat (See above for address) TERMINATED: 04/01/2011 ATTORNEY TO BE NOTICED
Mark Stewart Whitburn (See above for address) ATTORNEY TO BE NOTICED
Michael A Caddell

V. Defendant Hidalgo County, Texas
Defendant Guadalupe Trevino in his official capacity as Hidalgo County Sheriff
Defendant Mary Alice Palacios in her official capacity as Hidalgo County Magistrate and Justice of the Peace
Defendant Gilberto Saenz in his official capacity as Hidalgo County Magistrate and Justice of the Peace

(See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV Ortiz &Millin LP 1305 East Nolana Ave Ste F McAllen, TX 78504 956−687−4567 Fax: 956−631−1384 Email: jmillin@ortizmillin.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez Ortiz Millin LP 1305 E Nolana Ste F McAllen, TX 78504 956−687−4567 Fax: 956−631−1384 Email: jwhernandez@ortizmillin.com ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez (See above for address) ATTORNEY TO BE NOTICED
represented by Brandy M. Wingate Smith Law Group, PC 809A Savannah Ave #481 McAllen, TX 78503 956−683−6330 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez

Defendant Jesus Morales in his official capacity as Hidalgo County Magistrate and Justice of the Peace
Defendant Bobby Contreras in his official capacity as Hidalgo County Magistrate and Justice of the Peace
Defendant Rosa E. Trevino in her official capacity as Hidalgo County Magistrate and Justice of the Peace
Defendant Luis Garza in his official capacity as Hidalgo County Magistrate and Justice of the Peace
Defendant Ismael Ochoa in his official capacity as Hidalgo County Magistrate and Justice of the Peace
Defendant Charlie Espinoza in his official capacity as Hidalgo County Magistrate and Justice of the Peace

(See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez (See above for address) ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez (See above for address)

Defendant
E. "Speedy"Jackson in his official capacity as Hidalgo County Magistrate and Justice of the Peace

ATTORNEY TO BE NOTICED
represented by John Andrew Millin , IV (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jose Wilfredo Hernandez (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/26/2010
07/27/2010 07/27/2010 08/26/2010 09/09/2010 09/09/2010 09/17/2010
09/17/2010
09/21/2010 09/21/2010 10/19/2010

# Docket Text
1 COMPLAINT against Bobby Contreras, Charlie Espinoza, Luis Garza, Hidalgo County, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino (Filing fee $ 350 receipt number 0541−6698286) filed by Elizabeth Diaz, Francisco De Luna. (Attachments: # 1 Civil Cover Sheet, # 2 Summons for County)(Graybill, Lisa) (Entered: 07/26/2010)
2 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Pretrial Conference set for 10/6/2010 at 09:30 AM before Judge Randy Crane. Parties notified.(bgarces, ) (Entered: 07/27/2010)
Summons Issued as to Hidalgo County, Texas, filed.(bgarces, ) (Entered: 07/27/2010)
3 RETURN of Service of SUMMONS Executed as to Hidalgo County, Texas served on 8/19/2010, answer due 10/18/2010, filed.(Graybill, Lisa) (Entered: 08/26/2010)
4 STIPULATION re: Extension of Time to File Answer by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed.(Millin, John) (Entered: 09/09/2010)
5 STIPULATION re: Extension of Time to File Answer by Bobby Contreras, filed.(Millin, John) (Entered: 09/09/2010)
6 Unopposed MOTION for Extension of Time For Filing of Defendants' Answer and Unopposed Motion for Continuance of the Court's Initial Pretrial and Scheduling Conference by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. Motion Docket Date 10/8/2010. (Attachments: # 1 Exhibit A: Stipulation to Extend Time for Filing Answer, # 2 Proposed Order)(Millin, John) (Entered: 09/17/2010)
7 Unopposed MOTION for Extension of Time For Filing of Defendants' Answer and Unopposed Motion for Continuance of the Court's Initial Pretrial and Scheduling Conference by Bobby Contreras, filed. Motion Docket Date 10/8/2010. (Attachments: # 1 Exhibit A: Stipulation to Extend Time for Filing Answer, # 2 Proposed Order)(Millin, John) (Entered: 09/17/2010)
8 ORDER granting 6 and 7 Motion for Extension of Time Answer due by 10/19/2010 Dispositive Motion Filing due by 10/19/2010.(Signed by Judge Randy Crane) Parties notified.(rcoronado, ) (Entered: 09/21/2010)
9 NOTICE OF RESCHEDULING OF INITAL PRETRIAL CONFERENCE: Initial Conference set for 11/3/2010 at 09:30 AM before Judge Randy Crane.(Signed by Judge Randy Crane) Parties notified.(rcoronado, ) (Entered: 09/21/2010)
10 Opposed MOTION to Dismiss Based on Rule 12(b)(1) and 12(b)(6) and Opposed Motion to Strike by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. Motion Docket Date 11/9/2010. (Attachments: # 1 Proposed Order Granting Motion to Dismiss and Motion to

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11/03/2010
11/09/2010

Strike)(Millin, John) (Entered: 10/19/2010)
11 Opposed MOTION to Dismiss Based on Rule 12b(1) and 12(b)(6) and Opposed Motion to Strike by Bobby Contreras, filed. Motion Docket Date 11/9/2010. (Attachments: # 1 Proposed Order Granting Motion to Dismiss and Motion to Strike)(Millin, John) (Entered: 10/19/2010)
12 ANSWER to 1 Complaint, by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed.(Millin, John) (Entered: 10/19/2010)
13 ANSWER to 1 Complaint, by Bobby Contreras, filed.(Millin, John) (Entered: 10/19/2010)
14 DEMAND for Trial by Jury by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed.(Millin, John) (Entered: 10/20/2010)
15 DEMAND for Trial by Jury by Bobby Contreras, filed.(Millin, John) (Entered: 10/20/2010)
16 REPORT of Rule 26(f) Planning Meeting by Francisco De Luna, Elizabeth Diaz, filed.(Caddell, Michael) (Entered: 10/20/2010)
17 CERTIFICATE OF INTERESTED PARTIES by Francisco De Luna, Elizabeth Diaz, filed.(Caddell, Michael) (Entered: 10/20/2010)
18 DESIGNATION of John A. Millin IV as attorney in charge of Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed.(Millin, John) (Entered: 10/25/2010)
19 DESIGNATION of John A. Millin IV as attorney in charge of Bobby Contreras, filed.(Millin, John) (Entered: 10/25/2010)
20 CERTIFICATE OF INTERESTED PARTIES by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed.(Millin, John) (Entered: 10/25/2010)
21 CERTIFICATE OF INTERESTED PARTIES by Bobby Contreras, filed.(Millin, John) (Entered: 10/25/2010)
Minute Entry for proceedings held before Judge Randy Crane. The Court administered Oath of Admission to SD/TX to Attorney Bhat. Initial PRETRIAL and Scheduling CONFERENCE held on 11/3/2010. The Court noted that the pending [10,11] motions to dismiss are not yet ripe and responses have not yet been filed. The Court addressed the issue of class action certification. Counsel for the plaintiff indicated that a motion to amend the complaint will be filed. If necessary defendant would have to re−file their motions to dismiss, otherwise plaintiff needs to file a response the pending motions to dismiss. Appearances: John Andrew Millin; Gouri N. Bhat/Dana Levy.(ERO:Richard Cortez [9:48−9:49/10:04−10:21])(Law Clerk: S. Rodriguez), filed.(lcervantes) (Entered: 11/03/2010)
22 SCHEDULING ORDER. Amended Pleadings due by 3/11/2011. Joinder of Parties due by 3/11/2011 Discovery due by 5/6/2011. Dispositive Motion Filing due by 5/20/2011. Non−Dispositive Motion Filing due by 5/20/2011. Joint Pretrial Order due by 6/28/2011. Pretrial Conference set for 7/5/2011 at 09:30 AM before Judge Randy Crane Jury Selection set for 7/6/2011 at 09:30AM before Judge Randy Crane Motion Hearing set for 6/7/2011 at 09:30 AM before Judge Randy Crane.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 11/03/2010)
23 First AMENDED COMPLAINT with Jury Demand against Bobby Contreras, Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus

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03/31/2011 03/31/2011

Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino filed by Elizabeth Diaz, Francisco De Luna. (Attachments: # 1 Complaint)(Caddell, Michael) (Entered: 11/09/2010)
24 Second MOTION to Dismiss Under FRCP 12(b) and Motion to Strike by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. Motion Docket Date 12/14/2010. (Attachments: # 1 Proposed Order)(Millin, John) (Entered: 11/23/2010)
25 Second MOTION to Dismiss Under FRCP12(b) and Motion to Strike by Bobby Contreras, filed. Motion Docket Date 12/14/2010. (Attachments: # 1 Proposed Order)(Millin, John) (Entered: 11/23/2010)
26 ANSWER to 23 Amended Complaint/Counterclaim/Crossclaim etc., by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed.(Millin, John) (Entered: 11/23/2010)
27 ANSWER to 23 Amended Complaint/Counterclaim/Crossclaim etc., by Bobby Contreras, filed.(Millin, John) (Entered: 11/23/2010)
28 DEMAND for Trial by Jury by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed.(Millin, John) (Entered: 11/23/2010)
29 DEMAND for Trial by Jury by Bobby Contreras, filed.(Millin, John) (Entered: 11/23/2010)
30 RESPONSE in Opposition to 25 Second MOTION to Dismiss Under FRCP12(b) and Motion to Strike, 24 Second MOTION to Dismiss Under FRCP 12(b) and Motion to StrikeSecond MOTION to Dismiss Under FRCP 12(b) and Motion to Strike, filed by Francisco De Luna, Elizabeth Diaz. (Caddell, Michael) (Entered: 12/14/2010)
31 REPLY to Response to 24 Second MOTION to Dismiss Under FRCP 12(b) and Motion to StrikeSecond MOTION to Dismiss Under FRCP 12(b) and Motion to Strike, filed by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino. (Millin, John) (Entered: 01/06/2011)
32 REPLY to Response to 25 Second MOTION to Dismiss Under FRCP12(b) and Motion to Strike, filed by Bobby Contreras. (Millin, John) (Entered: 01/06/2011)
33 MOTION to Amend by Bobby Contreras, Francisco De Luna, Elizabeth Diaz, Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. Motion Docket Date 4/20/2011. (Attachments: # 1 Proposed Order)(Caddell, Michael) (Entered: 03/30/2011)
34 MOTION for Protective Order by Bobby Contreras, Francisco De Luna, Elizabeth Diaz, Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. Motion Docket Date 4/20/2011. (Attachments: # 1 Proposed Order)(Caddell, Michael) (Entered: 03/30/2011)
35 MOTION for Gouri Narayan Bhat to Withdraw as Attorney by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 4/21/2011. (Bhat, Gouri) (Entered: 03/31/2011)
36 AMENDED SCHEDULING ORDER. ( Discovery due by 7/8/2011., Dispositive Motion Filing due by 7/22/2011., Non−Dispositive Motion Filing due by 7/22/2011., Joint Pretrial Order due by 8/29/2011., Pretrial Conference set for 9/6/2011 at 09:30 AM before Judge Randy Crane, Jury Selection set for 9/7/2011 at 09:30AM before Judge Randy Crane, Motion Hearing set for 8/19/2011 at 09:30 AM before Judge Randy Crane), Motion(s) terminated:.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 03/31/2011)

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37 PROTECTIVE ORDER Motion(s) terminated: 34 MOTION for Protective Order.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 03/31/2011)
38 ORDER granting 35 Motion to Withdraw as Attorney. Attorney Gouri Narayan Bhat terminated.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 04/01/2011)
39 Sealed Event, filed. (With attachments) (Entered: 04/19/2011)
40 Sealed Event, filed. (Entered: 05/05/2011)
41 MOTION to Compel Deposition of Mary Alice Palacios by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 6/3/2011. (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)(Levy, Dana) (Entered: 05/13/2011)
42 ORDER Setting Hearing on Motion 41 MOTION to Compel Deposition of Mary Alice Palacios : Motion Hearing set for 5/25/2011 at 12:00 PM before Judge Randy Crane.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 05/19/2011)
43 *DOCUMENT FILED INCORRECTLY. ATTORNEY WILL REFILE CORRECT DOCUMENT AS #44. MOTION for Courtney A. Bowie to Appear as Attorney by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 6/10/2011. (Levy, Dana) Modified on 5/23/2011 (rcoronado, ). (Entered: 05/20/2011)
44 AMENDED 43 MOTION( Motion Docket Date 6/10/2011.), MOTION for Courtney A. Bowie to Appear as Attorney by Francisco De Luna, Elizabeth Diaz, filed. (Attachments: # 1 Proposed Order)(Levy, Dana) (Entered: 05/20/2011)
45 ORDER granting 44 Plaintiff's Motion for Courtney A. Browie to Appear as Attorney−in−Charge.(Signed by Judge Randy Crane) Parties notified.(rcoronado, ) (Entered: 05/23/2011)
46 ORDER Setting Hearing on Defendants' Motion for Mental Examination of Plaintiffs set for 5/25/2011 at 12:00 PM before Judge Randy Crane.(Signed by Judge Randy Crane) Parties notified.(rcoronado, ) (Entered: 05/24/2011)
47 RESPONSE in Opposition to 41 MOTION to Compel Deposition of Mary Alice Palacios, filed by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino. (Attachments: # 1 Proposed Order)(Millin, John) (Entered: 05/25/2011)
Minute Entry for proceedings held before Judge Randy Crane. First, the Court administered the oath of admission to the Southern District of Texas to Attorney Courtney A. Bowie. Case called on the docket for MOTION HEARING held on 5/25/2011. The Court addressed counsel on pending discovery motions, responses and the status of settlement. The Court denied the motion to Quash and Granted 41 Motion to Compel Deposition as Fifth Amendment right asserted by Palacios; 39 Sealed Event−motion no longer opposed and the Court granted the defendants unopposed motion. The Court noted that the pending motions to dismiss remain under advisement. Appearances: Courtney A. Bowie/Brian Keller/Rachel Goodman; John A. Millin, IV.(ERO: Richard Cortez [12:07−12:36]) (Law Clerk: S. Rodriguez), filed.(lcervantes) (Entered: 06/15/2011)
48 Opposed MOTION to Compel Discovery Responses by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 6/29/2011. (Attachments: # 1 Exhibit B, # 2 Exhibit C, # 3 Exhibit D, # 4 Exhibit E, # 5 Exhibit F, # 6 Exhibit G, # 7 Exhibit H, # 8 Exhibit A)(Graybill, Lisa) (Entered: 06/08/2011)
49 Opposed MOTION to Modify The Scheduling Order by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 7/6/2011. (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)(Graybill, Lisa) (Entered: 06/15/2011)

06/24/2011 06/28/2011 07/08/2011 07/08/2011 07/11/2011 07/11/2011 07/11/2011 07/11/2011
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07/19/2011

50 ORDER granting in part and denying in part 24 Motion to Dismiss and Denying Motion to Strike.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 06/24/2011)
51 Opposed MOTION to Compel Discovery Responses by Mary Alice Palacios by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 7/19/2011. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Graybill, Lisa) (Entered: 06/28/2011)
52 Joint MOTION to Amend 36 Scheduling Order,, Terminate Motions, by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 7/29/2011. (Bowie, Courtney) (Entered: 07/08/2011)
53 Unopposed MOTION to Withdraw 49 Opposed MOTION to Modify The Scheduling Order by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 7/29/2011. (Bowie, Courtney) (Entered: 07/08/2011)
54 ORDER granting 53 Motion to Withdraw; withdrawing 49 Opposed MOTION to Modify The Scheduling Order.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 07/11/2011)
55 ORDER granting 48 Motion to Compel Discovery Responses.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 07/11/2011)
56 ORDER Setting Hearing on Pending Motions − 51 Opposed MOTION to Compel Discovery Responses by Mary Alice Palacios : Motion Hearing set for 7/22/2011 at 09:30 AM before Judge Randy Crane.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 07/11/2011)
57 AMENDED SCHEDULING ORDER: ( Discovery due by 10/7/2011., Dispositive Motion Filing due by 10/21/2011., Non−Dispositive Motion Filing due by 10/21/2011., Joint Pretrial Order due by 11/28/2011., Pretrial Conference set for 12/5/2011 at 09:30 AM before Judge Randy Crane, Jury Selection set for 12/6/2011 at 09:30AM before Judge Randy Crane, Motion Hearing set for 11/18/2011 at 09:30 AM before Judge Randy Crane), Motion(s) terminated: 52 Joint MOTION to Amend 36 Scheduling Order.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 07/11/2011)
***Set Scheduling Order Settings: Motion Hearing set for 7/22/2011 at 09:30 AM before Judge Randy Crane Motion Hearing set for 11/18/2011 at 09:30 AM before Judge Randy Crane (bgarces, ) (Entered: 07/11/2011)
58 Opposed MOTION for Continuance of Plaintiffs' Motion to Compel the Discovery Responses of Mary Alice Palacios by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. Motion Docket Date 8/5/2011. (Attachments: # 1 Exhibit A: Verification, # 2 Proposed Order)(Millin, John) (Entered: 07/15/2011)
59 RESPONSE in Opposition to 51 Opposed MOTION to Compel Discovery Responses by Mary Alice Palacios, filed by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino. (Millin, John) (Entered: 07/18/2011)
60 ORDER RESETTING HEARING ON PENDING MOTIONS: Motion Hearing on Plaintiffs' Motion to Compel the Discovery Responses by Mary Alice Palacios is reset for 8/19/2011 at 09:30 AM before Judge Randy Crane), 58 Opposed MOTION for Continuance of Plaintiffs' Motion to Compel the Discovery Responses of Mary Alice Palacios−MOOT.(Signed by Judge Randy Crane) Parties notified.(rcoronado, ) (Entered: 07/19/2011)
61 RESPONSE in Opposition to 58 Opposed MOTION for Continuance of Plaintiffs' Motion to Compel the Discovery Responses of Mary Alice Palacios, filed by Francisco De Luna, Elizabeth Diaz. (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)(Bowie, Courtney) (Entered: 07/19/2011)

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NOTICE of Setting. Telephone Conference set for Wednesday, 07/20/2011 at 01:30 PM before Judge Randy Crane, filed. All parties also telephonically notified.(lcervantes) (Entered: 07/19/2011)
Minute Entry for proceedings held before Judge Randy Crane. TELEPHONE CONFERENCE in−chambers held on 7/20/2011. The Court addressed discovery disputes and directed counsel to agree on a date for deposition to be held in the courtroom before this Court. Appearances: John A. Millin, IV; Courtney A. Bowie.(ERO:N/A−not recorded), filed.(lcervantes) (Entered: 08/29/2011)
62 ORDER CANCELLING MOTIONS HEARING AND SETTING DEPOSITION: ( Deposition of Mary Alice Palacios set for 8/25/2011 at 08:30 AM before Judge Randy Crane) (Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 07/26/2011)
63 MOTION for Reconsideration of 55 Order on Motion to Compel by Hidalgo County, Texas, filed. Motion Docket Date 8/24/2011. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Ramirez, Dennis) (Entered: 08/03/2011)
64 Opposed MOTION for Sanctions by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 8/24/2011. (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)(Graybill, Lisa) (Entered: 08/03/2011)
65 RESPONSE in Opposition to 63 MOTION for Reconsideration of 55 Order on Motion to Compel, filed by Francisco De Luna, Elizabeth Diaz. (Bowie, Courtney) (Entered: 08/23/2011)
66 RESPONSE in Opposition to 64 Opposed MOTION for Sanctions, filed by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino. (Attachments: # 1 Exhibit A: Supplement to Interrogatory Answers, # 2 Exhibit B: Second Supplement to Interrogatory Answers, # 3 Exhibit C: Supplement to Responses to Requests for Production, # 4 Proposed Order denying Plaintiffs' Motion for Sanctions)(Millin, John) (Entered: 08/23/2011)
67 Supplemental RESPONSE in Opposition to 51 Opposed MOTION to Compel Discovery Responses by Mary Alice Palacios, filed by Mary Alice Palacios. (Attachments: # 1 Exhibit A: Mary Alice Palacios' Motion for New Trial Part 1, # 2 Exhibit A: Mary Alice Palacios' Motion for New Trial Part 2, # 3 Exhibit A: Mary Alice Palacios' Motion for New Trial Part 3)(Millin, John) (Entered: 08/24/2011)
Minute Entry for proceedings held before Judge Randy Crane. Case called on the docket for deposition. Proceedings held on 8/25/2011. The Court granted the Motion to Appear Pro Hac Vice of Attorney Brandy M. Wingate, tendered for filing. The Court presided over the deposition of witness Mary Alice Palacios until concluded. The Court directed counsel for the plaintiffs to electronicially file the exhibits provided to the Court. The Court addressed counsel on discovery issues and admonished defense counsel that the Court will consider imposing sanctions if necessary. The Court addressed the pending 63 Motion to Reconsider Order on Motion to Compel and ordered deadines for compliance or by mutual agreement of counsel. Counsel for the plaintiffs urged motion for attorney fees − matter taken under advisement. The Court directed counsel to file a motion for status hearing and a suggested hearing date. Appearances: John A. Millin, IV/Brandy M. Wingate; Courtney A. Bowie/Rachel E. Goodman.(ERO: Nancy Valdez [8:46−2:06] (Law Clerk: S. Rodriguez), filed.(lcervantes) (Entered: 08/25/2011)
68 MOTION for Brandy Wingate to Appear Pro Hac Vice by Mary Alice Palacios, filed. Motion Docket Date 9/15/2011. (bgarces, ) (Entered: 08/29/2011)
69 ORDER granting 68 Motion for Brandy Wingate to Appear Pro Hac Vice.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 08/29/2011)
70 Opposed MOTION for Status Hearing by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 10/28/2011. (Attachments: # 1 Exhibit A)(Bowie, Courtney) (Entered: 10/07/2011)

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71 Opposed MOTION to Amend 57 Scheduling Order,,, Terminate Motions,, by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 10/28/2011. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bowie, Courtney) (Entered: 10/07/2011)
72 AMENDED SCHEDULING ORDER ( Dispositive Motion Filing due by 11/10/2011., Non−Dispositive Motion Filing due by 11/10/2011., Joint Pretrial Order due by 12/27/2011., Pretrial Conference set for 1/3/2012 at 09:30 AM before Judge Randy Crane, Jury Selection set for 1/4/2012 at 09:30AM before Judge Randy Crane, Motion Hearing set for 12/9/2011 at 09:30 AM before Judge Randy Crane), Motion(s) terminated: 71 Opposed MOTION to Amend 57 Scheduling Order,, 70 Opposed MOTION for Status Hearing.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 10/13/2011)
73 ORDER GRANTING EMERGENCY OPPOSED MOTION TO EXTEND DEADLINES AND AMEND CASE MANAGEMENT ORDER: 64 Motion for Sanctions taking under advisement.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 10/13/2011)
74 MOTION for Summary Judgment by Hidalgo County, Texas, filed. Motion Docket Date 11/8/2011. (Attachments: # 1 Proposed Order, # 2 Exhibit A: Plaintiff's First Amended Complaint, # 3 Exhibit B: Affidavit of Robert Leal, # 4 Exhibit C: Transcript of Elizabeth Diaz Arraignment, # 5 Exhibit D: Transcript of Francisco De Luna Arraignment, # 6 Exhibit E: Interrogatory Responses of Elizabeth Diaz, # 7 Exhibit F: Interrogatory Responses of Francisco De Luna, # 8 Exhibit G: Transcript excerpts of Elizabeth Diaz deposition, # 9 Exhibit H: Transcript excerpts of Francisco De Luna deposition, # 10 Exhibit I: Dana Levy letter, # 11 Exhibit J: Trial transcript of Lee Roy Trevino)(Millin, John) (Entered: 10/18/2011)
75 EXHIBITS re: 74 MOTION for Summary Judgment by Hidalgo County, Texas, filed.(Millin, John) (Entered: 10/18/2011)
76 EXHIBITS re: 74 MOTION for Summary Judgment by Hidalgo County, Texas, filed.(Millin, John) (Entered: 10/18/2011)
77 EXHIBITS re: 74 MOTION for Summary Judgment by Hidalgo County, Texas, filed.(Millin, John) (Entered: 10/18/2011)
78 EXHIBITS re: 74 MOTION for Summary Judgment by Hidalgo County, Texas, filed.(Millin, John) (Entered: 10/18/2011)
79 EXHIBITS re: 74 MOTION for Summary Judgment by Hidalgo County, Texas, filed.(Millin, John) (Entered: 10/18/2011)
80 EXHIBITS re: 74 MOTION for Summary Judgment by Hidalgo County, Texas, filed.(Millin, John) (Entered: 10/19/2011)
81 EXHIBITS re: 74 MOTION for Summary Judgment by Hidalgo County, Texas, filed. (Attachments: # 1 Exhibit 3 of 49, # 2 Exhibit 4 of 49, # 3 Exhibit 5 of 49, # 4 Exhibit 6 of 49, # 5 Exhibit 7 of 49, # 6 Exhibit 8 of 49, # 7 Exhibit 9 of 49, # 8 Exhibit 10 of 49, # 9 Exhibit 11 of 49, # 10 Exhibit 12 of 49, # 11 Exhibit 13 of 49, # 12 Exhibit 14 of 49, # 13 Exhibit 15 of49, # 14 Exhibit 16 of 49, # 15 Exhibit 17 of 49, # 16 Exhibit 18 of 49, # 17 Exhibit 19 of 49, # 18 Exhibit 20 of 49, # 19 Exhibit 21 of 49, # 20 Exhibit 22 of 49, # 21 Exhibit 23 of 49, # 22 Exhibit 24 of 49, # 23 Exhibit 25 of 49, # 24 Exhibit 26 of 49, # 25 Exhibit 27 of 49, # 26 Exhibit 28 of 49, # 27 Exhibit 29 of 49, # 28 Exhibit 30 of 49, # 29 Exhibit 31 of 49, # 30 Exhibit 32 of 49, # 31 Exhibit 33 of 49, # 32 Exhibit 34 of 49, # 33 Exhibit 35 of 49, # 34 Exhibit 36 of 49, # 35 Exhibit 37 of 49, # 36 Exhibit 38 of 49, # 37 Exhibit 39 of 49, # 38 Exhibit 40 of 49, # 39 Exhibit 41 of 49, # 40 Exhibit 42 of 49, # 41 Exhibit 43 of 49, # 42 Exhibit 44 of 49, # 43 Exhibit 45 of 49, # 44 Exhibit 46 of 49, # 45 Exhibit 47 of 49, # 46 Exhibit 48 of 49, # 47 Exhibit 49 of 49)(Millin, John) (Entered: 10/19/2011)
82 NOTICE of Appearance by Mark Whitburn on behalf of Francisco De Luna, Elizabeth Diaz, filed. (Whitburn, Mark) (Entered: 10/20/2011)
83 Opposed MOTION to Compel Discovery Responses by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa,

11/04/2011 11/04/2011 11/04/2011 11/07/2011
11/07/2011 11/10/2011 11/10/2011
11/10/2011 11/10/2011 11/11/2011 11/14/2011 11/16/2011

Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. Motion Docket Date 11/14/2011. (Attachments: # 1 Exhibit A: ACLU Billing Records, # 2 Exhibit B: Caddell Billing, # 3 Exhibit C: Bhat Berk Law Billing, # 4 Exhibit D: Correspondence dated February 10, 2011, # 5 Exhibit E: Francisco De Luna Answers to Interrogatories, # 6 Exhibit F: Elizabeth Diaz Answers to Interrogatories, # 7 Proposed Order)(Millin, John) (Entered: 10/21/2011)
84 Unopposed MOTION for Extension of Time Response to Defendants' Motion for Summary Judgment by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 11/25/2011. (Attachments: # 1 Proposed Order)(Whitburn, Mark) (Entered: 11/04/2011)
85 RESPONSE in Opposition to 83 Opposed MOTION to Compel Discovery Responses, filed by Francisco De Luna, Elizabeth Diaz. (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, # 10 Exhibit 10)(Bowie, Courtney) (Entered: 11/04/2011)
86 ORDER granting 84 Motion for Extension of Time to File Response to Motion for Summary Judgment by 11/10/2011.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 11/04/2011)
87 Opposed MOTION Deny Class Certification by Bobby Contreras, Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. Motion Docket Date 11/28/2011. (Attachments: # 1 Exhibit A, # 2 Exhibit B Part 1, # 3 Exhibit B Part 2, # 4 Exhibit B Part 3, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H)(Hernandez, Jose) (Entered: 11/07/2011)
88 ORDER mooting and denying 83 Motion to Compel and 87 Motion to Compel.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 11/07/2011)
89 MOTION to Compel Compliance with Court Order( Motion Docket Date 12/1/2011.), MOTION for Discovery, MOTION for Sanctions by Hidalgo County, Texas, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Millin, John) (Entered: 11/10/2011)
90 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 12/1/2011. (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, # 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 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30)(Bowie, Courtney) (Entered: 11/10/2011)
91 Opposed MOTION to Certify Class by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 12/1/2011. (Attachments: # 1 Proposed Order)(Whitburn, Mark) (Entered: 11/10/2011)
92 MEMORANDUM in Support re: 91 Opposed MOTION to Certify Class by Francisco De Luna, Elizabeth Diaz, filed. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E)(Whitburn, Mark) (Entered: 11/10/2011)
93 PROPOSED ORDER Order Denying Class Certification re: 87 Opposed MOTION Deny Class Certification, filed.(Hernandez, Jose) (Entered: 11/11/2011)
94 Letter from Taurean K Brown re: copies Exhibit 17 and Exhibit 24, filed. (forwarded to Chambers) (bgarces, ) (Entered: 11/15/2011)
95 ORDER denying 89 Motion to Compel.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 11/16/2011)

11/21/2011
11/28/2011 11/28/2011
11/29/2011 11/29/2011 11/30/2011
12/05/2011 12/08/2011 12/09/2011
12/12/2011 12/12/2011

96 Opposed MOTION for Continuance of Jury Selection, Trial Setting, and All Deadlines, Opposed MOTION for Extension of Time File Response To Plaintiff's Motion for Summary Judgment( Motion Docket Date 12/12/2011.), Opposed MOTION to Modify Scheduling Order by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit)(Millin, John) (Entered: 11/21/2011)
97 RESPONSE in Opposition to 87 Opposed MOTION Deny Class Certification, filed by Francisco De Luna, Elizabeth Diaz. (Whitburn, Mark) (Entered: 11/28/2011)
98 RESPONSE in Opposition to 96 Opposed MOTION for Continuance of Jury Selection, Trial Setting, and All DeadlinesOpposed MOTION for Extension of Time File Response To Plaintiff's Motion for Summary JudgmentOpposed MOTION to Modify Scheduling Order, filed by Francisco De Luna. (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)(Bowie, Courtney) (Entered: 11/28/2011)
99 Supplemental INITIAL DISCLOSURES by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Millin, John) (Entered: 11/29/2011)
100 ORDER on 96 Motion for Continuance/for Extension of Time and to Modify ( Response to Motion for Summary Judgment due by 12/12/2011).(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 11/29/2011)
101 RESPONSE to 91 Opposed MOTION to Certify Class filed by Bobby Contreras, Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino. (Attachments: # 1 Exhibit A, # 2 Exhibit B, Part 1, # 3 Exhibit B, Part 2, # 4 Exhibit B, Part 3, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Proposed Order Denying Class Certification)(Hernandez, Jose) (Entered: 11/30/2011)
102 REPLY to Response to 91 Opposed MOTION to Certify Class, filed by Francisco De Luna, Elizabeth Diaz. (Whitburn, Mark) (Entered: 12/05/2011)
103 REPLY to Response to 91 Opposed MOTION to Certify Class, filed by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino. (Millin, John) (Entered: 12/08/2011)
Minute Entry for proceedings held before Judge Randy Crane. MOTION HEARING held on 12/9/2011. The Court addressed the issue of certification and counsel presented arguments. The Court takes the matter under advisement. The Court will re−set trial for the February docket. Appearances: John Andrew Millin, IV, Rey Ortiz, Mark Weitz, Lema Barazi; Courtney Alyssa Bowie, Lisa Graybill, Mark Stewart Whitburn.(ERO: Richard Cortez [11:20−12:07]) (Law Clerk: S. Rodriguez), filed.(lcervantes) (Entered: 01/10/2012)
104 SCHEDULING ORDER. Dispositive Motion Filing due by 12/16/2011. Non−Dispositive Motion Filing due by 12/16/2011. Joint Pretrial Order due by 1/30/2012. Pretrial Conference set for 2/6/2012 at 09:30 AM before Judge Randy Crane Jury Selection set for 2/7/2012 at 09:30AM before Judge Randy Crane Motion Hearing set for 1/13/2012 at 09:30 AM before Judge Randy Crane.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 12/12/2011)
105 RESPONSE in Opposition to 90 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment, filed by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino. (Attachments: # 1 Exhibit A: Dr. Thorne's Report Regarding Diaz, # 2 Exhibit B1: Dr. Thorne Deposition, # 3 Exhibit B2: Dr. Thorne Deposition, # 4

12/16/2011 01/09/2012 01/09/2012
01/23/2012
01/23/2012 01/27/2012
02/01/2012 02/15/2012 02/16/2012 02/16/2012
02/16/2012
02/17/2012

Exhibit B3: Dr. Thorne Deposition, # 5 Exhibit B4: Dr. Thorne Deposition, # 6 Exhibit B5: Dr. Thorne Deposition, # 7 Exhibit C: JP Affidavits, # 8 Exhibit D: Defendants' Supplemental Answer to Plaintiffs' Interrogatory No. 8, # 9 Proposed Order)(Millin, John) (Entered: 12/12/2011)
106 REPLY to Response to 90 Cross MOTION for Summary Judgment and Opposition to Defendants' Motion for Summary Judgment, filed by Francisco De Luna, Elizabeth Diaz. (Whitburn, Mark) (Entered: 12/16/2011)
107 ORDER FOR SUPPLEMENTAL BRIEFING by 1/23/12.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 01/09/2012)
108 AMENDED SCHEDULING ORDER. Joint Pretrial Order due by 2/27/2012. Pretrial Conference set for 3/5/2012 at 09:30 AM before Judge Randy Crane Jury Selection set for 3/6/2012 at 09:30AM before Judge Randy Crane Motion Hearing set for 2/17/2012 at 09:30 AM before Judge Randy Crane.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 01/09/2012)
109 BRIEF ON ISSUE OF PLAINTIFFS' STANDING by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. (Attachments: # 1 Exhibit A: Order Suspending Mary Alice Palacios)(Millin, John) (Entered: 01/23/2012)
110 Supplemental BRIEF Demonstrating Standing of Named Plaintiffs re: 107 Order by Francisco De Luna, Elizabeth Diaz, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Bowie, Courtney) (Entered: 01/23/2012)
111 Supplemental BRIEF On the Issue of Plaintiffs' Standing by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. (Attachments: # 1 Exhibit 1: Francisco De Luna Deposition Excerpts, # 2 Exhibit 2: Elizabeth Diaz Deposition Excerpts)(Millin, John) (Entered: 01/27/2012)
112 REPLY to Defendants' Response to Plaintiffs' Supplemental Brief, filed by Francisco De Luna, Elizabeth Diaz. (Attachments: # 1 Exhibit 1)(Bowie, Courtney) (Entered: 02/01/2012)
113 ORDER granting in part and denying in part 74 Motion for Summary Judgment; granting in part and denying in part 90 Motion for Summary Judgment; denying 91 Motion to Certify Class.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 02/15/2012)
114 Opposed MOTION for Referral to ADR by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 3/8/2012. (Bowie, Courtney) (Entered: 02/16/2012)
115 RESPONSE to 114 Opposed MOTION for Referral to ADR filed by Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino. (Attachments: # 1 Exhibit A: ACLU Press Release)(Millin, John) (Entered: 02/16/2012)
116 AMENDED SCHEDULING ORDER. Joint Pretrial Order due by 4/24/2012. Pretrial Conference set for 4/30/2012 at 09:30 AM before Judge Randy Crane Jury Selection set for 5/1/2012 at 09:30AM before Judge Randy Crane Motion Hearing set for 4/13/2012 at 09:30 AM before Judge Randy Crane.(Signed by Judge Randy Crane) Parties notified.(szellers, ) (Entered: 02/17/2012)
Minute Entry for proceedings held before Judge Randy Crane. MOTION HEARING held on 2/17/2012. Agruments held regarding 114 Opposed MOTION for Referral to ADR. Counsel to advise the Court by next Thursday whether or not they are in an agreement to proceed with trial scheduled in March. (ETT: 2−3 days) The Court announced it will vacate the scheduling order that was just entered in this case. Appearances:Lema Barazi,. John Andrew Millin, IV, Courtney Alyssa Bowie.(ERO:Richard Cortez [10:11−10:32]), filed.(bgarces, ) (Entered: 02/17/2012)

03/29/2012 04/09/2012
04/12/2012 04/12/2012 04/16/2012 04/19/2012 04/24/2012 04/24/2012 04/29/2012 04/30/2012
04/30/2012

117 ORDER denying 64 Motion for Sanctions.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 03/29/2012)
118 Agreed MOTION to Cancel Motions Hearing by Bobby Contreras, Francisco De Luna, Elizabeth Diaz, Charlie Espinoza, Luis Garza, Hidalgo County, Texas, E. "Speedy"Jackson, Jesus Morales, Ismael Ochoa, Mary Alice Palacios, Gilberto Saenz, Guadalupe Trevino, Rosa E. Trevino, filed. Motion Docket Date 4/30/2012. (Bowie, Courtney) (Entered: 04/09/2012)
Oral ORDER granting 118 Agreed Motion to Cancel Motions Hearing. CANCELLED setting for Friday, 04/13/2012, an order is forthcoming (Judge Randy Crane) Parties notified.(lcervantes) (Entered: 04/12/2012)
119 ORDER GRANTING AGREED MOTION TO CANCEL MOTIONS HEARING for 4/13/12.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 04/12/2012)
120 Witness List by Elizabeth Diaz, filed.(Bowie, Courtney) (Entered: 04/16/2012)
121 Pretrial Disclosures by Hidalgo County, Texas, filed.(Millin, John) (Entered: 04/19/2012)
122 MOTION In Limine to Preclude Defendant's Witness by Elizabeth Diaz, filed. Motion Docket Date 5/15/2012. (Bowie, Courtney) (Entered: 04/24/2012)
123 PRETRIAL MEMORANDUM by Elizabeth Diaz, filed.(Bowie, Courtney) (Entered: 04/24/2012)
124 Joint MOTION to Dismiss per Rule 41 by Francisco De Luna, Elizabeth Diaz, filed. Motion Docket Date 5/21/2012. (Attachments: # 1 Exhibit B)(Bowie, Courtney) (Entered: 04/29/2012)
Minute Entry for proceedings held before Judge Randy Crane. Final PRETRIAL CONFERENCE held on 4/30/2012. The Court announced that it had signed earlier today the order granting Joint MOTION to Dismiss per Rule 41. Appearances: John Andrew Millin, IV.(ERO: Richard Cortez [9:48−9:50]) (Law Clerk: S. Rodriguez), filed.(lcervantes) (Entered: 04/30/2012)
125 ORDER OF DISMISSAL.(Signed by Judge Randy Crane) Parties notified.(bgarces, ) (Entered: 04/30/2012)