Case 1:14-cv-00366-LY Document 1 Filed 04/29/14 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

AUSTIN LAWYERS GUILD; CARL

§

GOSSETT, DAVID GRASSBAUGH,

§

MARK SAMPSON, and FRANCIS

§

WILLIAMS, for themselves and those

§

similarly situated; and the PRISON

§

JUSTICE LEAGUE,

§

Plaintiffs

§

v.

§

§

SECURUS TECHNOLOGIES, INC;

§

TRAVIS COUNTY SHERIFF’S OFFICE, §

and GREG HAMILTON, in his official

§

capacity; TRAVIS COUNTY DISTRICT §

ATTORNEY’S OFFICE, and ROSEMARY §

LEHMBERG, in her official capacity; and §

TRAVIS COUNTY ATTORNEY’S

§

OFFICE, and DAVID ESCAMILLA, in his §

official capacity.

§

Defendants.

§

Cause No. 1:14-cv-366

PLAINTIFFS’ CLASS ACTION

Plaintiffs respectfully file this lawsuit to stop Defendants from illegally recording

attorneys’ confidential calls with their clients in the county jail, and prosecutors illegally using

those recordings, and will show:

JURISDICTION AND VENUE

1. Jurisdiction is conferred on this Court by 28 U.S.C. §§1331, 1343.

2. Venue in this Court is proper because Defendants reside in this judicial district; and

the relevant events occurred in Travis County, Texas. 28 U.S.C. §1391

PARTIES

3. Carl Gossett, David Grassbaugh, Mark Sampson, and Francis Williams are

attorneys who routinely represent clients housed in the downtown Travis County Jail (TCJ) and

the Travis County Correctional Complex (TCCC) in Del Valle regarding criminal matters

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pending in local courts. They routinely speak with those clients remotely via telephone and videoconferencing services provided at TCJ and TCCC exclusively by Securus Technologies.
4. The Austin Lawyers Guild is an incorporated, membership-based organization, created for the purpose of promoting social justice in the Austin community. Its members include criminal defense attorneys, who routinely speak with clients in TCJ and TCCC remotely via telephone and videoconferencing services provided exclusively by Securus Technologies.
5. The Prison Justice League is an incorporated, membership-based organization, whose members are people incarcerated in Texas. PJL’s mission is to improve conditions in Texas prisons. Since discovering Defendants’ unlawful invasions of attorney-client communication, PJL began devoting resources for outreach, education, and other advocacy on behalf of TCCC inmates regarding the matters cited in this lawsuit. Doing so is consistent with PJL’s overall mission, but also diverts resources from its normal projects, which Defendants have made necessary.
6. Travis County Sheriff’s Department and Greg Hamilton, the Sheriff, operate TCJ and TCCC and are responsible for the inmates held there. They are also responsible for all programing and services in the jail, including telephone and video communications, for which they have contracted with the private entity Securus Technologies.
7. Securus Technologies, Inc. is a private corporation, founded and headquartered in Dallas, Texas. It has contracts with prisons and jails across the nation, including in Travis County, to provide telephone and video conferencing services for inmates.
8. The Travis County Attorney’s Office and David Escamilla, the County Attorney, prosecute misdemeanors in Travis County. The Travis County District Attorney’s Office and Rosemary Lehmberg, the District Attorney, prosecute felonies in Travis County.
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STATEMENT OF FACTS 9. A person is arrested in Austin or Travis County is typically brought to TCJ downtown to be booked. TCJ is run by the Sheriff’s Department. In most cases, if the Sheriff’s Department plans to hold that person for more than a short time, it soon transfers the individual to TCCC in Del Valle, Texas. 10. Attorneys routinely contact their clients in both TCJ and TCCC by phone or videoconference to discuss confidential matters. They do so with the understanding their conversations are private. Similarly, inmates understand remote conversations with their attorneys are confidential and not recorded. 11. TCJ and TCCC’s phone and videoconferences services are provided by Securus Technologies. Its software automatically records communications between inmates and the outside world, including (and unlawfully) inmates’ communication with attorneys. It stores those recordings in a computer server, to which the Sheriff’s Department has access. 12. The Sheriff’s Department tells the public it does not record attorney-client calls. For instance, its “Jail Information” webpage says an inmate’s calls to his attorney “are free of charge and are not recorded.”1 Similarly, Securus Technology’s website promises “[video] visits are secure and completely private for legal counsel.”2 13. But in reality, Securus Technology and the Sheriff’s Department do record confidential attorney-client communications. They also disclose those recorded conversations to prosecutors in the Travis County and District Attorneys’ Offices. 14. In both offices, prosecutors have procured recordings of confidential attorney-client communication from the Sheriff’s Department and/or Securus Technologies and listened to
1 “Jail Information,” Travis County Sheriff’s Office, at https://www.tcsheriff.org/inmate-a-jail-info/jailinformation 2 “Legal Visits,” http://apps.securustech.net/VideoVisitation/LegalVisits.asp
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them. Some prosecutors have disclosed copies of those records to defense attorneys among other discovery materials; some have used that knowledge to their tactical advantage without admitting they obtained or listened to the recordings.
15. Although defense attorneys in Austin have discerned Defendants’ practices and confronted them, Defendants appear to have no intention of ceasing their unlawful, unconstitutional eavesdropping and invasion of attorney-client communication.
CAUSES OF ACTION A. Federal Wiretap Act (18 U.S.C. § 2510, et seq)
16. The Federal Wiretap Act broadly prohibits intercepting, disclosing, or using the contents of any wire, oral, or electronic communication.
17. Defendants have violated (and continue to violate) both attorneys’ and inmates’ rights under the Federal Wiretap Act. The individual Plaintiffs and the members of the Austin Lawyers Guild are directly affected, and the Prison Justice League has been forced to redirect resources to address Defendants’ unlawful activity.
18. Securus Technologies and the Sheriff’s Department have acted (and continue to act) in concert to intercept confidential communications between plaintiff attorneys and inmates, and to disclose those confidential communications to local prosecutors, in violation of the Act.
19. The Travis County and District Attorneys have used (and are using) those intercepted communications in violation of the Act.
B. Texas Wiretap Act (Tex. Civ. Prac. & Rem. Code § 123.001, et seq) 20. Each Defendant is violating the Texas Wiretap Act when it:  “intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication;”  “uses or divulges information that he knows or reasonably should know was obtained by interception of the communication;” or 4

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 “as… a common communication common carrier, either personally or through an agent or employee, aids or knowingly permits interception or attempted interception of the communication.”
Tex. Civ. Prac. & Rem. Code § 123.002 (a). 21. Defendants have violated (and continue to violate) Plaintiff attorneys and inmates’
rights under the Texas Wiretap Act. The individual Plaintiffs and the members of the Austin Lawyers Guild are directly affected, as is the Prison Justice League.
C. Fourth, Fifth, and Sixth Amendments to the United States Constitution 22. The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches.
Defendants have violated the Fourth Amendment rights of individual Plaintiffs and the members of the Austin Lawyers Guild, and those of inmates, which harms the Prison Justice League.
23. The Sixth Amendment entitles criminal defendants to effective assistance of counsel, which includes confidential attorney-client communication. Similarly, the Fourteenth Amendment protects an inmate’s right to access the courts, which is violated when government officials infringe on confidential attorney-client communication. Because jail inmates’ rights are violated when their calls are illegally recorded, the Prison Justice League has been forced to redirect resources to address Defendants’ unlawful activity
CLASS ALLEGATIONS 24. Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b), Plaintiffs bring this action on behalf of themselves and a class of similarly situated persons, defined as attorneys practicing criminal defense in Austin or Travis County. The Class seeks certification of claims for declaratory and injunctive relief. 25. Numerosity: The Class is so numerous it would impractical to join every member. The exact number or identity of all the members is presently unknown, but surely numbers in the hundreds. The identity of Class members can be identified through public records and public
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notice. Class members may be informed of the pendency of this action by public notice, with postings in courtrooms, with the assistance of the local bar association, and by creating an automated message for attorneys calling clients in TCJ and TCCC.
26. Commonality: The Class has a well-defined community of interest in the questions of law and fact in this matter – including the recording/use of their confidential communications, the practice’s unlawfulness, and the necessity for declaratory and injunctive relief.
27. Typicality: The individual Plaintiffs’ claims are typical of Class members’ claims, because Plaintiffs are individual members of the larger community of local criminal defense attorneys with clients in the TCJ and TCCC, who have similar practices and operate under similar constraints.
28. Adequacy: Plaintiffs are adequate representatives of the Class because their interests do not conflict with the interests of the Class members they seek to represent. Plaintiffs will fairly and adequately protect the interest of the members of the Class; they intend to prosecute this action vigorously.
29. This suit may also be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) because Plaintiffs and the Class seek declaratory and injunctive relief. Defendants have acted on grounds generally applicable to Plaintiffs and the Class as a whole, thereby making declaratory and/or injunctive relief proper.
DECLARATORY JUDGMENT 30. Defendants’ unlawful actions are an ongoing threat to Plaintiffs’ rights under state and federal law, and the U.S. Constitution. 31. “[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of” the Federal Wiretap Act is entitled to seek declaratory and/or injunctive relief. 18 U.S.C. § 2520 (b)(1).
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32. A person whose constitutional rights are violated has standing to seek declaratory relief under 28 U.S.C. § 2201.
INJUNCTIVE RELIEF 33. Defendants’ unlawful actions are an ongoing threat to Plaintiffs’ rights under state and federal law, and the U.S. Constitution. 34. “[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of” the Federal Wiretap Act is entitled to seek declaratory and/or injunctive relief. 18 U.S.C. § 2520 (b)(1). 35. “A person who establishes a cause of action under [the Texas Wiretap Act] is entitled to… an injunction prohibiting a further interception, attempted interception, or divulgence or use of information obtained by an interception.” Tex. Civ. Prac. & Rem. Code §123.004 (1).
ATTORNEYS’ FEES AND COSTS 36. Plaintiffs respectfully request they be awarded their attorney’s fees and litigation costs. 37. “[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of” the Federal Wiretap Act is entitled to seek “reasonable attorney's fee and other litigation costs reasonably incurred.” 18 U.S.C. §2520(b)(3). 38. A person who “establishes a cause of action under the [Texas Wiretap Act] is entitled to… reasonable attorney’s fees and costs.” Tex. Civ. Prac. & Rem. Code § 123.004 (5). 39. Further, under 42 U.S.C. § 1988, a party who prevails in suit filed under 42 U.S.C. 1983 may be awarded reasonable attorneys’ fees.
PRAYER FOR RELIEF THEREFORE, Plaintiffs respectfully request this Court grant the following relief:
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A. Issue declaratory relief stating Defendants’ practice of recording, disclosing, and using confidential attorney-client communications is unlawful;

B. Enjoin Defendants from recording, disclosing, and using confidential attorneyclient communications;

C. Order Defendants to destroy all existing recordings of unlawfully-recorded attorney-client communications;

D. Award reasonable attorneys’ fees, litigation expenses, and court costs; and

E. Grant all other and additional relief to which Plaintiffs may be entitled, at law or in equity.

DATED: April 29, 2014

Respectfully submitted,

/s/ Brian McGiverin Brian McGiverin Texas Bar No. 24067760 brian@texascivilrightsproject.org
Wayne Krause Yang State Bar No. 24032644 James C. Harrington Texas Bar No. 09048500
TEXAS CIVIL RIGHTS PROJECT c/o TRLA, 4920 N I-35 Austin, Texas 78751 Tel. (512) 474-5073 Fax (512) 474-0726
Attorneys for the Individuals, the Austin Lawyers Guild, and the Prison Justice League

/s/ George C. Lobb George C. Lobb Texas Bar No. 24042928
Law Office of George C. Lobb 1108 Lavaca Street, #110-242 Austin, TX 78701 Tel. (512) 215-6011 Fax. (512) 425-0877
Attorney for the Individuals and the Class

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 Case 1:14-cv-00366-LY Document 25 Filed 07/23/14 Page 1 of 13

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

AUSTIN LAWYERS GUILD; CARL

§

GOSSETT, DAVID GRASSBAUGH,

§

MARK SAMPSON, and FRANCIS

§

WILLIAMS, for themselves and those

§

similarly situated; and the PRISON

§

JUSTICE LEAGUE,

§

Plaintiffs

§

v.

§

§

SECURUS TECHNOLOGIES, INC;

§

TRAVIS COUNTY SHERIFF’S OFFICE, §

and GREG HAMILTON, in his official

§

capacity; TRAVIS COUNTY DISTRICT §

ATTORNEY’S OFFICE, and ROSEMARY §

LEHMBERG, in her official capacity; and §

TRAVIS COUNTY ATTORNEY’S

§

OFFICE, and DAVID ESCAMILLA, in his §

official capacity.

§

Defendants.

§

Cause No. 1:14-cv-00366-LY

PLAINTIFFS’ AMENDED CLASS ACTION COMPLAINT

Plaintiffs respectfully file this lawsuit to stop the Sheriff and Securus Technologies from

illegally recording attorneys’ confidential calls with their clients in the county jail then

unlawfully disclosing those recordings to prosecutors, and to stop prosecutors from illegally

using those recordings, and will show:

JURISDICTION AND VENUE

1. Jurisdiction is conferred on this Court by 28 U.S.C. §§1331, 1343.

2. Venue in this Court is proper because Defendants reside in this judicial district; and

the relevant events occurred in Travis County, Texas. 28 U.S.C. §1391

PARTIES

3. Carl Gossett, David Grassbaugh, Mark Sampson, and Francis Williams are

attorneys who routinely represent clients housed in the downtown Travis County Jail (TCJ) and

Case 1:14-cv-00366-LY Document 25 Filed 07/23/14 Page 2 of 13
the Travis County Correctional Complex (TCCC) in Del Valle regarding criminal matters pending in local courts. They routinely speak with those clients remotely via telephone and videoconferencing services provided at TCJ and TCCC exclusively by Securus Technologies. There are 966 attorneys routinely practicing criminal defense in Austin. Virtually all are in the same position. Moreover, of the 10,896 other attorneys in Austin, many will ultimately represent one or more pretrial detainees in a criminal defense matter.
4. The Austin Lawyers Guild (ALG) is membership-based, incorporated non-profit organization, which includes a substantial number of Austin criminal defense attorneys. Its purpose, as set out in its bylaws, is to “promote the public interest, civil rights, and social justice.” ALG’s members face substantially the same risk of eavesdropping as the individual Plaintiffs and the larger defense community.
5. Similarly, the Prison Justice League (PJL) is also a membership-based, incorporated non-profit organization. Its members include people detained in TCCC. PJL’s mission is to improve conditions of incarceration through “litigation, advocacy, and empowering [its] members.” PJL’s members at TCCC all face substantially the same risk that calls with their attorneys will be unlawfully monitored, recorded, and used against them.
6. Travis County Sheriff’s Department and Greg Hamilton, the Sheriff, operate TCJ and TCCC and are responsible for the detainees held there. They are also responsible for all programing and services in the jail, including telephone and video communications, for which they have contracted with the private entity Securus Technologies.
7. Securus Technologies, Inc. is a private corporation, founded and headquartered in Dallas, Texas. It has contracts with prisons and jails across the nation, including in Travis County, to provide telephone and video conferencing services for detainees.
8. The Travis County Attorney’s Office and David Escamilla, the County Attorney, 2

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prosecute misdemeanors in Travis County. The Travis County District Attorney’s Office and Rosemary Lehmberg, the District Attorney, prosecute felonies in Travis County.
STATEMENT OF FACTS 9. A person arrested in Austin or Travis County is typically brought to TCJ downtown to be booked. TCJ is run by the Sheriff’s Department. In most cases, if the Sheriff’s Department plans to hold that person for more than a short time, it soon transfers the individual to TCCC in Del Valle, Texas. 10. Attorneys routinely contact their clients in both TCJ and TCCC by phone or videoconference to discuss confidential matters. They do so with the understanding their conversations are private. Similarly, detainees understand remote conversations with their attorneys are confidential and not recorded. 11. TCJ and TCCC’s phone and videoconferences services are provided by Securus Technologies. It charges families and others in the free world for the privilege of speaking with a detainee. It shares a large cut of those payments with Travis County, which adds up to significant profit for both entities. 12. During those calls, Securus Technologies records communications between detainees and the outside world, relying on a set of servers, electronic storage, cables, and software separate from what is used to simply connect the callers. The equipment it uses to intercept, record, and share detainees’ calls neither facilitates those telephone calls, nor are the recordings a necessary incident of the calls. 13. Securus Technologies stores recordings in a computer server, to which it gives local law enforcement agencies – including the Sheriff’s Department, the District Attorney’s Office, and the County Attorney’s Office —direct online access. They are able to review any recorded call at their leisure.
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14. Recording detainees’ calls is required by Securus Technologies’ contract with Travis County, which states that in the course of administering detainee phone services:
• “[Securus Technologies] shall provide inmate call recording and tracking” • The recording and tracking must allow the Sheriff “to obtain a report of all calls from
inmates’ phones to a specific destination and then obtain a recording of the contents of the calls if needed” • “[Securus Technologies] shall provide a storage method for the contents of inmate calls made within the previous six (6) months that allows County staff to search the data and retrieve the contents immediately” 15. The Sheriff’s Department tells the public it does not record attorney-client calls. For instance, its “Jail Information” webpage says an inmate’s calls to his attorney “are free of charge and are not recorded.”1 Similarly, Securus Technologies website promises “[video] visits are secure and completely private for legal counsel.”2 As recently as August 8, 2013, Major Darren Long, the Sheriff’s jail administrator, told defense attorneys: “They [calls between attorneys and clients] are not recorded or listened to by my staff. The only way that could happen is if there was court order for us to do so.” Defendants similarly lead detainees to believe calls with their attorneys are confidential. 16. But in reality, Securus Technologies and the Sheriff’s Department do record confidential attorney-client communications. They also disclose those recorded conversations to prosecutors in the Travis County and District Attorneys’ Offices. There is no legitimate reason to record calls between detainees and their attorneys – the recordings do nothing to further the facilities’ security or public safety.
1 “Jail Information,” Travis County Sheriff’s Office, at https://www.tcsheriff.org/inmate-a-jail-info/jailinformation 2 “Legal Visits,” http://apps.securustech.net/VideoVisitation/LegalVisits.asp
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17. Prosecutors in both the Travis County and District Attorneys’ Offices have procured recordings of confidential attorney-client communication from the Sheriff’s Department and/or Securus Technologies and listened to them. Some prosecutors have disclosed copies of those records to defense attorneys among other discovery materials; some have used that knowledge to their tactical advantage without admitting they obtained or listened to the recordings.
18. Securus Technologies and the Sheriff’s Department were aware early on they were operating a system that captured and recorded privileged conversations. Securus, in particular, has been aware of virtually identical complaints from other parts of the country where it provides services.
19. Attorneys and investigators with the County and District Attorneys’ Offices, from top to bottom, have had direct access to the Securus Technologies’ database of recorded attorney calls for years. Senior-level members of the prosecutors’ offices were aware that confidential conversations were being recorded. Low-level prosecutors have given defense attorneys copies of recorded calls as discovery materials, which they knew contained the attorneys’ privileged discussions with their clients.
20. Members of the Austin criminal defense bar contacted Defendants’ policymakers in early 2013 with evidence their privileged phone calls with detainees clients were being recorded and passed to the hands of prosecutors. On information as belief, the Sheriff, County Attorney,3 District Attorney, and management of Securus all became aware of the issue at that point, but they did nothing to fix it.
3 On information and belief, the County Commissioners’ Court delegates policymaking authority over legal matters to the County Attorney’s Office
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21. They were alerted again in late 2013 when members of the criminal defense bar conferred with Travis County and District Court judges, who in turn directly contacted the District and County Attorneys. On information and believe, this sparked another round of discussion among Defendants’ policymakers. But again, nothing was done.
22. The Travis County Commissioners Court was alerted to the matter on January 14, 2014, when they were told at an open meeting that attorneys’ privileged calls with clients in the jail were being recorded and shared with prosecutors. The Commissioners were simultaneously cc’d on a spoliation letter to Securus, regarding the matters at issue here.
23. Although defense attorneys in Austin have discerned Defendants’ practices and confronted them, Defendants appear to have no intention of ceasing their unlawful, unconstitutional eavesdropping and invasion of attorney-client communication. Detainees are all in substantial risk of having their attorney calls monitored, recorded, and used against them to prejudice their criminal cases. Similarly, both detainees and their attorneys faced substantial risk defendants will continue to violate their rights under the Federal and Texas Wiretap Acts.
24. Further, even if a defense attorney suspected his calls with detainees were being monitored, the detainee’s Sixth Amendment rights would still be in serious jeopardy, because the attorney would be left with the Hobson’s choice of using an insecure phone line or devoting significant time to visiting the detainee in person.
25. The Sheriff’s Department implemented a policy on June 1, 2013, which prevents attorneys from sending non-attorney staff to visit inmates – as of that date, only attorneys, private investigators, and polygraph operators are permitted to have legal visits with Travis County detainees. There was no legitimate security concern to justify the policy change.
26. Exclusively visiting detainees in person requires an excessive investment of time, which interferes with the routine consultation that is necessary for the attorneys to represent
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those detainees. Criminal defense attorneys must frequently consult with their clients. As an investigation proceeds, they must confer about various case details to inform their investigation, motion practice, and trial strategy. Traveling to the jail, moving through security, waiting for shift change, waiting for lockdowns, waiting for jail staff to find and bring an inmate to the visitation area, then waiting for a client to appear in the visitation room all take time – frequently, a significant amount of time. A call that could have been conducted in ten minutes may require a three-hour round trip – significantly lengthening the time required to handle the case, with the real chance of diminishing the attorney’s effectiveness by distracting from the cases’ other needs.
27. Further, any delays in communication between attorney and client that result from relying on visits instead of phone calls make it more likely detainees will be unable to protect interests that are often compromised in the short window of time between arrest and the opportunity to consult with an attorney.
28. First, a person who was recently arrested and hoping to be released on a personal recognizance bond needs an attorney’s help, which means using the phone. He could easily share compromising privileged information while trying to contact an attorney, without suspecting the call is monitored. Further, any unrepresented detainee trying to hire an attorney could easily disclose prejudicial information before suspecting the risk.
29. Second, detainees will also risk irreparable injury if Defendants’ practices force them to wait longer for legal advice. For instance, initial pleas – even for low-level charges – can have significant ramifications for an arrestee’s immigration status. Legal permanent residents and visa-holders need immediate access to an attorney before the initial magistration following arrest. Even an undocumented arrestee could be eligible for relief from deportation through the Violence Against Women Act (VAWA) as a victim of domestic violence; for a U-Visa, as a
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victim of other crimes; or for relief through the Deferred Action for Childhood Arrivals (DACA) program; but then become ineligible with an ill-advised opening plea, even for a very minor charge like “possession of drug paraphernalia,” a seemingly-innocuous fine-only Class C misdemeanor. The law does not require a magistrate provide an attorney to a defendant before accepting a guilty plea for a Class C misdemeanor. Once the harm is done, it can be virtually impossible to repair.
30. Similarly, if a person arrested on charges of “driving while intoxicated” (DWI) is delayed from speaking with an attorney, he could miss the opportunity to exercise an important statutory right: the Texas Transportation Code §724.109 allows a person charged with DWI to request a separate blood sample from their own health care provider, if they make the request within two hours of being arrested. Every minute that passes makes it less likely the detainee will learn about that opportunity in time to exercise it.
31. Meanwhile, attorneys’ incomes are reduced if they are forced to rely exclusively on visitation rather than the phone. These attorneys are either changing clients a flat fee, meaning an increased time commitment for each case cuts into their income; or they are charging an hourly fee, and fewer potential clients will be able to afford the cost of representation. Either way, it reduces attorneys’ income. Appointed attorneys are especially harmed, because they do not receive hourly compensation. They are paid a few hundred dollars for a plea or a small amount more if the case goes to a trial. They are not compensated for time spent waiting for visits at TCJ or TCCC.
CAUSES OF ACTION A. Federal Wiretap Act (18 U.S.C. § 2510, et seq)
32. The Federal Wiretap Act broadly prohibits intercepting, disclosing, or using the contents of any wire, oral, or electronic communication.
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33. Defendants have violated (and continue to violate) both attorneys’ and detainees’ rights under the Federal Wiretap Act. The individual Plaintiffs, the members of the Austin Lawyers Guild and members of the Prison Justice League are directly affected.
34. Securus Technologies and the Sheriff’s Department have acted (and continue to act) in concert to intercept confidential communications between plaintiff attorneys and detainees, and to disclose those confidential communications to local prosecutors, in violation of the Act.
35. The Travis County and District Attorneys have used (and are using) those intercepted communications in violation of the Act.
B. Texas Wiretap Act (Tex. Civ. Prac. & Rem. Code § 123.001, et seq) 36. Each Defendant is violating the Texas Wiretap Act when it: • “intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication;” • “uses or divulges information that he knows or reasonably should know was obtained by interception of the communication;” or • “as… a common communication common carrier, either personally or through an agent or employee, aids or knowingly permits interception or attempted interception of the communication.”
Tex. Civ. Prac. & Rem. Code § 123.002 (a). 37. Defendants have violated (and continue to violate) Plaintiff attorneys and detainees’
rights under the Texas Wiretap Act. The individual Plaintiffs and the members of the Austin Lawyers Guild and the Prison Justice League are directly affected.
C. First, Fourth, Fifth, and Sixth Amendments to the United States Constitution 38. The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches.
Defendants seriously threaten the Fourth Amendment rights of Plaintiff attorneys and the members of the Austin Lawyers Guild, who have a reasonable expectation of privacy when they make calls, and members of the Prison Justice League, who have a reasonable expectation of
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privacy when making attorney calls. 39. The Sixth Amendment entitles criminal defendants to effective assistance of
counsel, which includes confidential and timely attorney-client communication. Similarly, the First, Fifth, and Fourteenth Amendments protect a detainee’s right to access the courts, which is violated when government officials infringe on confidential and timely attorney-client communication. The Prison Justice League’s members include detainees whose face substantial risk their rights will be violated.
CLASS ALLEGATIONS 40. Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b), Plaintiffs bring this action on behalf of themselves and a class of similarly situated persons, defined as attorneys practicing criminal defense in Austin or Travis County. The Class seeks certification of claims for declaratory and injunctive relief. 41. Numerosity: The Class is so numerous it would impractical to join every member. Austin has roughly 966 attorneys who routinely practice criminal defense, and 10,896 attorneys overall. The identity of Class members can be identified through public records and public notice. Class members may be informed of the pendency of this action by public notice, with postings in courtrooms, with the assistance of the local bar association, and by creating an automated message for attorneys calling clients in TCJ and TCCC. 42. Commonality: The Class has a well-defined community of interest in the questions of law and fact in this matter – including the recording/use of their confidential communications, the practice’s unlawfulness, and the necessity for declaratory and injunctive relief. 43. Typicality: The individual Plaintiffs’ claims are typical of Class members’ claims, because Plaintiffs are individual members of the larger community of local criminal defense attorneys with clients in the TCJ and TCCC, who have similar practices and operate under
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similar constraints. Defendants’ posture is the same toward every Austin attorney who represents detainees. Together, the class members all suffer unreasonable risk of harm warranting injunctive and declaratory relief
44. Adequacy: Plaintiffs are adequate representatives of the Class because their interests do not conflict with the interests of the Class members they seek to represent. Plaintiffs will fairly and adequately protect the interest of the members of the Class; they intend to prosecute this action vigorously.
45. This suit may also be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) because Plaintiffs and the Class seek declaratory and injunctive relief. Defendants have acted on grounds generally applicable to Plaintiffs and the Class as a whole, thereby making declaratory and/or injunctive relief proper.
DECLARATORY JUDGMENT 46. Defendants’ unlawful actions are an ongoing threat to Plaintiffs’ rights under state and federal law, and the U.S. Constitution. 47. “[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of” the Federal Wiretap Act is entitled to seek declaratory and/or injunctive relief. 18 U.S.C. § 2520 (b)(1). 48. A person whose constitutional rights are violated has standing to seek declaratory relief under 28 U.S.C. § 2201.
INJUNCTIVE RELIEF 49. Defendants’ unlawful actions are an ongoing threat to Plaintiffs’ rights under state and federal law, and the U.S. Constitution. 50. “[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of” the Federal Wiretap Act is entitled to seek
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declaratory and/or injunctive relief. 18 U.S.C. § 2520 (b)(1). 51. “A person who establishes a cause of action under [the Texas Wiretap Act] is
entitled to… an injunction prohibiting a further interception, attempted interception, or divulgence or use of information obtained by an interception.” Tex. Civ. Prac. & Rem. Code §123.004 (1).
ATTORNEYS’ FEES AND COSTS 52. Plaintiffs respectfully request they be awarded their attorney’s fees and litigation costs. 53. “[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of” the Federal Wiretap Act is entitled to seek “reasonable attorney's fee and other litigation costs reasonably incurred.” 18 U.S.C. §2520(b)(3). 54. A person who “establishes a cause of action under the [Texas Wiretap Act] is entitled to… reasonable attorney’s fees and costs.” Tex. Civ. Prac. & Rem. Code § 123.004 (5). 55. Further, under 42 U.S.C. § 1988, a party who prevails in suit filed under 42 U.S.C. 1983 may be awarded reasonable attorneys’ fees.
PRAYER FOR RELIEF THEREFORE, Plaintiffs respectfully request this Court grant the following relief: A. Issue declaratory relief stating Defendants’ practice of recording, disclosing, and
using confidential attorney-client communications is unlawful; B. Enjoin Defendants from recording, disclosing, and using confidential attorney-
client communications; C. Order Defendants to destroy all existing recordings of unlawfully-recorded
attorney-client communications; D. Award reasonable attorneys’ fees, litigation expenses, and court costs; and E. Grant all other and additional relief to which Plaintiffs may be entitled, at law or
in equity. 12

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DATED: July 21, 2014

Respectfully submitted,
/s/ Brian McGiverin Brian McGiverin Texas Bar No. 24067760 brian@texascivilrightsproject.org
Wayne Krause Yang State Bar No. 24032644 James C. Harrington Texas Bar No. 09048500
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Dr Austin, Texas 78741 Tel. (512) 474-5073 Fax (512) 474-0726
Attorneys for the Individuals, the Austin Lawyers Guild, and the Prison Justice League
/s/ George C. Lobb George C. Lobb Texas Bar No. 24042928
Law Office of George C. Lobb 1108 Lavaca Street, #110-242 Austin, TX 78701 Tel. (512) 215-6011 Fax. (512) 425-0877
Attorney for the Individuals and the Class

CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing has been served on all counsel of record who have appeared in this matter through the Electronic Case Files System of the Western District of Texas.
/s/ Brian McGiverin Brian McGiverin

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 Case 1:14-cv-00366-LY Document 52 Filed 02/04/15 Page 1 of 36

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

AUSTIN LAWYERS GUILD, CARL

§

GOSSETT, DAVID GRASSBAUGH,

§

MARK SAMPSON, FRANCIS

§

WILLIAMS, AND THE PRISON

§

JUSTICE LEAGUE,

§

PLAINTIFFS,

§

§

V.

§

§

SECURUS TECHNOLOGIES, INC.,

§

TRAVIS COUNTY SHERIFF’S OFFICE, §

SHERIFF GREG HAMILTON (IN HIS

§

OFFICIAL CAPACITY), TRAVIS

§

COUNTY DISTRICT ATTORNEY’S

§

OFFICE, DISTRICT ATTORNEY

§

ROSEMARY LEHMBERG (IN HER

§

OFFICIAL CAPACITY), TRAVIS

§

COUNTY ATTORNEY’S OFFICE, AND §

COUNTY ATTORNEY DAVID

§

ESCAMILLA (IN HIS OFFICIAL

§

CAPACITY),

§

DEFENDANTS.

§

CAUSE NO. 1:14-CV-366-LY

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

Before the Court are Defendants Hamilton, Lehmberg and Escamilla’s Motion to Dismiss

Pursuant to Rule 12(b)(1), Rule 12(b)(6), filed August 6, 2014 (Clerk’s Dkt. No. 27); Defendants

Travis County Sheriff’s Office, Travis County District Attorney’s Office, and Travis County

Attorney’s Office’s Motion to Dismiss Pursuant to Rule 12(b)(1), 12(b)(6), filed August 6, 2014

(Clerk’s Dkt. No. 28); Defendant Securus Technologies, Inc.’s Renewed Motion to Dismiss Pursuant

to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), filed August 6, 2014 (Clerk’s Dkt. No. 29); Plaintiffs’

Case 1:14-cv-00366-LY Document 52 Filed 02/04/15 Page 2 of 36
Response to Defendants’ Renewed Motions to Dismiss, filed September 5, 2014 (Clerk’s Dkt. No. 34); Reply Brief in Support of Defendant Securus Technologies, Inc.’s Renewed Motion to Dismiss Pursuant to Fed. R. Civ. P 12(b)(1) and 12(b)(6), filed September 26, 2014 (Clerk’s Dkt. No. 36); and Travis County Defendants’ Reply to Plaintiffs’ Response to Defendants’ Renewed Motions to Dismiss, filed September 26, 2014 (Clerk’s Dkt. No. 38).
The motions were referred by United States District Judge Lee Yeakel to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636(b), Rule 72 of the Federal Rules of Civil Procedure, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas. After reviewing the parties’ pleadings, relevant case law, as well as the entire case file, the undersigned issues the following Report and Recommendation to the District Court.
I. BACKGROUND Plaintiffs the Austin Lawyers Guild (“ALG”); Carl Gossett, David Grassbaugh, Mark Sampson, Francis Williams (collectively, “Individual Plaintiffs”); and the Prison Justice League (“PJL”) (collectively, “Plaintiffs”) filed this action on April 29, 2014, naming as defendants (collectively, “Defendants”) Securus Technologies, Inc. (“Securus”); as well as Greg Hamilton (“Hamilton”) in his official capacity as Travis County Sheriff, Rosemary Lehmberg (“Lehmberg”) in her official capacity as Travis County District Attorney, and David Escamilla (“Escamilla”) in his official capacity as Travis County Attorney (collectively, “Officials”); and the Travis County Sheriff’s Office, the Travis County District Attorney’s Office, and the Travis County Attorney’s Office (collectively, “Travis County Offices”), (Officials and Travis County Offices collectively, “Travis County Defendants”).
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The ALG is a membership-based, incorporated non-profit organization, which includes as members a number of Austin, Texas criminal defense attorneys. (First Am. Compl. ¶ 4). The PJL is also a membership-based, incorporated non-profit organization, which includes as members people detained in the Travis County Correctional Complex (“TCCC”) in Del Valle, Texas. (Id. ¶ 5). The Individual Plaintiffs are defense attorneys who routinely represent detainees housed in the Travis County Jail (“TCJ”) in downtown Austin and the TCCC. (Id. ¶ 3).
Plaintiffs filed an amended class action complaint on July 23, 2014. By way of the first amended complaint, Plaintiffs allege Securus is working in concert with the other Defendants to violate Plaintiffs’ and TCJ and TCCC detainees’ rights. Securus allegedly entered into a contractual agreement with Travis County, which requires Securus to record, store, and grant the other Defendants access to detainees’ telephone calls. (Id. ¶ 14). According to Plaintiffs, Defendants lead attorneys and detainees to believe calls to each other are confidential and not recorded. (Id. ¶¶ 10, 15). Securus and the Travis County Sheriff’s Office, which operates TCJ and TCCC, purportedly also advertise to the public that confidential telephone calls are not recorded. (Id. ¶¶ 6, 15). However, Plaintiffs allege Securus intentionally and unlawfully intercepts and records confidential attorney–client telephone calls and stores the recordings in a database for six months. (Id. ¶ 14)
Plaintiffs further contend Securus provides 24-hour online access to the confidential recordings to Travis County staff, including the Travis County Sheriff’s Office and the Travis District and County Attorneys’ Offices. (Id. ¶¶ 12, 13, 16, 19). In support of this contention, Plaintiffs allege prosecutors have disclosed copies of the confidential recordings to defense attorneys among other discovery materials, and other prosecutors have used the knowledge gained from the recordings to their tactical advantage without disclosing that they obtained or listened to the
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confidential recordings. (Id. ¶ 17). Plaintiffs finally allege that, although Defendants have been notified on multiple occasions of the allegedly unlawful conduct, they refuse to take any action to remedy the issue. (Id. ¶¶ 18–23).
Accordingly, Plaintiffs assert causes of action against Defendants for violations of the Federal Wiretap Act and Texas Wiretap Act (jointly, “Wiretap Acts”); unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution; denial of effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution; and denial of access to the courts in violation of First, Fourth, and Fifth Amendments to the United States Constitution. Plaintiffs seek declaratory and injunctive relief regarding the purported violations. Defendants now move to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
II. STANDARDS OF REVIEW A. Rule 12(b)(1)
“Federal courts are courts of limited jurisdiction; without jurisdiction conferred by statute, they lack the power to adjudicate claims.” In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F.3d 281, 286 (5th Cir. 2012) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). A claim is properly dismissed for lack of subject-matter jurisdiction under Rule 12(b)(1) “when the court lacks the statutory or constitutional power to adjudicate the claim.” Id. (citation and internal quotation marks omitted).
“Lack of subject-matter jurisdiction may be found in the complaint alone, the complaint supplemented by the undisputed facts as evidenced in the record, or the complaint supplemented by the undisputed facts plus the court’s resolution of the disputed facts.” Id. at 287 (citing Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)). A motion brought under Rule 12(b)(1) should
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be granted only “if it appears certain that the plaintiff cannot prove any set of facts in support of his claims entitling him to relief.” Id. (citing Wagstaff v. U.S. Dep’t of Educ., 509 F.3d 661, 663 (5th Cir. 2007)). B. Rule 12(b)(6)
Rule 8 of the Federal Rules of Civil Procedure mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This standard demands more than “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544, 555–57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570.
The Supreme Court has made clear that this plausibility standard is not a “probability requirement,” but does impose a standard higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). Although “a court must accept as true all of the allegations contained in a complaint,” that tenet is “inapplicable to legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court assumes the veracity of the well-pleaded factual allegations and construes the facts alleged “in the light most favorable to the nonmoving party.” Doe v. Robertson, 751 F.3d 383, 386–87 (5th Cir. 2014) (citations and internal quotation marks omitted).
“Determining whether a complaint states a plausible claim for relief will . . . be a contextspecific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. Thus, in considering a motion to dismiss, the court must initially identify
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pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations “plausibly give rise to an entitlement to relief.” Id. If not, “the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting FED. R. CIV. P. 8(a)(2)).
III. ANALYSIS By way of their motions, Defendants argue: (1) Plaintiffs lack standing to bring their claims; (2) the Travis County Offices and Officials are immune from suit; (3) Plaintiffs fail to state claims for violations of the Wiretap Acts; (4) Plaintiffs fail to state claims for violations of the United States Constitution; and (5) Securus is not acting under color of state law.1 Because standing is a jurisdictional matter, the undersigned will address that issue first. A. Standing Defendants contend none of the Plaintiffs named in the complaint have suffered injury as a result of the alleged conduct forming the basis of the complaint. Specifically, Defendants argue Plaintiffs have not suffered a violation of their constitutional rights as a result of any purported breach of attorney–client communications because attorney–client privilege is held by the client, not the attorney. Defendants further argue Plaintiffs do not have associational standing or third-party standing to bring claims on behalf of TCJ and TCCC detainees. Article III of the Constitution limits the jurisdiction of federal courts to cases and controversies. Susan B. Anthony List v. Driehaus, __U.S.__, 134 S. Ct. 2334, 2341 (2014); U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 395 (1980). “One element of the case-or-controversy requirement is that [plaintiffs], based on their complaint, must establish that they have standing to
1 The undersigned will not address arguments regarding class certification at this preliminary stage.
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sue.” Raines v. Byrd, 521 U.S. 811, 818 (1997). This requirement, like other jurisdictional requirements, is not subject to waiver and demands strict compliance. Id. at 819; Lewis v. Casey, 518 U.S. 343, 349 n.1 (1996). To meet the standing requirement a plaintiff must show: (1) she has suffered an injury-in-fact that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Susan B. Anthony List, 134 S. Ct. at 2341; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000); Consol. Cos., Inc. v. Union Pacific R.R. Co., 499 F.3d 382, 385 (5th Cir. 2007); Fla. Dep’t of Ins. v. Chase Bank of Tex. Nat’l Ass’n, 274 F.3d 924, 929 (5th Cir. 2001) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992)). To survive, injury that has not yet occurred must be “certainly impending” or must pose a “substantial risk” that the harm will occur. Clapper v. Amnesty Int’l USA, 568 U.S.__, __ n.5 133 S. Ct. 1138, 1146 n.5 (2013). The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561.
The United States Supreme Court has “adhered to the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’” Kowalski v. Tesmer, 543 U.S. 125, 129 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 499 (1975)). However, courts allow exceptions to the general standing rules in limited situations, such as where an association has associational standing, or a litigant is eligible for third-party standing. Powers v. Ohio, 499 U.S. 400, 411 (1991) (third-party standing); Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 700 F.3d 185, 191 (5th Cir. 2012) (associational standing).
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1. Associational Standing An association has associational standing to sue on behalf of its members if: (1) its members would otherwise have standing individually; (2) the interests the association seeks to protect are germane to the association’s purpose; and (3) the claim asserted and relief sought do not require the individual members’ participation in the lawsuit. Nat’l Rifle Ass’n of Am., Inc., 700 F.3d at 191. See Ass’n of Am. Physicians and Surgeons v. Tex. Med. Bd., 627 F.3d 547, 550 (5th Cir. 2010) (“The first two elements [of the associational standing analysis] address constitutional requirements; the third is solely prudential.”). However, it is unnecessary to demonstrate every member of an association has suffered an injury-in-fact; if any member has suffered an injury-in-fact it may be imputed to the association. Warth, 422 U.S. at 511.
a. The ALG The ALG asserts it has associational standing to sue on behalf of its members. According to the complaint, many individual members of the ALG are Austin criminal defense attorneys who regularly represent criminal defendants detained in the TCCC or TCJ.
i. Individual Members’ Standing The ALG argues its members have suffered injury-in-fact because Defendants’ alleged conduct interferes with the business relationship between attorneys and their clients. Specifically, “attorneys’ incomes are reduced” by being unable to consult with their detained clients via telephone. (First Am. Compl. ¶ 31). Instead, to avoid prejudicing their clients’ cases, attorneys are forced to travel to the jail and engage in the rigorous and time-consuming security and visitation processes. The ALG further alleges the injury is directly caused by Defendants’ conduct of recording confidential telephone calls. Finally, the ALG alleges an injunction enjoining Defendants from
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recording or sharing confidential attorney–client telephone calls will redress its members’ injuries because they will be able to engage in telephone calls with their clients.
The undersigned agrees that being forced to conduct in-person visits, rather than quick and inexpensive telephone calls demonstrates concrete injury. See, e.g., Ctr. Hill Def. Fund v. U.S. Army Corps of Eng., Nashville Dist., 886 F. Supp. 1389, 1397 n.5 (M.D. Tenn 1995) (being forced to drive longer distance to launch boat is concrete injury for standing purposes). As the ALG points out, what previously could be accomplished in a ten-minute phone call necessitates a potentially hours-long journey. See Ass’n of Cmty. Org. for Reform Now v. Fowler, 178 F.3d 350, 358 (5th Cir. 1999) (citing Lujan, 504 U.S. at 560–61) (injury must be concrete and particularized, but “need not measure more than an ‘identifiable trifle”); Conserv. Council of N. Carolina v. Costanzo, 505 F.2d 498, 501 (4th Cir. 1974) (same). Even if injury has not already occurred, it appears imminent from the face of the complaint because Defendants continue to indirectly prevent telephone communications between attorneys and their detained clients. See Clapper 133 S. Ct. at 1146 n.5 (quoting Lujan, 504 U.S. at 560–61) (imminence is a somewhat elastic concept, but the injury must be “certainly impending”).
Further, the injury alleged is traceable to Defendants’ purportedly unlawful conduct—that is, attorneys must travel to visit their clients to avoid the disclosure of potentially prejudicial information to Defendants. See Prison Legal News v. Livingston, 683 F.3d 201, 213–12 (5th Cir. 2012) (publisher suffered injury by “denial of opportunity to communicate [via distribution of its books] with certain inmates—that resulted directly from the government action it challenges as illegal”). Therefore, an injunction enjoining Defendants from recording confidential telephone calls will redress the injury alleged. The undersigned accordingly finds the ALG’s members have
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individual standing. ii. Germaneness and Participation
The next inquiry in determining whether the ALG has associational standing is whether the interests the ALG seeks to protect in this lawsuit are germane to the ALG’s purpose. The ALG’s stated purpose, set out in its bylaws, is to “promote the public interest, civil rights, and social justice.” (First Am. Compl. ¶ 4). Broadly construed, the purpose of this lawsuit is to protect the legal and constitutional rights of detainees and attorneys. Therefore, ALG’s interests in this suit are germane to its civil rights and social justice purposes. See Ass’n of Am. Physicians, 627 F.3d at 551 n.2 (“The germaneness requirement is ‘undemanding’ and requires ‘mere pertinence’ between the litigation at issue and the organization’s purpose.”). See also Lopez Torres v. New York State Bd. of Elections, 462 F.3d 161 (2d Cir. 2006), rev’d on other grounds, 552 U.S. 196 (2008) (lawsuit regarding state judicial nomination process was germane to voter organization’s organizational purpose of making government more open and responsive to citizens).
The last inquiry is whether the ALG can proceed with the lawsuit without individual members’ participation. The Fifth Circuit has made clear this element rests on whether the claims in a particular case required minimal factual development, such as allegations of administrative illegality, or were of a more fact-sensitive nature. See Ass’n of Am. Physicians, 627 F.3d at 552–53 (concluding individual participation not necessary in suit for declaratory and injunctive relief for alleged constitutional violations including medical board’s use of anonymous complaints and retaliatory actions against physicians). “[A]s long as resolution of the claims benefits the association’s members and the claims can be proven by evidence from representative injured members, without a fact-intensive-individual inquiry, the participation of those individual members
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will not thwart associational standing.” Id. Here, the claims are similar and relatively uniform among the members of the ALG:
recording, sharing, and listening to confidential attorney–client telephone calls between attorneys and their detained clients is unlawful and should cease. See Defenders of Wildlife, 420 F.3d at 958, rev’d on other grounds, 551 U.S. 644 (2007) (participation of members not required because “the relief sought will run equally to all of them”); Familias Unidas v. Briscoe, 619 F.2d 391, 398 n.2 (5th Cir. 1980) (“[T]he declaratory relief sought, inuring as it would to the benefit of all members, is ideally suited to allowing ‘associational standing.’”). Accordingly, individual inquiries are unnecessary and the case only requires minimal factual development. The ALG thus has associational standing to pursue claims on behalf of its members and the motions to dismiss should be denied on this ground.
b. The PJL The PJL also contends it has associational standing to sue on behalf of its members. Plaintiffs allege that members of the PJL include people detained in the TCCC.
i. Individual Members’ Standing The PJL alleges its detained members could easily and unknowingly divulge compromising confidential information while attempting to seek legal advice. The PJL further alleges detainees face a substantial risk of having their confidential calls used by prosecutors to prejudice detainees’ cases. PJL’s members detained in the TCCC have a personal stake in the outcome of this litigation because they are allegedly unable to contact their attorneys without the possibility of prejudicing their cases. See Warth, 422 U.S. at 511 (association shows injury-in-fact when any one of its
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members suffer immediate or threatened injury); In re Global Indus. Tech., Inc., 645 F.3d 201, 210 (3d Cir. 2011) (citing United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 686–90, 690 n.14 (1973)) (the injury-in-fact requirement is very generous, and is met when the party alleges personal stake in the outcome). But see Valley Forge Christian Coll. v. Am. United for Separation of Church and State, Inc., 454 U.S. 464, 482 (1982) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 223 n.13 (1974)) (“Art. III requirements of standing are not satisfied by ‘the abstract injury in nonobservance of the Constitution asserted by . . . citizens.’”). The undersigned finds Plaintiffs’ allegation that prosecutors have already disclosed copies of confidential records to defense attorneys during discovery sufficient to allege injury. Although the PJL’s contentions regarding injury are somewhat conclusory, they are satisfactory at this preliminary stage. See Lujan, 504 U.S. at 561 (quoting Nat. Wildlife Fed., 497 U.S. at 889) (at the motion to dismiss stage, courts presume that the complaint’s general factual allegations regarding injury are supported by “specific facts that are necessary to support the claim”); Buchanan v. Fed. Election Com’n, 112 F. Supp. 2d 58 (D.D.C. 2000) (fact that plaintiff might not be successful in claim does not affect standing if injury is alleged).
In addition, for reasons similar to those discussed regarding the ALG’s standing, the undersigned finds the injury is traceable to Defendants’ alleged conduct and that the injunctive and declaratory relief sought will properly redress the injuries alleged. Accordingly, the PJL’s individual members who are incarcerated in the TCCC have individual standing.
ii. Germaneness and Participation PJL’s alleged mission is to “improve conditions of incarceration through ‘litigation, advocacy, and empowering [its] members.’” (First Am. Compl. ¶ 5). The undersigned finds the
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litigation’s goal of protecting detainees’ privacy during attorney–client communications is germane to PJL’s mission. See PA Prison Soc’y. v. Cortes, 622 F.3d 215, 277–30 (3d Cir. 2010) (challenging revision of pardon system regarding life or death in prison was germane to organizational purpose of advocating for humane, just, restorative correctional system). Again, as discussed above, the instant litigation will not require participation of the individual members of the PJL. See Heartland Acad. Cmty. Church v. Waddle, 427 F.3d 525, 532–33 (8th Cir. 2005) (boarding school could assert claim on behalf of students because suit for injunctive and declaratory relief did not require students’ participation); Church of Scientology of Cal. v. Cazares, 638 F.2d 1272 (5th Cir. 1981) (civil rights claim did not require individual participation where claim and relief requested affected membership as a whole). Accepting the PJL’s allegations as true, its members face concrete prejudice to their cases if confidential information is utilized by prosecutors, which is likely to be redressed by declaratory and injunctive relief. The PJL therefore has standing to sue on behalf of its members, including those members detained in the TCCC. Accordingly, the motions to dismiss should be denied on this ground.
2. Individual Standing The Individual Plaintiffs assert they have standing to sue on their own behalf. Where one plaintiff has standing, the Court is not required to consider the standing of similarly situated plaintiffs. Watt v. Energy Action Educ. Found., 454 U.S. 151, 160 (1981); Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbot, 748 F.3d 583, 589 (5th Cir. 2014). Like the ALG members, the Individual Plaintiffs are Austin criminal defense attorneys who represent clients detained in the TCJ or TCCC. The Individual Plaintiffs are therefore similarly situated to the members of the ALG. Because the ALG members have standing in their own right, the undersigned
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finds the Individual Plaintiffs also have standing. See Fla. ex rel. Atty Gen. v. U.S. Dep’t Health and Human Servs., 648 F.3d 1235, 1243 (11th Cir. 2011), aff’d in part and rev’d in part on other grounds, Nat’l Fed’n of Indep. Bus. v. Sebelius, __U.S.__, 132 S. Ct. 2566 (2012), (citing Watt, 454 U.S. at 160; and Vill. of Arlington Heights v. Metro Hous. Dev. Corp., 429 U.S. 252, 264 n.9 (1977)) (“The law is abundantly clear that so long as at least one plaintiff has standing to raise each claim . . . we need not address whether the remaining plaintiffs have standing.”). The Individual Plaintiffs thus have standing and the motion to dismiss on this basis should be denied.
3. Third-Party Standing The ALG and the Individual Plaintiffs additionally argue they have third-party standing to assert claims on behalf of their detained clients. A litigant has third-party standing to sue on behalf of another individual if: (1) the litigant has suffered an injury-in-fact giving the litigant a sufficiently concrete interest in the outcome of the issue; (2) the litigant has a close relationship with the third party on whose behalf the right is asserted; and (3) there is a genuine obstacle to the third party’s ability to protect his own interests. Powers, 499 U.S. at 411. The Supreme Court “[has] not looked favorably upon third-party standing.” Kowalski, 543 U.S. at 130 (denying third-party standing to attorney seeking to litigate right of client); Conn v. Gabbert, 526 U.S. 286, 292–93 (1999) (same); McCormack v. Nat’l Collegiate Athletic Ass’n, 845 F.2d 1338, 1341 (5th Cir.1988) (alumni, football players, and cheerleaders lacked third-party standing to assert claims of university). As noted above, the ALG and Individual Plaintiffs properly alleged they have suffered injuryin-fact. The ALG and Individual Plaintiffs also allege there is a close relationship between attorneys and clients, and the Supreme Court has agreed in certain circumstances. See Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n.3 (1989) (attorney–client relationship satisfies third-
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party standing closeness requirement); cf. Kowalski, 543 U.S. at 129 (attorney–client relationship does not satisfy closeness requirement where clients are prospective, unascertained criminal defendants).
However, most challenging for the undersigned is the contention that the detainees face obstacles to asserting their own rights because there is a short window of time between arrest and the opportunity to consult with an attorney. In support of this contention, the ALG points out that many harms potentially suffered by detainees due to the denial of the right to freely consult with counsel cannot be remedied on appeal. For example, a person who was recently arrested and attempting to seek attorney advice on being released on a personal recognizance bond could easily share compromising information. Another example offered is an arrestee’s immigration status. “[I]nitial pleas—even for low-level charges—could have significant legal ramifications” for legal permanent residents and visa-holders’ immigration statuses. Similarly, Plaintiffs argue, undocumented immigrants eligible for relief from deportation could suffer irreparable legal harm without an attorney’s advice.
Plaintiffs’ contention that detainees cannot assert rights on their own behalf is unconvincing. See Barrows v. Jackson, 346 U.S. 249, 257 (1953) (hindrance must be “difficult if not impossible for the persons whose rights are asserted to present their grievance before any court”). Detainees’ rights are routinely asserted and remedied on appeal, even after legal damage has been done at the trial level. See Kowalski, 543 U.S. at 131–32 (denying counsel to indigent criminal defendants is not “hindrance” to defendants’ ability to bring suit or remedy violations on appeal); Miller v. Albright, 523 U.S. 420, 448 (1998) (noting petitioner had not shown “substantial hindrance” or “genuine obstacle” to third party’s ability to assert own claim). The alleged hindrances are too
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speculative to rise to the level of a “genuine obstacle.” Suciu v. Washington, 2012 WL 4839924, at *4 (E.D. Mich. Oct. 11, 2012) (attorneys could not bring claims on behalf of prisoner clients because clients were not hindered as clients could pursue relief through the courts and claim arising from violation was not factually or legally complex); Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 31–32 (D.C. Cir 2010) (third party in Yemen on a “kill list” who would possibly be detained in the United States if he brought suit here was not hindered from bringing suit on his own behalf within the meaning of the Powers hindrance requirement). Moreover, the fact that the PJL, a party to this suit, includes individuals detained in the TCCC demonstrates that detainees are not hindered from bringing suit. See e.g., Pharmacy Buying Ass’n, Inc. v. Sebelius, 906 F. Supp. 2d 604, 616–17 (W.D. Tex. 2012) (“A claim of hindrance is rebutted in this case, as in others, by the participation of [the third-party a plaintiff seeks to represent].”). Accordingly, the ALG and Individual Plaintiffs have not shown they have third-party standing to assert rights on behalf of their detainee clients. See Singleton v. Wulff, 428 U.S. 106, 116 (1976) (“Even where the relationship is close, the reasons for requiring persons to assert their own rights will generally still apply . . . . [unless] there is some genuine obstacle to such assertion.”).
In sum, ALG and PJL have associational standing to bring suit on behalf of their members. The Individual Plaintiffs have standing to bring claims on behalf of themselves. However, no plaintiff has third-party standing to bring claims on behalf of non-member detainee clients. As each plaintiff has standing to assert at least one cause of action, the motions to dismiss should not be granted for lack of standing. B. Travis County Immunity
The Travis County Offices and Officials argue they are not capable of being sued or are
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immune from suit. The Officials further maintain Plaintiffs have failed to state an official capacity claim against them.
1. Travis County Offices The Travis County Sheriff’s Office, Travis County District Attorney’s Office, and Travis County Attorney’s Office correctly assert, and Plaintiffs do not contest, the Travis County Offices are not legal entities capable of being sued. See Murray v. Earle, 334 F. App’x 602, 606 n.2 (5th Cir. 2009) (Travis County District Attorney’s Office is not a separate entity; the district attorney is the properly named party when alleging a constitutional violation by a district attorney’s office); Darby v. Pasadena Police Dep’t, 939 F.2d 311 (5th Cir. 1991) (police and sheriff’s departments are governmental subdivisions without capacity for independent legal action); Parker v. Whoolery, 2009 WL 3247583, at *2 (W.D. Tex. Oct. 2, 2009) (Travis County Sheriff’s Department is not legal entity capable of being sued); Jacobs v. Port Neches Police Dep’t, 915 F. Supp. 842, 844 (E.D. Tex. 1996) (county sheriff’s office and county district attorney’s office are not legal entities capable of being sued). The undersigned generally construes claims such as Plaintiffs’ as if they were brought against Travis County. However, Plaintiffs have named Hamilton, Lehmberg, and Escamilla in their official capacities. Hamilton is the duly elected Travis County Sheriff, Lehmberg is the duly elected Travis County District Attorney, and Escamilla is the duly elected Travis County Attorney. Plaintiffs’ claims against Hamilton, Lehmberg, and Escamilla in their official capacities are the same as if they were brought against Travis County. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (suit against state official in official capacity is against official’s office, which is no different that suit against state itself); Overlin v. Boyd, 598 F.2d 423, 424–25 (5th Cir. 1979) (construing official capacity claims against county commissioners as against the county); see also Washington v. Med.
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Staff T.C.S.O., 2006 WL 2052848, at *2 (W.D. Tex. Jul. 21, 2006) (construing official capacity claim against Travis County medical director as against Travis County). Accordingly, the Travis County Sheriff’s Office, Travis County District Attorney’s Office, and Travis County Attorney’s Office should be dismissed from this suit.
2. Travis County Officials Lehmberg and Escamilla assert they are entitled to absolute prosecutorial immunity from the instant suit. Lehmberg, Escamilla, and Hamilton further argue Plaintiffs have failed to state an official capacity claim against the Officials.
a. Absolute Prosecutorial Immunity Prosecutors are generally entitled to absolute immunity in civil rights damages lawsuits for actions taken pursuant to their prosecutorial role. Kalina v. Fletcher, 522 U.S. 118 (1997); Imbler v. Pachtman, 424 U.S. 409 (1976); Esteves v. Brock, 106 F.3d 674 (5th Cir. 1997); Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994). However, as noted previously, Plaintiffs filed suit against Lehmberg and Escamilla in their official capacities. Therefore, absolute immunity is inapplicable here because the suit is construed as being brought against Travis County. See Burge v. Parish of St. Tammany, 187 F.3d 452, 466–67 (5th Cir. 1999) (citing Monell v. New York City Dep’t Of Soc. Servs., 436 U.S. 658, 690–91 n.55 (1978)) (district court erred in granting summary judgment for district attorney in official capacity based on absolute immunity, because “[u]nlike government officials sued in their individual capacities, municipal entities and local governing bodies do not enjoy immunity from suit, either absolute or qualified . . . .”). See also Hill v. City of Seven Points, 31 F. App’x 835, 845 (5th Cir. 2002) (citing Burge, 187 F.3d at 466–67) (prosecutor entitled to absolute immunity in her individual capacity for conduct occurring within the scope of duties as
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prosecutor but not immune in her official capacity). Moreover, absolute prosecutorial immunity is inapplicable to suits for prospective, i.e.,
injunctive and declaratory, relief. Johnson v. Kegansi, 870 F.2d 992, 998–99 (5th Cir. 1989) (citing Pulliam v. Allen, 466 U.S. 522, 541 (1984). Lehmberg and Escamilla therefore should not be dismissed from the suit.
b. Official Capacity In order to state an official capacity claim against a municipality under 42 U.S.C. § 1983, a plaintiff must allege a constitutional violation resulting from a municipal custom or policy. Monell, 436 U.S. at 690–94 (1978); Collins v. City of Harker Heights, Tex., 916 F.2d 284, 286 (5th Cir. 1990), aff’d, 503 U.S. 115 (1992). Counties are not liable for constitutional violations committed by county employees unless the violations were the result of a county policy or custom that caused the injury. Parm v. Shumate, 513 F.3d 135, 142 (5th Cir. 2007); Conner v. Travis County, 209 F.3d 794, 796 (5th Cir. 2000). To establish an official policy, plaintiff must allege either an officially adopted policy, or a: [P]ersistent, 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. Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984) (en banc). See Bishop v. Arcuri, 674 F.3d 456, 467 (5th Cir 2012) (applying Bennett’s policy test). Plaintiffs allege Travis County’s policymakers have adopted a widespread practice and policy of recording confidential attorney–client telephone calls, that the Travis County Defendants have
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access to the confidential recordings, and that the Travis County Defendants have been engaged in this conduct for years. Accepting these allegations as true, the undersigned finds Plaintiffs have properly alleged that the Travis County Defendants have engaged in a persistent, widespread practice that is purportedly unconstitutional. See Bishop, 674 F.3d at 469 (unwritten police policy of conducting no-knock entries promulgated by chief of police was sufficient to establish widespread police department policy).
Further, Plaintiffs specifically allege that the Travis County Defendants had actual, and, at a minimum, constructive knowledge of the custom. In support of this allegation, Plaintiffs maintain that members of the Austin criminal defense bar contacted Travis County’s policymakers personally and in writing on three separate occasions, including the Sheriff, County Attorney, District Attorney, Travis County and District Judges, and the Travis County Commissioners Court. See Bennett, 728 F.2d at 768 (actual knowledge may be shown by discussion at council meetings, written notification; constructive knowledge may be shown if governing body would have known of violations if properly exercised responsibilities). Accordingly, Plaintiffs properly state an official capacity claim against the Officials and the complaint should not be dismissed on this ground. C. Wiretap Acts
The Federal Wiretap Act and Texas Wiretap Act generally prohibit intentional interception, use, or disclosure of telephone communications without at least one communicating party’s consent. 18 U.S.C. § 2511; TEX. CIV. PRAC. & REM. CODE § 123.002. See Stephens v. Dolcefino, 126 S.W.3d 120, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (clarifying that Texas Wiretap Act is not violated if at least one party to the communication consents to interception). Defendants contend they are not liable under the Wiretap Acts because various statutory exceptions apply.
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Defendants argue the ordinary course of business exception and law enforcement exception to the Federal Wiretap Act and the common carrier defense to the Texas Wiretap Act apply here.2 The ordinary course of business exception exempts a wire or electronic communication service provider’s use of a “telephone or telegraph instrument, equipment or facility, or any component thereof” in the ordinary course of business. 18 U.S.C. § 2510(5)(a)(ii). Similarly, the law enforcement exception exempts investigative or law enforcement officers who intercept telephone conversations in the ordinary course of their duties. 18 U.S.C. § 2510(5)(a)(ii). The common carrier defense grants “communication common carriers” the right to conduct “an activity that is necessary to service for the protection of the carrier’s rights or property.” TEX. CIV. PRAC. & REM. CODE § 123.003(a). Therefore, the crux of these exceptions is whether the calls at issue are recorded in the ordinary or necessary course of the Securus’ business and the Travis County Defendants’ duties.
As a preliminary matter, it is undisputed that Securus is a common carrier that intentionally intercepts detainees’ telephone conversations while they are in custody and that the Travis County Defendants are given access to the recordings. Recording detainees’ calls is routinely accepted as a practice within the ordinary course of business and within the ordinary course of law enforcement officers’ duties. Riviera v. United States, 546 U.S. 1023 (2005); Lanza v. State of New York, 370 U.S. 139, 143 (1962).3 However, the issue here differs because it specifically involves allegations
2 The Officials also argue the Texas Wiretap Act claims are barred by sovereign immunity, citing City of Oak Ridge North v. Mendes, 339 S.W.3d 222, 232–34 (Tex. App.—Beaumont 2011, no pet.). Specifically, they argue the claims are construed against Travis County, and the Texas Wiretap Act only applies to “persons.” However, the Texas Government Code specifically defines “persons” to include a “government or governmental subdivision or agency.” TEX. GOV’T CODE ANN. § 311.005. See also Garza v. Bexar Metro. Water Dist., 639 F. Supp. 2d 770, 773 (W.D. Tex. 2009) (Texas and Federal Wiretap Acts apply to governmental entities).
3 Plaintiffs also argue that the equipment used by Securus to record the confidential conversations falls outside of the ordinary course of business exception. However, equipment “furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business . . .” falls within the exception. Adams v. City of Battle Creek, 250 F.3d 980,
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that confidential attorney–client telephone communications were recorded and intentionally disclosed to law enforcement officers and prosecutors.4
In the complaint, Plaintiffs allege that Defendants’ policies bar recording of confidential attorney–client telephone conversations.5 Specifically, Plaintiffs allege the Travis County Sheriff’s
Office and Securus both publicly state on their webpages that attorney–client telephone
conversations are not recorded. Plaintiffs further allege Major Darren Long, the Travis County
Sheriff’s Office’s jail administrator told defense attorneys attorney–client telephone calls are not
recorded or listened to by his staff. (First Am. Compl. ¶ 15). Moreover, Plaintiffs allege that the
recordings are conducted covertly, without notice to any party that is being monitored. See Crooker
v. U.S. Dep’t Of Justice, 497 F. Supp. 500, 502–03 (D. Conn. 1980) (“[T]he Court of Appeals for
the First Circuit held that the mere fact that the plaintiff was in restrictive custody and knew or
should have known that his telephone call would probably be monitored was not sufficient to
establish consent.”). Plaintiffs have thus alleged recording confidential attorney–client telephone
conversations is not within Defendants’ ordinary course of business, necessary to Securus’ service,
983–84 (6th Cir. 2001) (citing 18 U.S.C. § 2510(5)(a)(I)) (pager provided by electronic communications service was used in ordinary course of business). All recording equipment allegedly used by Securus to purportedly violate detainees’ rights is also equipment used to record inmate telephone calls that are not confidential. Therefore, because the equipment is also used in the ordinary course of business, the equipment itself falls within the ordinary course of business exception.
4 The Officials argue in their motion to dismiss that “courts have consistently held that inadvertent recording of attorney-inmate calls by correctional officers or officials . . . is insufficient to constitute a violation of constitutional rights . . . . Accordingly, [the recording] falls within the Federal Wiretap Act’s law enforcement exemption.” (Offiials Mot. at 18). Notably, the Officials fail to cite a single case specifically holding intentional recordings of confidential attorney-inmate calls and sharing them with prosecutors fell within the law enforcement exception.
5 On multiple occasions in the motions to dismiss, Defendants assert that Defendants provide an alternate mechanism whereby detainees and their attorneys may engage in private telephone calls. However, at this stage, the undersigned will only consider the complaint and accept the allegations therein as true. See Bell Atl.550 U.S. at 555 (complaint’s factual allegations must be accepted as true).
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or within the Travis County Defendants’ law enforcement duties. See, e.g., id. at 503–04 (routine monitoring of inmate-attorney calls was unwarranted). See also, e.g., Garza v. Bexar Metro. Water Dist., 639 F. Supp. 2d 770, 772–75 (W.D. Tex. 2009) (defendants’ handbook reserving right to monitor and access phone and email messages did not give defendants right to maliciously listen to personal calls within the ordinary course of business); Lonegan v. Hasty, 436 F. Supp. 2d 419, 432 (E.D.N.Y. 2006) (“[I]n the prison setting, attorney–client communications generally are distinguished from other kinds of communications and exempted from routine monitoring.”).
Accordingly, Defendants have not shown the ordinary course of business exception, law enforcement exception, and common carrier defense apply at this preliminary stage. The motion to dismiss the Federal and Texas Wiretap At claims should therefore be denied. D. Constitutional Claims
Defendants contend Plaintiffs fail to state a claim under the Fourth Amendment for unreasonable search and seizure, the Sixth Amendment for ineffective assistance of counsel, and the First, Fifth, and Fourteenth Amendments for denial of access to the courts. Securus further argues it is not liable for any alleged constitutional violations because it is a private entity not acting under color of state law.
1. Unreasonable Searches and Seizures The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. A “search” extends to the recording of oral statements and conversations. Katz v. United States, 389 U.S. 347, 353 (1967); Berger v. New York, 388 U.S. 41, 51 (1967). The government cannot monitor or record a call without violating the Fourth Amendment if the parties have a reasonable expectation of privacy in their conversation. Katz, 389 U.S. at 351–52. See also
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United States v. Jones, 132 S. Ct. 945, 950–51 (2012) (indirectly reaffirming Katz). To establish a Fourth Amendment privacy claim, a plaintiff must demonstrate he had an actual, subjective expectation of privacy, and that his expectation of privacy is objectively reasonable. Zaffuto v. City of Hammond, 308 F.3d 485, 488 (5th Cir. 2002) (citing Katz, 389 U.S. at 351–52).
Pretrial detainees and prisoners do not enjoy the same constitutional protections as unincarcerated individuals. See Hudson v. Palmer, 468 U.S. 517, 527 (1984) (inmate has no reasonable expectation of privacy in prison cell); Bell v. Wolfish, 441 U.S. 520, 556 (1979) (constitutional rights of inmates are “limited by the legitimate goals and policies of penal institution”). Again, it is generally acceptable to record and listen to inmate telephone calls. Riviera, 546 U.S. 1023; Lanza, 370 U.S. at 143. However, the question here is whether recording, listening to, and sharing detainees’ confidential attorney–client telephone calls is a violation of the Fourth Amendment.
Defendants argue Plaintiffs’ Fourth Amendment claim fails because attorneys cannot assert the attorney–client privilege, as that privilege is properly held and asserted by the client. See In re Grand Jury Subpoena, 220 F.3d 406, 408 (5th Cir. 2000) (attorney–client privilege is held by client). While the attorney–client privilege is held by the client, the Fourth Amendment reasonable expectation of privacy standard is distinguishable from the pure attorney–client privilege. All parties who have a reasonable expectation of privacy in a conversation are protected by the Fourth Amendment. See Gennusa v. Shoar, 879 F. Supp. 2d 1337, 1348 (M.D. Fla. 2012), aff’d 748 F.3d 1103 (11th Cir. 2014) (local criminal defense attorney and client had reasonable expectation of privacy when communicating with pretrial detainee client in interrogation room when officials led attorney to believe conversations would not be monitored); Lonegan v. Hasty, 436 F. Supp. 2d 419,
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435 (E.D.N.Y. 2006) (“Although the privilege afforded to attorney–client communications generally belongs to the client, not to the attorney, see United States v. Goldberger & Dubin, P.C., 935 F.2d 501, 504 (2d Cir. 1991), the existence of robust protections for attorney–client communications makes [attorney-plaintiffs’] expectation of privacy in their conversations with Detainees reasonable.”).
Both attorneys and clients have an objectively reasonable expectation of privacy in confidential communications between an attorney and client. See Upjohn Co. v. United States, 449 U.S. 383 (1981) (attorney–client privilege is the “oldest of the privileges for confidential communications known to the common law”). Fourth Amendment protection thus extends to attorneys engaged in confidential communications with their clients and the expectation of privacy in those communications is objectively reasonable. Therefore, it must be determined whether the attorneys and clients had an actual, subjective expectation of privacy.
Defendants assert Plaintiffs have not alleged a subjective expectation of privacy because Plaintiffs have not alleged the recordings were made without notice. Defendants attempt to analogize the case here to United States v. Novak, 531 F.3d 99 (1st Cir. 2008), wherein the First Circuit held detainees had no reasonable expectation of privacy because they were notified that all calls were being recorded and attorney–client telephone calls were mistakenly recorded. Id. at 101. Plaintiffs allege three facts which distinguish this case from Novak and support their contention that attorneys and detainee clients had an actual, subjective expectation of privacy. First, Plaintiffs allege the Travis County Sheriff’s Office and Securus tell the public attorney–client telephone calls are not recorded. Second, Plaintiffs allege Major Long stated that attorney–client telephone calls are not recorded or listened to by his staff. (First Am. Compl. ¶ 15). Third, Plaintiffs allege “Defendants
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similarly lead detainees to believe” their attorney–client telephone calls are confidential. Moreover, nowhere in the complaint did Plaintiffs allege detainees or attorneys were notified that their calls were being recorded. Plaintiffs have therefore properly alleged that attorneys and detainee clients have a reasonable expectation of privacy in their confidential communications. Accordingly, this claim should not be dismissed.
2. Effective Assistance of Counsel The Sixth Amendment right to effective assistance of counsel is implicated when there are concerns regarding interference with the attorney–client privilege. Taylor, 532 F.2d at 472. However, this Sixth Amendment right is solely applicable to “pre-trial detainees or to a convicted prisoner being tried on additional charges or contesting the legality of a previous conviction.” Id. Generally, a cause of action for a Sixth Amendment violation for ineffective assistance of counsel requires a showing of actual prejudice to the defendant, e.g., a conviction or longer sentence that would not have occurred but for the attorney’s deficient performance. Weatherford v. Bursey, 429 U.S. 545, 558 (1977); United States v. Davis, 226 F.3d 346, 353 (5th Cir. 2000). Defendants argue Plaintiffs fail to state a claim for denial of effective assistance of counsel because they lack standing and have alleged no facts showing a denial of effective assistance of counsel or resulting prejudice. The undersigned first notes that the Sixth Amendment right to effective assistance of counsel is one held by individual criminal defendant clients, not attorneys. Strickland v. Washington, 466 U.S. 668, 680, 686 (1984) (constitution affords criminal defendants effective assistance of counsel). The ALG’s members and Individual Plaintiffs are attorneys rather than clients, they do not have standing to assert an ineffective assistance of counsel claim. However, the PJL alleges its members
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include people detained in TCCC and that its members have been denied effective assistance of counsel. (First Am. Compl. ¶ 5). Accordingly, this cause of action should not be dismissed based on a lack of standing.
The undersigned next notes that the issue of prejudice is central to a Sixth Amendment claim’s survival. Davis, 226 F.3d at 353. Defendants argue a showing of actual prejudice is required, and that Plaintiffs have failed to allege the TCCC detainees have been actually harmed regarding the legal proceedings against them. Plaintiffs respond by arguing Defendants’ conduct creates an unreasonable risk of prejudicing detainees’ cases.
While a Sixth Amendment cause of action for denial of the right to effective counsel requires actual prejudice, several courts, including the Fifth Circuit, have presumed prejudice in situations wherein the government intentionally interferes with the attorney–client relationship. The Fifth Circuit held in United States v. Zarzour, “It is well settled that an intrusion by the government upon the confidential relationship between a criminal defendant and his attorney, either through surreptitious electronic means or through an informant, is a violation of the Sixth Amendment right to counsel.” 432 F.2d 1, 2 (5th Cir. 1970) (citing Hoffa v. United States, 385 U.S. 293 (1966); and Black v. United States, 385 U.S. 26 (1966)). More recently, the United States Supreme Court denied certiorari and refused to disturb the Connecticut Supreme Court’s ruling that a prosecutor’s intrusion into the attorney–client privilege presumptively prejudiced a defendant’s case. State v. Lenarz, 301 Conn. 417 (2011). In that case, police officers lawfully seized the defendant’s laptop. Id. at 421. Defense counsel advised the court at a hearing that the laptop contained materials subject to the attorney–client privilege. Id. The court ordered the privileged materials to remain unaccessed. Id. at 421–22. Nevertheless, the prosecutor in that case read the materials. Id. The court consequently
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presumed prejudice to the defendant’s case, finding that even on retrial, the defendant would be prejudiced because a new prosecutor could access the transcript from the original trial. Id. at 450–52. The Third Circuit has similarly held where there is “a knowing invasion of the attorney–client relationship and where confidential information is disclosed to the government,” the Sixth Amendment’s prejudice requirement may be called into question. United States v. Levy, 577 F.2d 200, 208 (3d Cir. 1978).
The undersigned finds the PJL’s allegation that its TCCC detainee-members will be prejudiced by the recording and sharing of confidential telephone calls is sufficient to support a presumption of prejudice at this preliminary stage. See United States v. Collins, 927 F.2d 605, 618 (6th Cir. 1991) (quoting Levy, 577 F.2d at 209) (“The Levy court held that prejudice is presumed ‘at the point where attorney–client confidences are actually disclosed to the government enforcement agencies responsible for investigating and prosecuting the case,’ the defendant need not show the information was actually used by the prosecutors or of benefit to them.”) (internal citations omitted); see also Tucker v. Randall, 948 F.2d 388, 390–91 (7th Cir.1991) (“Denying a pre-trial detainee access to a telephone for four days would violate the Constitution in certain circumstances. The Sixth Amendment right to counsel would be implicated if plaintiff was not allowed to talk to his lawyer for the entire four-day period. In addition, unreasonable restrictions on prisoner’s telephone access may also violate the First and Fourteenth Amendments.”). See United States v. Ryans, 903 F.2d 731, 741 n.11 (10th Cir. 1990) (informant knowingly placed in “defense camp” of indicted defendant which allowed prosecution to access confidential defense planning taints the entire prosecution and is a violation of the Sixth Amendment). Plaintiffs’ cause of action for denial of effective assistance of counsel under the Sixth Amendment therefore should survive.
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3. Access to Courts Detainees have a constitutionally protected right of access to the courts.6 Bounds v. Smith, 430 U.S. 817, 821 (1977); Terry v. Hubert, 609 F.3d 757, 761 (5th Cir. 2010). Claims of denial of access to courts fall into two categories: (1) “claims that systematic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time,” e.g., access to a law library or a lawyer; or (2) “specific cases that cannot now be tried (or tried with all material evidence), no matter what official action may be in the future,” e.g., the loss of the opportunity to seek relief because there was a police coverup extending until the statute of limitations had run. Christopher v. Harbury, 536 U.S. 403, 413 (2002). This right generally includes a reasonable opportunity to receive the assistance of attorneys. Procunier v. Martinez, 416 U.S. 396, 419 (1974) overruled in part on other grounds by Thornburgh v. Abbot, 490 U.S. 401 (1989). However, the right of access for detainees is not unlimited. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997). Rather, it encompasses only a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement. Lewis, 518 U.S. at 351; Mann v. Smith, 796 F.2d 79, 84 (5th Cir. 1986); Morrow, 768 F.2d at 623 (direct legal assistance need not be by trained lawyers).7 Thus, to prevail on a denial of access to the courts claim under section 1983, a plaintiff must show actual injury in connection with an identifiable legal
6 Plaintiffs correctly point out that pretrial detainees and post-conviction prisoners’ rights of access to the courts differ somewhat. However, the undersigned notes that Plaintiffs do not specify in the complaint whether the PJL member–detainees are pretrial detainees or post-conviction prisoners. However, the undersigned’s analysis includes cases regarding both pretrial detainees and post-conviction prisoners; therefore the discrepancy is immaterial.
7 Defendants, citing Brewer v. Wilkinson, argue the right to access the courts merely protects a detainee’s right to prepare and transmit legal documents. 3 F.3d 816, 821 (5th Cir. 1993). This undersigned rejects this literal and narrow reading of Brewer and notes that Brewer also mentions that prison officials should not unreasonably limit a detainee’s access to legal personnel. Id. at 821 (citing Procunier, 416 U.S. at 419–22).
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proceeding.8 Lewis, 518 U.S. at 349–53. “[An inmate] might show, for example, that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known.” Id. at 351. See Harbury, 536 U.S. at 415 n.12 (the underlying legal proceeding can be “upcoming or lost,” but the claimant must describe it in the complaint). See also Lewis, 518 U.S. at 354 (“Finally, we must observe that the injury requirement is not satisfied by just any type of frustrated legal claim. Nearly all of the access-to-courts cases in the Bounds line involved attempts by inmates to pursue direct appeals from the convictions for which they were incarcerated.”).
Although the Fifth Circuit has been somewhat forgiving regarding the prejudice requirement for Sixth Amendment claims, it appears much less flexible regarding actual injury requirement in the “access to courts” context. See Gross v. Normand, 576 F. App’x 318, 320 (5th Cir. 2014) (former pretrial detainee alleging prison officials confiscated his legal documents failed to state a claim absent an allegation of actual injury in his state criminal case); Mendoza v. Strickland, 414 F. App’x 616, 619 (5th Cir. 2011) (assuming federal pretrial detainee alleged officials interfered with pursuit of state post-conviction challenge, detainee failed to plead actual injury as required by the Supreme Court in Harbury); Terry v. Hubert, 609 F.3d 757, 761–62 (5th Cir. 2010) (pretrial detainee was not denied access to courts because he had the ability to file a legally sufficient claim when he had writing materials, contact information, and could request help from inmate counsel); Walker v. Navarro Cnty. Jail,4 F.3d 410 (5th Cir. 1993) (pretrial detainee was required to but failed to allege his position as a litigant was prejudiced); Jones v. Diamond, 594 F.2d 997, 1024 (5th Cir. 1979)
8 The right of access to courts is therefore one held by detainee–clients, rather than their attorneys. Accordingly, the ALG and Individual Plaintiffs do not have standing to assert this claim and the undersigned only considers the sufficiency of the claim in relation to the PJL.
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(pretrial detainees were not prevented from seeking redress in court because they could meet their attorneys in private rooms at jail facility).
As noted above, the PJL contends that its members will prejudiced by the Defendants’ recording and use of confidential telephone calls.9 (First Am. Compl. ¶ 44). Although the PJL has properly alleged its members detained in the TCCC face a substantial risk their rights will be violated for standing purposes and Sixth Amendment purposes, the PJL has not identified a specific underlying legal proceeding of a PJL member that has been actually injured, as required to satisfy an access-to-courts cause of action. See Stamper v. Campbell Cnty., 415 F. App’x 678 (6th Cir. 2011) (declining to presume actual injury when pretrial detainee was denied telephone access to counsel for days prior to plea hearing); Carter v. Lowndes Cnty., 89 F. App’x 439, 442 (5th Cir. 2004) (pretrial detainee who, without providing detail, alleged that he was prejudiced because he was prevented from filing motion to dismiss failed to show actual injury). This allegation fails to “identify a ‘nonfrivolous,’ ‘arguable’ underlying claim” that a detainee was unable to pursue. Harbury, 536 U.S. at 415 (quoting Lewis, 518 U.S. at 353 & n.3). Because the PJL has not identified a specific underlying claim wherein the denial of access to an attorney prejudiced its detained members, the PJL has not established actual prejudice. Lewis, 518 U.S. at 351–52; Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Accordingly, the claim for denial of access to the courts should be dismissed.
9 Plaintiffs allege a violation of the right to access the courts under the First, Fifth, and Fourteenth Amendments. As the Fifth Amendment only applies to actions of the federal government, and not to the actions of a local government, the undersigned considers the alleged violation in the context of the First and Fourteenth Amendments. See Morin v. Caire, 77 F.3d 116, 120 (5th Cir. 1996) (Fifth Amendment only applies to actions of the federal government).
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4. Color of State Law Securus, a private company, argues Plaintiffs fail to allege facts showing Securus was acting under color of state law when recording detainees’ telephone calls. To state a claim under section1983 against a private entity such as Securus, a plaintiff must: (1) allege a violation of rights secured by the Constitution or laws of the United States, and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law. Randolph v. Cervantes, 130 F.3d 727, 730 (5th Cir. 1997). The Supreme Court has utilized a number of tests to determine whether a private entity is acting under color of state law. Cornish v. Corr. Servs. Corp., 402 F.3d 545, 549–50 (5th Cir. 2005). Under the “public function test,” the court examines whether the private entity performs a function that is traditionally reserved solely to the State. Id. at 549. The “state compulsion test” asks whether the private entity’s actions are attributable to the State because the State exerts coercive power over the private entity or provides significant encouragement. Id. at 549–50. The “nexus” or “state action test” looks at whether the State has insinuated itself into the affairs of the entity such that it was effectively a joint participant in the wrong. Id. at 550. Finally, under the “joint action test” the private entity will be considered a state actor if it willfully participated in joint action with the State. Id. The analysis of whether a private entity acted under color of state law always begins by identifying the specific unconstitutional conduct attributed to the private entity. Blum v. Yaretsky, 457 U.S. 991, 1003 (1982). As discussed above, Plaintiffs have properly alleged Securus’ recording of and granting access to confidential attorney–client telephone calls violates the Fourth and Sixth Amendment to the United States Constitution. Having identified the specific allegations of
32

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unconstitutional acts committed, the undersigned thus turns to the various state action tests. The facts alleged in the complaint are sufficient to meet the joint action test at this stage.
Plaintiffs allege Securus and the Travis County Defendants were notified multiple times that Securus records confidential attorney–client telephone calls and granting prosecutors access to the recordings. Plaintiffs further allege Securus and the Travis County Sheriff’s Office “have acted (and continue to act) in concert to intercept confidential communications between plaintiff attorneys and detainees . . . . ” (First Am. Compl. ¶ 34); see Hobbs v. Hawkins, 968 F.2d 471, 480 (5th Cir. 1992) (alleging conspiracy between private and public actors satisfies joint action test). On the face of the complaint, it appears Securus and the Travis County Defendants willfully participated in the decision to monitor confidential attorney–client telephone calls. See Cornish, 402 F.3d at 549–51 (joint action test requires complaint contain factual allegations that county and private entity were willful or joint participants in unconstitutional act).
The allegations in the complaint are also sufficient to meet the state compulsion test. Generally, a public contract is insufficient to establish a private actor is acting under color of state law. See Rendell-Bake v. Kohn, 457 U.S. 830, 841 (1982) (public contract alone does not turn private actor into state actor); Harris v. Rhodes, 94 F.3d 196, 197 (5th Cir. 1996) (jail maintenance worker was not acting under color of state law when he punched prisoner during horseplay because punch involved purely private aim and no misuse of state authority). However, courts have found a violation by a private actor at the direction of the State to be sufficient “state compulsion” at the motion to dismiss stage. See Nelson v. Cauley, 2005 WL 415144, at *3 (N.D. Tex. Feb. 22, 2005) (at motion to dismiss stage, state prisoner’s assertion that private doctors violated his rights at the direction of state officer was sufficient to show conduct was fairly attributable to the state). Securus’
33

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contract requires Securus to record and share detainee telephone calls with the Officials. The state compulsion test is therefore met at the motion to dismiss stage.
Plaintiffs have thus properly pled that Securus was acting under color of state law when it committed the allegedly unconstitutional acts and the motion to dismiss on this ground should be denied.10 E. Declaratory Judgment and Injunctive Relief
Finally, Defendants assert that Plaintiffs’ declaratory judgment action and request for injunctive relief should be denied for the reasons set forth in their motions to dismiss. As an initial matter, the undersigned notes this inquiry would require resolution of disputed facts. Accordingly, this inquiry is properly addressed in a motion for summary judgment, not in a motion to dismiss.
In addition, the success of Plaintiffs’ requests for declaratory judgment and injunctive relief rest on the success of their claims. As Defendants note, this is because a request for declaratory and injunctive relief are simply remedies and not free-standing claims. See Volvo Trucks N. Am., Inc. v. Crescent Ford Truck Sales, Inc., 666 F.3d 932, 938 (5th Cir. 2012) (operation of federal Declaratory Judgment Act is procedural only); Sid Richardson Carbon & Gas. Co. v. Interenergy Res., Ltd., 99 F.3d 746, 752 n.3 (5th Cir. 1996) (Texas Uniform Declaratory Judgments Act is merely procedural device which does not create any substantive rights or causes of action); Spady v.
10 The undersigned agrees with Securus’ contention that Plaintiff has not alleged that telephone and video conferencing services are traditionally reserved solely for the State, as required to meet the public function test. See Cornish, 402 F.3d at 549–50 (public function test examines whether private entity’s function is exclusively reserved to the state). Nor do the allegations in the complaint meet the nexus/state action test. See Richard v. Hoechst Celanese Chem. Group, Inc., 355 F.3d 345, 352 (5th Cir. 2003) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 357–58 (1974)) (interdependence between State and private actor is required); Goss v. Memorial Hosp. Sys., 789 F.2d 353, 356 (5th Cir. 1986) (existence of state statute alone does not automatically result in state action). Cf. West v. Atkins, 487 U.S. 42, 49 (1988) (where private entity is given its authority by state law, and a deprivation of a right is caused by the exercise of that authority, the private actor is said to be acting under color of state law). However, as discussed above, the allegations in the complaint meet the state compulsion and joint action tests at this preliminary stage.
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America’s Servicing Co., 2012 WL 1884115, at *5 (S.D. Tex. May 21, 2012) (request for injunctive relief absent cause of action supporting entry of judgment is fatally defective and does not state claim). See also Smith v. JPMorgan Chase Bank, N.A., 519 F. App’x 861, 864 n.5 (5th Cir. 2013) (because district court properly rejected all of plaintiffs’ claims, it also correctly rejected request for declaratory judgment). See also Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002) (temporary injunction requires pleading cause of action against defendant); Brown v. Ke–Ping Xie, 260 S.W.3d 118, 122 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“injunction is an equitable remedy, not a cause of action”). Consequently, the motions to dismiss Plaintiffs’ claims for declaratory and injunctive relief should be denied.
IV. RECOMMENDATION The undersigned RECOMMENDS that the District Court GRANT Defendants Travis County Sheriff’s Office, Travis County District Attorney’s Office, and Travis County Attorney’s Office’s Motion to Dismiss (Clerk’s Dkt. No. 28). The undersigned FURTHER RECOMMENDS that the District Court GRANT in part and DENY in part Defendants Hamilton, Lehmberg and Escamilla’s Motion to Dismiss (Clerk’s Dkt. No. 27); and GRANT in part and DENY in part Defendant Securus Technologies, Inc.’s Renewed Motion to Dismiss (Clerk’s Dkt. No. 29). In sum, the Travis County Sheriff’s Office, Travis County District Attorney’s Office, and Travis County Attorney’s Office should be dismissed as defendants from this action. Further, Plaintiffs’ claim for violation of the right to access the courts under the First, Fifth and Fourteenth Amendment should be dismissed. All other relief sought by the motions to dismiss should be denied.
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V. OBJECTIONS The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150–53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428–29 (5th Cir. 1996) (en banc). To the extent that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested. SIGNED on February 4, 2015.
_____________________________________ MARK LANE UNITED STATES MAGISTRATE JUDGE
36

 
 Case 1:14-cv-00366-DAE Document 62 Filed 03/23/15 Page 1 of 3

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

-fl
J4
2015HAR23 P11 1:53

AUSTIN LAWYERS GUILD, CARL

§

GOSSETT, DAVID GRASSBAUGH,

§

MARK SAMPSON, FRANCIS

§

WILLIAMS, AND THE PRISON

§

JUSTICE LEAGUE,

§

PLAINTIFFS,

§

§

V.

§ CAUSE NO. 1:14-C V-366-LY

§

SECURUS TECWNOLOGIES, INC.,

§

TRAVIS COUNTY SHERIFF'S OFFICE, §

SHERIFF GREG HAMILTON (IN HIS

§

OFFIC1AL CAPACITY), TRAVIS

§

COUNTY DISTRICT ATTORNEY'S

§

OFFICE, DISTRICT ATTORNEY

§

ROSEMARY LEHMBERG (IN HER

§

OFFICIAL CAPACITY), TRAVIS

§

COUNTY ATTORNEY'S OFFICE, AND §

COUNTY ATTORNEY DAVID

§

ESCAMILLA (IN HIS OFFICIAL

§

CAPACITY),

§

DEFENDANTS.

§

ORDER ON REPORT AND RECOMMENDATION

Before the court in the above-styled and numbered cause are Defendants Hamilton,

Lehmbergand Escamilla' s Motion to Dismiss Pursuant to Rule 1 2(b)( 1), Rule 1 2(b)(6) filed August

6, 2014 (Clerk's Doc. No. 27); Defendants Travis County Sheriffs Office, Travis County District

Attorney's Office, and Travis County Attorney's Office's Motion to Dismiss Pursuant to Rule

12(b)(1), 12(b)(6) filed August 6, 2014 (Clerk's Doc. No. 28); Defendant Securus Technologies,

Inc.'s Renewed Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) filed August

6, 2014 (Clerk's Doc. No. 29); Plaintiffs' Response to Defendants' Renewed Motions to Dismiss

filed September 5, 2014 (Clerk's Doe. No. 34); Reply Brief in Support of Defendant Securus

Case 1:14-cv-00366-DAE Document 62 Filed 03/23/15 Page 2 of 3
Technologies, Inc.'s Renewed Motion to Dismiss Pursuant to Fed. R. Civ. P 12(b)(1) and 12(b)(6) filed September 26, 2014 (Clerk's Doc. No. 36); and Travis County Defendants' Reply to Plaintiffs' Response to Defendants' Renewed Motions to Dismiss filed September 26, 2014 (Clerk's Doc. No.
38). The above-listed motions were referred to the United States Magistrate Judge for findings
and recommendations pursuant to 28 U.S.C. § 636(b), Federal Rule of Civil Procedure 72, and Rule 1(d) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, as amended. The magistrate judge filed his Report and Recommendation on February 4, 2015 (Clerk's Doe. No, 52), recommending that this court grant in part and deny in part Defendants'
motions.
Pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure, a
party may serve and file specific, written objections to the proposed findings and recommendations
of the Magistrate Judge within 14 days after being served with a copy of the Report and Recommendation, and thereby secure a de novo review by the District Court. A party's failure to
timely file written objections to the proposed findings, conclusions, and recommendation in a Report
and Recommendation bars that party, except upon grounds of plain error, from attacking on appeal
the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See Douglass v. United Services Auto Ass 'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).
Defendant Securus Technologies, Inc. and the Travis County Defendants timely filed objections on February 18, 2015 (Clerk's Doe. Nos. 55 and 56), to which Plaintiffs responded
(Clerk's Doe. No.61). In light of Defendants' objections, the court has undertaken a de novo review of the entire case file in this cause. The court, having carefully reviewed the objections, motions,

Case 1:14-cv-00366-DAE Document 62 Filed 03/23/15 Page 3 of 3

responses, replies, and entire record in the cause, and finding no error, accepts and adopts the report and recommendation as filed for substantially the reasons articulated therein.

IT IS THEREFORE ORDERED that the objections contained in Defendants' Objections to the Report and Recommendation of the United States Magistrate Judge filed February 18, 2015 (Clerk's Doc. Nos. 55 and 56) are OVERRULED.

IT IS FURTHER ORDERED that the Report and Recommendation of the United States

Magistrate Judge (Clerk's Doc. No. 52) filed in this cause is hereby ACCEPTED and ADOPTED

by the court.

IT IS FINALLY ORDERED that Defendants Hamilton, Lehmberg and Escamilla's Motion

to Dismiss Pursuant to Rule 12(b)(1), Rule 12(b)(6) (Clerk's Doc. No. 27), Defendants Travis County Sheriff's Office, Travis County District Attorney's Office, and Travis County Attorney's Office's Motion to Dismiss Pursuant to Rule 12(b)(1), 12(b)(6) (Clerk's Doc. No. 28), and Defendant Securus Technologies, Inc.'s Renewed Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Clerk's Doc. No. 29) is GRANTED to the following extent: (1) Defendants Travis County Sheriffs Office, Travis County District Attorney's Office, and Travis County Attorney's Office are DISMISSED as defendants from this action, and (2) Plaintiffs claim for violation of the right to access the courts under the First, Fifth, and Fourteenth Amendments is DISMISSED WITH PREJUDICE. In all other respects, the motions are DENIED.

SIGNED this

day of March, 2015.

LEEJYEAKEL UNIITED STAT S DIST ICT JUDGE

 
 Case 1:14-cv-00366-DAE Document 73 Filed 03/10/16 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

AUSTIN LAWYERS GUILD; CARL §

GOSSETT, DAVID GRASSBAUGH, §

MARK SAMPSON, and FRANCIS

§

WILLIAMS, for themselves and those §

similarly situated; and the PRISON

§

JUSTICE LEAGUE;

§

Plaintiffs,

§

v.

§

§

SECURUS TECHNOLOGIES, INC;

§

TRAVIS COUNTY SHERIFF’S

§

OFFICE, and GREG HAMILTON, in his §

official capacity; TRAVIS COUNTY

§

DISTRICT ATTORNEY’S OFFICE, and §

ROSEMARY LEHMBERG, in her

§

official capacity; and TRAVIS COUNTY §

ATTORNEY’S OFFICE, and DAVID §

ESCAMILLA, in his official capacity; §

Defendants.

§

Cause No. 1:14-cv-00366-LY

STIPULATION OF DISMISSAL

Plaintiffs Austin Lawyers Guild, the Prison Justice League, Carl Gossett, David

Grassbaugh, Mark Sampson, and Francis Williams, and Defendants Greg Hamilton, Rosemary

Lehmberg, and David Escamilla hereby file this stipulation agreeing to the dismissal of

Plaintiffs’ claims against these Defendants with prejudice pursuant to Federal Rule of Civil

Procedure 41(a)(1)(A)(ii). Plaintiffs’ lawsuit proceeds only against Defendants Securus

Technologies, Inc. and Travis County. The Parties agree to bear their own costs and fees.

Dated: March 10, 2016.

Case 1:14-cv-00366-DAE Document 73 Filed 03/10/16 Page 2 of 3
Respectfully submitted,
/s/ Abigail Frank Abigail Frank Texas Bar No. 24069732 Wayne Krause Yang Texas Bar No. 24032644 James C. Harrington Texas Bar No. 09048500
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, TX 78741
(512) 474-5073 (phone) (512) 474-0726 (fax) Attorneys for the Individuals, the Austin Lawyers Guild, and the Prison Justice League
/s/ George C. Lobb George C. Lobb Texas Bar No. 24042928
Law Office of George C. Lobb 1108 Lavaca Street, #110-242 Austin, TX 78701
Tel. (512) 215-6011 Fax. (512) 425-0877 Attorney for the Individuals and the Class
/s/ Robert A. Hawkins________ Robert A. Hawkins Cass Weiland SQUIRE PATTON BOGGS LLP 2000 McKinney Avenue Suite 1700 Dallas, Texas 75201 Counsel for Securus Technologies, Inc

ALG Stipulation of Dismissal 1 –

2

Lehmberg Hamilton Escamilla

345578_1

Case 1:14-cv-00366-DAE Document 73 Filed 03/10/16 Page 3 of 3
/s/ Anthony J. Nelson Anthony J. Nelson Laurie R. Eiserloh Assistant Travis County Attorneys TRAVIS COUNTY ATTORNEY’S OFFICE P.O. Box 1748 Austin, Texas 78701 Counsel for Travis County Defendants
CERTIFICATE OF SERVICE I certify that on March 10, 2016 I electronically filed the foregoing with this Court using the CM/ECF system, which will send notification of such filing to all counsel of record who have appeared in this matter.
/s/ Abigail Frank Abigail Frank

ALG Stipulation of Dismissal 1 –

3

Lehmberg Hamilton Escamilla

345578_1

 
 Case 1:14-cv-00366-DAE Document 74 Filed 03/10/16 Page 1 of 13

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION

AUSTIN LAWYERS GUILD; CARL

§

GOSSETT, DAVID GRASSBAUGH,

§

MARK SAMPSON, and FRANCIS

§

WILLIAMS, for themselves and those

§

similarly situated; and the PRISON

§

JUSTICE LEAGUE;

§

Plaintiffs,

§

v.

§

§

SECURUS TECHNOLOGIES, INC and §

TRAVIS COUNTY,

§

Defendants.

§

Cause No. 1:14-cv-00366-LY

PLAINTIFFS’ SECOND AMENDED CLASS ACTION COMPLAINT Plaintiffs respectfully file this lawsuit to stop Travis County and Securus Technologies from recording attorneys’ confidential calls with their clients in the county jail then disclosing those recordings to prosecutors, and to stop prosecutors from using those recordings, and will show:
JURISDICTION AND VENUE 1. Jurisdiction is conferred on this Court by 28 U.S.C. §§1331, 1343. 2. Venue in this Court is proper because Defendants reside in this judicial district; and the relevant events occurred in Travis County, Texas. 28 U.S.C. §1391
PARTIES 3. Carl Gossett, David Grassbaugh, Mark Sampson, and Francis Williams are attorneys who routinely represent clients housed in the downtown Travis County Jail (TCJ) and the Travis County Correctional Complex (TCCC) in Del Valle regarding criminal matters pending in local courts. They routinely speak with those clients remotely via telephone and videoconferencing services provided at TCJ and TCCC exclusively by Securus Technologies.

Case 1:14-cv-00366-DAE Document 74 Filed 03/10/16 Page 2 of 13
There are 966 attorneys routinely practicing criminal defense in Austin. Virtually all are in the same position. Moreover, of the 10,896 other attorneys in Austin, many will ultimately represent one or more pretrial detainees in a criminal defense matter.
4. The Austin Lawyers Guild (ALG) is a membership-based, incorporated non-profit organization, which includes a substantial number of Austin criminal defense attorneys. Its purpose, as set out in its bylaws, is to “promote the public interest, civil rights, and social justice.” ALG’s members face substantially the same risk of eavesdropping as the individual Plaintiffs and the larger defense community.
5. Similarly, the Prison Justice League (PJL) is also a membership-based, incorporated non-profit organization. Its members include people detained in TCCC. PJL’s mission is to improve conditions of incarceration through “litigation, advocacy, and empowering [its] members.” PJL’s members at TCCC all face substantially the same risk that calls with their attorneys will be unlawfully monitored, recorded, and used against them.
6. Travis County operates TCJ and TCCC and is responsible for the detainees held there. It is also responsible for programing and services in the jail, including telephone and video communications, for which it has contracted with the private entity Securus Technologies. It also employs attorneys who prosecute misdemeanor and felony charges in Travis County.
7. Securus Technologies, Inc. is a private corporation, founded and headquartered in Dallas, Texas. It has contracts with prisons and jails across the nation, including in Travis County, to provide telephone and video conferencing services for detainees.
STATEMENT OF FACTS 8. A person arrested in Austin or Travis County is typically brought to TCJ downtown to be booked. TCJ is run by the Sheriff’s Department. In most cases, if the Sheriff’s Department
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plans to hold that person for more than a short time, it soon transfers the individual to TCCC in Del Valle, Texas.
9. Attorneys routinely contact their clients in both TCJ and TCCC by phone or videoconference to discuss confidential matters. They do so with the understanding their conversations are private. Similarly, detainees understand remote conversations with their attorneys are confidential and not recorded.
10. TCJ and TCCC’s phone and videoconferences services are provided by Securus Technologies. It charges families and others in the free world $20 for the privilege of speaking with a detainee for up to 20 minutes. It shares a large cut of those payments with Travis County, which adds up to significant profit for both entities.
11. During those calls, Securus Technologies records communications between detainees and the outside world, relying on a set of servers, electronic storage, cables, and software separate from what is used to simply connect the callers. The equipment it uses to intercept, record, and share detainees’ calls neither facilitates those telephone calls, nor are the recordings a necessary incident of the calls.
12. Securus Technologies stores recordings in a computer server, to which it gives local law enforcement agencies direct online access. They are able to review any recorded call at their leisure.
13. Recording detainees’ calls is required by Securus Technologies’ contract with Travis County, which states that in the course of administering detainee phone services:
• “[Securus Technologies] shall provide inmate call recording and tracking” • The recording and tracking must allow the Sheriff “to obtain a report of all calls from
inmates’ phones to a specific destination and then obtain a recording of the contents of the calls if needed”
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• “[Securus Technologies] shall provide a storage method for the contents of inmate calls made within the previous six (6) months that allows County staff to search the data and retrieve the contents immediately”
14. The Sheriff’s Department tells the public it does not record attorney-client calls. For instance, its “Jail Information” webpage says an inmate’s calls to his attorney “are free of charge and are not recorded.”1 Similarly, Securus Technologies website promises “[video] visits are secure and completely private for legal counsel.”2 As recently as August 8, 2013, Major Darren Long, the Sheriff’s jail administrator, told defense attorneys: “They [calls between attorneys and clients] are not recorded or listened to by my staff. The only way that could happen is if there was a court order for us to do so.” Defendants similarly lead detainees to believe calls with their attorneys are confidential.
15. But in reality, Securus Technologies and Travis County do record confidential attorney-client communications. They also disclose those recorded conversations to prosecutors in the Travis County and District Attorneys’ Offices. There is no legitimate reason to record calls between detainees and their attorneys – the recordings do nothing to further the facilities’ security or public safety.
16. Prosecutors in Travis County have accessed recordings of confidential attorneyclient communications from Securus Technologies. Some prosecutors have disclosed copies of those records to defense attorneys among other discovery materials.
17. Securus Technologies and Travis County were aware early on they were operating a system that captured and recorded privileged conversations. Securus, in particular, has been aware of virtually identical complaints from other parts of the country where it provides services.
1 “Jail Information,” Travis County Sheriff’s Office, at https://www.tcsheriff.org/inmate-a-jail-info/jailinformation 2 “Legal Visits,” http://apps.securustech.net/VideoVisitation/LegalVisits.asp
4

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18. Attorneys and investigators with Travis County have had direct access to the Securus Technologies database of recorded calls for years. Prosecutors have given defense attorneys copies of recorded calls in discovery materials, some of which contained the attorneys’ privileged discussions with their clients.
19. Members of the Austin criminal defense bar contacted Defendants’ policymakers in early 2013 regarding their concerns privileged phone calls with detainee clients were being recorded and passed to the hands of prosecutors. On information as belief, county policymakers and the management of Securus all became aware of the issue at that point.
20. They were alerted again in late 2013 when members of the criminal defense bar conferred with Travis County and District Court judges, who in turn directly contacted the county policymakers. On information and believe, this sparked another round of discussion among Defendants’ policymakers.
21. The Travis County Commissioners Court was alerted to the matter on January 14, 2014, when they were told at an open meeting that attorneys’ privileged calls with clients in the jail were being recorded and made available to prosecutors. The Commissioners were simultaneously cc’d on a spoliation letter to Securus, regarding the matters at issue here.
22. Although defense attorneys in Austin have discerned Defendants’ practices and confronted them, Defendants have not taken adequate steps to avert the automated recording system’s invasion of attorney-client communication. Detainees are all in substantial risk of having their attorney calls monitored, recorded, and used against them to prejudice their criminal cases. Similarly, both detainees and their attorneys faced substantial risk defendants will continue to violate their rights under the Federal and Texas Wiretap Acts.
23. Further, even if a defense attorney suspected his calls with detainees were being monitored, the detainee’s Sixth Amendment rights would still be in serious jeopardy, because the
5

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attorney would be left with the Hobson’s choice of using an insecure phone line or devoting significant time to visiting the detainee in person.
24. Exclusively visiting detainees in person requires an excessive investment of time, which interferes with the routine consultation that is necessary for the attorneys to represent those detainees. Criminal defense attorneys must frequently consult with their clients. As an investigation proceeds, they must confer about various case details to inform their investigation, motion practice, and trial strategy. Traveling to the jail, moving through security, waiting for shift change, waiting for lockdowns, waiting for jail staff to find and bring an inmate to the visitation area, then waiting for a client to appear in the visitation room all take time – frequently, a significant amount of time. A call that could have been conducted in ten minutes may require a three-hour round trip – significantly lengthening the time required to handle the case, with the real chance of diminishing the attorney’s effectiveness by distracting from the cases’ other needs.
25. Further, any delays in communication between attorney and client that result from relying on visits instead of phone calls make it more likely detainees will be unable to protect interests that are often compromised in the short window of time between arrest and the opportunity to consult with an attorney.
26. First, a person who was recently arrested and hoping to be released on a personal recognizance bond needs an attorney’s help, which means using the phone. He could easily share compromising privileged information while trying to contact an attorney, without suspecting the call is monitored. Further, any unrepresented detainee trying to hire an attorney could easily disclose prejudicial information before suspecting the risk.
27. Second, detainees will also risk irreparable injury if Defendants’ practices force them to wait longer for legal advice. For instance, initial pleas – even for low-level charges – can
6

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have significant ramifications for an arrestee’s immigration status. Legal permanent residents and visa-holders need immediate access to an attorney before the initial magistration following arrest. Even an undocumented arrestee could be eligible for relief from deportation through the Violence Against Women Act (VAWA) as a victim of domestic violence; for a U-Visa, as a victim of other crimes; or for relief through the Deferred Action for Childhood Arrivals (DACA) program; but then become ineligible with an ill-advised opening plea, even for a very minor charge like “possession of drug paraphernalia,” a seemingly-innocuous fine-only Class C misdemeanor. The law does not require a magistrate provide an attorney to a defendant before accepting a guilty plea for a Class C misdemeanor. Once the harm is done, it can be virtually impossible to repair.
28. Similarly, if a person arrested on charges of “driving while intoxicated” (DWI) is delayed from speaking with an attorney, he could miss the opportunity to exercise an important statutory right: the Texas Transportation Code §724.109 allows a person charged with DWI to request a separate blood sample from their own health care provider, if they make the request within two hours of being arrested. Every minute that passes makes it less likely the detainee will learn about that opportunity in time to exercise it.
29. Meanwhile, attorneys’ incomes are reduced if they are forced to rely exclusively on visitation rather than the phone. These attorneys are either changing clients a flat fee, meaning an increased time commitment for each case cuts into their income; or they are charging an hourly fee, and fewer potential clients will be able to afford the cost of representation. Either way, it reduces attorneys’ income. Appointed attorneys are especially harmed, because they do not receive hourly compensation. They are paid a few hundred dollars for a plea or a small amount more if the case goes to a trial. They are not compensated for time spent waiting for visits at TCJ or TCCC.
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CAUSES OF ACTION A. Federal Wiretap Act (18 U.S.C. § 2510, et seq)
30. The Federal Wiretap Act broadly prohibits intercepting, disclosing, or using the contents of any wire, oral, or electronic communication.
31. Defendants have violated (and continue to violate) both attorneys’ and detainees’ rights under the Federal Wiretap Act. The individual Plaintiffs, the members of the Austin Lawyers Guild and members of the Prison Justice League are directly affected.
32. Securus Technologies and Travis County have acted (and continue to act) in concert to intercept confidential communications between plaintiff attorneys and detainees, and to disclose those confidential communications to local prosecutors, in violation of the Act.
33. The Travis County and District Attorneys have used (and are using) those intercepted communications in violation of the Act.
B. Texas Wiretap Act (Tex. Civ. Prac. & Rem. Code § 123.001, et seq) 34. Each Defendant is violating the Texas Wiretap Act when it: • “intercepts, attempts to intercept, or employs or obtains another to intercept or attempt to intercept the communication;” • “uses or divulges information that he knows or reasonably should know was obtained by interception of the communication;” or • “as… a common communication common carrier, either personally or through an agent or employee, aids or knowingly permits interception or attempted interception of the communication.”
Tex. Civ. Prac. & Rem. Code § 123.002 (a). 35. Defendants have violated (and continue to violate) Plaintiff attorneys and detainees’
rights under the Texas Wiretap Act. The individual Plaintiffs and the members of the Austin Lawyers Guild and the Prison Justice League are directly affected.
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C. First, Fourth, Fifth, and Sixth Amendments to the United States Constitution 36. The Fourth Amendment of the U.S. Constitution prohibits unreasonable searches.
Defendants seriously threaten the Fourth Amendment rights of Plaintiff attorneys and the members of the Austin Lawyers Guild, who have a reasonable expectation of privacy when they make calls, and members of the Prison Justice League, who have a reasonable expectation of privacy when making attorney calls.
37. The Sixth Amendment entitles criminal defendants to effective assistance of counsel, which includes confidential and timely attorney-client communication. Similarly, the First, Fifth, and Fourteenth Amendments protect a detainee’s right to access the courts, which is violated when government officials infringe on confidential and timely attorney-client communication. The Prison Justice League’s members include detainees whose face substantial risk their rights will be violated.
CLASS ALLEGATIONS 38. Pursuant to Federal Rule of Civil Procedure 23(a) and 23(b), Plaintiffs bring this action on behalf of themselves and a class of similarly situated persons, defined as attorneys practicing criminal defense in Austin or Travis County. The Class seeks certification of claims for declaratory and injunctive relief. 39. Numerosity: The Class is so numerous it would impractical to join every member. Austin has roughly 966 attorneys who routinely practice criminal defense, and 10,896 attorneys overall. The identity of Class members can be identified through public records and public notice. Class members may be informed of the pendency of this action by public notice, with postings in courtrooms, with the assistance of the local bar association, and by creating an automated message for attorneys calling clients in TCJ and TCCC. 40. Commonality: The Class has a well-defined community of interest in the questions
9

Case 1:14-cv-00366-DAE Document 74 Filed 03/10/16 Page 10 of 13
of law and fact in this matter – including the recording/use of their confidential communications, the practice’s unlawfulness, and the necessity for declaratory and injunctive relief.
41. Typicality: The individual Plaintiffs’ claims are typical of Class members’ claims, because Plaintiffs are individual members of the larger community of local criminal defense attorneys with clients in the TCJ and TCCC, who have similar practices and operate under similar constraints. Defendants’ posture is the same toward every Austin attorney who represents detainees. Together, the class members all suffer unreasonable risk of harm warranting injunctive and declaratory relief
42. Adequacy: Plaintiffs are adequate representatives of the Class because their interests do not conflict with the interests of the Class members they seek to represent. Plaintiffs will fairly and adequately protect the interest of the members of the Class; they intend to prosecute this action vigorously.
43. This suit may also be maintained as a class action pursuant to Federal Rule of Civil Procedure 23(b)(2) because Plaintiffs and the Class seek declaratory and injunctive relief. Defendants have acted on grounds generally applicable to Plaintiffs and the Class as a whole, thereby making declaratory and/or injunctive relief proper.
DECLARATORY JUDGMENT 44. Defendants’ unlawful actions are an ongoing threat to Plaintiffs’ rights under state and federal law, and the U.S. Constitution. 45. “[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of” the Federal Wiretap Act is entitled to seek declaratory and/or injunctive relief. 18 U.S.C. § 2520 (b)(1). 46. A person whose constitutional rights are violated has standing to seek declaratory relief under 28 U.S.C. § 2201.
10

Case 1:14-cv-00366-DAE Document 74 Filed 03/10/16 Page 11 of 13
INJUNCTIVE RELIEF 47. Defendants’ unlawful actions are an ongoing threat to Plaintiffs’ rights under state and federal law, and the U.S. Constitution. 48. “[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of” the Federal Wiretap Act is entitled to seek declaratory and/or injunctive relief. 18 U.S.C. § 2520 (b)(1). 49. “A person who establishes a cause of action under [the Texas Wiretap Act] is entitled to… an injunction prohibiting a further interception, attempted interception, or divulgence or use of information obtained by an interception.” Tex. Civ. Prac. & Rem. Code §123.004 (1).
ATTORNEYS’ FEES AND COSTS 50. Plaintiffs respectfully request they be awarded their attorney’s fees and litigation costs. 51. “[A]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of” the Federal Wiretap Act is entitled to seek “reasonable attorney's fee and other litigation costs reasonably incurred.” 18 U.S.C. §2520(b)(3). 52. A person who “establishes a cause of action under the [Texas Wiretap Act] is entitled to… reasonable attorney’s fees and costs.” Tex. Civ. Prac. & Rem. Code § 123.004 (5). 53. Further, under 42 U.S.C. § 1988, a party who prevails in suit filed under 42 U.S.C. 1983 may be awarded reasonable attorneys’ fees.
PRAYER FOR RELIEF THEREFORE, Plaintiffs respectfully request this Court grant the following relief: A. Issue declaratory relief stating Defendants’ practice of recording, disclosing, and
11

Case 1:14-cv-00366-DAE Document 74 Filed 03/10/16 Page 12 of 13
using confidential attorney-client communications is unlawful;
B. Enjoin Defendants from recording, disclosing, and using confidential attorneyclient communications;
C. Order Defendants to destroy all existing recordings of unlawfully-recorded attorney-client communications;
D. Award reasonable attorneys’ fees, litigation expenses, and court costs; and
E. Grant all other and additional relief to which Plaintiffs may be entitled, at law or in equity.
DATED: March 10, 2016
Respectfully submitted,
/s/ Abigail Frank Abigail Frank Texas Bar No. 24069732 Wayne Krause Yang Texas Bar No. 24032644 James C. Harrington Texas Bar No. 09048500
TEXAS CIVIL RIGHTS PROJECT 1405 Montopolis Drive Austin, TX 78741
(512) 474-5073 (phone) (512) 474-0726 (fax) Attorneys for the Individuals, the Austin Lawyers Guild, and the Prison Justice League
/s/ George C. Lobb George C. Lobb Texas Bar No. 24042928
Law Office of George C. Lobb 1108 Lavaca Street, #110-242 Austin, TX 78701
Tel. (512) 215-6011 Fax. (512) 425-0877 Attorney for the Individuals and the Class
12

Case 1:14-cv-00366-DAE Document 74 Filed 03/10/16 Page 13 of 13 CERTIFICATE OF SERVICE
I certify that on March 10, 2016 I electronically filed the foregoing with this Court using the CM/ECF system, which will send notification of such filing to all counsel of record who have appeared in this matter.
/s/ Abigail Frank Abigail Frank
13

 
 Case: 1:14-cv-366 As of: 10/16/2016 08:04 PM CDT 1 of 12
U.S. District Court [LIVE] Western District of Texas (Austin) CIVIL DOCKET FOR CASE #: 1:14−cv−00366−DAE

CLOSED

Austin Lawyers Guild et al. v. Securus Technologies, Inc. et al. Assigned to: Judge David A. Ezra Cause: 18:2510 Wire and Electronic Communications Interception
Plaintiff

Date Filed: 04/29/2014 Date Terminated: 03/14/2016 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Austin Lawyers Guild

represented by Abigail Hill Frank Texas Civil Rights Project 1405 Montopolis Dr. Austin, TX 78741 (512) 474−5073 Fax: (512) 474−0726 Email: abby@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington 1405 Montopolis Drive Austin, TX 78741 (512) 771−1759 Email: jch@utexas.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause Yang Texas Civil Rights Project 1405 Montopolis Drive Austin, TX 78741 (512) 474−5073 Fax: (512) 474−0726 Email: wayne@texascivilrightsproject.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Rolland McGiverin Dietz, Lawrence & McGiverin 2221 Hancock Drive Austin, TX 78756 (512) 387−0718 Fax: (512) 597−0805 Email: bmcgiver@gmail.com TERMINATED: 10/15/2015 ATTORNEY TO BE NOTICED

Plaintiff Carl Gossett

represented by Abigail Hill Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Rolland McGiverin (See above for address) TERMINATED: 10/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

George C. Lobb

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Law Office of George C. Lobb 1108 Lavaca Street Suite 110−242 Austin, TX 78701 (512) 215−6011 Fax: (512) 425−0877 Email: george@lobblaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause Yang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff David Grassbaugh

represented by Abigail Hill Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Rolland McGiverin (See above for address) TERMINATED: 10/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

George C. Lobb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause Yang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Mark Sampson

represented by Abigail Hill Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Rolland McGiverin (See above for address) TERMINATED: 10/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

George C. Lobb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:14-cv-366 As of: 10/16/2016 08:04 PM CDT 3 of 12

James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause Yang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Francis Williams

represented by Abigail Hill Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Rolland McGiverin (See above for address) TERMINATED: 10/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

George C. Lobb (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause Yang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff The Prison Justice League

represented by Abigail Hill Frank (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Brian Rolland McGiverin (See above for address) TERMINATED: 10/15/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

James C. Harrington (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Wayne Krause Yang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant

Case: 1:14-cv-366 As of: 10/16/2016 08:04 PM CDT 4 of 12

Securus Technologies, Inc.

represented by Andrew Milam Jones Securus Technologies, Inc. 14651 Dallas Parkway, 6th Floor Dallas, TX 75254 972−277−0313 Email: andrewjones@securustech.net TERMINATED: 08/12/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Allen Hawkins Squire Patton Boggs (US) LLP 2000 McKinney Avenue Suite 1700 Dallas, TX 75201−4618 (214) 758−1500 Fax: 214/758−1550 Email: robert.hawkins@squirepb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

S. Cass Weiland Squire Patton Boggs (US) LLP 2000 McKinney Ave − Ste 1700 Dallas, TX 75201 (214) 758−1504 Fax: 214/758−1550 Email: cass.weiland@squirepb.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Travis County Sheriff's Office TERMINATED: 03/23/2015

represented by Anthony J. Nelson Travis County Attorney's Office 314 West 11th Street Room 590 Austin, TX 78701 (512) 854−4801 Fax: 512/854−4808 Email: tony.nelson@traviscountytx.gov TERMINATED: 03/23/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie R. Eiserloh Travis County Attorney's Office 314 W. 11th Street Ste 500 Austin, TX 78701 (512) 854−6906 Fax: 512/854−4808 Email: laurie.eiserloh@traviscountytx.gov TERMINATED: 03/23/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Sheriff Greg Hamilton in his Official Capacity

represented by Anthony J. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie R. Eiserloh (See above for address)

Case: 1:14-cv-366 As of: 10/16/2016 08:04 PM CDT 5 of 12

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Travis County District Attorney's Office TERMINATED: 03/23/2015

represented by Anthony J. Nelson (See above for address) TERMINATED: 03/23/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie R. Eiserloh (See above for address) TERMINATED: 03/23/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
District Attorney Rosemary Lehmberg in her Official Capacity

represented by Anthony J. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie R. Eiserloh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Travis County Attorney's Office TERMINATED: 03/23/2015

represented by Anthony J. Nelson (See above for address) TERMINATED: 03/23/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie R. Eiserloh (See above for address) TERMINATED: 03/23/2015 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
County Attorney David Escamilla in his Official Capacity

represented by Anthony J. Nelson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Laurie R. Eiserloh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/29/2014
04/29/2014

# Docket Text
1 COMPLAINT ( Filing fee $ 400 receipt number 0542−6447308). No Summons requested at this time, filed by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, Francis Williams and The Prison Justice League. (Attachments: # 1 Civil Cover Sheet)(McGiverin, Brian) (Entered: 04/29/2014)
Case Assigned to Judge Lee Yeakel. CM WILL NOW REFLECT THE JUDGE INITIALS AS PART OF THE CASE NUMBER. PLEASE APPEND THESE JUDGE INITIALS TO THE CASE NUMBER ON EACH DOCUMENT THAT YOU FILE IN THIS CASE. (dm) (Entered: 04/29/2014)

Case: 1:14-cv-366 As of: 10/16/2016 08:04 PM CDT 6 of 12

05/09/2014 05/12/2014 05/22/2014 05/22/2014 05/22/2014 05/22/2014 05/22/2014 05/22/2014 05/30/2014 06/02/2014 06/03/2014 06/04/2014
06/05/2014 06/23/2014 06/23/2014

2 REQUEST FOR ISSUANCE OF SUMMONS by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (McGiverin, Brian) (Entered: 05/09/2014)
3 Summons Issued as to David Escamilla, Greg Hamilton, Rosemary Lehmberg. (dm) (Entered: 05/12/2014)
4 SUMMONS Returned Executed by Carl Gossett, David Grassbaugh, Francis Williams, Mark Sampson, Austin Lawyers Guild, The Prison Justice League. Greg Hamilton served on 5/12/2014, answer due 6/2/2014. (McGiverin, Brian) (Entered: 05/22/2014)
5 SUMMONS Returned Executed by Carl Gossett, David Grassbaugh, Francis Williams, Mark Sampson, Austin Lawyers Guild, The Prison Justice League. Travis County Sheriff's Office served on 5/12/2014, answer due 6/2/2014. (McGiverin, Brian) (Entered: 05/22/2014)
6 SUMMONS Returned Executed by Carl Gossett, David Grassbaugh, Francis Williams, Mark Sampson, Austin Lawyers Guild, The Prison Justice League. Rosemary Lehmberg served on 5/13/2014, answer due 6/3/2014. (McGiverin, Brian) (Entered: 05/22/2014)
7 SUMMONS Returned Executed by Carl Gossett, David Grassbaugh, Francis Williams, Mark Sampson, Austin Lawyers Guild, The Prison Justice League. Travis County District Attorney's Office served on 5/13/2014, answer due 6/3/2014. (McGiverin, Brian) (Entered: 05/22/2014)
8 SUMMONS Returned Executed by Carl Gossett, David Grassbaugh, Francis Williams, Mark Sampson, Austin Lawyers Guild, The Prison Justice League. David Escamilla served on 5/13/2014, answer due 6/3/2014. (McGiverin, Brian) (Entered: 05/22/2014)
9 SUMMONS Returned Executed by Carl Gossett, David Grassbaugh, Francis Williams, Mark Sampson, Austin Lawyers Guild, The Prison Justice League. Travis County Attorney's Office served on 5/13/2014, answer due 6/3/2014. (McGiverin, Brian) (Entered: 05/22/2014)
10 MOTION for Extension of Time to File Response to Plaintiffs' Pleading by David Escamilla, Greg Hamilton, Rosemary Lehmberg, Securus Technologies, Inc., Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office. (Nelson, Anthony) (Entered: 05/30/2014)
11 RULE 7 DISCLOSURE STATEMENT filed by Securus Technologies, Inc.. (Weiland, S.) (Entered: 06/02/2014)
12 WAIVER OF SERVICE Returned Executed by Carl Gossett, David Grassbaugh, Francis Williams, Mark Sampson, Austin Lawyers Guild, The Prison Justice League as to Securus Technologies, Inc.. Waiver sent on 5/6/2014, answer due 7/7/2014. (McGiverin, Brian) (Entered: 06/03/2014)
13 ORDER GRANTING 10 Motion for Extension of Time to Answer re 1 Complaint, ; David Escamilla answer due 6/23/2014; Greg Hamilton answer due 6/23/2014; Rosemary Lehmberg answer due 6/23/2014; Travis County Attorney's Office answer due 6/23/2014; Travis County District Attorney's Office answer due 6/23/2014; Travis County Sheriff's Office answer due 6/23/2014. Signed by Judge Lee Yeakel. (dm) (Entered: 06/04/2014)
14 NOTICE of Firm's Change of Name by Securus Technologies, Inc. (Weiland, S.) (Entered: 06/05/2014)
15 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) by Securus Technologies, Inc.. (Attachments: # 1 Exhibit A)(Hawkins, Robert) (Entered: 06/23/2014)
16 Motion to Dismiss for Failure to State a Claim Defendants Travis County Sheriff's Office, Travis County District Attorney's Office, and Travis County Attorney's Office's Motion to Dismiss Pursuant to Rule 12(b)(1), 12(b)(6) by Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office. (Nelson, Anthony) (Entered: 06/23/2014)

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06/23/2014 06/24/2014
06/26/2014
06/27/2014 07/01/2014 07/21/2014 07/21/2014 07/23/2014 07/23/2014 07/23/2014 07/23/2014

17 Motion to Dismiss for Failure to State a Claim Defendants Hamilton, Lehmberg, and Escamilla's Motion to Dismiss Pursuant to Rule 12(b)(1), Rule 12(b)(6) by David Escamilla, Greg Hamilton, Rosemary Lehmberg. (Nelson, Anthony) (Entered: 06/23/2014)
18 ORDER REFERRING MOTION: 17 Motion to Dismiss for Failure to State a Claim Defendants Hamilton, Lehmberg, and Escamilla's Motion to Dismiss Pursuant to Rule 12(b)(1), Rule 12(b)(6) filed by David Escamilla, Greg Hamilton, Rosemary Lehmberg, 15 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) filed by Securus Technologies, Inc., 16 Motion to Dismiss for Failure to State a Claim Defendants Travis County Sheriff's Office, Travis County District Attorney's Office, and Travis County Attorney's Office's Motion to Dismiss Pursuant to Rule 12(b)(1), 12(b)(6) filed by Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office. Signed by Judge Lee Yeakel.. Referral Magistrate Judge: Mark Lane. (dm) (Entered: 06/25/2014)
19 MOTION for Extension of Time to File Response/Reply as to 17 Motion to Dismiss for Failure to State a Claim Defendants Hamilton, Lehmberg, and Escamilla's Motion to Dismiss Pursuant to Rule 12(b)(1), Rule 12(b)(6), 15 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), 16 Motion to Dismiss for Failure to State a Claim Defendants Travis County Sheriff's Office, Travis County District Attorney's Office, and Travis County Attorney's Office's Motion to Dismiss Pursuant to Rule 12(b)(1), 12(b)(6) by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (Attachments: # 1 Proposed Order)(McGiverin, Brian) (Entered: 06/26/2014)
Text Order GRANTING 19 Motion for Extension of Time to File Response/Reply entered by Judge Mark Lane. Plaintiffs' Responses shall be due July 21, 2014. (This is a text−only entry generated by the court. There is no document associated with this entry.) (nl) (Entered: 06/27/2014)
20 NOTICE of Change of Address by Brian Rolland McGiverin (McGiverin, Brian) (Entered: 07/01/2014)
21 Unopposed MOTION to Amend Complaint by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (Attachments: # 1 Exhibit A − Amended Complaint, # 2 Proposed Order)(McGiverin, Brian) (Entered: 07/21/2014)
22 Unopposed MOTION for Leave to Exceed Page Limitation by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (Attachments: # 1 Exhibit A − Response to Defendants' Motion to Dismiss, # 2 Proposed Order)(McGiverin, Brian) (Entered: 07/21/2014)
23 ORDER GRANTING 22 Motion for Leave to File Excess Pages. Signed by Judge Lee Yeakel. (dm) (Entered: 07/23/2014)
24 ORDER DISMISSING 15 Motion to Dismiss ; DISMISSING 16 Motion to Dismiss for Failure to State a Claim; DISMISSING 17 Motion to Dismiss for Failure to State a Claim; GRANTING 21 Motion to Amend Complaint. Signed by Judge Lee Yeakel. (dm) (Entered: 07/23/2014)
25 AMENDED COMPLAINT against David Escamilla, Greg Hamilton, Rosemary Lehmberg, Securus Technologies, Inc., Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office amending 1 Complaint, filed by Carl Gossett, David Grassbaugh, Francis Williams, Mark Sampson, Austin Lawyers Guild, The Prison Justice League.(dm) (Entered: 07/23/2014)
26 RESPONSE to Motions, filed by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams, re 17 Motion to Dismiss for Failure to State a Claim Defendants Hamilton, Lehmberg, and Escamilla's Motion to Dismiss Pursuant to Rule 12(b)(1), Rule 12(b)(6) filed by Defendant David Escamilla, Defendant Greg Hamilton, Defendant Rosemary Lehmberg, 15 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) filed by Defendant Securus Technologies, Inc., 16 Motion to Dismiss for Failure to State a Claim Defendants Travis County Sheriff's Office, Travis County District Attorney's Office, and Travis County Attorney's Office's Motion to Dismiss Pursuant to

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08/06/2014 08/06/2014 08/06/2014 08/08/2014
08/13/2014
08/14/2014 09/03/2014 09/05/2014 09/05/2014 09/05/2014

Rule 12(b)(1), 12(b)(6) filed by Defendant Travis County Attorney's Office, Defendant Travis County District Attorney's Office, Defendant Travis County Sheriff's Office (dm) (Entered: 07/25/2014)
27 MOTION to Dismiss DEFENDANTS HAMILTON, LEHMBERG AND ESCAMILLA'S MOTION TO DISMISS PURSUANT TO RULE (b)(1), RULE 12(b)(6) by David Escamilla, Greg Hamilton, Rosemary Lehmberg. (Nelson, Anthony) (Entered: 08/06/2014)
28 MOTION to Dismiss DEFENDANT TRAVIS COUNTY SHERIFF'S OFFICE, TRAVIS COUNTY DISTRICT ATTORNEY'S OFFICE, AND TRAVIS COUNTY ATTORNEY'S OFFICE'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(1), 12(b)(6) by Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office. (Nelson, Anthony) (Entered: 08/06/2014)
29 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Renewed) by Securus Technologies, Inc.. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Hawkins, Robert) (Entered: 08/06/2014)
30 ORDER REFERRING MOTION: 28 MOTION to Dismiss DEFENDANT TRAVIS COUNTY SHERIFF'S OFFICE, TRAVIS COUNTY DISTRICT ATTORNEY'S OFFICE, AND TRAVIS COUNTY ATTORNEY'S OFFICE'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(1), 12(b)(6) filed by Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office, 29 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Renewed) filed by Securus Technologies, Inc., 27 MOTION to Dismiss DEFENDANTS HAMILTON, LEHMBERG AND ESCAMILLA'S MOTION TO DISMISS PURSUANT TO RULE (b)(1), RULE 12(b)(6) filed by David Escamilla, Greg Hamilton, Rosemary Lehmberg. Signed by Judge Lee Yeakel.. Referral Magistrate Judge: Mark Lane. (dm) (Entered: 08/11/2014)
31 Unopposed MOTION for Extension of Time to File Response/Reply as to 28 MOTION to Dismiss DEFENDANT TRAVIS COUNTY SHERIFF'S OFFICE, TRAVIS COUNTY DISTRICT ATTORNEY'S OFFICE, AND TRAVIS COUNTY ATTORNEY'S OFFICE'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(1), 12(b)(6), 29 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Renewed), 27 MOTION to Dismiss DEFENDANTS HAMILTON, LEHMBERG AND ESCAMILLA'S MOTION TO DISMISS PURSUANT TO RULE (b)(1), RULE 12(b)(6) by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (Attachments: # 1 Proposed Order)(McGiverin, Brian) (Entered: 08/13/2014)
Text Order GRANTING 31 Motion for Extension of Time to File Response/Reply entered by Judge Mark Lane. Plaintiffs' deadlne to respond to the pending motions to dismiss is extended to September 3, 2014. (This is a text−only entry generated by the court. There is no document associated with this entry.) (aem) (Entered: 08/14/2014)
32 Unopposed MOTION for Leave to Exceed Page Limitation for Response to Defendants' Motions to Dismiss by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (Attachments: # 1 Exhibit Resp. to MTD, # 2 Proposed Order)(McGiverin, Brian) (Entered: 09/03/2014)
Text Order GRANTING 32 Motion for Leave to File Excess Pages entered by Judge Mark Lane. Plaintiffs' motion is granted. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dg) (Entered: 09/05/2014)
33 MOTION for Extension of Time to File Response/Reply DEFENDANTS' UNOPPOSED MOTION TO EXTEND TIME FOR DEFENDANTS' REPLIES TO PLAINTIFFS' RESPONSE TO MOTIONS TO DISMISS by David Escamilla, Greg Hamilton, Rosemary Lehmberg, Securus Technologies, Inc., Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office. (Nelson, Anthony) (Entered: 09/05/2014)
34 RESPONSE to Motion, filed by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams, re 27 MOTION to Dismiss DEFENDANTS HAMILTON, LEHMBERG AND ESCAMILLA'S

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09/05/2014 09/26/2014 09/26/2014
09/26/2014 09/26/2014 09/26/2014
09/30/2014 10/01/2014 10/03/2014 10/06/2014

MOTION TO DISMISS PURSUANT TO RULE (b)(1), RULE 12(b)(6) filed by Defendant David Escamilla, Defendant Greg Hamilton, Defendant Rosemary Lehmberg; 28 MOTION to Dismiss DEFENDANT TRAVIS COUNTY SHERIFF'S OFFICE, TRAVIS COUNTY DISTRICT ATTORNEY'S OFFICE, AND TRAVIS COUNTY ATTORNEY'S OFFICE'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(1), 12(b)(6) filed by Defendant Travis County Attorney's Office, Defendant Travis County District Attorney's Office, Defendant Travis County Sheriff's Office; 29 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Renewed) filed by Defendant Securus Technologies, Inc. (jk) (Entered: 09/05/2014)
Text Order GRANTING 33 Motion for Extension of Time to File Response/Reply entered by Judge Mark Lane. Defendants' deadline to reply to Plaintiffs' response to Defendants' motions to dismiss is extended to September 26, 2014. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dg) (Entered: 09/05/2014)
35 Opposed MOTION for Leave to Exceed Page Limitation by Securus Technologies, Inc.. (Attachments: # 1 Exhibit Reply Brief, # 2 Proposed Order)(Hawkins, Robert) (Entered: 09/26/2014)
Notice of Correction: re 35 Opposed MOTION for Leave to Exceed Page Limitation . When filing a Motion for Leave to Exceed Page Limitations in the AUSTIN Division, the document which exceeds the page limit should NOT be attached to the motion, but rather filed as a separate pleading. We will take the necessary steps to pull the Reply Brief from the Motion for leave to exceed page limit and get it added to the docket record. No further action is required. Please note this information for future filing purposes. (td) (Entered: 09/26/2014)
36 RESPONSE in Support, filed by Securus Technologies, Inc., re 29 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Renewed) filed by Defendant Securus Technologies, Inc. (td) (Entered: 09/26/2014)
37 Unopposed MOTION for Leave to Exceed Page Limitation [Travis County Defendants' Unopposed Motion for Leave to File Document in Excess of Page Limit] by David Escamilla, Greg Hamilton, Rosemary Lehmberg, Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office. (Nelson, Anthony) (Entered: 09/26/2014)
38 REPLY to Response to Motion, filed by David Escamilla, Greg Hamilton, Rosemary Lehmberg, Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office, re 28 MOTION to Dismiss DEFENDANT TRAVIS COUNTY SHERIFF'S OFFICE, TRAVIS COUNTY DISTRICT ATTORNEY'S OFFICE, AND TRAVIS COUNTY ATTORNEY'S OFFICE'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(1), 12(b)(6) filed by Defendant Travis County Attorney's Office, Defendant Travis County District Attorney's Office, Defendant Travis County Sheriff's Office TRAVIS COUNTY DEFENDANTS' REPLY TO PLAINTIFFS RESPONSE TO DEFENDANTS' RENEWED MOTIONS TO DISMISS (Attachments: # 1 Exhibit A)(Nelson, Anthony) (Entered: 09/26/2014)
Text Order GRANTING 37 Unopposed Motion for Leave to File Excess Pages entered by Judge Mark Lane. Travis County Defendants may file their Reply to Plaintiffs' Response to Defendants' Renewed Motion to Dismiss in excess of the ten−page limit. (This is a text−only entry generated by the court. There is no document associated with this entry.) (dg) (Entered: 09/30/2014)
39 Order for Proposed Scheduling Order. Plaintiff shall submit a proposed scheduling order to the Court within sixty (60) days after the appearance of any defendant. Proposed Scheduling Order due by 10/15/2014,. Signed by Judge Lee Yeakel. (dm) (Entered: 10/01/2014)
40 RESPONSE to Motion, filed by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams, re 35 Opposed MOTION for Leave to Exceed Page Limitation filed by Defendant Securus Technologies, Inc. (McGiverin, Brian) (Entered: 10/03/2014)
Text Order GRANTING 35 Motion for Leave to File Excess Pages entered by Judge Mark Lane. (This is a text−only entry generated by the court. There is no document

Case: 1:14-cv-366 As of: 10/16/2016 08:04 PM CDT 10 of 12

10/14/2014 11/06/2014 12/02/2014 12/03/2014 12/09/2014
12/10/2014 12/10/2014 12/15/2014 12/16/2014
12/17/2014 01/30/2015 02/04/2015

associated with this entry.) (dg) (Entered: 10/06/2014)
41 Proposed Scheduling Order by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (Attachments: # 1 Proposed Agreed Scheduling Order)(McGiverin, Brian) (Entered: 10/14/2014)
42 ORDER, ( Initial Pretrial Conference set for 2/17/2015 02:30 PM before Judge Lee Yeakel,). Signed by Judge Lee Yeakel. (dm) (Entered: 11/06/2014)
43 Opposed MOTION for Protective Order by Securus Technologies, Inc.. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Hawkins, Robert) (Entered: 12/02/2014)
44 Opposed MOTION for Protective Order TRAVIS COUNTY DEFENDANTS' OPPOSED MOTION TO ABATE DISCOVERY AND FOR PROTECTIVE ORDER by David Escamilla, Greg Hamilton, Rosemary Lehmberg, Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Nelson, Anthony) (Entered: 12/03/2014)
45 Response in Opposition to Motion, filed by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams, re 43 Opposed MOTION for Protective Order filed by Defendant Securus Technologies, Inc., 44 Opposed MOTION for Protective Order TRAVIS COUNTY DEFENDANTS' OPPOSED MOTION TO ABATE DISCOVERY AND FOR PROTECTIVE ORDER filed by Defendant David Escamilla, Defendant Travis County Attorney's Office, Defendant Travis County District Attorney's Office, Defendant Travis County Sheriff's Office, Defendant Greg Hamilton, Defendant Rosemary Lehmberg (McGiverin, Brian) (Entered: 12/09/2014)
46 DEFICIENCY NOTICE: re 45 Response in Opposition to Motion. (dm) (Entered: 12/10/2014)
47 ATTACHMENT Proposed Order − Corrected to 45 Response in Opposition to Motion,, by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (McGiverin, Brian) (Entered: 12/10/2014)
48 REPLY to Response to Motion, filed by Securus Technologies, Inc., re 43 Opposed MOTION for Protective Order filed by Defendant Securus Technologies, Inc. (Hawkins, Robert) (Entered: 12/15/2014)
49 REPLY to Response to Motion, filed by David Escamilla, Greg Hamilton, Rosemary Lehmberg, Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office, re 44 Opposed MOTION for Protective Order TRAVIS COUNTY DEFENDANTS' OPPOSED MOTION TO ABATE DISCOVERY AND FOR PROTECTIVE ORDER filed by Defendant David Escamilla, Defendant Travis County Attorney's Office, Defendant Travis County District Attorney's Office, Defendant Travis County Sheriff's Office, Defendant Greg Hamilton, Defendant Rosemary Lehmberg (Nelson, Anthony) (Entered: 12/16/2014)
50 ORDER DISMISSING 43 Motion for Protective Order; DISMISSING 44 Motion for Protective Order. IT IS FINALLY ORDERED that the parties shall file, no later than January 30, 2015, a joint report. Signed by Judge Lee Yeakel. (dm) (Entered: 12/17/2014)
51 STATUS REPORT JOINT STATUS REPORT REGARDING DISCOVERY by David Escamilla, Greg Hamilton, Rosemary Lehmberg, Securus Technologies, Inc., Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Nelson, Anthony) (Entered: 01/30/2015)
52 REPORT AND RECOMMENDATIONS re 28 Motion to Dismiss, filed by Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office, 29 Motion to Dismiss filed by Securus Technologies, Inc., 27 Motion to Dismiss filed by David Escamilla, Greg Hamilton, Rosemary Lehmberg. Signed by Judge Mark Lane. (dm) (Entered: 02/04/2015)

Case: 1:14-cv-366 As of: 10/16/2016 08:04 PM CDT 11 of 12

02/04/2015
02/17/2015 02/17/2015 02/18/2015 02/18/2015
02/25/2015
03/03/2015 03/10/2015 03/18/2015 03/18/2015 03/23/2015
04/01/2015 04/22/2015 05/06/2015

Motions No Longer Referred: 29 MOTION to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6) (Renewed), 28 MOTION to Dismiss DEFENDANT TRAVIS COUNTY SHERIFF'S OFFICE, TRAVIS COUNTY DISTRICT ATTORNEY'S OFFICE, AND TRAVIS COUNTY ATTORNEY'S OFFICE'S MOTION TO DISMISS PURSUANT TO RULE 12(b)(1), 12(b)(6), 27 MOTION to Dismiss DEFENDANTS HAMILTON, LEHMBERG AND ESCAMILLA'S MOTION TO DISMISS PURSUANT TO RULE (b)(1), RULE 12(b)(6) (dm) (Entered: 02/04/2015)
53 Minute Entry for proceedings held before Judge Lee Yeakel: Initial Pretrial Conference held on 2/17/2015 (Minute entry documents are not available electronically.). (Court Reporter Arlinda Rodriguez.)(td) (Entered: 02/17/2015)
54 SCHEDULING ORDER: Final Pretrial Conference set for 3/24/2016 02:00 PM before Judge Lee Yeakel, ADR Report Deadline due by 7/3/2015, Discovery due by 7/31/2015, Motions due by 8/21/2015. Signed by Judge Lee Yeakel. (jk) (Entered: 02/18/2015)
55 OBJECTION to 52 Report and Recommendations by Securus Technologies, Inc... (Hawkins, Robert) (Entered: 02/18/2015)
56 OBJECTION to 52 Report and Recommendations TRAVIS COUNTY DEFENDANTS' RESPONSE AND OBJECTIONS TO THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE by David Escamilla, Greg Hamilton, Rosemary Lehmberg, Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office.. (Nelson, Anthony) (Entered: 02/18/2015)
57 Unopposed MOTION for Extension of Time to File Response/Reply as to 55 Objection to Report and Recommendations, 56 Objection to Report and Recommendations, by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (Attachments: # 1 Proposed Order)(McGiverin, Brian) (Entered: 02/25/2015)
58 ORDER GRANTING 57 Motion for Extension of Time to File Response. Signed by Judge Lee Yeakel. (dm) (Entered: 03/04/2015)
59 Agreed MOTION for Protective Order by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (Attachments: # 1 Proposed Order)(McGiverin, Brian) (Entered: 03/10/2015)
60 STIPULATED PROTECTIVE ORDER. Signed by Judge Lee Yeakel. (dm) (Entered: 03/18/2015)
61 RESPONSE to 55 Objection to Report and Recommendations, 56 Objection to Report and Recommendations, by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (McGiverin, Brian) (Entered: 03/18/2015)
62 ORDER ADOPTING REPORT AND RECOMMENDATIONS for 52 Report and Recommendations, 28 Motion to Dismiss, filed by Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office, 29 Motion to Dismiss filed by Securus Technologies, Inc., 27 Motion to Dismiss filed by David Escamilla, Greg Hamilton, Rosemary Lehmberg. Signed by Judge Lee Yeakel. (td) (Entered: 03/23/2015)
63 DESIGNATION OF POTENTIAL WITNESSES, PROPOSED EXHIBITS AND TESTIFYING EXPERTS by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams (McGiverin, Brian). (Entered: 04/01/2015)
64 Pretrial Disclosures by Securus Technologies, Inc.. (Hawkins, Robert) (Entered: 04/22/2015)
65 Pretrial Disclosures by David Escamilla, Greg Hamilton, Rosemary Lehmberg, Travis County Attorney's Office, Travis County District Attorney's Office, Travis County Sheriff's Office. (Nelson, Anthony) (Entered: 05/06/2015)

Case: 1:14-cv-366 As of: 10/16/2016 08:04 PM CDT 12 of 12

05/20/2015 08/12/2015 10/01/2015 10/12/2015
10/15/2015 12/04/2015 02/17/2016 03/10/2016 03/10/2016
03/11/2016 03/14/2016

66 NOTICE of Filing Parties' FRCP Rule 29 Agreement Regarding Discovery by David Escamilla, Greg Hamilton, Rosemary Lehmberg (Nelson, Anthony) (Entered: 05/20/2015)
67 NOTICE of Withdrawal as Counsel of Record by Securus Technologies, Inc. (Hawkins, Robert) (Entered: 08/12/2015)
68 Unopposed MOTION to Withdraw as Attorney by Austin Lawyers Guild. (Attachments: # 1 Proposed Order)(McGiverin, Brian) (Entered: 10/01/2015)
69 NOTICE of Attorney Appearance by Abigail Hill Frank on behalf of Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. Attorney Abigail Hill Frank added to party Austin Lawyers Guild(pty:pla), Attorney Abigail Hill Frank added to party Carl Gossett(pty:pla), Attorney Abigail Hill Frank added to party David Grassbaugh(pty:pla), Attorney Abigail Hill Frank added to party Mark Sampson(pty:pla), Attorney Abigail Hill Frank added to party The Prison Justice League(pty:pla), Attorney Abigail Hill Frank added to party Francis Williams(pty:pla) (Frank, Abigail) (Entered: 10/12/2015)
70 ORDER GRANTING 68 Motion to Withdraw as Attorney. Signed by Judge Lee Yeakel. (dm) (Entered: 10/15/2015)
71 ORDER REASSIGNING CASE. Case reassigned to Judge David A. Ezra for all proceedings. Judge Lee Yeakel no longer assigned to case. Signed by Judge Lee Yeakel. (dm) (Entered: 12/04/2015)
72 ORDER for Settlement Papers. Stipulation or Agreed Judgment due on or before March 10, 2016. Signed by Judge David A. Ezra. (dm) (Entered: 02/17/2016)
73 STIPULATION of Dismissal by Austin Lawyers Guild, Carl Gossett, David Grassbaugh, Mark Sampson, The Prison Justice League, Francis Williams. (Frank, Abigail) (Entered: 03/10/2016)
74 AMENDED COMPLAINT Plaintiff's Second Amended Class Action Complaint against All Defendants amending, filed by Carl Gossett, David Grassbaugh, Francis Williams, Mark Sampson, Austin Lawyers Guild, The Prison Justice League.(Frank, Abigail) (Entered: 03/10/2016)
75 STIPULATION of Dismissal by Austin Lawyers Guild, the Prison Justice League, Carl Gossett, David Grassbaugh, Mark Sampson, Francis Williams, Travis County and by Securus Technologies, Inc.. (Hawkins, Robert) (Entered: 03/11/2016)
Notice to Counsel: Civil Action Austin Lawyers Guild et al. v. Securus Technologies, Inc. et al. has been closed pursuant to parties' Stipulation of Dismissals 73 , 75 , no written order will be entered by the Court. (tr1) (Entered: 03/14/2016)

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

AUSTIN LAWYERS GUILD; CARL GOSSETT, DAVID GRASSBAUGH, MARK SAMPSON, and FRANCIS WILLIAMS, for themselves and those similarly situated; and the PRISON JUSTICE LEAGUE,
Plaintiffs
v.
SECURUS TECHNOLOGIES, INC; AND TRAVIS COUNTY

§

§

§

§

§

§

§

CASE NO. 1: 14-cv-00366-LY

§

§

§

§

§

SEffiEMENT AGREEMENT AND FULL AND FINAL *RELE~E OF
S:QYNTX ATIQBNEY ESCAMILLA. IN HIS omCIAL CAPACITY

This Settlement Agreement and Full and Final Release (hereinafter referred to as the

"County Attorney Agreement") is entered into by and between the Plaintiffs in this Cause, Case No.

l: 14-cv-00366-LY (hereafter '"this Cause") which are the Austin Lawyers Guild; Carl Gossett,

David Grassbaugh, Mark Sampson, and Francis Williams, for themselves and those similarly

situated; and the Prison Justice League (hereinafter referred to as "Plaintiffs") and Travis County

Attorney David Escamilla, in his Official Capacity, (hereafter "County Attorney Escamilla") a party

previously dismissed from this Cause by PlaintiflS pursuant to FRCP 41(a)(1), on behalf of Travis

County. PlaintiflS and County Attorney Escamilla are the parties to this County Attorney

Agreement, collectively referred to as the "Parties" or "Party."

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I. Recitals A. Whereas, Securus has contracted with Travis County to provide, among other things,
recordings of telephone calls from inmates housed and/or detained in corrections facilities operated by Travis County. B. Whereas, the Securus system allows attorneys who represent criminal defendants to register their numbers on a ''private list" so that calls to their clients will be confidential private; and not recorded, stored, collected. intercepted or monitored. C. Whereas, Plaintiffs had previously asserted certain claims against County Attorney Escamilla under the Federal and State Wiretap Acts, and the First, Fourth, Fifth and Sixth Amendments to the United States Constitution related to alleged breach of attorney-client privileged conversations between attorneys and inmates housed and/or detained at corrections facilities operated by Travis County and the Travis County Sheriff.
D. Whereas, Plaintiffs have dismissed their lawsuit against County Attorney Escamilla and
the two other Travis County Elected Officials that Plaintiffs sued in this Cause in their respective official capacities, District Attorney Rosemary Lehmberg and Sheriff Greg Hamilton, (hereafter "Elected Officials") pursuant to FRCP 41(a)(l).
E. Whereas, Plaintiffs have amended their Complaint and repled their claims herein,
substituting Travis County for the Elected Officials as the real party in interest. F. Whereas, Plaintiffs' Second Amended Complaint asserts certain claims against Travis
County and Securus under the Federal and State Wiretap Acts, and the First, Fourth, Fifth and Sixth Amendments to the United States Constitution related to alleged breach of attorney-client privileged conversations between attorneys and inmates housed and/or detained at corrections facilities operated by Travis County and the Travis County Sheriff

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G. Whereas, Plaintiffs' Second Amended Complaint does not assert any claim or allegation of intentional or knowingly wrongful or unlawful conduct by any Elected Official.
H. Whereas, County Attorney Escamilla, although previously dismissed from this Cause by Plaintiffs pursuant to FRCP 4l(a)(l), enters into this County Attorney Agreement to obtain a release of any and all potential claims that could have been asserted against him arising out of the facts made basis of this Cause.
I. Whereas, Plaintiffs specifically acknowledge herein that that there was no evidence of intentional misconduct by any Defendant originally sued in this Cause including: Securus, Travis County, County Attorney David Escamilla, District Attorney Rosemary Lehmberg or SheriffGreg Hamilton.
J. Whereas, County Attorney Escamilla denies any and all claims and allegations of misconduct and/or wrongdoing, including, but not limited to claims and/or allegations of knowing and/or intentional misconduct and/or wrongdoing.
K. Whereas, although no longer a party to this Cause, County Attorney Escamilla, on behalfof Travis County, agrees to perfonn the terms and conditions pertaining to the Travis County Attorney's Office ("TCAO"), its elected official and employees as set forth more specifically in Section ll. D. of this County Attorney Agreement herein.
L. Whereas, County Attorney Escamilla, on behalf of Travis County desires to facilitate the full and final settlement of all claims that arise out of this Cause or could have arisen out of this Cause, and
M. Whereas, in addition to this County Attorney Agreement, two other agreements exist that fully resolve this Cause: (1) the "Main Agreement'' between Plaintiffs and Defendants Securus, Travis County and Sheriff Greg Hamilton; and (2) the "District Attorney

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Agreement" between Plaintiffs and District Attorney Rosemary Lehmberg. The Main
Agreement and the District Attorney Agreement are fully incorporated herein.
NOW, THEREFORE, in consideration oftbe mutual promises aad agreemeats hereia, including the redtals set forth herein above, the Parties agree as follows:
D. Consideration A. No Admission: It is agreed that the consideration cited below bas been extended by County
Attorney Escamilla on behalf of Travis County and accepted by Plaintiffs in order to eliminate and forego further controversy or litigation; that this County Attorney Agreement is a compromise of disputed claims; and that the consideration contained herein is not to be constnled as an admission by any Party, all liability being expressly denied by County
Attorney Escamilla. B. Consideration by Plai.adff for County Attorney Escamilla; Plaintiffs hereby release
County Attorney Escamilla in any and all capacities from any and all claims and/or causes
of action arising out of the Cause, or that could have arisen out of the Cause. The Parties further each acknowledge County Attorney Escamilla is not paying any sum to settle this matter. C. Covenant not to sue. Plaintiffs promise and covenant never to initiate any lawsuit, administrative or other legal action against County Attorney Escamilla in any and all capacities arising out of the facts made basis of this Cause.
D. Promises in Facilitation of Settlement. In exchange for the release set forth in Section
II. B., above, and m. below, County Attorney Escamilla makes the following promises
on behalf ofTravis County in facilitation of the settlement reached herein: a. PoUcies Pertaining to Attorney-Client Phone CaD Breach.

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L Website. The current TCAO policieS pertaining to attorney-client phone call breach, attached as Exhibit A, will be placed on the website for County Attorney Escamilla's office. This website section shall be subject to superseding legal requirements, ifany.
U. Effect. The policies set forth in Exhibit A will remain in effect while County Attorney Escamilla remains in office.
iiL Notice of PoUcy Chan1e. On behalf of Travis County, while be remains in office, County Attorney Escamilla will provide written notice of any change to the policy set forth in Exhibit A to Plaintiffs' counsel and to the "Austin Criminal Defense Lawyers Association" (ACDLA) President Such notice will be provided no less than four weeks prior to any change, unless such notice is not legally permissible. This provision is subject to superseding legal requirements, if any.
iv. Notic:e of Ac:c:ess. If a TCAO prosecutor, or a TCAO prosecutor's agent, accesses a defense attorney's privileged call with the defense attorney's client, the TCAO prosecutor will provide to the defense attorney a written notice or "access of a call" letter. An attorney's privileged call with their client has only been "accessed" by TCAO if a TCAO prosecutor or a TCAO prosecutor's agent bas listened to the phone call. Included in that letter will be a notice that the defense attorney may provide a written request to the Travis County Sheriff's Office for an access log (as described in the Main Agreement). If the TCAO prosecutor or his or her agent accesses this call pursuant to a superseding legal requirement, such

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as a court order, subpoena, or a search warrant, this Notice of Access Section does not apply. v. Case-by-Case. Any violation of the TCAO's policy pertaining to attorney-client phone call breach will be decided on a case-by-case basis by County Attorney Escamilla. vL No Consent Decree. The Parties have not and will not enter into a consent decree pertaining to this Cause.
vlL Not included Ia the Local Rules. The above-referenced TCAO policies set forth in Exhibit A will not become part of the Local Rules of the
Travis County District and County Court at Law Criminal Courts.

Ill. Release by PlaiDtifl's. Full aad FiDal Release. For and in consideration of the above promises by Plaintiffs and
County Attorney Escamilla on behalf of Travis County, the sufficiency of which is hereby acknowledged, and also in consideration of the mutual covenants and releases contained herein, Plaintiffs, for themselves and their heirs, executors. successors, and assigns. agree to and do hereby fully and forever Release, Acquit, and Discharge: County Attorney David Escamilla in his individual capacity; and in his official capacity on behalf of Travis County, all of their past, present or future subsidiaries, affiliates, predecessors and successors in interest, heirs, executors, assigns. officers, directors, trustees, agents. employees, representatives and attorneys, (collectively, "Releasees") from any and all charges, liabilities, actions, causes of action, claims, demands, suits, losses, controversies, damages, debts, costs, and expenses (including attorney fees and costs), present or future, vested or contingent, known or unknown, of any kind or character whatsoever,

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whether at common law, statutory law, or othawise, whether sounding in tort or in contract, whether direct or indirect, which were asserted or could bave been asserted by Plaintiffs against County Attorney Escamilla in his individual capacity or in his official capacity on behalf of Travis County, Texas through the date of the execution of this County Attorney Agreement ("Claim or Claims").
This complete County Attorney Agreement and Release includes, but is not limited to, a
release of any rights arising out of alleged violations of any contract, express or implied, any covenant of good faith and fair dealing, express or implied, any tort, including any claim for negligence or gross negligence on the part of any of the Releasees, of any federal, state or other governmental statute, regulation, or ordinance, including, without limitation, the United States Constitution, the Texas Constitution, 42 U.S.C.§ 1983, the Americans with Disabilities Act and the Federal and State Wiretap Acts. Excluded from this County Attorney Agreement are any claims that cannot be waived by law and any claims that arise after the date this County Attorney Agreement is executed by Plaintiffs. Plaintiffs do waive and release, however, their right to any monetary recovery should any agency pursue any claims on Plaintiffs' behalf. IV. Uadertaldags by Orgaalzatioaal Plabatiffs.
The organizational Plaintiffs, Austin Lawyers Guild and Prison Justice League, agree to work
with their respective members to ensure the members are aware of the policies and procedures with respect to the County Attorney's Office's Policies pertaining to Attorney-Client Phone Call Breach, as set forth in ll.(D.), above.
V. Represeatatioas by PlalDtiffs.
Plaintiffs for themselves and on behalf of their heirs, executors, successors and assigns, hereby expressly warrant and represent to all of the Parties hereby released the following:

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A. Competent. Plaintiffs are legally competent to execute this County Attorney Agreement B. Authority of Plaintiffs' Counsel. Plaintiffs' Counsel hereby promises that they have
authority to represent the Plaintiffs in this Cause and to enter into this County Attorney Agreement on behalfof Plaintiffs. C. No Assignment of Claims. Plaintiffs have not assigned, pledged or otherwise in any manner whatsoever sold or transferred, either by instrument, in writing or otherwise, any right, title, interest or claim that they have or may have by reason of the matters described as being released above. D. No Promise Ontslde Agreement. No promise or representation ofany kind has been made to County Attorney Escamilla or by anyone acting on his behalf or on behalf of Releasees related to the matters released herein. except as is expressly stated in this County Attorney Agreement E. Reliance of Plaintiffs. Plaintiffs have relied solely on their own judgment and that of their attorneys in executing this County Attorney Agreement F. Full and Final Release. Plaintiffs understand that this is a full, complete, and final Release of any and all claims against County Attorney EscamiJJa in any and all capacities. G. Full and Flnal Consideration. Plaintiffs understand and fully realize that the above-stated consideration, as well as the consideration set forth in the Main Agreement and District Attorney Agreement, incorporated by reference in Section I. Recitals, (J.) is full and final consideration to Plaintiffs and their counsel in resolution ofthis matter. H. No other Legal Actions. Other than the current pending lawsuit, Plaintiffs have not filed any charges, lawsuits, or other legal actions or complaints with any court or governmental
agency asserting any Claim released in Sections n. B. and mhereof, and agree never to do

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so. Excluded from this subsection are any rights to file a charge, lawsuit, or other legal action or complaint, which cannot be waived by law. Plaintiffs do waive and release, however, their right to any monetary recovery should any agency pursue any claims on Plaintiffs' behalf I. No Fraud or Duress. Plaintiffs have not entered into this County Attorney Agreement under fraud, duress, undue influence, or other improper conduct by County Attorney Escamilla or any other Releasee, but enter into this County Attorney Agreement freely and voluntarily. VL Mfscel.laneous Provisions A. No Waiver. No waiver, amendment, or modification of this County Attorney Agreement shall be valid unless in writing and signed by the Party against whom it is to be enforced. B. Governing law. This County Attorney Agreement shall in all respects be interpreted, enforced, and governed under the laws of the State of Texas. Jurisdiction and venue for any action to interpret or enforce this County Attorney Agreement or any provision thereof shall be in a State District Court of Travis County, Texas. C. Severability. In the event that one or more of the provisions, or portions thereof, of this County Attorney Agreement is determined to be illegal or unenforceable, the remainder of the County Attorney Agreement shall not be affected thereby and each remaining provision, or portions thereof, shall continue to be valid and effective and shall be enforceable to the fullest extent permitted by law. D. Proper construction. The language of all parts of this County Attorney Agreement shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against any of the Parties. The paragraph headings used in this County Attorney Agreement are

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intended solely for convenience of reference and sball not in any manner amplify, limit, modify or otherwise be used in the interpretation ofany of the provisions hereof. E. Attorney's fees. The Parties expressly acknowledge and agree that in the event any Party breaches any of the terms and covenants contained in this County Attorney Agreement, any other Party may bring suit to enforce its, his, or her rights, and the successful Party in such litigation sball be entitled to recover of and from the breaching Party its, his or her reasonable attorneys fees and court costs incurred in bringing such action, together with any damages to which the Party may be entitled. F. Multiple origi.aals. The Parties expressly acknowledge and agree that this County Attorney Agreement may be executed in a number of identical counterparts, each of which shall be deemed an original for all purposes. Exact copies of this fully executed County Attorney Agreement shall be as enforceable as if they were an original.
G. Binding oa bein and otben. Except as set forth in Section n. D, above, this County
Attorney Agreement shall be binding on all Parties and upon their heirs, representatives, executors, administrators, successors, and assigns, and shall inure to the benefit of the
Parties and others released in Section m and each of them, to their respective heirs,
representatives, executors, administrators, successors, and assigns. H. Aduaowlectaemena. Plaintiffs acknowledge and agree that (i) they have carefully read this
County Attorney Agreement; (ii) they fully understand their right to discuss all aspects of this County Attorney Agreement with their attorneys; (iii) they have availed themselves of this right to the full extent (if any) that they desired; (iv) they fully understand all provisions of this County Attorney Agreement; (v) this County Attorney Agreement constitutes the sole and entire agreement among the Parties; (vi) they have executed this County Attorney

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Agreement voluntarily and of their own free will and accord and for the consideration herein stated; and (vii) they enter into this County Attorney Agreement with full knowledge of the content and effect hereof. L Effective date. This County Attorney Agreement shall be effective upon its execution by all Parties.
111 Pag.: David Escami ll a':. S ttlemc-nt A:;r\: cm ' nt :lLG. ct a/ v . Scc~tru,·. <?t a} 3-15/0!J-J

ACCEPBD AND AGREED:
The Austin Lawyera Guild
#~

~
By: tHO\ 9-t\f1Mu...t..-
lts: 08JA.11Yt: l>1"'Ee@g.,

Date: 3/7 //r.

'3-7-/6

-- - .. . ·-- - --- ·- -.... ···---· -.---- .. -·- ·--·"-- ·-- - ~ - ------·-~ ------- --···..·--·-·-· - ----- - ---·-· ...
lll P a g e D a vi d E sea m i I1a • s • S c t t Ie m en t A g r e e men t A L G. e I al v . Sec-ur11.t. et al
3-15109-1

Assistant Travis County Attorneys TRAVIS COUNTY ATTORNEY'S OFFICE P.O. Box 1748 Austin, Texas 78701 Counselfor Travis County Defendants

Date: 3 .. /o - Ift

13I Page David Escamilla's, Settlement Agreement ALG, et al v. Securus, et al 345109-1

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EXHIBIT A

2U0001

DAVcIoDuA". "U"C.,A_M,.I•&.,.LA

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Travis COUOl.Y Attorney's omre PQ!icy on Pisc!OSI!Jt ofPrivilcaed CommuniCAtions
If any assistant county attorney has or obtains actual knowledac tha& he or she is in possession or control of a potentially privileged communication between a lawyer and a criminal lkfendanl. the nssistant county attorney shall immediately stop reviewina the potentially privileged communication and notify his or her supervising attorney within the county attorney's office (Division Director. Court Chict: Assistant Di~or. and Director as available). Tho supervisina attorneys and the assistant county attorney shall consult about all relevant factors, and. if the communicuuon is In foct privileacd communication and disclosi.U'CI is appropriBIC, the as.~istant county attorney shall disclose the existence and posses.1ion of the privileged communication to the defendant's lawyer no later t.hal1 two business days after notifyina his or her supervising attorney. As soon as practicable. the assistant county attorney should coordinate with defendant's lawyer to provide them all known copies of the privileged communication in the possession of the county attorney's office and should discuss next steps. If the communication is 11 recording, the supervisor should notify the entity creating of the recording. such as the Tra-vis County Sherill"s Office. In certain circumstance.. disclosure of the possession of privileged communication may not be appropriate, such as durin& an investigation in which a sc:arc:h warrant aulhori1jng law enforcement to listen to phone calls in a matter in which a defendant or a defendant's lawyer is lhe focus of that invc.tiption or where the defendant has waived the privilege.

EXHIBIT A

2140002