Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 1 of 33
APPEAL,APPEAL_NAT
U.S. District Court SOUTHERN DISTRICT OF TEXAS (Galveston) CIVIL DOCKET FOR CASE #: 3:18−cv−00104

Booth v. Galveston County et al Assigned to: Judge George C Hanks, Jr Referred to: Magistrate Judge Andrew M Edison Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 04/08/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Aaron Booth on behalf of himself and all others similary situated

represented by Trisha Trigilio American Civil Liberties Union of Texas 5225 Katy Freeway Suite 350 Houston, TX 77007 713−942−8146 ext. 114 Fax: 713−942−8966 Email: ttrigilio@aclutx.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adriana Pinon American Civil Liberties Union of Texas PO Box 8306 Houston, TX 77288 713−942−8146 ext 111 Email: apinon@aclutx.org ATTORNEY TO BE NOTICED

Andre Ivan Segura ACLU of Texas 5225 Katy Freeway Suite 350 Houston, TX 77007 713−942−8146 Email: asegura@aclutx.org ATTORNEY TO BE NOTICED

Brandon J Buskey American Civil Liberties Union Foundation 125 Broad St 18th Fl New York, NY 10004 212−284−7364 Email: bbuskey@aclu.org ATTORNEY TO BE NOTICED

Christopher Mohr Odell Arnold & Porter 700 Louisiana St Ste 4000 Houston, TX 77002 713−576−2401 Email: christopher.odell@aporter.com ATTORNEY TO BE NOTICED

Hannah DeMarco Sibiski Arnold & Porter LLP − Houston 700 Louisiana St. Suite 4000 Bank of America Tower

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Houston, TX 77002 713−576−2400 Fax: 713−576−2499 Email: hannah.sibiski@arnoldporter.com ATTORNEY TO BE NOTICED

Joshua Wayne McCollum Arnold & Porter et al 700 Louisiana Ste 4000 Houston, TX 77002−2755 713−576−240 Email: josh.mccollum@arnoldporter.com ATTORNEY TO BE NOTICED

Kali Alanna Cohn American Civil Liberties Union of Texas 6440 N Central Expwy Dallas, TX 75206 214−346−6577 Email: kcohn@aclutx.org ATTORNEY TO BE NOTICED

Twyla Carter American Civil Liberties Union Foundation 125 Broad Street, 18th Floor New York, NY 10004 212−549−2636 Email: tcarter@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Cody Tucker TERMINATED: 09/12/2018

represented by Kali Alanna Cohn (See above for address) ATTORNEY TO BE NOTICED

Trisha Trigilio (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Galveston County

represented by James Edwin Trainor , III Trainor Law Firm, PC 4301 W William Cannon Dr Ste B150−513 Austin, TX 78749 512−924−6501 Email: trey.trainor@akerman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph M Nixon The Nixon Law Firm, PC 6363 Woodway Suite 800 Houston, TX 77057 713−550−7535 Email: joe@nixonlawtx.com LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Joshua Allen Redelman Lewis Brisbois Bisgaard & Smith 1400 24 Greenway Plaza Suite 1400 Houston, TX 77046 832−460−4612 Email: joshua.redelman@lewisbrisbois.com ATTORNEY TO BE NOTICED

Norman Ray Giles Lewis Brisbois Bisgaard & Smith LLP 24 Greenway Plaza Suite 1400 Houston, TX 77046 713−659−6767 Fax: 713.759.6830 Email: norman.giles@lewisbrisbois.com ATTORNEY TO BE NOTICED

Paul A Ready Ready Law Firm, PLLC 1300 McGowen St., Ste. 120 Houston, TX 77004 713.814.3980 Fax: 713.814.3988 Email: paul@ready.law ATTORNEY TO BE NOTICED

Robert Barron Boemer Galveston County Legal Department Galveston County Courthouse 722 Moody, 5th Floor Galveston, TX 77550−2317 4097705562 Fax: 4097705560 Email: bob.boemer@co.galveston.tx.us ATTORNEY TO BE NOTICED

William Scott Helfand Lewis Brisbois Bisgaard & Smith, LLP 24 Greenway Plaza Suite 1400 Houston, TX 77046 713−659−6767 Fax: 713−759−6830 Email: bill.helfand@lewisbrisbois.com ATTORNEY TO BE NOTICED

Defendant
Hon. Kerry Neves TERMINATED: 01/10/2019

represented by Adam Arthur Biggs Office of the Attorney General P.O. Box 12548, Capitol Station Austin, TX 78711 512−463−2120 Email: adam.biggs@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dominique Gelene Stafford Office of the Attorney General 300 W 15th St

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Austin, TX 78701 512−463−2120 Email: dominique.stafford@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Enrique M Varela Office of the Attorney General of Texas 300 W 15th St Austin, TX 78701 512−475−4080 Email: enrique.varela@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francesca Andrea Di Troia Office of the Attorney Gen 300 W 15th St Austin, TX 78701 512−475−2468 Email: Francesca.DiTroia@oag.texas.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah Jean O'Leary Office of the Attorney General Law Enforcement Defense Division P.O. Box 12548 Austin, TX 78711 512−463−2080 Fax: 512−370−9918 Email: leah.oleary@oag.texas.gov ATTORNEY TO BE NOTICED

Defendant
Hon. Lonnie Cox TERMINATED: 01/10/2019

represented by Adam Arthur Biggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dominique Gelene Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Enrique M Varela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francesca Andrea Di Troia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah Jean O'Leary (See above for address) ATTORNEY TO BE NOTICED

Defendant
Hon. John Ellisor TERMINATED: 01/10/2019

represented by Adam Arthur Biggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Defendant Hon. Patricia Grady TERMINATED: 01/10/2019
Defendant Hon. Anne B Darring TERMINATED: 01/10/2019

Dominique Gelene Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Enrique M Varela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francesca Andrea Di Troia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Jean O'Leary (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Arthur Biggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dominique Gelene Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Enrique M Varela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francesca Andrea Di Troia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leah Jean O'Leary (See above for address) ATTORNEY TO BE NOTICED
represented by Adam Arthur Biggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dominique Gelene Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Enrique M Varela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Francesca Andrea Di Troia (See above for address) LEAD ATTORNEY

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ATTORNEY TO BE NOTICED

Leah Jean O'Leary (See above for address) ATTORNEY TO BE NOTICED

Defendant
Hon. Michelle Slaughter TERMINATED: 01/10/2019

represented by Adam Arthur Biggs (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Dominique Gelene Stafford (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Enrique M Varela (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Francesca Andrea Di Troia (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leah Jean O'Leary (See above for address) ATTORNEY TO BE NOTICED

Defendant
Hon. John Grady TERMINATED: 09/12/2018

represented by George William Vie , III Feldman and Feldman P.C. 3355 West Alabama Suite 1220 Houston, TX 770098 713−986.9471 Fax: 713−986−9472 Email: george.vie@feldman.law LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Hon. Barbara Roberts TERMINATED: 09/12/2018

represented by George William Vie , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Hon. Jack Ewing TERMINATED: 09/12/2018

represented by George William Vie , III (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Hon. Mark Baker

Defendant
Hon. Kerri Foley TERMINATED: 01/10/2019

represented by Douglas W Poole McLeod Alexander Powel & Apffel

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802 Rosenberg PO Box 629 Galveston, TX 77553−0629 409−763−2481 Email: dwpoole@mapalaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Hon. James Woltz TERMINATED: 01/10/2019

represented by Douglas W Poole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant District Attorney Jack Roady

represented by Andrew J Mytelka Greer Herz Adams LLP One Moody Plz 18th Fl Galveston, TX 77550 409−797−3200 Fax: 409−766−6424 Email: amytelka@greerherz.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Angela Olalde Greer Herz Adams LLP 2525 S Shore Blvd. Ste 203 League City, TX 77573 409−797−3262 Email: aolalde@greerherz.com ATTORNEY TO BE NOTICED

Joseph R Russo , Jr Greer Herz et al One Moody Plaza 18th Floor Galveston, TX 77550−7998 409−797−3200 Email: jrusso@greerherz.com ATTORNEY TO BE NOTICED

Defendant
Stephen W Baker TERMINATED: 01/10/2019

represented by Douglas W Poole (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Galveston County District Court Judges

represented by Dominique Gelene Stafford (See above for address) ATTORNEY TO BE NOTICED

Joseph M Nixon (See above for address) ATTORNEY TO BE NOTICED

Leah Jean O'Leary (See above for address) ATTORNEY TO BE NOTICED

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Amicus
The Office of the Attorney General − Amicus Curiae

represented by Emily Marie Landon Office of the Attorney General of TX P.O. Box 12548 Austin, TX 78711−2548 512−463−2080 Fax: 512−370−9410 Email: Emily.Landon@oag.texas.gov ATTORNEY TO BE NOTICED
Leah Jean O'Leary (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/08/2018 04/08/2018 04/08/2018
04/09/2018
04/09/2018 04/09/2018 04/09/2018 04/09/2018 04/09/2018 04/09/2018 04/10/2018

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400 receipt number 0541−19868600) filed by Aaron Booth. (Attachments: # 1 Civil Cover Sheet)(Odell, Christopher) (Entered: 04/08/2018)
2 MOTION to Certify Class by Aaron Booth, filed. Motion Docket Date 4/30/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Proposed Order)(Odell, Christopher) (Entered: 04/08/2018)
3 MOTION for Leave to File Motion for PI with Excess Pages by Aaron Booth, filed. Motion Docket Date 4/30/2018. (Attachments: # 1 Motion for PI, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit M−1, # 16 Exhibit M−2, # 17 Exhibit M−3, # 18 Exhibit M−4, # 19 Exhibit M−5, # 20 Exhibit M−6, # 21 Exhibit M−7, # 22 Exhibit M−8, # 23 Exhibit M−9, # 24 Exhibit M−10, # 25 Exhibit N, # 26 Exhibit N−1, # 27 Exhibit O, # 28 Exhibit P, # 29 Exhibit Q, # 30 Exhibit R, # 31 Exhibit S, # 32 Exhibit T, # 33 Proposed Order Motion for PI, # 34 Proposed Order Motion for Leave − Motion for PI)(Odell, Christopher) (Entered: 04/09/2018)
4 Request for Issuance of Summons as to All Defendants, filed. (Attachments: # 1 Summons − DA, # 2 Summons − Judge Baker, # 3 Summons − Judge Cox, # 4 Summons − Judge Darring, # 5 Summons − Judge Ellisor, # 6 Summons − Judge Ewing, # 7 Summons − Judge Foley, # 8 Summons − Judge P. Grady, # 9 Summons − Judge J. Grady, # 10 Summons − Judge Neves, # 11 Summons − Judge Roberts, # 12 Summons − Judge Slaughter)(Odell, Christopher) (Entered: 04/09/2018)
5 Other EXHIBITS re: 3 MOTION for Leave to File Motion for PI with Excess Pages by Aaron Booth, filed.(Odell, Christopher) (Entered: 04/09/2018)
6 NOTICE of Appearance by Trisha Trigilio on behalf of Aaron Booth, filed. (Odell, Christopher) (Entered: 04/09/2018)
7 NOTICE of Appearance by Andrew Bergman on behalf of Aaron Booth, filed. (Odell, Christopher) (Entered: 04/09/2018)
8 MOTION for Brandon Buskey to Appear Pro Hac Vice by Aaron Booth, filed. Motion Docket Date 4/30/2018. (Odell, Christopher) (Entered: 04/09/2018)
9 Other EXHIBITS re: 3 MOTION for Leave to File Motion for PI with Excess Pages by Aaron Booth, filed.(Odell, Christopher) (Entered: 04/09/2018)
10 MOTION for Andre Segura to Appear Pro Hac Vice by Aaron Booth, filed. Motion Docket Date 4/30/2018. (Trigilio, Trisha) (Entered: 04/09/2018)
Summons Issued as to Mark Baker, Lonnie Cox, Anne B Darring, John Ellisor, Jack Ewing, Kerri Foley, Galveston County, John Grady, Patricia Grady, Kerry Neves, Jack Roady, Barbara Roberts, Michelle Slaughter. Issued summons delivered to plaintiff by First−class mail, filed.(agould, 3) (Entered: 04/10/2018)

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04/12/2018 04/12/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/16/2018 04/18/2018 04/30/2018
05/01/2018
05/02/2018
05/03/2018 05/04/2018 05/04/2018

11 ORDER granting 10 Motion for Andre Segura to Appear Pro Hac Vice.(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3) (Entered: 04/13/2018)
12 ORDER granting 8 Motion for Brandon J. Buskey to Appear Pro Hac Vice.(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3) (Entered: 04/13/2018)
13 WAIVER OF SERVICE Returned Executed as to Jack Roady served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
14 WAIVER OF SERVICE Returned Executed as to Galveston County served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
15 WAIVER OF SERVICE Returned Executed as to Anne B Darring served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
16 WAIVER OF SERVICE Returned Executed as to Barbara Roberts served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
17 WAIVER OF SERVICE Returned Executed as to Jack Ewing served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
18 WAIVER OF SERVICE Returned Executed as to James Woltz served on 4/11/2018, answer due 6/11/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
19 WAIVER OF SERVICE Returned Executed as to John Ellisor served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
20 WAIVER OF SERVICE Returned Executed as to John Grady served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
21 WAIVER OF SERVICE Returned Executed as to Kerry Neves served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
22 WAIVER OF SERVICE Returned Executed as to Lonnie Cox served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
23 WAIVER OF SERVICE Returned Executed as to Michelle Slaughter served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
24 WAIVER OF SERVICE Returned Executed as to Patricia Grady served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
25 WAIVER OF SERVICE Returned Executed as to Mark Baker served on 4/9/2018, answer due 6/8/2018, filed.(Sibiski, Hannah) (Entered: 04/16/2018)
26 WAIVER OF SERVICE Returned Executed as to Kerri Foley served on 4/17/2018, answer due 6/18/2018, filed.(Sibiski, Hannah) (Entered: 04/18/2018)
27 NOTICE Amicus Curiae Advisory Regarding Plaintiff's Motion for Preliminary Injunction re: 3 MOTION for Leave to File Motion for PI with Excess Pages by The Office of the Attorney General − Amicus Curiae, filed. (Landon, Emily) (Entered: 04/30/2018)
28 ORDER ; Motion−related deadline set re: 3 MOTION for Leave to File Motion for PI with Excess Pages, 2 MOTION to Certify Class Responses due by 5/7/2018.(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3) (Entered: 05/01/2018)
29 ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 8/14/2018 at 09:30 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3) (Entered: 05/02/2018)
30 Unopposed REQUEST for pre−motion conference, filed. (Attachments: # 1 Proposed Order)(Odell, Christopher) (Entered: 05/03/2018)
31 First AMENDED COMPLAINT against All Defendants filed by Aaron Booth, Cody Tucker.(Trigilio, Trisha) (Entered: 05/04/2018)
32 Amended MOTION to Certify Class by Aaron Booth, Cody Tucker, filed. Motion Docket Date 5/25/2018. (Attachments: # 1 Exhibit 1, Segura Declaration, # 2 Exhibit 2, Buskey Declaration, # 3 Exhibit 3, ODell Declaration, # 4 Proposed Order)(Trigilio,

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05/04/2018 05/04/2018 05/04/2018 05/04/2018 05/07/2018 05/14/2018 05/17/2018 05/18/2018
05/21/2018 06/04/2018 06/05/2018 06/08/2018 06/08/2018 06/08/2018

Trisha) (Entered: 05/04/2018)
33 Supplement to 3 MOTION for Preliminary Injunction by Cody Tucker, filed. Motion Docket Date 5/25/2018. (Attachments: # 1 Exhibit U, Tucker Declaration)(Trigilio, Trisha) (Entered: 05/04/2018)
34 NOTICE of Setting as to 30 Unopposed REQUEST for pre−motion conference. Parties notified. Status Conference set for 5/18/2018 at 11:15 AM in Sixth Floor Courtroom before Judge George C Hanks Jr, filed. (dperez, 3) (Entered: 05/04/2018)
35 *CORRECTED* NOTICE of Setting as to 30 Unopposed REQUEST for pre−motion conference. Parties notified. Status Conference set for 5/18/2018 at 11:15 AM in 7th Floor Courtroom before Judge George C Hanks Jr, filed. (ltrevino, 3) (Entered: 05/04/2018)
36 ADVISORY by Jack Ewing, Kerri Foley, Galveston County, John Grady, Jack Roady, Barbara Roberts, James Woltz, Stephen W Baker, filed.(Vie, George) (Entered: 05/04/2018)
37 RESPONSE to 28 Order , filed by The Office of the Attorney General − Amicus Curiae. (O'Leary, Leah) (Entered: 05/07/2018)
38 REPLY in Support of 3 MOTION for Leave to File Motion for PI with Excess Pages, filed by Aaron Booth, Cody Tucker. (Trigilio, Trisha) (Entered: 05/14/2018)
39 CERTIFICATE OF INTERESTED PARTIES by Aaron Booth, Cody Tucker, filed.(Trigilio, Trisha) (Entered: 05/17/2018)
41 Minute Entry for proceedings held before Judge George C Hanks, Jr. STATUS CONFERENCE held on 5/18/2018 granting 3 MOTION for Leave to File Motion for PI with Excess Pages ( Motion Hearing set for 7/9/2018 at 08:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr). Motion for Preliminary Injunction [3.1] is deemed filed. Responses to any motions regarding Class Certification 32 , Motion for Preliminary Injunction [3−1], and any dispositive motions must be filed by Friday, June 29, 2018 at 5:00 PM. Replies to be filed by Friday, July 6, 2018 at 5:00 PM. A hearing on all pending motions to be set for Monday, July 9, 2018, at 8:30. The required pre−motion conference is suspended and Motions to Dismiss may be filed without further permission from the Court. The Court GRANTS permission to extend the page limitation for motions to 50 pages. The Court GRANTS permission to extend the page limitation for replies to 25 pages. Any party wishing to file a sur−reply must file a motion requesting permission of the Court to do so. Appearances:Hanah Sibiski. Douglas W Poole, Christopher Mohr Odell, Trisha Trigilio, Andre Ivan Segura, George William Vie, III, Joseph M Nixon, Andrew J Mytelka, Leah Jean O'Leary, Emily Marie Landon.(Digital # 11:12AM − 11:25AM)(ERO:Andy Gould), filed.(agould, 3) (Entered: 05/23/2018)
40 NOTICE of Appearance by Hannah Sibiski on behalf of Aaron Booth, Cody Tucker, filed. (Odell, Christopher) (Entered: 05/21/2018)
42 NOTICE of Setting as to 41 Motion Hearing. Parties notified. Motion Hearing set for 7/9/2018 at 08:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr, filed. (SusanGram, 3) (Entered: 06/04/2018)
43 MOTION for Twyla Carter to Appear Pro Hac Vice by Aaron Booth, filed. Motion Docket Date 6/26/2018. (Sibiski, Hannah) (Entered: 06/05/2018)
44 MOTION to Dismiss All Claims Pursuant to Rule 12(b)(6) by Galveston County, filed. Motion Docket Date 6/29/2018. (Nixon, Joseph) (Entered: 06/08/2018)
45 Amended MOTION to Dismiss All Claims Pursuant to Rule 12(b)(6) by Galveston County, filed. Motion Docket Date 6/29/2018. (Nixon, Joseph) (Entered: 06/08/2018)
46 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) and Brief in Support ( Motion Docket Date 6/29/2018.), MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Stephen W Baker, Kerri Foley, James Woltz, filed. (Attachments: # 1 Proposed Order Order)(Poole, Douglas) (Entered: 06/08/2018)

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06/08/2018 06/08/2018 06/08/2018
06/08/2018 06/15/2018 06/17/2018 06/18/2018 06/18/2018 06/18/2018 06/21/2018 06/22/2018 06/25/2018 06/25/2018
06/26/2018
06/26/2018
06/26/2018 06/28/2018

47 MOTION to Dismiss by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. Motion Docket Date 6/29/2018. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Biggs, Adam) (Entered: 06/08/2018)
48 MOTION to Dismiss 31 Amended Complaint/Counterclaim/Crossclaim etc. by Jack Roady, filed. Motion Docket Date 6/29/2018. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1−A, # 3 Exhibit 1−B, # 4 Proposed Order)(Mytelka, Andrew) (Entered: 06/08/2018)
49 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss 31 Amended Complaint/Counterclaim/Crossclaim etc. ( Motion Docket Date 6/29/2018.) by Jack Ewing, John Grady, Barbara Roberts, filed. (Attachments: # 1 Proposed Order)(Vie, George) (Entered: 06/08/2018)
50 ORDER granting 43 Motion for Twyla Carter to Appear Pro Hac Vice.(Signed by Judge George C Hanks, Jr) Parties notified.(dperez, 3) (Entered: 06/11/2018)
51 CERTIFICATE OF INTERESTED PARTIES by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed.(O'Leary, Leah) (Entered: 06/15/2018)
52 CERTIFICATE OF INTERESTED PARTIES by Jack Ewing, John Grady, Barbara Roberts, filed.(Vie, George) (Entered: 06/17/2018)
53 CERTIFICATE OF INTERESTED PARTIES by Jack Roady, filed.(Mytelka, Andrew) (Entered: 06/18/2018)
54 CERTIFICATE OF INTERESTED PARTIES by Stephen W Baker, Kerri Foley, James Woltz, filed.(Poole, Douglas) (Entered: 06/18/2018)
55 CERTIFICATE OF INTERESTED PARTIES by Galveston County, filed.(Nixon, Joseph) (Entered: 06/18/2018)
56 MOTION for Continuance of July 9, 2018 hearing by Aaron Booth, Cody Tucker, filed. Motion Docket Date 7/12/2018. (Trigilio, Trisha) (Entered: 06/21/2018)
57 NOTICE Galveston County District Court Judges' Partial Opposition to Plaintiff's Motion for Continuance by Galveston County District Court Judges, filed. (O'Leary, Leah) (Entered: 06/22/2018)
58 NOTICE of Setting re: 56 MOTION for Continuance of July 9, 2018 hearing. Parties notified. Telephone Conference set for 7/3/2018 at 09:00 AM by telephone before Judge George C Hanks Jr, filed. (agould, 3) (Entered: 06/25/2018)
59 Unopposed MOTION for Telephonic Conference regarding response deadlines Conference by Mark Baker, Stephen W Baker, Lonnie Cox, Anne B Darring, John Ellisor, Jack Ewing, Kerri Foley, Galveston County, Galveston County District Court Judges, John Grady, Patricia Grady, Kerry Neves, Jack Roady, Barbara Roberts, Michelle Slaughter, The Office of the Attorney General − Amicus Curiae, James Woltz, filed. Motion Docket Date 7/16/2018. (Mytelka, Andrew) (Entered: 06/25/2018)
60 [**DOCKETED IN ERROR − SEE DKT 61 **] NOTICE of Resetting as to 56 MOTION for Continuance of July 9, 2018 hearing. Parties notified. Motion Hearing set for 6/28/2018 at 03:30 PM in by telephone before Judge George C Hanks Jr, filed. (SusanGram, 3) Modified on 6/26/2018 (SusanGram, 3). Modified on 6/26/2018 (SusanGram, 3). (Entered: 06/26/2018)
61 NOTICE of Resetting as to 56 MOTION for Continuance of July 9, 2018 hearing, 60 Notice of Resetting,. Parties notified. Motion Hearing set for 7/9/2018 at 08:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr, filed. (SusanGram, 3) (Entered: 06/26/2018)
62 NOTICE of Resetting as to 58 Notice of Setting. Parties notified. Telephone Conference set for 6/28/2018 at 03:30 PM by telephone before Judge George C Hanks Jr, filed. (SusanGram, 3) (Entered: 06/26/2018)
63 NOTICE of Appearance by Bryan R. Lasswell on behalf of Stephen W Baker, Kerri Foley, James Woltz, filed. (Poole, Douglas) (Entered: 06/28/2018)

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06/28/2018
06/28/2018
06/29/2018 06/29/2018 06/29/2018 06/29/2018 07/02/2018 07/13/2018 07/13/2018 07/13/2018 07/13/2018

66 Minute Entry for proceedings held before Judge George C Hanks, Jr. TELEPHONE CONFERENCE held on 6/28/2018 re 59 Unopposed MOTION for Telephonic Conference regarding response deadlines Conference. Dkt 56 is GRANTED as to extending deadlines. The new deadlines are as follows: Hearing on all pending motions is rescheduled to October 12, 2018 at 9:00 AM; Preliminary witness list is due July 13, 2018; Motions to Dismiss are due 21 days prior to October 12, 2018; Responses to the preliminary injunction and all motions are due 21 days prior to October 12, 2018; Replies to the responses are due 11 days prior to October 12, 2018; Final witness lists and stipulations are due 7 days prior to October 12, 2018; Plaintiffs will file one combined response to the various Motions to Dismiss filed by the Defendants. Plaintiffs combined response to the motions to dismiss will be limited to 100 pages. The parties are to agree on a deadline for filing expert reports and submit that date to the Court by Friday, June 29, 2018, at 5:00. Motion Hearing set for 10/12/2018 at 09:00 AM in Sixth Floor Courtroom before Judge George C Hanks Jr). Appearances:Chris Odell; Trisha Trigilio; Kali Cohn; twyla Carter; Andrew Bergman; James Trainor; Joseph Nixon; Bob Boemer; Adam Biggs; Leah O'Leary; George vie; Douglas Poole; Bryan Lasswell; Andrew Mytelka; Angie Olalde.(Digital # 3:54 − 4:04)(ERO:Andy Gould), filed.(dwilkerson, 3) (Entered: 06/29/2018)
70 CORRECTED Minute Entry for proceedings held before Judge George C Hanks, Jr. Telephone conference held regarding the following scheduling matters: a. Plaintiffs Motion for Continuance of July 9, 2018 hearing (Dkt 56 ); and b. Unopposed Motion for Telephonic Conference regarding response deadlines (Dkt 59 ). Dkt 56 is GRANTED as to extending deadlines. The new deadlines are as follows: a. Hearing on all pending motions is rescheduled to October 12, 2018 at 9:00 AM b. Preliminary witness list is due July 13, 2018. c. Responses to Motions to Dismiss are due 21 days prior to October 12, 2018. d. Responses to the preliminary injunction and all motions are due 21 days prior to October 12, 2018. e. Replies to the responses are due 11 days prior to October 12, 2018. f. Final witness lists and stipulations are due 7 days prior to October 12, 2018. Plaintiffs will file one combined response to the various Motions to Dismiss filed by the Defendants. Plaintiffs combined response to the motions to dismiss will be limited to 100 pages. The parties are to agree on a deadline for filing expert reports and submit that date to the Court by Friday, June 29, 2018, at 5:00 PM. Appearances:Chris Odell, Trisha Trigilio, Kali Cohn, Twyla Carter, Andrew Bergman, James Trainor, Joseph Nixon, Bob Boemer, Adam Biggs, Leah OLeary, George Vie, Douglas Poole, Bryan Lasswell, Andrew Mytelka, Angie Olalde(Digital # 3:54 − 4:04)(ERO:Andy Gould), filed.(dperez, 3) (Entered: 07/12/2018)
64 NOTICE of Appearance by Angie Olalde on behalf of Jack Roady, filed. (Olalde, Angela) (Entered: 06/29/2018)
65 NOTICE of Appearance by Joseph R. Russo, Jr. on behalf of Jack Roady, filed. (Russo, Joseph) (Entered: 06/29/2018)
67 NOTICE of Appearance by Robert B. Boemer on behalf of Galveston County, filed. (Boemer, Robert) (Entered: 06/29/2018)
68 Unopposed MOTION for Entry of Order re: Setting Deadlines for Filing Expert Reports by Aaron Booth, Cody Tucker, filed. Motion Docket Date 7/20/2018. (Attachments: # 1 Proposed Order)(Cohn, Kali) (Entered: 06/29/2018)
69 ORDER granting 68 Unopposed MOTION for Entry of Order re: Setting Deadlines for Filing Expert Reports (Plaintiffs' Expert Reports due by 7/13/2018. Defendants' Expert Reports due by 8/27/2018)(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 07/02/2018)
71 Witness List by Aaron Booth, Cody Tucker(Sibiski, Hannah) (Entered: 07/13/2018)
72 Expert Report of 1 by Aaron Booth, Cody Tucker, filed. (Attachments: # 1 Exhibit Expert Report of Stephen Demuth, Ph.D., # 2 Exhibit Curriculum Vitae of Stephen Demuth, Ph.D., # 3 Exhibit Expert Report of Michael R. Jones, Ph.D., # 4 Exhibit Curriculum Vitae of Michael R. Jones, Ph.D.)(Sibiski, Hannah) (Entered: 07/13/2018)
73 Witness List by Jack Roady(Olalde, Angela) (Entered: 07/13/2018)
74 Witness List by Galveston County District Court Judges(O'Leary, Leah) (Entered: 07/13/2018)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 13 of 33

07/13/2018 07/13/2018 07/13/2018 07/19/2018 07/24/2018
08/04/2018 08/12/2018 08/13/2018 08/13/2018 08/14/2018 08/14/2018
08/15/2018
08/15/2018
08/20/2018
08/21/2018 08/21/2018 08/27/2018

75 Witness List by Stephen W Baker(Lasswell, Bryan) (Entered: 07/13/2018)
76 INITIAL DISCLOSURES by Galveston County District Court Judges, filed.(Nixon, Joseph) (Entered: 07/13/2018)
77 First Witness List by Jack Ewing, John Grady, Barbara Roberts(Vie, George) (Entered: 07/13/2018)
78 SUPPLEMENT to 72 Expert Report, by Aaron Booth, filed.(Sibiski, Hannah) (Entered: 07/19/2018)
79 SUPPLEMENT to 48 MOTION to Dismiss 31 Amended Complaint/Counterclaim/Crossclaim etc. by Jack Roady, filed. (Attachments: # 1 Exhibit 2, # 2 Exhibit 2−A, # 3 Proposed Order)(Olalde, Angela) (Entered: 07/24/2018)
80 JOINT DISCOVERY/CASE MANAGEMENT PLAN by Aaron Booth, Cody Tucker, filed.(Odell, Christopher) (Entered: 08/04/2018)
81 NOTICE of Change of Address by George W. Vie III, counsel for Jack Ewing, John Grady, Barbara Roberts, filed. (Vie, George) (Entered: 08/12/2018)
82 NOTICE OF SERVICE of Mandatory Initial Discovery Responses by Stephen W Baker, Kerri Foley, James Woltz, filed. (Poole, Douglas) (Entered: 08/13/2018)
83 NOTICE of Service of Initial Disclosures by Jack Roady, filed. (Mytelka, Andrew) (Entered: 08/13/2018)
84 INITIAL DISCLOSURES by Galveston County, filed.(Nixon, Joseph) (Entered: 08/14/2018)
Minute entry for proceedings before Magistrate Judge Andrew M. Edison. Initial conference held on August 14, 2018. The court and parties conferred and the court set out a schedule for the case. The scheduling order will be entered separately. Appearances: Chris Odell, Hannah Sibiski, Tricia Trigilio, Andre Segura for the plaintiffs; Doug Poole, Angie Olalde, Adam Arthur Biggs, George Vie, Joseph M. Nixon, Andrew Mytelka, and Paul Ready for the defendants. (ERO:Yes), filed. (wbostic, 4) (Entered: 08/15/2018)
85 AO 435 TRANSCRIPT REQUEST by Hannah Sibiski for Transcript of Initial Pretrial and Scheduling Conference on 8/14/2018 at 9:30 a.m. before Magistrate Judge Andrew M. Edison. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Digital Scroll Transcription Services, filed. (Sibiski, Hannah) ELECTRONICALLY FORWARDED TO EXCEPTIONAL REPORTING SERVICES 8/15/2018. (agould, 3). (Entered: 08/15/2018)
86 SCHEDULING ORDER entered. ETT: 10 Days. Bench Trial. Amended Pleadings due by 8/14/2018. Joinder of Parties due by 8/14/2018. Pltf Expert Report due by 6/7/2019. Deft Expert Report due by 7/19/2019. Discovery due by 8/23/2019. Dispositive Motion Filing due by 9/6/2019. Non−Dispositive Motion Filing due by 10/4/2019. Joint Pretrial Order due by 10/21/2019. Docket Call set for 11/1/2019 at 09:30 AM in Sixth Floor Courtroom before Judge George C Hanks Jr. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 08/15/2018)
87 TRANSCRIPT re: INITIAL CONFERENCE held on 8/14/18 before Magistrate Judge Andrew M Edison. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party HANNAH SIBISKI Release of Transcript Restriction set for 11/19/2018., filed. (thudson, ) (Entered: 08/20/2018)
88 Notice of Filing of Official Transcript as to 87 Transcript. Party notified, filed. (lusmith, 3) (Entered: 08/21/2018)
89 Agreed MOTION for Protective Order by Aaron Booth, Cody Tucker, filed. Motion Docket Date 9/11/2018. (Attachments: # 1 Exhibit 1)(Odell, Christopher) (Entered: 08/21/2018)
90 NOTICE of Appearance by Enrique M. Varela on behalf of Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Biggs, Adam) (Entered: 08/27/2018)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 14 of 33

08/27/2018 08/27/2018 09/07/2018 09/09/2018
09/12/2018
09/14/2018 09/20/2018 09/20/2018 09/20/2018
09/21/2018 09/21/2018 09/21/2018 09/21/2018 09/21/2018
09/21/2018 09/21/2018 09/21/2018

91 NOTICE of Appearance by Dominique G. Stafford on behalf of Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Biggs, Adam) (Entered: 08/27/2018)
92 NOTICE of Appearance by Francesca A. Di Troia on behalf of Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Biggs, Adam) (Entered: 08/27/2018)
93 NOTICE of Dismissal as to Jack Ewing, John Grady, Barbara Roberts by Aaron Booth, Cody Tucker, filed. (Trigilio, Trisha) (Entered: 09/07/2018)
94 Second MOTION to Dismiss for Lack of Subject−Matter Jurisdiction by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. Motion Docket Date 10/1/2018. (Attachments: # 1 Appendix, # 2 Proposed Order)(Biggs, Adam) (Entered: 09/09/2018)
95 ORDER OF DISMISSAL re 93 Notice of Dismissal. Plaintiff Cody Tucker's claims against all Defendants are DISMISSED without prejudice. Plaintiff Aaron Booth's claims against Defendants Judges John Grady, Barbara Roberts and Jack Ewing are DISMISSED with prejudice. Barbara Roberts, Cody Tucker, Jack Ewing and John Grady terminated.(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3) (Entered: 09/12/2018)
96 MOTION for Conference by Aaron Booth, filed. Motion Docket Date 10/5/2018. (Attachments: # 1 Exhibit A)(Odell, Christopher) (Entered: 09/14/2018)
97 NOTICE of Referral of Motion to Magistrate Judge Andrew Edison re 96 MOTION for Conference, filed. (jegonzalez, 3) (Entered: 09/20/2018)
98 NOTICE of Setting as to 96 MOTION for Conference. Parties notified. Motion Hearing set for 9/24/2018 at 01:00 PM in the 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 09/20/2018)
99 ORDER entered. The parties are instructed to confer and file a JOINT LETTER in compliance with local court procedure 6E by 3 p.m. on Friday, September 21, 2018. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 09/20/2018)
100 RESPONSE in Opposition to 32 Amended MOTION to Certify Class, filed by Galveston County. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Nixon, Joseph) (Entered: 09/21/2018)
101 RESPONSE to 3 MOTION for Leave to File Motion for PI with Excess Pages filed by Galveston County. (Attachments: # 1 Exhibit 1, # 2 Appendix)(Nixon, Joseph) (Entered: 09/21/2018)
102 ORDER REFERRING CASE to Magistrate Magistrate Judge Andrew M Edison(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 09/21/2018)
103 NOTICE : Joint Letter on Discovery Dispute re: 99 Order by Aaron Booth, filed. (Trigilio, Trisha) (Entered: 09/21/2018)
*** Based on the joint letter [Dkt. 103] that was filed on September 21, 2018, the hearing scheduled for September 24, 2018 is CANCELLED. If the parties have future discovery disputes, please follow the local Court Procedures and the Court will address the discovery issues promptly. (wbostic, 4) *** (Entered: 09/21/2018)
104 RESPONSE to 2 MOTION to Certify Class filed by Stephen W Baker, Kerri Foley, James Woltz. (Attachments: # 1 Affidavit Affidavit of Steve Baker)(Poole, Douglas) (Entered: 09/21/2018)
105 RESPONSE in Opposition to 3 MOTION for Leave to File Motion for PI with Excess Pages, filed by Stephen W Baker, Kerri Foley, James Woltz. (Poole, Douglas) (Entered: 09/21/2018)
106 RESPONSE to 32 AMENDED MOTION to Certify Class filed by Jack Roady. (Olalde, Angela) Modified on 9/24/2018 (dwilkerson, 3). (Entered: 09/21/2018)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 15 of 33

09/21/2018 09/21/2018 09/21/2018 09/21/2018 09/21/2018
09/24/2018 09/26/2018 09/27/2018 09/28/2018 09/28/2018 10/01/2018
10/01/2018 10/01/2018 10/01/2018

107 Sealed Event, filed. (Entered: 09/21/2018)
108 RESPONSE to 3 MOTION for Leave to File Motion for PI with Excess Pages filed by Jack Roady. (Attachments: # 1 Proposed Order)(Olalde, Angela) (Entered: 09/21/2018)
109 RESPONSE in Opposition to 32 Amended MOTION to Certify Class, filed by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter. (Attachments: # 1 Appendix, # 2 Proposed Order)(Biggs, Adam) (Entered: 09/21/2018)
110 RESPONSE in Opposition to 3 MOTION for Leave to File Motion for PI with Excess Pages, filed by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter. (Attachments: # 1 Appendix, # 2 Proposed Order)(Biggs, Adam) (Entered: 09/21/2018)
111 RESPONSE in Opposition to 48 MOTION to Dismiss 31 Amended Complaint/Counterclaim/Crossclaim etc. , 45 Amended MOTION to Dismiss All Claims Pursuant to Rule 12(b)(6), 46 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) and Brief in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 47 MOTION to Dismiss , filed by Aaron Booth. (Trigilio, Trisha) (Entered: 09/21/2018)
112 AGREED PROTECTIVE ORDER entered. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 09/24/2018)
113 NOTICE of Resetting as to 66 Hearing on all pending motions is rescheduled to October 12, 2018 at 9:00 AM; Parties notified. Motion Hearing reset for 10/12/2018 at 09:00 AM in the 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 09/26/2018)
123 Supplemental EXHIBITS re: 110 Response in Opposition to Motion, 109 Response in Opposition to Motion by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (CD kept in brown folder in Clerk's Office)(agould, 3) (Entered: 10/02/2018)
114 Joint Request for Conference Regarding Discovery Dispute by Jack Roady, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Olalde, Angela) (Entered: 09/28/2018)
115 NOTICE of Setting as to 114 Joint Request for Discovery Hearing. Parties notified. Discovery Hearing set for 10/1/2018 at 10:00 AM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 09/28/2018)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Discovery conference held on October 1, 2018 as to [Dkt. 114] Joint Request for discovery conference. The Court ordered the plaintiff to submit the disputed documents by email to the case manager so that the Court can review them in camera. Plaintiff and defendants will submit brief letters as discussed on the record by October 2, 2018 by 5:00 pm. The Court discussed the upcoming hearing set for October 12, 2018. Appearances: Trisha Trigilio and Andre Segura for the plaintiff; Joseph Nixon for Defendants Galveston County and Galveston County District Court Judges; Adam Biggs and Francesca DiTroia for Defendants Hon. Kerry Neves, Hon. Lonnie Cox, Hon John Ellisor, Hon. Patricia Grady, Hon. Anne B. Darring, and Hon. Michelle Slaughter; Douglas Poole for Defendants Hon. Kerri Foley, Hon. James Woltz, and Stephen Baker; and Joseph Russo Jr for the defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 10/01/2018)
116 REPLY in Support of 47 MOTION to Dismiss , filed by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter. (Stafford, Dominique) (Entered: 10/01/2018)
117 REPLY in Support of 45 Amended MOTION to Dismiss All Claims Pursuant to Rule 12(b)(6), filed by Galveston County. (Nixon, Joseph) (Entered: 10/01/2018)
118 REPLY in Support of 46 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) and Brief in Support MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Stephen W Baker, Kerri Foley, James Woltz. (Poole, Douglas) (Entered: 10/01/2018)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 16 of 33

10/01/2018 10/01/2018 10/01/2018 10/01/2018 10/02/2018 10/02/2018 10/03/2018 10/03/2018
10/04/2018 10/04/2018
10/08/2018 10/08/2018 10/10/2018 10/10/2018

119 REPLY in Support of 48 MOTION to Dismiss 31 Amended Complaint/Counterclaim/Crossclaim etc. , filed by Jack Roady. (Mytelka, Andrew) (Entered: 10/01/2018)
120 REPLY in Support of 3 MOTION for Leave to File Motion for PI with Excess Pages, filed by Aaron Booth. (Attachments: # 1 Appendix)(Trigilio, Trisha) (Entered: 10/01/2018)
121 REPLY in Support of 2 MOTION to Certify Class, filed by Aaron Booth. (Attachments: # 1 Appendix)(Trigilio, Trisha) (Entered: 10/01/2018)
122 RESPONSE in Opposition to 94 Second MOTION to Dismiss for Lack of Subject−Matter Jurisdiction, filed by Aaron Booth. (Cohn, Kali) (Entered: 10/01/2018)
124 NOTICE of authorities on withheld emails and attorney client privilege re: 114 Document by Aaron Booth, filed. (Trigilio, Trisha) (Entered: 10/02/2018)
125 Letter brief regarding work product issue by Jack Roady, filed.(Russo, Joseph) (Entered: 10/02/2018)
126 ORDER re: Motions Hearing set for October 12, 2018(Signed by Magistrate Judge Andrew M Edison) Parties notified.(dperez, 3) (Entered: 10/03/2018)
127 First MOTION to Dismiss Motions referred to Andrew M Edison. by Galveston County, filed. Motion Docket Date 10/24/2018. (Attachments: # 1 Exhibit 1 − County of Galveston Bail Procedures, # 2 Exhibit 2 − Galveston County Commissioners' Court Agenda Item No. 17c, # 3 Exhibit 3 − Galveston County Commissioners' Court Agenda Item No. 17d, # 4 Exhibit 4 − Galveston County Commissioners' Court Agenda Item No. 25, # 5 Exhibit 5 − Galveston County Commissioners' Court Agenda Item No. 28h, # 6 Exhibit 6 − Galveston County Commissioners' Court Agenda Item No. 53c)(Nixon, Joseph) (Entered: 10/03/2018)
128 NOTICE of Setting re: 114 Joint Request for Conference Regarding Discovery Dispute. Parties notified. Status Conference set for 10/4/2018 at 04:00 PM by telephone before Magistrate Judge Andrew M Edison, filed. (dperez, 3) (Entered: 10/04/2018)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. STATUS CONFERENCE by Telephone held on 10/4/2018 regarding Joint Request for Conference Regarding Discovery Dispute 114 . Plaintiff to provide bates stamped documents to the Court for in camera review as stated on the record. Appearances: Douglas W Poole, Trisha Trigilio, Andre Ivan Segura, Adam Arthur Biggs, Joseph M Nixon, Andrew J Mytelka, Angela Olalde, Joseph R Russo, Jr.(Digital # 3:54 − 4:06)(ERO:D. Wilkerson), filed.(dperez, 3) (Entered: 10/04/2018)
129 ADVISORY by Galveston County, filed. (Attachments: # 1 Exhibit A)(Nixon, Joseph) (Entered: 10/08/2018)
130 REPLY in Support of 94 Second MOTION to Dismiss for Lack of Subject−Matter Jurisdiction, filed by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter. (Attachments: # 1 Appendix)(Biggs, Adam) (Entered: 10/08/2018)
131 NOTICE of cover letter describing documents submitted for in camera review re: Status Conference,, by Aaron Booth, filed. (Attachments: # 1 Exhibit Amended Walsdorf Privilege Log, # 2 Exhibit Amended Willey Privilege Log)(Trigilio, Trisha) (Entered: 10/10/2018)
132 ORDER on Discovery Dispute entered. The Court holds that the documents listed on the two privilege logs provided to the Court are, for the most part, protected from disclosure based on the attorney−client and work−product privileges. The only exceptions are the two email chains (the 3/20/2018 email chain at 11:06 AM; and the 3/20/2018 email chain at 11:00 AM) which are partially privileged. The Court orders the production of Plaintiff 6995 and Plaintiff 6998 and the top half of Plaintiff 6996 and Plaintiff 6999. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 10/10/2018)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 17 of 33

10/10/2018 10/11/2018 10/11/2018 10/12/2018
10/15/2018 10/19/2018 10/22/2018 10/24/2018 10/30/2018 10/31/2018 12/03/2018

133 Opposed MOTION to Modify Agreed Protective Order as to 112 Protective Order Motions referred to Andrew M Edison. by Aaron Booth, filed. Motion Docket Date 10/31/2018. (Attachments: # 1 Proposed Order)(Cohn, Kali) (Entered: 10/10/2018)
134 REDACTION by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Stafford, Dominique) (Entered: 10/11/2018)
135 Sealed Event, filed. (With attachments) (Entered: 10/11/2018)
Minute entry for proceedings before Magistrate Judge Andrew M. Edison. Motion hearing held on October 12, 2018. The Court heard arguments on the following motions: Defendant Galveston Countys AMENDED Motion to Dismiss All Claims Pursuant to Rule 12(b)(6) [Dkt. 45]; Defendants Stephen W. Baker, Kerri Foley, and James Woltzs Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) [Dkt. 46]; Defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughters Motion to Dismiss [Dkt. 47]; Defendant District Attorney Jack Roadys Motion to Dismiss the Amended Complaint [Dkt. 48]; Defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughters SECOND Motion to Dismiss for Lack of Subject−Matter Jurisdiction [Dkt. 94]; Defendant Galveston Countys First Motion to Dismiss [Dkt. 127]. The motions are taken under advisement. On the record, the Court made the following rulings: Plaintiffs Opposed Motion to Modify Agreed Protective Order [Dkt. 133] is DENIED. The Joint Request for a Discovery Dispute Hearing [Dkt. 135] is DENIED AS MOOT. The parties are ORDERED to confer on the attorneys−eyes only designations and inform the Court if there are any outstanding issues. Appearances: Trisha Trigilio, Andre Segura, Andrew Bergman, Christopher Odell, and Twyla Carter for the plaintiffs; Joseph Nixon and Robert Boemer for defendant Galveston County; Adam Biggs and Dominique Stafford for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole for Kerri Foley and James Woltz; Andrew Mytelka, Angela Olalde, and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 10/12/2018)
136 NOTICE of Setting as to 32 Amended MOTION to Certify Class and Preliminary Injunction. Parties notified. Motion Hearing set for 12/19/2018 at 09:00 AM in the 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 10/15/2018)
137 AO 435 TRANSCRIPT REQUEST by Joseph M. Nixon for Transcript of Motion to Dismiss Hearing on 10/12/18 before Judge Edison. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Nixon, Joseph) ELECTRONICALLY FORWARDED TO EXCEPTIONAL REPORTING SERVICES 10/22/2018 (agould, 3). (Entered: 10/19/2018)
138 AO 435 TRANSCRIPT REQUEST by Plaintiff / Hannah Sibiski for Transcript of October 12, 2018 Hearing before Judge Edison on Motions to Dismiss. Ordinary (30 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Sibiski, Hannah) ELECTRONICALLY FORWARDED TO EXCEPTIONAL REPORTING SERVICES 10/23/2018 (agould, 3). (Entered: 10/22/2018)
139 RESPONSE in Opposition to 127 First MOTION to Dismiss , filed by Aaron Booth. (Attachments: # 1 Appendix)(Trigilio, Trisha) (Entered: 10/24/2018)
140 TRANSCRIPT re: MOTION HEARING held on 10/12/18 before Magistrate Judge Andrew M Edison. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party JOSEPH M. NIXON Release of Transcript Restriction set for 1/28/2019., filed. (thudson, ) (Entered: 10/30/2018)
141 Notice of Filing of Official Transcript as to 140 Transcript. Party notified, filed. (lusmith, 3) (Entered: 10/31/2018)
142 NOTICE of Setting. Parties notified. Status Conference set for 12/7/2018 at 01:30 PM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 12/03/2018)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 18 of 33

12/03/2018 12/03/2018 12/03/2018 12/03/2018 12/05/2018 12/05/2018 12/05/2018 12/07/2018 12/10/2018
12/10/2018

143 NOTICE , Letter regarding a discovery dispute with Defendant Galveston County by Aaron Booth, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Odell, Christopher) (Entered: 12/03/2018)
144 NOTICE of Setting as to 143 NOTICE, Letter regarding a discovery dispute with Defendant Galveston County. Parties notified. Pre−Motion Conference set for 12/7/2018 at 01:30 PM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 12/03/2018)
145 NOTICE , Joint Letter regarding discovery dispute on Magistrates response to request for production by Aaron Booth, filed. (Odell, Christopher) (Entered: 12/03/2018)
146 NOTICE of Setting as to 145 Notice − Joint Letter regarding discovery dispute on Magistrates response to request for production. Parties notified. Pre−Motion Conference set for 12/7/2018 at 01:30 PM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 12/03/2018)
147 Supplemental MOTION to Supplement as to 127 First MOTION to Dismiss Motions referred to Andrew M Edison. by Galveston County, filed. Motion Docket Date 12/26/2018. (Attachments: # 1 Exhibit A)(Nixon, Joseph) Modified on 12/17/2018 (wbostic, 4). (Entered: 12/05/2018)
148 Galveston County Dispute letter to Judge Edison by Galveston County, filed.(Nixon, Joseph) (Entered: 12/05/2018)
149 NOTICE of Setting as to 148 Galveston County Dispute letter. Parties notified. Pre−Motion Conference set for 12/7/2018 at 01:30 PM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 12/05/2018)
150 NOTICE of Resetting as to 144 Notice of Setting as to Letter regarding a discovery dispute with Defendant Galveston County, 146 Notice of Setting as to a Joint Letter regarding discovery dispute on Magistrates and 149 Notice of Setting as to Galveston County Dispute letter. Parties notified. Status Conference and Pre−Motion Conference reset for 12/10/2018 at 03:00 PM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 12/07/2018)
151 MEMORANDUM AND RECOMMENDATIONS entered. The Court RECOMMENDS that: Galveston County's First Amended Motion to Dismiss All Claims Pursuant to Rule 12(b)(6) (Dkt. 45) be DENIED; Magistrates' Motion to Dismiss Pursuant to Federal Rule of Civil Procedures 12(b)(1) and 12(b)(6) and Brief in Support (Dkt. 46) be GRANTED in part and DENIED in part. Specifically, the claims asserted against the Magistrates in their official capacities should be DISMISSED. The motion should be denied in all other respects; District Court Judges' Motion to Dismiss for Lack of Subject−Matter Jurisdiction and for Failure to State a Claim (Dkt. 47) be GRANTED in part and DENIED in part. Specifically, the claims asserted against the District Court Judges in their individual capacities should be DISMISSED. The motion should be denied in all other respects; Defendant Hon. Jack Roady's Motion to Dismiss (Dkt. 48) be DENIED; District Court Judge Defendants' Second Motion to Dismiss for Lack of Subject−Matter Jurisdiction (Dkt. 94) be DENIED; and Galveston County's First Motion to Dismiss Pursuant to Rule 12(b)(1) (Dkt. 127) be DENIED. Objections to M&R due by 12/24/2018. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 12/10/2018)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Pre−Motion Conference and Status Hearing held on December 10, 2018 as to various joint letters regarding discovery disputes [Dkts. 143, 145, 148]. The Court addressed the discovery disputes and issued rulings on the record. The Court further ordered the parties to jointly submit an email to the Case Manager indicating whether all parties are in agreement to proceed with the preliminary injunction/class certification hearing on December 19, 2018. If all parties are not in agreement, the hearing will take place on either January 22 or 29, 2019. The parties shall inform the Case Manager as to their preferred date. Appearances: Trisha Trigilio, Brandon Buskey, Hannah Sibiski, Andrew Bergman, and Twyla Carter for the plaintiffs; Joseph Nixon, Robert Boemer, and Paul Ray for defendant Galveston County; Dominique Stafford for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole for Kerri Foley and James Woltz; Andrew Mytelka, Angela Olalde, and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes),

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 19 of 33

12/17/2018
12/19/2018 12/20/2018 12/21/2018 12/21/2018 12/21/2018 01/03/2019 01/03/2019 01/04/2019 01/09/2019
01/09/2019 01/09/2019
01/10/2019

filed. (wbostic, 4) (Entered: 12/10/2018)
152 NOTICE of Resetting as to 32 Amended MOTION to Certify Class, 136 Notice of Setting. Parties notified. Motion Hearing reset for 1/22/2019 at 09:00 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 12/17/2018)
153 NOTICE of Appearance by Paul A. Ready on behalf of Galveston County, filed. (Ready, Paul) (Entered: 12/19/2018)
154 OBJECTIONS to the Magistrate's Memorandum and Recommendation, filed by Galveston County. (Nixon, Joseph) (Entered: 12/20/2018)
155 OBJECTIONS to 151 Memorandum and Recommendations, filed by Stephen W Baker, Kerri Foley, James Woltz. (Poole, Douglas) (Entered: 12/21/2018)
156 OBJECTIONS to 151 Memorandum and Recommendations, filed by Jack Roady. (Russo, Joseph) (Entered: 12/21/2018)
157 OBJECTIONS to 151 Memorandum and Recommendations, filed by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter. (Biggs, Adam) (Entered: 12/21/2018)
158 NOTICE of Setting. Parties notified. Status Conference set for 1/10/2019 at 09:00 AM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 01/03/2019)
159 RESPONSE to 154 Objections , filed by Aaron Booth. (Attachments: # 1 Transcript of Oral Argument, # 2 Transcript of Hon. Mark Henry Deposition, # 3 Ex. 13 to Transcript of Hon. Mark Henry Deposition)(Trigilio, Trisha) (Entered: 01/03/2019)
160 RESPONSE to 157 Objections to Memorandum and Recommendations, 155 Objections to Memorandum and Recommendations, 156 Objections to Memorandum and Recommendations , filed by Aaron Booth. (Trigilio, Trisha) (Entered: 01/04/2019)
161 NOTICE of Joint Letter on Discovery Dispute by Aaron Booth, filed. (Attachments: # 1 Plaintiff's Third RFPs to County, # 2 Plaintiff's Second Interrogatories to County, # 3 Plaintiff's Subpoena to Paul Ready, # 4 County's Response to Plaintiff's Third RFPs, # 5 County's Response to Plaintiff's Second Interrogatories)(Trigilio, Trisha) (Entered: 01/09/2019)
162 NOTICE of Setting as to 161 Notice. Parties notified. Discovery Hearing set for 1/10/2019 at 09:00 AM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 01/09/2019)
163 NOTICE of Letter on Additional Discovery Dispute by Aaron Booth, filed. (Attachments: # 1 Paul Ready Contract, # 2 Unsigned Joint Defense Agreement, # 3 Commissioners Court Minutes Approving Ready as General Government Expense)(Trigilio, Trisha) (Entered: 01/09/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Status Conference and Discovering Hearing held on January 10, 2019 as to the joint letter regarding discovery dispute [Dkt. 161]. The Motion for Preliminary Injunction / Class Certification hearing is reset to January 22, 2019 at 8:30 AM. The Court addressed the discovery dispute and issued rulings on the record. Plaintiff will submit their witness and exhibit lists on Tuesday, January 15, 2019 by 5:00 PM. The defendants will provide their witness and exhibit lists on Thursday, January, 17, 2019 by noon. Galveston County will produce the documents that have been requested as stated on the record. The parties will advise the Court if a second hearing will be necessary this afternoon. Appearances: Trisha Trigilio, Andre Segura, and Andrew Bergman for the plaintiffs; Joseph Nixon, Paul Ready, and Robert Boemer for defendant Galveston County; Adam Biggs and Dominique Stafford for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 01/10/2019)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 20 of 33

01/10/2019 01/10/2019
01/10/2019 01/16/2019 01/17/2019 01/18/2019 01/18/2019 01/18/2019 01/18/2019
01/18/2019
01/18/2019 01/22/2019

164 NOTICE of Resetting as to 152 Notice of Setting. Parties notified. Motion Hearing reset for 1/22/2019 at 08:30 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 01/10/2019)
165 ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS. Dkt 151 Memorandum and Recommendations is APPROVED AND ADOPTED. Dkt 45 Amended MOTION to Dismiss All Claims Pursuant to Rule 12(b)(6)is DENIED; Dkt 46 MOTION to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6) and Brief in Support is GRANTED IN PART AND DENIED IN PART, claims against the Magistrates in their official capacities are DISMISSED. Dkt 47 MOTION to Dismiss for Lack of Jurisdiction and for Failure to State a Claim is GRANTED IN PART AND DENIED IN PART. Specifically, the claims asserted against the District Court Judges in their individual capacities are DISMISSED. Dkt 48 MOTION to Dismiss is DENIED; Dkt 94 Second MOTION to Dismiss for Lack of Subject−Matter Jurisdiction is DENIED; Dkt 127 First MOTION to Dismiss Pursuant to Rule 12(b)(1)is DENIED. (Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 01/10/2019)
166 First SUPPLEMENT by Galveston County District Court Judges, filed.(Nixon, Joseph) (Entered: 01/10/2019)
167 STATEMENT , Evidentiary Standard on Motion for Preliminary Injunction by Aaron Booth, filed. (Attachments: # 1 Exhibit 01)(Odell, Christopher) (Entered: 01/16/2019)
168 PROPOSED ORDER : Proposed Preliminary Injunction re: 3 MOTION for Leave to File Motion for PI with Excess Pages, filed.(Trigilio, Trisha) (Entered: 01/17/2019)
169 (Docketing Error Please see Dkt 170 )Dispute Letter by Jack Roady, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Mytelka, Andrew) (Entered: 01/18/2019)
170 Dispute Letter by Jack Roady, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Mytelka, Andrew) (Entered: 01/18/2019)
171 Supplement to Dispute Letter by Jack Roady, filed. (Attachments: # 1 Exhibit 3)(Mytelka, Andrew) (Entered: 01/18/2019)
172 ORDER. Defendants are ordered to let plaintiff know by 5:30pm today if Defendants want to proceed with the depositions of Paul Zurek and Michael Jones on Monday, January 21, 2019. Preliminary Injunction/Class Certification Hearing set for 1/22/2019 at 08:30 AM in 7th Floor Courtroom before Magistrate Judge Andrew M Edison(Signed by Magistrate Judge Andrew M Edison) Parties notified.(agould, 3) (Entered: 01/18/2019)
173 BRIEF Supplemental Briefing Prior to the Preliminary Injunction hearing re: 3 MOTION for Leave to File Motion for PI with Excess Pages by Mark Baker, Stephen W Baker, Lonnie Cox, Anne B Darring, John Ellisor, Jack Ewing, Kerri Foley, Galveston County, Galveston County District Court Judges, John Grady, Patricia Grady, Kerry Neves, Jack Roady, Barbara Roberts, Michelle Slaughter, The Office of the Attorney General − Amicus Curiae, James Woltz, filed.(Biggs, Adam) (Entered: 01/18/2019)
174 Supplemental Letter in Support of Preliminary Injunction by Aaron Booth, filed.(Trigilio, Trisha) (Entered: 01/18/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Motion Hearing held on January 22, 2019. The Court heard arguments on the Motion for Preliminary Injunction [Dkt. 3] and the AMENDED Motion to Certify Class [Dkt. 32] and took the matters under advisement. The Court agreed to move Defendants' answer date to February 8, 2019. Plaintiff will file supplemental preliminary injunction papers relating to the Sixth Amendment claim by February 15, 2019. Defendants shall file a response to the supplemental preliminary injunction papers by March 13, 2019. Parties will provide redacted copies of the preliminary injunction exhibits introduced at the January 21, 2019 hearing by February 1, 2019. Closing Arguments set for 1/28/2019 at 01:30 PM in the 7th Floor Courtroom before Magistrate Judge Andrew M Edison. Appearances: Trisha Trigilio, Andre Segura, and Andrew Bergman for the plaintiffs; Joseph Nixon, Paul Ready, and Robert Boemer for defendant Galveston County; Adam Biggs and Dominique Stafford for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 21 of 33

01/24/2019 01/24/2019 01/28/2019 01/28/2019
01/29/2019 01/29/2019 01/29/2019 01/29/2019

Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 01/24/2019)
175 AO 435 TRANSCRIPT REQUEST by Catherine Hodges for Transcript of 1/22/2019, Hearing, Judge Edison. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (mmapps, 4) ELECTRONICALLY FORWARDED TO EXCEPTIONAL REPORTING SRVICES on 1/25/2019 (agould, 3). (Entered: 01/24/2019)
176 AO 435 TRANSCRIPT REQUEST by Adam Arthur Biggs for Transcript of Hearing on Preliminary Injunction/Motion to Certify Class on 1/22/19 before Judge Edison. 14−Day turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Biggs, Adam) ELECTRONICALLY FORWARDED TO EXCEPTIONAL REPORTING SRVICES on 1/25/2019 (agould, 3). (Entered: 01/24/2019)
177 NOTICE of Setting. Parties notified. Telephone Conference set for 1/29/2019 at 10:00 AM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 01/28/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Motion Hearing held on January 28, 2019. The Court heard closing arguments on the Motion for Preliminary Injunction [Dkt. 3] and the AMENDED Motion to Certify Class [Dkt. 32] and took the matters under advisement. The parties are ORDERED to provide the court with citations by Friday, February 1, 2019, concerning whether monetary bail amounts can be forfeited for anything other than failure to appear. Further, the parties are ORDERED to provide from the January 22, 2019 hearing proposed findings of facts and conclusions of law two weeks after the parties receive the transcript. Closing arguments are continued to January 29, 2019 at 10:00 AM by telephone. Appearances: Trisha Trigilio, Andre Segura, Hannah Sibiski, and Andrew Bergman for the plaintiffs; Joseph Nixon, Paul Ready, and Robert Boemer for defendant Galveston County; Adam Biggs and Dominique Stafford for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde, Andrew Mytelka, and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 01/29/2019)
178 Hearing EXHIBITS re: Motion Hearing,,,,, by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20)(Biggs, Adam) (Entered: 01/29/2019)
179 Hearing EXHIBITS re: Motion Hearing,,,,, by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Attachments: # 1 Exhibit 21, # 2 Exhibit 22, # 3 Exhibit 23, # 4 Exhibit 24, # 5 Exhibit 25, # 6 Exhibit 26, # 7 Exhibit 27, # 8 Exhibit 28, # 9 Exhibit 29, # 10 Exhibit 30, # 11 Exhibit 31, # 12 Exhibit 32, # 13 Exhibit 33, # 14 Exhibit 34, # 15 Exhibit 35, # 16 Exhibit 36, # 17 Exhibit 37, # 18 Exhibit 38, # 19 Exhibit 39, # 20 Exhibit 40, # 21 Exhibit 41, # 22 Exhibit 42, # 23 Exhibit 43, # 24 Exhibit 44, # 25 Exhibit 45, # 26 Exhibit 46)(Biggs, Adam) (Entered: 01/29/2019)
180 Deposition Transcript of Michael Jones, PhD. 01−21−19 (filed per Court's instructions) by Jack Roady, filed. (Attachments: # 1 Exhibit 0001)(Olalde, Angela) (Entered: 01/29/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Motion Hearing held on January 29, 2019. The Court heard closing arguments on the Motion for Preliminary Injunction [Dkt. 3] and the AMENDED Motion to Certify Class [Dkt. 32] and took the matters under advisement. Appearances: Trisha Trigilio, Andre Segura, Hannah Sibiski, Twyla Carter, and Andrew Bergman for the plaintiffs; Joseph Nixon, Paul Ready, and Robert Boemer for defendant Galveston County; Adam Biggs, Francesca DiTroia, and Dominique Stafford for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 22 of 33

01/29/2019 01/30/2019 01/30/2019 02/01/2019 02/01/2019
02/01/2019 02/01/2019
02/01/2019 02/01/2019 02/01/2019 02/04/2019 02/08/2019

Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde, Andrew Mytelka, and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 01/29/2019)
181 Deposition Transcript of Paul Zurek PhD 1−21−19 (filed per Court's instructions) by Jack Roady, filed. (Attachments: # 1 Exhibit 0001, # 2 Exhibit 0002 (pp. 1−32), # 3 Exhibit 0002 (pp. 33−64), # 4 Exhibit 0002 (pp. 65−96), # 5 Exhibit 0002 (pp. 97−128), # 6 Exhibit 0002 (pp. 129−160), # 7 Exhibit 0002 (pp. 161−191), # 8 Exhibit 0003)(Olalde, Angela) (Entered: 01/29/2019)
182 Letter to Hon. Andrew Edison fwd. depo transcripts of Jones and Zurek by Jack Roady, filed.(Olalde, Angela) (Entered: 01/30/2019)
183 NOTICE of Change of Firm by Galveston County, filed. (Nixon, Joseph) (Entered: 01/30/2019)
184 TRANSCRIPT re: CLASS CERTIFICATION AND PRELIMINARY INJUNCTION HEARING held on 1/22/19 before Magistrate Judge Andrew M Edison. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party CATHERINE HODGES Release of Transcript Restriction set for 5/2/2019., filed. (thudson, ) (Entered: 02/01/2019)
185 Hearing EXHIBITS re: 164 Notice of Setting by Aaron Booth, filed. (Attachments: # 1 Exhibit U, # 2 Exhibit V, # 3 Exhibit W, # 4 Exhibit X, # 5 Exhibit Y, # 6 Exhibit Z, # 7 Exhibit AA, # 8 Exhibit BB, # 9 Exhibit CC, # 10 Exhibit DD, # 11 Exhibit EE, # 12 Exhibit FF, # 13 Exhibit GG, # 14 Exhibit HH, # 15 Exhibit II, # 16 Exhibit JJ, # 17 Exhibit KK, # 18 Exhibit LL, # 19 Exhibit MM, # 20 Exhibit NN, # 21 Exhibit OO, # 22 Exhibit PP, # 23 Exhibit QQ, # 24 Exhibit RR, # 25 Exhibit SS, # 26 Exhibit TT, # 27 Exhibit UU, # 28 Exhibit VV, # 29 Exhibit WW, # 30 Exhibit XX, # 31 Exhibit YY, # 32 Exhibit ZZ, # 33 Exhibit AAA, # 34 Exhibit BBB, # 35 Exhibit CCC, # 36 Exhibit DDD, # 37 Exhibit EEE, # 38 Exhibit FFF, # 39 Exhibit GGG, # 40 Exhibit HHH, # 41 Exhibit III, # 42 Exhibit JJJ, # 43 Exhibit KKK, # 44 Exhibit LLL, # 45 Exhibit MMM, # 46 Exhibit NNN, # 47 Exhibit OOO, # 48 Exhibit PPP)(Odell, Christopher) (Entered: 02/01/2019)
186 SEALED EXHIBITS , Ex. AA, KK, HHH, and NNN are being filed Under Seal re: 185 Exhibits,,,, by Aaron Booth, filed. (Attachments: # 1 Exhibit AA, # 2 Exhibit KK, # 3 Exhibit HHH, # 4 Exhibit NNN) (Odell, Christopher) (Entered: 02/01/2019)
187 Hearing EXHIBITS re: Motion Hearing,,,,, by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46)(Biggs, Adam) (Entered: 02/01/2019)
188 Letter to Hon. Andrew Edison re request for citations concerning bail forfeitures by Jack Roady, filed.(Olalde, Angela) (Entered: 02/01/2019)
189 NOTICE of authority on bail forfeiture by Aaron Booth, filed. (Trigilio, Trisha) (Entered: 02/01/2019)
191 USB Drive. Plaintiff's Motion for Preliminary Injunction, filed.(ShoshanaArnow, 4) Fed Ex'd to Galveston Division (Entered: 02/05/2019)
190 Notice of Filing of Official Transcript as to 184 Transcript,. Party notified, filed. (lusmith, 3) (Entered: 02/04/2019)
192 ANSWER to 31 Amended Complaint/Counterclaim/Crossclaim etc. by Galveston County, filed.(Nixon, Joseph) (Entered: 02/08/2019)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 23 of 33

02/08/2019 02/08/2019 02/08/2019 02/11/2019
02/13/2019 02/13/2019 02/14/2019
02/15/2019
02/15/2019 02/17/2019 02/17/2019 02/19/2019 02/22/2019
02/27/2019 02/27/2019

193 ANSWER to 31 Amended Complaint/Counterclaim/Crossclaim etc. by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed.(Biggs, Adam) (Entered: 02/08/2019)
194 ANSWER to 31 Amended Complaint/Counterclaim/Crossclaim etc. by Jack Roady, filed.(Olalde, Angela) (Entered: 02/08/2019)
195 ANSWER to 31 Amended Complaint/Counterclaim/Crossclaim etc. by Stephen W Baker, Kerri Foley, James Woltz, filed.(Poole, Douglas) (Entered: 02/08/2019)
196 AO 435 TRANSCRIPT REQUEST by Catherine Hodges for Transcript of Motion for PI/Amended Motion to Certify Class on 1/28/2019 and 1/29/2019 before Judge Edison. Expedited (7 days) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Odell, Christopher) ELECTRONICALLY FORWARDED TO EXCEPTIONAL REPORTING SERVICES on 2/12/2019 (agould, 3). (Entered: 02/11/2019)
197 Hearing EXHIBITS re: Motion Hearing,,,,, by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter. Attached documents may be viewed in the Office of the Clerk., filed.(Biggs, Adam) (Entered: 02/13/2019)
198 Unopposed MOTION for Extension of Time to file preliminary injunction briefing on Sixth Amendment claimMotions referred to Andrew M Edison. by Aaron Booth, filed. Motion Docket Date 3/6/2019. (Trigilio, Trisha) (Entered: 02/13/2019)
199 ORDER granting 198 Motion for Extension of Time. The deadline for Plaintiff to submit preliminary injunction briefing on Sixth Amendment issues is extended to February 22, 2019. Defendants' response is due no later than March 20, 2019. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 02/14/2019)
200 Proposed Findings of Fact/Conclusions of Law by Stephen W Baker, Lonnie Cox, Anne B Darring, John Ellisor, Jack Ewing, Kerri Foley, Galveston County, Galveston County District Court Judges, John Grady, Patricia Grady, Kerry Neves, Jack Roady, Barbara Roberts, Michelle Slaughter, The Office of the Attorney General − Amicus Curiae, James Woltz(Mytelka, Andrew) (Entered: 02/15/2019)
201 Proposed Findings of Fact/Conclusions of Law by Aaron Booth(Trigilio, Trisha) (Entered: 02/15/2019)
202 TRANSCRIPT re: HEARING / CLOSING ARGUMENTS held on 1/28/19 before Magistrate Judge Andrew M Edison. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party CATHERINE HODGES Release of Transcript Restriction set for 5/20/2019., filed. (thudson, ) (Entered: 02/17/2019)
203 TRANSCRIPT re: TELEPHONE CONFERENCE held on 1/29/19 before Magistrate Judge Andrew M Edison. Court Reporter/Transcriber EXCEPTIONAL REPORTING. Ordering Party CATHERINE HODGES Release of Transcript Restriction set for 5/20/2019., filed. (thudson, ) (Entered: 02/17/2019)
204 Notice of Filing of Official Transcript as to 203 Transcript, 202 Transcript,. Party notified, filed. (lusmith, 3) (Entered: 02/19/2019)
205 MOTION for Preliminary InjunctionMotions referred to Andrew M Edison. by Aaron Booth, filed. Motion Docket Date 3/15/2019. (Attachments: # 1 Proposed Order, # 2 Second Supplemental Exhibit List, # 3 Ex. QQQ, Declaration of Douglas Colbert, # 4 Ex. RRR, Declaration of Alex Bunin, # 5 Ex. SSS, Declaration of Michael Young, # 6 Ex. TTT, Indigent Defense Innovation, # 7 Ex. UUU, Commissioners' Court Minutes & Grant Application for Counsel at Magistration)(Trigilio, Trisha) (Entered: 02/22/2019)
206 Urgent Discovery Dispute Letter Regarding Grant Application by Aaron Booth, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Errata D)(Odell, Christopher) (Entered: 02/27/2019)
207 NOTICE of Setting. Parties notified. Status Conference set for 3/5/2019 at 08:45 AM by telephone before Magistrate Judge Andrew M Edison. The parties are ordered to file a joint letter, in accordance with the Court's Local Rules, addressing the discovery dispute raised in [Dkt. 206]. The joint letter must be filed by 5:00 PM on Monday,

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 24 of 33

03/04/2019 03/05/2019
03/06/2019 03/06/2019 03/07/2019
03/08/2019
03/12/2019 03/15/2019 03/19/2019 03/20/2019

March 4, 2019. (wbostic, 4) (Entered: 02/27/2019)
208 Joint Letter regarding Urgent Discovery Dispute by Aaron Booth, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Odell, Christopher) (Entered: 03/04/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Status Conference held on March 5, 2019 in regards to [Dkt. 206] Urgent Discovery Dispute Letter Regarding Grant Application. At the hearing, the Court made the following rulings: By close of business day on Friday, March 8, 2019, Plaintiff will provide the Court (1) with additional documents it would like to be considered in connection with the pending motion for preliminary injunction; and (2) a letter explaining the significance of such documents. Defendants may provide a letter discussing the significance of such documents by Friday, March 15, 2019. Plaintiff and the County are ordered to get together in person by Friday, March 15, 2019 to discuss what searches the County has undertaken for responsive documents. Appearances: Trisha Trigilio, Christopher Odell, Twyla Carter, and Andrew Bergman for the plaintiffs; Joseph Nixon, Paul Ready, and Robert Boemer for defendant Galveston County; Adam Biggs and Francesca DiTroia for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 03/05/2019)
209 Opposed MOTION for Extension of Time to Respond to Plaintiff's Motion for Preliminary Injunction (Dkt. 205)Motions referred to Andrew M Edison. by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. Motion Docket Date 3/27/2019. (Attachments: # 1 Proposed Order)(Biggs, Adam) (Entered: 03/06/2019)
210 RESPONSE in Opposition to 209 Opposed MOTION for Extension of Time to Respond to Plaintiff's Motion for Preliminary Injunction (Dkt. 205), filed by Aaron Booth. (Trigilio, Trisha) (Entered: 03/06/2019)
211 ORDER granting 209 Motion for Extension of Time. The District Court Judges may file their response to Initial Bail Hearing on or before April 3, 2019. There will be no further extensions. The parties are ORDRED to confer and schedule the depositions of the three witnesses referenced in the briefing. If the parties are unable to resolve this scheduling issue by 5:00 PM on Friday, March 8, 2019, the parties should notify the Court and the Court will unilaterally schedule the necessary depositions. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 03/07/2019)
212 NOTICE of Post−Hearing Supplemental Exhibits re: 3 MOTION for Leave to File Motion for PI with Excess Pages by Aaron Booth, filed. (Attachments: # 1 Master Exhibit List for Preliminary Injunction Motions, # 2 Ex. VVV, Email from Colfax to Thomas, # 3 Ex. WWW, Email from Fabelo to Thomas, # 4 Ex. XXX, 2019 Galveston County Discretionary Grant Application Narrative, # 5 Ex. YYY, Email from Fabelo to Ready, # 6 Ex. ZZZ, Email from Ready to Colfax, # 7 Ex. AAAA, Email from Fabelo to Ready, # 8 Ex. BBBB, Email from Swift to Ready, # 9 Ex. CCCC, Email from Swift to Thomas)(Trigilio, Trisha) (Entered: 03/08/2019)
213 MEMORANDUM AND RECOMMENDATION entered. The Court RECOMMENDS that the Amended Motion for Class Certification [Dkt. 32] be GRANTED and the following class be certified under Rule 23(b)(2): all people who are or will be detained in Galveston County Jail on felony and state−jail felony charges because they are unable to pay secured bail set at magistration. Objections to M&R due by 3/26/2019. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 03/12/2019)
214 REPLY Letter, filed by Galveston County. (Nixon, Joseph) (Entered: 03/15/2019)
215 NOTICE of Substitution of Defendant Under Rule 25 by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Biggs, Adam) (Entered: 03/19/2019)
216 LETTER Discovery Dispute by Aaron Booth, filed. (Attachments: # 1 Exhibit Exhibit A)(Odell, Christopher) (Entered: 03/20/2019)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 25 of 33

03/20/2019 03/20/2019 03/21/2019 03/21/2019 03/22/2019 03/22/2019 03/22/2019 03/22/2019 03/22/2019
03/22/2019 03/26/2019
03/28/2019 03/28/2019

217 NOTICE of Setting as to 216 LETTER Discovery Dispute. Parties notified. Discovery Hearing set for 3/22/2019 at 02:00 PM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 03/20/2019)
218 Unopposed MOTION for Extension of Time To File Response to Plaintiff's Motion for Preliminary Injunction Requiring Counsel at Initial Bail HearingsMotions referred to Andrew M Edison. by Jack Roady, filed. Motion Docket Date 4/10/2019. (Attachments: # 1 Proposed Order Granting Motion for Extension of Time to File Response)(Mytelka, Andrew) (Entered: 03/20/2019)
219 Supplement To Dispute Letter/Other Miscellaneous Relief ( Filing fee $ 47 receipt number 0541−22094548.) filed by Galveston County District Court Judges. (Attachments: # 1 Exhibit)(Nixon, Joseph) (Entered: 03/21/2019)
220 NOTICE of Appearance by Joshua W. McCollum on behalf of Aaron Booth, filed. (Odell, Christopher) (Entered: 03/21/2019)
221 ORDER granting 218 Motion for Extension of Time; Motion−related deadline set re: 205 MOTION for Preliminary Injunction. Responses due by 4/3/2019..(Signed by Magistrate Judge Andrew M Edison) Parties notified.(kpicota, 4) (Entered: 03/22/2019)
222 NOTICE of vacation dates by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Stafford, Dominique) (Entered: 03/22/2019)
223 Amended PROPOSED ORDER , Amendment to Agreed Protective Order re: 112 Protective Order, filed.(Odell, Christopher) (Entered: 03/22/2019)
224 Amendment to Agreed Protective Order entered. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 03/22/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Status Conference held on March 22, 2019 in regards to [Dkt. 216] Discovery Dispute Letter. At the hearing, the Court made the following rulings: The County will provide an updated list of custodians by 5:00 PM, Monday, March 25, 2019. Responsive documents will be produced as promptly as possible. The Court will have a weekly discovery status call on each Monday at 8:30 AM starting April 1, 2019. Also, Plaintiff will file a reply in support of its Motion for Preliminary Injunction Requiring Counsel at Initial Bail Hearing (Dkt. 205) by Friday, April 12, 2019. Appearances: Trisha Trigilio, Joshua Wayne McCollum, and Twyla Carter for the plaintiffs; Joseph Nixon, Paul Ready, and Robert Boemer for defendant Galveston County; Dominique Stafford and Francesca DiTroia for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 03/22/2019)
225 NOTICE of Setting. Parties notified. Discovery Hearing set for 4/1/2019 at 08:30 AM in by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 03/22/2019)
226 Joint OBJECTIONS to 213 Memorandum and Recommendations, filed by Mark Baker, Stephen W Baker, Lonnie Cox, Anne B Darring, John Ellisor, Jack Ewing, Kerri Foley, Galveston County, Galveston County District Court Judges, John Grady, Patricia Grady, Kerry Neves, Jack Roady, Barbara Roberts, Michelle Slaughter, The Office of the Attorney General − Amicus Curiae, James Woltz. (Mytelka, Andrew) (Entered: 03/26/2019)
227 ORDER ADOPTING MAGISTRATE JUDGE'S MEMORANDUM AND RECOMMENDATIONS re 213 Memorandum and Recommendations; GRANTING 32 Amended MOTION to Certify Class. CLASS CERTIFIED.(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3) (Entered: 03/28/2019)
Class action certified(Signed by Judge George C Hanks, Jr) Parties notified.(dwilkerson, 3) (Entered: 03/28/2019)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 26 of 33

03/29/2019 03/29/2019 03/29/2019 03/29/2019 03/29/2019 04/01/2019
04/03/2019 04/03/2019 04/03/2019 04/03/2019 04/08/2019
04/08/2019 04/12/2019

228 NOTICE of discovery dispute by Aaron Booth, filed. (Trigilio, Trisha) (Entered: 03/29/2019)
229 NOTICE of Appearance by Norman Ray Giles on behalf of Galveston County, filed. (Giles, Norman) (Entered: 03/29/2019)
230 NOTICE of Appearance by William S. Helfand on behalf of Galveston County, filed. (Helfand, William) (Entered: 03/29/2019)
231 NOTICE of exhibits re: 228 Notice (Other) by Aaron Booth, filed. (Attachments: # 1 Exhibit Nixon−Trigilio Emails 1 of 2, # 2 Exhibit Nixon−Trigilio Emails 2 of 2)(Trigilio, Trisha) (Entered: 03/29/2019)
232 NOTICE of Appearance by Joshua A. Redelman on behalf of Galveston County, filed. (Redelman, Joshua) (Entered: 03/29/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Discovery Hearing held on April 1, 2019. At the hearing, the Court made the following rulings: All responsive documents from the Personal Bond Office will be turned over to the Plaintiff by Friday, April 5, 2019. All responsive documents from the network servers for those custodians and departments identified on the record will be produced to the Plaintiff by noon on, Monday, April 8, 2019. The Court made no ruling on Plaintiff's request for fees, but permitted the parties to submit letters addressing the issue. The District Attorney's oral motion to file a brief with up to 10 excess pages has been GRANTED. The Court will set a discovery status call on Monday, April 8, 2019 at 8:30 AM. Appearances: Trisha Trigilio, Joshua Wayne McCollum, and Twyla Carter for the plaintiffs; Joseph Nixon, Paul Ready, and Robert Boemer for defendant Galveston County; Dominique Stafford and Francesca DiTroia for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 04/03/2019)
233 NOTICE of Setting. Parties notified. Discovery Hearing set for 4/8/2019 at 08:30 AM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 04/03/2019)
234 RESPONSE to 205 MOTION for Preliminary Injunction filed by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter. (Attachments: # 1 Appendix, # 2 Proposed Order)(Stafford, Dominique) (Entered: 04/03/2019)
235 OBJECTIONS to 205 MOTION for Preliminary Injunction Evidence, filed by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter. (Stafford, Dominique) (Entered: 04/03/2019)
236 RESPONSE to 205 MOTION for Preliminary Injunction filed by Jack Roady. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Proposed Order)(Mytelka, Andrew) (Entered: 04/03/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Discovery Hearing held on April 8, 2019. The Court will set a discovery status call on Monday, April 15, 2019 at 8:30 AM. If a call is not necessary, the parties will submit an email informing the Court that the call is not needed. Appearances: Trisha Trigilio and Twyla Carter for the plaintiffs; Joseph Nixon, Paul Ready, Norman Giles, and Robert Boemer for defendant Galveston County; Dominique Stafford and Francesca DiTroia for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 04/08/2019)
237 NOTICE of Setting. Parties notified. Discovery Hearing set for 4/15/2019 at 08:30 AM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 04/08/2019)
238 REPLY in Support of 205 MOTION for Preliminary Injunction, filed by Aaron Booth. (Trigilio, Trisha) (Entered: 04/12/2019)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 27 of 33

04/12/2019
04/12/2019 04/12/2019 04/14/2019 04/15/2019 04/15/2019 04/15/2019 04/23/2019 04/29/2019 04/29/2019
04/29/2019
04/29/2019
04/30/2019

239 NOTICE of Post−Hearing Supplemental Exhibits re: 205 MOTION for Preliminary Injunction, 3 MOTION for Leave to File Motion for PI with Excess Pages by Aaron Booth, filed. (Attachments: # 1 Exhibit DDDD, Colbert Transcript, # 2 Exhibit EEEE, Bunin Transcript, # 3 Exhibit FFFF, Young Transcript, # 4 Exhibit GGGG, Texas Benchbook, # 5 Exhibit HHHH, Remote Magistration Manual, # 6 Exhibit IIII, Quiroga/Ellisor Email and Indigency Calculator)(Trigilio, Trisha) (Entered: 04/12/2019)
240 NOTICE of Supplemental Authority by Aaron Booth, filed. (Attachments: # 1 Exhibit A, McNeil v. Community Probation Services, # 2 Exhibit B, Buffin v. City and County of San Francisco, # 3 Exhibit C, Ouss & Stevenson: Evaluating the Impacts of Eliminating Prosecutorial Requests for Cash Bail)(Trigilio, Trisha) (Entered: 04/12/2019)
241 NOTICE of Plaintiff's Second Proposed Findings of Fact & Conclusions of Law re: 205 MOTION for Preliminary Injunction, 3 MOTION for Leave to File Motion for PI with Excess Pages by Aaron Booth, filed. (Trigilio, Trisha) (Entered: 04/12/2019)
242 LETTER OF AGREEMENT re: Resolution of Discovery Dispute by Aaron Booth, filed.(Odell, Christopher) (Entered: 04/14/2019)
243 ORDER as to 242 Letter of Agreement. The Amendment to Agreed Protective Order [Dkt. 224] is WITHDRAWN as moot; and a telephonic hearing is SCHEDULED for Monday, May 20, 2019 at 9:00 AM to discuss any remaining discovery disputes. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 04/15/2019)
244 NOTICE of Setting. Parties notified. Discovery Hearing set for 5/20/2019 at 09:00 AM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 04/15/2019)
Notice of Assignment of USCA No. 19−90009, filed.(jtabares, 1) (Entered: 04/15/2019)
245 Proposed Findings of Fact/Conclusions of Law by Mark Baker, Stephen W Baker, Lonnie Cox, Anne B Darring, John Ellisor, Jack Ewing, Kerri Foley, Galveston County, Galveston County District Court Judges, John Grady, Patricia Grady, Kerry Neves, Jack Roady, Barbara Roberts, Michelle Slaughter, The Office of the Attorney General − Amicus Curiae, James Woltz(Mytelka, Andrew) (Entered: 04/23/2019)
246 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 227 Order Adopting Memorandum and Recommendations by Galveston County District Court Judges (Filing fee $ 505, receipt number 0541−22328929), filed.(Stafford, Dominique) (Entered: 04/29/2019)
247 DKT13 TRANSCRIPT ORDER REQUEST by Galveston District Court Judges / Dominique G. Stafford. Transcript is already on file in Clerks office regarding Hearing on Plaintiffs' Motion to Certify Class held on 1/22/19 before Hon. Andrew M. Edison. (A transcript is requested). Court Reporter/Transcriber: Exceptional Reporting Services. This order form relates to the following: Motion Hearing,,,,,, filed. (Stafford, Dominique) (Entered: 04/29/2019)
248 DKT13 TRANSCRIPT ORDER REQUEST by Galveston District Court Judges / Dominique G. Stafford. Transcript is already on file in Clerks office regarding Hearing / Closing Arguments held on 1/28/19 before Hon. Andrew M. Edison. (No transcript is needed). Court Reporter/Transcriber: Exceptional Reporting Services. This order form relates to the following: Motion Hearing,,,,,, filed. (Stafford, Dominique) (Entered: 04/29/2019)
249 DKT13 TRANSCRIPT ORDER REQUEST by Galveston District Court Judges / Dominique G. Stafford. Transcript is already on file in Clerks office regarding Telephonic Conference held on 1/29/19 before Hon. Andrew M. Edison. (No transcript is needed). Court Reporter/Transcriber: Exceptional Reporting Services. This order form relates to the following: Telephone Conference,,,, filed. (Stafford, Dominique) (Entered: 04/29/2019)
250 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 205 MOTION for Preliminary Injunction,

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 28 of 33

04/30/2019 04/30/2019 05/01/2019 05/01/2019
05/02/2019 05/02/2019
05/03/2019 05/03/2019
05/03/2019 05/03/2019 05/06/2019 05/06/2019

246 Notice of Appeal. Fee status: Paid. Reporter(s): ERO, filed. (Attachments: # 1 Notice of Appeal) (EdnitaPonce, 1) (Entered: 04/30/2019)
Appeal Review Notes re: 246 Notice of Appeal. Fee status: Paid. The appeal filing fee has been paid, and the appellant is represented by counsel. 205 MOTION for Preliminary Injunction is pending.Hearings were held in the case − 5 transcripts were produced. DKT−13 Forms have been filed, filed.(EdnitaPonce, 1) Modified on 5/1/2019 (EdnitaPonce, 1). (Entered: 04/30/2019)
251 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 227 Order Adopting Memorandum and Recommendations by Jack Roady (Filing fee $ 505, receipt number 0541−22340445), filed. (Attachments: # 1 Exhibit)(Olalde, Angela) (Entered: 04/30/2019)
252 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 205 MOTION for Preliminary Injunction, 251 Notice of Appeal. Fee status: Paid. Reporter(s): ERO, filed. (Attachments: # 1 Notice of Appeal) (EdnitaPonce, 1) (Entered: 05/01/2019)
Appeal Review Notes re: 251 Notice of Appeal. Fee status: Paid. The appeal filing fee has been paid, and the appellant is represented by counsel. 205 MOTION for Preliminary Injunction is pending. Hearings were held in the case − 5 transcripts were produced. DKT13 transcript order form(s) due within 14 days of the filing of the notice of appeal. Number of DKT−13 Forms expected: 15, filed.(EdnitaPonce, 1) Modified on 5/1/2019 (EdnitaPonce, 1). (Entered: 05/01/2019)
253 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit by Galveston County (Filing fee $ 505, receipt number 0541−22356368), filed. (Nixon, Joseph) (Entered: 05/02/2019)
254 DKT13 TRANSCRIPT ORDER REQUEST by Angie Olalde. Transcript is already on file in Clerks office regarding 1/22/19 Class Cert. PI Hrg.−Judge Edison; 1/28/19 − Closing Arguments − Judge Edison; 1/29/19 − Tel. Conf.−Judge Edison. (No transcript is needed). Court Reporter/Transcriber: Exceptional Reporting Services. This order form relates to the following: 251 Notice of Appeal, filed. (Olalde, Angela) (Entered: 05/02/2019)
255 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 205 Motion for Preliminary Injunction, 253 Notice of Appeal. Fee status: Paid. Reporter(s): ERO, filed. (Attachments: # 1 Notice of Appeal) (EdnitaPonce, 1) (Entered: 05/03/2019)
Appeal Review Notes re: 253 Notice of Appeal. Fee status: Paid. The appeal filing fee has been paid, and the appellant is represented by counsel. 205 MOTION for Preliminary Injunction is pending. Hearings were held in the case − 5 transcripts were produced. DKT13 transcript order form(s) due within 14 days of the filing of the notice of appeal. Number of DKT−13 Forms expected: 15, filed.(EdnitaPonce, 1) (Entered: 05/03/2019)
256 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit by Stephen W Baker, Kerri Foley, James Woltz (Filing fee $ 505, receipt number 0541−22366669), filed. (Poole, Douglas) (Entered: 05/03/2019)
257 AO 435 TRANSCRIPT REQUEST by Joe M. Nixon for Transcript of Motion for Class Certification and Preliminary Junction. Daily (24 hours) turnaround requested. Court Reporter/Transcriber: Exceptional Reporting Services, filed. (Nixon, Joseph) (Entered: 05/03/2019)
258 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 256 Notice of Appeal, 205 MOTION for Preliminary Injunction. Fee status: Paid. Reporter(s): ERO, filed. (Attachments: # 1 Notice of Appeal) (EdnitaPonce, 1) (Entered: 05/06/2019)
Appeal Review Notes re: 256 Notice of Appeal. Fee status: Paid. The appeal filing fee has been paid, and the appellant is represented by counsel. 205 Motion for Preliminary Injunction is pending. Hearings were held in the case − 5 transcripts were produced. DKT13 transcript order form(s) due within 14 days of the filing of the notice of appeal. Number of DKT−13 Forms expected: 15, filed.(EdnitaPonce, 1) (Entered:

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 29 of 33

05/08/2019 05/24/2019
05/24/2019 05/24/2019
05/28/2019 06/06/2019 06/06/2019 06/11/2019 07/15/2019 07/16/2019 08/02/2019 08/02/2019 08/05/2019 08/06/2019

05/06/2019)
Notice of Assignment of USCA No. 19−40395 re: 251 Notice of Appeal, 246 Notice of Appeal, 253 Notice of Appeal, 256 Notice of Appeal, filed.(EdnitaPonce, 1) (Entered: 05/08/2019)
Electronic Access to Record on Appeal Provided re: 246 Notice of Appeal, 253 Notice of Appeal, 251 Notice of Appeal, 256 Notice of Appeal to Joseph David Hughes, counsel for Appellants Kerry Neves, Lonnie Cox, Patricia Grady, Anne B. Darring and Jared Robinson. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−40395), filed.(jtabares, 1) (Entered: 05/24/2019)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 246 Notice of Appeal, 253 Notice of Appeal, 251 Notice of Appeal, 256 Notice of Appeal, filed.(jtabares, 1) (Entered: 05/24/2019)
Electronic Access to Record on Appeal Provided re: 253 Notice of Appeal, 251 Notice of Appeal, 256 Notice of Appeal to Joseph R. Russo, Jr., Hannah DeMarco Sibiski, Andrew Jan Mytelka, Robert Barron Boemer, Bryan R. Lasswell, Douglas W. Poole, Angela Kay Olalde, Christopher Odell, Joseph M. Nixon, Trisha Trigilio, Adam Arthur Biggs, Andre Segura, Brandon Buskey, Andrew David Bergman, Dominique G. Stafford, Francesca Andrea Di Troia.. Attorneys of record at the Circuit may download the record from the Court of Appeals, filed.(jtabares, 1) (Entered: 05/24/2019)
Electronic Access to Record on Appeal Provided re: 246 Notice of Appeal, 253 Notice of Appeal, 251 Notice of Appeal, 256 Notice of Appeal to Paul A. Ready for Appellant Galveston County. Attorneys of record at the Circuit may download the record from the Court of Appeals, filed.(jtabares, 1) (Entered: 05/28/2019)
259 NOTICE of vacation dates by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter, filed. (Biggs, Adam) (Entered: 06/06/2019)
260 NOTICE of Unopposed Request to Suspend Expert Deadlines by Aaron Booth, filed. (Trigilio, Trisha) (Entered: 06/06/2019)
261 ORDER entered. The parties shall confer about new deadlines after the Court decides the pending preliminary injunction motions. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 06/11/2019)
262 Joint MOTION Letter to Judge Edison jointly requesting the Court enter an order suspending all deadlines, until ruling from the Fifth Circuit Court of AppealsMotions referred to Andrew M Edison. by Jack Roady, filed. Motion Docket Date 8/5/2019. (Olalde, Angela) (Entered: 07/15/2019)
263 ORDER GRANTING 262 Joint MOTION requesting the Court to enter an order suspending all deadlines, until ruling from the Fifth Circuit Court of Appeals. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 07/16/2019)
264 MOTION to Amend 227 Order Adopting Memorandum and Recommendations Motions referred to Andrew M Edison. by Aaron Booth, filed. Motion Docket Date 8/23/2019. (Trigilio, Trisha) (Entered: 08/02/2019)
265 MOTION For Status Conference and Indicative Ruling On Motion to Amend Class Certification OrderMotions referred to Andrew M Edison. by Aaron Booth, filed. Motion Docket Date 8/23/2019. (Trigilio, Trisha) (Entered: 08/02/2019)
266 NOTICE of Setting. Parties notified. Status Conference set for 8/6/2019 at 02:00 PM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 08/05/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M Edison. Status Conference held on August 6, 2019. The Plaintiff will let the Court know by 9 a.m. on Thursday, August 8, 2019 if he still intends to pursue Plaintiff's Motion to Amend Class Certification Order (Dkt. 264). By 5 p.m. on Friday, August 9, 2019, the defendants will collectively file a short letter (no more than 2 pages) concerning Defendants' position on Plaintiff's Motion to Amend Class Certification Order (Dkt.

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 30 of 33

08/07/2019
08/07/2019 08/08/2019 08/09/2019
08/12/2019
08/14/2019 08/14/2019 08/21/2019 08/21/2019 08/21/2019 08/21/2019 08/26/2019

264). Appearances: Trisha Trigilio, Christopher Odell, Joshua McCollum and Twyla Carter for the plaintiffs; Joseph Nixon and Paul Ready for defendant Galveston County; Dominique Stafford and Adam Biggs for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 08/06/2019)
267 MEMORANDUM AND RECOMMENDATION entered. The Court RECOMMENDS that the Motion for Preliminary Injunction [Dkt. 3−1] be DENIED and the Motion for Preliminary Injunction Requiring Counsel at Initial Bail Hearings [Dkt. 205] be GRANTED to the extent described in this Memorandum and Recommendation. Objections to M&R due by 8/21/2019. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 08/07/2019)
268 NOTICE of Setting. Parties notified. Status Conference set for 8/9/2019 at 09:00 AM by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 08/07/2019)
269 NOTICE of Withdrawal re: 264 MOTION to Amend 227 Order Adopting Memorandum and Recommendations, 265 MOTION For Status Conference and Indicative Ruling On Motion to Amend Class Certification Order by Aaron Booth, filed. (Trigilio, Trisha) (Entered: 08/08/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M. Edison. Status Conference held on August 9, 2019. The parties are ORDERED to mediate. The parties will confer and let the Court know by 5:00 p.m. on Wednesday, August 14, 2019 if they have selected a mediator. If the parties cannot come to an agreement on a mediator, the Court will select one. Appearances: Trisha Trigilio and Andre Segura for the plaintiffs; Joseph Nixon and Paul Ready for defendant Galveston County; Adam Biggs for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde Andrew Mytelka, and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 08/09/2019)
Electronic Access to Record on Appeal Provided re: 246 Notice of Appeal, 253 Notice of Appeal, 251 Notice of Appeal, 256 Notice of Appeal to Twyla Jeanette Carter for Appellee Aaron Booth. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−40395), filed.(jtabares, 1) (Entered: 08/12/2019)
270 REQUEST for pre−motion conference, filed.(Biggs, Adam) (Entered: 08/14/2019)
271 Letter In Reference To Proposed Mediators by Aaron Booth, filed.(Trigilio, Trisha) (Entered: 08/14/2019)
272 Opposed MEMORANDUM and Recommendation Concerning Preliminary Injunction by Galveston County, filed.(Nixon, Joseph) (Entered: 08/21/2019)
273 OBJECTIONS to 267 Memorandum and Recommendations, filed by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Michelle Slaughter. (Biggs, Adam) (Entered: 08/21/2019)
274 OBJECTIONS to 267 Memorandum and Recommendations, filed by Jack Roady. (Olalde, Angela) (Entered: 08/21/2019)
275 OBJECTIONS to 267 Memorandum and Recommendations, filed by Aaron Booth. (Trigilio, Trisha) (Entered: 08/21/2019)
276 ORDER DENYING 270 REQUEST for pre−motion conference. US Magistrate Judge Richard B. Farrer of the Western District of Texas is appointed as Mediator. Mediation is set for 9/26/2019 at 09:00 AM in Courtroom 8B before Magistrate Judge Richard B. Farrer. Judge Farrer's mediation procedures are attached to this order. (Signed by Magistrate Judge Andrew M Edison) Parties notified. (wbostic, 4) (Entered: 08/26/2019)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 31 of 33

09/04/2019 09/04/2019 09/11/2019
09/11/2019 09/11/2019 09/12/2019
09/12/2019 09/13/2019 09/16/2019 09/17/2019 09/18/2019 09/18/2019 09/18/2019

277 RESPONSE to 275 Objections to Memorandum and Recommendations , filed by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Michelle Slaughter. (Stafford, Dominique) (Entered: 09/04/2019)
278 RESPONSE to 272 Memorandum, 274 Objections to Memorandum and Recommendations, 273 Objections to Memorandum and Recommendations , filed by Aaron Booth. (Trigilio, Trisha) (Entered: 09/04/2019)
279 ORDER ADOPTING MEMORANDUM AND RECOMMENDATIONS & PRELIMINARY INJUNCTION 267 is APPROVED AND ADOPTED, as modified in its entirety as the holding of the Court. The parties Objections to Magistrate Judges Report and Recommendation.(Dkts.) 272275 are OVERRULED; The Motion for Preliminary Injunction [Dkt. 3−1] is DENIED; The 205 MOTION for Preliminary Injunction is GRANTED.(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 09/11/2019)
280 REQUEST for pre−motion conference, filed.(Biggs, Adam) (Entered: 09/11/2019)
281 NOTICE of Setting as to 280 REQUEST for pre−motion conference. Parties notified. Pre−Motion Conference set for 9/12/2019 at 09:30 AM in by telephone before Magistrate Judge Andrew M Edison, filed. (wbostic, 4) (Entered: 09/11/2019)
Minute Entry for proceedings held before Magistrate Judge Andrew M. Edison. Pre−Motion Conference [Dkt. 280] Request for Pre−Motion Conference held on September 12, 2019. The Court took the request under advisement. Appearances: Trisha Trigilio, Christopher Odell, Twyla Carter, and Andre Segura for the plaintiffs; Joseph Nixon and Paul Ready for defendant Galveston County; Adam Biggs and Dominique Stafford for defendants Lonnie Cox, Anne B. Darring, John Ellisor, Patricia Grady, Kerry Neves, and Michelle Slaughter; Douglas Poole and Bryan Lasswell for Kerri Foley and James Woltz; Angela Olalde and Joseph Russo, Jr., for defendant District Attorney Jack Roady. (ERO:Yes), filed. (wbostic, 4) (Entered: 09/12/2019)
282 ORDER. Regarding 280 REQUEST for pre−motion conference. The Court declines to stay the Preliminary Injunction for 30 days. The Preliminary Injunction (Dkt. 279) shall take effect on September 25, 2019.(Signed by Judge George C Hanks, Jr) Parties notified.(ltrevino, 3) (Entered: 09/12/2019)
283 NOTICE of Reassignment to Judge Jeffrey V Brown, pursuant to General Order No. 2019−8. Deadlines in scheduling orders remain in effect Judge George C Hanks, Jr no longer assigned to the case. Parties notified, filed. (DawnaKellyadi, 4) (Entered: 09/13/2019)
284 NOTICE Vacating Reassignment. This case was reassigned in error. The reassignment is vacated and the case is returned to the docket of Judge George C Hanks, Jr. Parties notified, filed. (DawnaKelly, 4) (Entered: 09/16/2019)
285 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 279 Order Adopting Memorandum and Recommendations, by Lonnie Cox, Anne B Darring, John Ellisor, Patricia Grady, Kerry Neves, Jared Robinson (Filing fee $ 505, receipt number 0541−23193198), filed.(Biggs, Adam) Modified on 9/18/2019 (jtabares, 1). (Modified to reflect Jared Robinson in place of Michelle Slaughter) (Entered: 09/17/2019)
286 *This entry was incorrectly recorded and has been re−docketed as document #287* Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 285 Notice of Appeal. Fee status: Paid, filed. (Attachments: # 1 Notice of Appeal) (jtabares, 1) Modified on 9/18/2019 (jtabares, 1). (Entered: 09/18/2019)
287 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 285 Notice of Appeal,. Fee status: Paid, filed. (Attachments: # 1 Notice of Appeal) (jtabares, 1) (Entered: 09/18/2019)
Appeal Review Notes re: 285 Notice of Appeal,. Fee status: Paid. The appeal filing fee has been paid.Hearings were held in the case − 5 transcripts were produced. DKT13 transcript order form(s) due within 14 days of the filing of the notice of appeal. Number of DKT−13 Forms expected: 14, filed.(jtabares, 1) (Entered: 09/18/2019)

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 32 of 33

09/19/2019
09/25/2019 09/25/2019 09/26/2019 09/26/2019 10/03/2019 10/03/2019 10/04/2019
10/07/2019 10/08/2019
10/10/2019 10/10/2019
10/10/2019

288 DKT13 TRANSCRIPT ORDER REQUEST by Defendants District Court Judges/Adam Arthur Biggs. Transcript is already on file in Clerks office regarding hearing on Plaintiff's Motion for Preliminary Injunction (1/22/19, 1/28/19, 1/29/19) before The Hon. Andrew M. Edison. (No transcript is needed). Court Reporter/Transcriber: Exceptional Reporting Services. This order form relates to the following: 285 Notice of Appeal,, filed. (Biggs, Adam) (Entered: 09/19/2019)
289 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit by Galveston County (Filing fee $ 505, receipt number 0541−23243567), filed. (Nixon, Joseph) (Entered: 09/25/2019)
Notice of Assignment of USCA No. 19−40785 re: 285 Notice of Appeal,, filed.(JenniferLongoria, 1) (Entered: 09/25/2019)
290 Clerks Notice of Filing of an Appeal. The following Notice of Appeal and related motions are pending in the District Court: 289 Notice of Appeal. Fee status: Paid, filed. (Attachments: # 1 Notice of Appeal) (JenniferLongoria, 1) (Entered: 09/26/2019)
Appeal Review Notes re: 289 Notice of Appeal. Fee status: Paid. The appeal filing fee has been paid, and the appellant is represented by counsel.Hearings were held in the case. DKT13 transcript order form(s) due within 14 days of the filing of the notice of appeal. Five (5) transcripts were produced. Number of DKT−13 Forms expected: 14, filed.(JenniferLongoria, 1) (Entered: 09/26/2019)
Electronic record on appeal certified to the Fifth Circuit Court of Appeals re: 289 Notice of Appeal USCA No. 19−40785, filed.(jtabares, 1) (Entered: 10/03/2019)
Electronic Access to Record on Appeal Provided re: 246 Notice of Appeal, 253 Notice of Appeal, 285 Notice of Appeal, 251 Notice of Appeal, 256 Notice of Appeal to Francesca Andrea Di Troia. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−40785), filed.(jtabares, 1) (Entered: 10/03/2019)
Electronic Access to Record on Appeal Provided re: 246 Notice of Appeal, 253 Notice of Appeal, 289 Notice of Appeal, 285 Notice of Appeal, 251 Notice of Appeal, 256 Notice of Appeal to Joseph David Hughes, counsel for Appellant John Ellisor, Appellant Kerry Neves, Appellant Lonnie Cox, Appellant Anne B. Darring, Appellant Patricia Grady, Appellant Jared Robinson. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−40785), filed.(jtabares, 1) (Entered: 10/04/2019)
291 NOTICE Transcript Order Form by Galveston County, filed. (Nixon, Joseph) (Entered: 10/07/2019)
Electronic Access to Record on Appeal Provided re: 246 Notice of Appeal, 253 Notice of Appeal, 289 Notice of Appeal, 285 Notice of Appeal, 251 Notice of Appeal, 256 Notice of Appeal to Adam Arthur Biggs, counsel for Appellants Jared Robinson, Anne B. Darring, Patricia Grady, John Ellisor, Lonnie Cox, Kerry Neves and to Joseph M. Nixon, counsel for Appellant Galveston County. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No. 19−40785), filed.(jtabares, 1) (Entered: 10/08/2019)
292 NOTICE OF APPEAL to US Court of Appeals for the Fifth Circuit re: 279 Order Adopting Memorandum and Recommendations, by Jack Roady (Filing fee $ 505, receipt number 0541−23343699), filed.(Olalde, Angela) (Entered: 10/10/2019)
293 DKT13 TRANSCRIPT ORDER REQUEST by Angie Olalde. Transcript is already on file in Clerks office regarding 1/22/19 Class Cert. PI Hrg.−Judge Edison; 1/28/19 − Closing Arguments − Judge Edison; 1/29/19 − Tel. Conf.−Judge Edison. (No transcript is needed). Court Reporter/Transcriber: Exceptional Reporting Services. This order form relates to the following: 292 Notice of Appeal, filed. (Olalde, Angela) (Entered: 10/10/2019)
Electronic Access to Record on Appeal Provided re: 292 Notice of Appeal, 289 Notice of Appeal, 251 Notice of Appeal, 246 Notice of Appeal, 253 Notice of Appeal, 285 Notice of Appeal, 256 Notice of Appeal to Andrew Jan Mytelka, Angela Kay Olalde, and Joseph R. Russo, Jr., counsel for appellant Jack Roady in 19−40785. Attorneys of record at the Circuit may download the record from the Court of Appeals. (USCA No.

Case: 3:18-cv-104 As of: 10/17/2019 05:23 PM CDT 33 of 33 19−40785), filed.(jtabares, 1) (Entered: 10/10/2019)

 
 Case 3:18-cv-00104 Document 31 Filed in TXSD on 05/04/18 Page 1 of 41

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

Aaron Booth and Cody Tucker, on behalf of themselves and all others similarly situated,
Plaintiffs, v.
Galveston County;
Hon. Kerry L. Neves, Hon. Lonnie Cox, Hon. John Ellisor, Hon. Patricia Grady, Hon. Anne B. Darring, Hon. Michelle M. Slaughter,
Galveston County District Court Judges;

Civil Action No. 3:18-cv-0104 Class Action

Hon. John Grady, Hon. Barbara Roberts, Hon. Jack Ewing,
Galveston County Court at Law Judges;

Hon. Stephen Baker, Hon. Kerri Foley, Hon. James Woltz,
Galveston County Magistrates;

Hon. Jack Roady, Galveston County District Attorney,

Defendants.

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FIRST AMENDED COMPLAINT 1. Instead of administering equal justice in criminal cases, Galveston County locks the accused who cannot afford a payment in jail, while allowing those who can afford a payment to go free. The County sets these payment amounts without any meaningful hearing. The result is a jail filled with hundreds of people who are incarcerated simply because they cannot afford to purchase their release. 2. Named Plaintiffs Aaron Booth and Cody Tucker are currently imprisoned at the Galveston County Jail because they cannot afford to pay their bail. Their bail amounts were set according to a fixed schedule. The County did not appoint them an attorney before their bail was set. No official has even asked whether they can afford their bail, and they will not have an opportunity to explain their inability to pay for days or weeks. Outside experts—including county-funded experts—have confirmed that this is standard operating procedure in Galveston County. 3. Being incarcerated for days or weeks is a dramatic deprivation of liberty. The consequences extend beyond the harm of jail time itself. A person who is detained for even a few days may lose income or even employment from missing work; she may miss rent payments and get evicted; she may miss school; she may even lose custody of her children because of her inability to arrange for child care. 4. Because of the substantial and well-recognized liberty interests at stake, federal courts have not hesitated to enjoin strikingly similar bail practices in Texas and elsewhere in the United States. The County’s practices in this case violate the Plaintiffs’
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substantive and procedural due process rights, infringe Equal Protection guarantees, and undermine the constitutional right to counsel.
5. Galveston County policymakers have refused to correct these practices despite considerable public pressure. In the absence of injunctive relief, the County will continue locking away hundreds of people because they cannot make a payment and depriving them of any meaningful way to seek release.
6. The named Plaintiffs bring this action for injunctive relief on behalf of themselves and all similarly situated people imprisoned in Galveston County Jail.
JURISDICTION AND VENUE 7. This is a civil rights action arising under 42 U.S.C. § 1983 and the Sixth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction) and § 1343 (civil rights jurisdiction). 8. Venue in this district is proper under 28 U.S.C. § 1391(b)(1), because Galveston County is located in this district, and under § 1391(b)(2), because a substantial part of the events giving rise to the Plaintiffs’ claims occurred in this district.
PARTIES 9. Plaintiffs Aaron Booth and Cody Tucker are currently imprisoned at Galveston County Jail solely because they cannot afford to pay their bail. They also cannot afford to retain private counsel.
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10. Defendant Galveston County is a county organized under the laws of the State of Texas. The Galveston County Commissioners’ Court is the final County policymaker for funding and operating a personal bond office.
11. Felony Judges. Defendants Kerry L. Neves, Lonnie Cox, John Ellisor, Patricia Grady, Anne B. Darring, and Michelle M. Slaughter are District Judges in Galveston County (“Felony Judges”). They vote en banc as an administrative body to pass local rules of administration for felony cases in Galveston County. Lonnie Cox is the Local Administrative District Judge for Galveston County. In areas where the Felony Judges fail to promulgate rules, he is the final Galveston County policymaker for postarrest procedures in Galveston County. He is also the final Galveston County policymaker for enforcing local rules of administration for felony cases. The Felony Judges are sued in their individual and official capacities for declaratory and injunctive relief.
12. Misdemeanor Judges. Defendants John Grady, Barbara Roberts, and Jack Ewing are County Court at Law Judges in Galveston County (“Misdemeanor Judges”). They vote en banc as an administrative body to pass local rules of administration for felony cases in Galveston County. Jack Ewing is the Local Administrative Statutory County Court Judge for Galveston County. In areas where the Misdemeanor Judges fail to promulgate rules, he is the final Galveston County policymaker for post-arrest procedures in Galveston County. He is also the final Galveston County policymaker for enforcing local rules of administration for misdemeanor cases. The Misdemeanor Judges are sued in their individual and official capacities for declaratory and injunctive relief.
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13. Magistrates. Defendants Stephen Baker,1 Kerri Foley, and James Woltz are Magistrates in Galveston County. They carry out Felony and Misdemeanor Judges’ pretrial release procedures at the first proceeding after booking into Galveston County Jail, commonly referred to as magistration. They are sued in their individual and official capacities for declaratory relief only.
14. District Attorney. Defendant Jack Roady is the Galveston County District Attorney. He is the final Galveston County policymaker for bail-setting policies that govern his prosecutors. He is sued in his official capacity for declaratory and injunctive relief.
FACTS I. Galveston County Jailed the Named Plaintiffs Solely Because They Could Not
Afford a Payment A. Aaron Booth 15. Plaintiff Aaron Booth is a thirty-six-year-old man who lives in Galveston County. He and his mother live near the poverty line. Aaron was arrested on April 8, 2018, for a felony drug possession charge. 16. Aaron’s arresting officer consulted with a prosecutor who set his bail at $20,000, the minimum amount permitted under Galveston County’s felony bail schedule. The felony bail schedule is a predetermined list of minimum bail amounts that
1 In the Original Complaint, Magistrate Judge Stephen Baker was inadvertently named as Magistrate Judge “Mark” Baker. Plaintiffs now amend to correct that misnomer. Judge Stephen Baker received actual notice and a copy of all filings and he returned a waiver of service.
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correspond to different felony charges. The officer booked Aaron into Galveston County Jail in the early morning hours of April 8, 2018.
17. Aaron saw a magistrate who automatically adopted his bail amount the morning of April 8, 2018. The magistrate did not ask about his ability to pay the $20,000 bail set under the minimum bail schedule. The magistrate did not ask about any facts or make any findings concerning whether Aaron is a flight risk or a danger to the community.
18. Aaron asked the magistrate for a court-appointed attorney and completed a “pauper’s oath” form to demonstrate that he is too poor to hire his own attorney. At the time that Aaron was magistrated, and at the time his bond was set according to the Bail Schedule Policy, the County had not appointed Aaron an attorney to represent him. Though Aaron has since been appointed counsel, he did not have the benefit of counsel at the time his bond was set, and so he did not have the opportunity to request, through counsel, an individualized bond determination based on his particular circumstances.
19. Aaron remains locked in jail because he cannot afford his bail. B. Cody Tucker 20. Plaintiff Cody Tucker is a twenty-year-old man who lives in Galveston County. He has not been employed since December. He lives with his girlfriend and their two small children, his father, and his father’s girlfriend. Their household is near the poverty line. 21. Cody was arrested on the afternoon of April 30 for misdemeanor assault.
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22. Cody’s arresting officer set his bail at $2500 under Galveston County’s misdemeanor bail schedule. The misdemeanor bail schedule is a predetermined list of bail amounts that correspond to different misdemeanor charges. The arresting officer booked him into Galveston County Jail late in the night of April 30.
23. Cody saw a magistrate who automatically adopted his bail amount the morning of May 1. The magistrate did not ask about his ability to pay the $2,500 bail set under the bail schedule. The magistrate did not ask about any facts or make any findings concerning whether Cody is a flight risk or a danger to the community.
24. Cody tried to ask whether he could be released on personal bond. The Magistrate did not answer Cody’s question.
25. Cody asked the magistrate for a court-appointed attorney and completed a “pauper’s oath” form to demonstrate that he is too poor to hire his own attorney. At the time Cody was magistrated, and at the time his bond was set according to the Bail Schedule Policy, the County had not appointed Cody an attorney to represent him. Though Cody has since been appointed counsel, he did not have the benefit of counsel at the time his bond was set, and so he did not have the opportunity to request, through counsel, an individualized bond determination based on his particular circumstances.
26. Cody remains locked in jail because he cannot afford his bail. II. Galveston County Jails People Who Cannot Afford a Payment While
Allowing People Who Are Similar, But Wealthier, to Go Free 27. It is Galveston County policy to set secured bail according to a bail schedule. “Secured bail” is an order to pay a bail amount in full up front, as a condition of
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release from jail.2 By contrast, “unsecured bail” or “personal bond” is a promise to pay the bail amount later, if you fail to appear in court.
28. It is Galveston County policy to impose secured bail under a minimum bail schedule without any inquiry into ability to pay bail, and the potential flight risk or danger posed by each individual person. This policy applies in both misdemeanor and felony cases: wealthier people can purchase their release, while similarly situated, but less wealthy people accused of the same crimes are locked in jail. The practices that comprise this Bail Schedule Policy are detailed below.
A. Arresting Officers Set Bail Amounts Under a Minimum Bail Schedule Without Asking About Ability to Pay
29. In order to book anyone into Galveston County Jail, the arresting officer must complete a preprinted bail order for the Magistrate to sign. It is written County policy to refuse to accept a person into the jail unless the arresting officer completes a preprinted bail order listing each of that person’s charges and a bail amount for each charge.
30. To set a bail amount for felony charges, the arresting officer calls the Galveston County prosecutor on duty. The officer describes the allegations and the duty prosecutor makes a charging decision. If the duty prosecutor decides to file charges, the District Attorney requires the duty prosecutor to set bail on each charge by referring to the felony bail schedule. The felony bail schedule specifies that it is a “minimum
2 Generic references to “bail” throughout the complaint mean “secured bail” unless otherwise specified.
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schedule”: the District Attorney’s policy permits the duty prosecutor to set bail amounts that deviate upward from this schedule, but not down. The arresting officer lists the bail amounts set by the duty prosecutor on the arrestee’s preprinted bail order. Throughout this process, neither the arresting officer nor the duty prosecutor makes any inquiry into whether the person arrested can afford the bail amount set.
31. To set bail for misdemeanor charges, the arresting officer simply sets bail according to a predetermined misdemeanor bail schedule. There is no pre-booking prosecutorial screening for misdemeanor charges. The arresting officer makes no inquiry into whether the person arrested can afford the bail amounts listed in the schedule.
32. After completing a preprinted bail order with bail amounts for each charge, the arresting officer books the person arrested into the Galveston County Jail.
B. Magistrates Automatically Adopt Bail Determinations at a Process Called “Magistration,” Without Inquiry Into Ability to Pay
33. A Galveston County Magistrate conducts a proceeding at the jail every morning around 8:00 AM for all people who were booked into the jail in the last 24 hours, regardless of their charge. This proceeding is referred to as “magistration.”
34. The County does not interview arrestees, or otherwise determine their ability to afford bail, before magistration. Although the County has established a personal bond office, the office does no more than inform magistrates whether or not Texas law permits release of each arrestee on personal bond. The personal bond office does not make any recommendations about whether or not to release arrestees on personal bond.
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35. To conduct magistration, Sheriff’s deputies bring people who have been arrested, mostly clad in jail-issued jumpsuits, into a cinder-block room at the jail with rows of bare metal benches. Typically, about twenty people are brought into the room and magistrated simultaneously. The Magistrates stand in another room, visible to the arrestees through a plexiglass window or via a television set, and conduct the proceeding.
36. Before bringing arrestees into magistration, Sheriff’s deputies instruct the arrestees to be quiet and speak only when they are spoken to.
37. County officials have used the threat of higher bail to deter people from speaking. For example, during a recent magistration when someone commented on an investigation by the ACLU of Texas, a Sheriff’s deputy raised his voice and warned the man that the Magistrate might raise his bail if the man kept upsetting the Magistrate.
38. The Magistrates themselves also make it clear that people are not welcome to speak other than to answer questions with a “yes” or “no.” Unsurprisingly, few do. On the rare occasion when someone does ask a question, it is common for the Magistrates to raise their voices in frustration. The Magistrates also frequently respond to questions by stating that they cannot give “legal advice” and that the question is best answered by an attorney. But there are no defense attorneys appointed for these proceedings.
39. The Magistrates begin proceedings by stating that they will give each person their magistrate warning and read them their rights.
40. The Magistrates then read each person’s name, the charges against them, and the bail amount the arresting officer wrote on their preprinted bail order.
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41. Finally, the Magistrates read a list of rights as required by the Texas Code of Criminal Procedure—none of which concern pretrial release.
42. The presiding Magistrate and a clerk then call people forward to answer three yes-or-no questions: Are you a United States citizen? Have you served in the armed forces? Are you out on bail for another offense? The presiding Magistrate and the clerk call people forward simultaneously and record their answers. The arrestees called forward by the clerk do not ever speak to a Magistrate.
43. After these three questions, the proceeding is over. The Magistrates automatically adopt the preprinted bail amount.
44. Magistration typically takes less than sixty seconds for each person, consisting solely of the foregoing three questions. The Magistrates do not allow argument to revisit the preprinted bail amount, nor as a matter of practice do they revisit bail sua sponte. The Magistrates do not ask questions about ability to pay bail, the potential flight risk or danger posed by each individual person, or the availability of less restrictive conditions of pretrial release. There is simply no individualized determination of appropriate bail amounts.
45. After magistration ends, the presiding Magistrate or the clerk hands a form to anyone who requests appointed counsel. The form is called a “pauper’s oath.” The Magistrates instruct people to complete the form to demonstrate their inability to pay for a lawyer and request appointed counsel.
46. Most people request appointed counsel. 57.1% of people arrested for misdemeanors and 67.9% of people arrested for felonies complete a pauper’s oath.
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47. Despite the strong implication that many people who complete a pauper’s oath also cannot afford their bail, the Magistrates do not reconsider bail amounts set under the bail schedule. In fact, the Magistrates and their clerks typically leave the room before each person has completed their pauper’s oath.
48. The Magistrates have the authority to grant personal bond, which is release based on a promise to pay bail if the arrestee later fails to appear in court, but the Magistrates refuse to grant personal bond in the majority of cases. The Magistrates do not ask any questions about ability to pay bail or the potential flight risk or danger posed by each individual person, before deciding whether to grant personal bond. Instead, they identify those arrestees who are eligible for a personal bond at the outset of magistration.
49. Neither the Judges, nor the Magistrates, or the District Attorney requires the attendance of prosecutors, who are ethically obligated to protect people who are innocent until proven guilty, cooperate with pretrial release arrangements, avoid illegitimate delay, and above all ensure that defendants’ rights are protected.3
50. People who cannot afford to purchase their freedom—more than a quarter of people arrested for misdemeanors and more than half of people arrested for felonies— remain imprisoned at Galveston County Jail.
3 See ABA Prosecution Function Standard 3-1.2(b) (“The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”); Standard 3-2.9(b) (“A prosecutor should not intentionally use procedural devices for delay for which there is no legitimate basis.”); Standard 3-3.10 (“The prosecutor should cooperate in good faith in arrangements for release under the prevailing system for pretrial release.”).
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C. People Who Cannot Pay for Their Release Are Imprisoned for More Than a Week Before a Judge Will Consider Lowering Bail
51. After magistration, Galveston County arrestees wait in jail for more than a week, often much longer, before they have the opportunity to obtain a meaningful bail hearing.
52. Sitting in jail for more than a week is an inherently harmful deprivation of liberty. And beyond the jail time itself, a person who is detained for even a few days can face serious collateral consequences. She may lose income from missing work or even get fired altogether. She may miss rent payments and get evicted. She may suffer setbacks in an educational program. She may even lose custody of her children because of her inability to arrange for child care. For example, Plaintiff Aaron Booth is concerned about losing his new job and missing child support payments because he is incarcerated. Plaintiff Cody Tucker is concerned about being away from his young children and missing a preliminary qualifying test for a GED course because he is incarcerated.
53. Rather than face an extended delay before a bail hearing, many people charged with low-level crimes plead guilty rather than spending weeks sitting in jail in order to assert their innocence.
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1. Misdemeanor Judges Require “Jail Docket” Appearances for the Sole Purpose of Eliciting Guilty Pleas
54. Misdemeanor arrestees who cannot afford to pay their bail are brought to the “jail docket,” conducted by a Misdemeanor Judge.4 The Judge presiding over the jail docket does not consider lowering bail or release on personal bond. The sole purpose of the proceeding is to elicit a guilty plea.
55. Jail docket takes place in the jail in the same room as magistration. The Misdemeanor Judges assign two defense attorneys who attempt to represent everyone on the jail docket over the course of a week, typically about ten people per day.
56. The attorneys meet with each of their new clients shortly before the proceeding to communicate the prosecution’s plea offer. These attorney/client meetings take place in a hallway area outside the magistration room, where conversations are audible to other defendants and jail staff.
57. An arrestee who rejects the prosecution’s offer is reset for another appearance by court staff. Arrestees do not actually appear before the judge unless they agree to plead guilty. Those who maintain their innocence are ordered back to their cells.
58. The Misdemeanor Judge does not begin proceedings until after plea negotiations have concluded. When the Misdemeanor Judge begins proceedings, she is not physically present at the jail. She appears on a television monitor in the magistration room to accept guilty pleas.
4 There is no jail docket on weekends—misdemeanor arrestees magistrated on Saturdays and Sundays are brought to jail docket on Monday afternoon.
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59. Guilty pleas are the only matter the jail docket judge will consider. The jail docket judge and court staff make it clear that defense attorneys should not bother raising other matters, including reconsideration of an arrestee’s bail.
60. Prosecutors appear at the jail docket, but they take no action to raise the possibility of personal bond or affordable bail for arrestees who, in virtue of their appearance at jail docket, plainly cannot afford the bail set under the misdemeanor bail schedule.
61. For people who are steadfast enough to maintain their innocence, Misdemeanor Judges maintain policies that require arrestees to wait about a week after jail docket before their first status conference before the judge assigned to their case.
2. Felony Judges Require People to Wait Weeks for Their First Appearance
62. People charged with felonies do not appear on a “jail docket.” However, their first appearance before the Felony Judge assigned to their case is for the sole purpose of appointing defense counsel and eliciting guilty pleas. This first appearance typically takes days after arrest, or in some cases, more than a month.
63. The Felony Judges have not set any rules governing how quickly a case must be set for a first appearance.
64. Thus, whether someone faces misdemeanor or felony charges, the Judges force them to wait in jail for a few days, at a minimum, before scheduling their first appearance before the judge assigned to their case.
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3. Judges Refuse to Expedite Hearings on Bail Reduction Motions 65. Judges do not appoint defense counsel immediately upon magistration. The appointment process typically takes two to four days, and sometimes longer. 66. But regardless of when the Judges appoint defense counsel, the Misdemeanor and Felony Judges enforce procedures that prevent a defense attorney from securing a prompt and meaningful bail reduction hearing for her client. 67. Texas law permits defense attorneys to make a written or oral motion for bail reduction. But even if a defense attorney tried to get her client out as expeditiously as possible by filing a written motion on the same day she was appointed, both Misdemeanor and Felony Judges refuse to schedule prompt hearings on bail reduction applications. Judges instead delay hearing bail reduction applications for at least a week, but most often two to three weeks, after the written application is filed. 68. Because the Judges do not schedule prompt bail reduction hearings as a matter of practice, even arrestees represented by the most zealous and well-resourced defense counsel face a week or more of wealth-based detention under a bail schedule. III. Galveston County’s Bail Schedule Policy Violates Plaintiffs’ Constitutional Rights 69. Galveston County’s pretrial detention practices described above constitute the Bail Schedule Policy. Under this policy, the County jails the vast majority of people booked into Galveston County Jail for more than a week unless they plead guilty or pay the secured bail listed in the applicable bail schedule. Of course, every one of these people is presumed to be innocent.
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A. The Bail Schedule Policy Unjustifiably Treats Poorer People Differently
70. Galveston County keeps anyone who cannot afford a predetermined
payment locked in jail, while allowing similarly situated people who can afford that
payment to go free. The County jails people under a bail schedule without any inquiry
into ability to pay or consideration of less restrictive alternatives.
71. The County lacks any legitimate justification for refusing to release people
who cannot make a payment. Research shows, and a federal court in neighboring Harris
County recently found, that secured bail is no more effective at securing court
appearances than personal bond.5
72. As for public safety, secured bail is demonstrably harmful. Requiring
people to pay for their release means that people with low incomes spend more time in
jail. And after just brief periods of detention, each additional day a person spends locked
in jail increases the likelihood that she will be rearrested after she is released.6
5 ODonnell v. Harris Cnty., 882 F.3d 528, 545 (5th Cir. 2018) (upholding the district court’s “thorough review of empirical data and studies [finding] that the County had failed to establish any ‘link between financial conditions of release and appearance at trial or law-abiding behavior before trial.’”). E.g., Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 21 (May 2, 2016) (“Our results suggest that money bail has a negligible effect or, if anything, increases failures to appear.”); Michael R. Jones, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option 11 (October 2013) (“Whether released defendants are higher or lower risk or in-between, unsecured bonds offer the same likelihood of court appearance as do secured bonds.”). 6 Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 762 (2017) (“[B]y one month after the hearing the average number of new charges for detainees has exceeded that of their similarly situated counterparts who were released. To the extent that the rich set of controls allows one to construe these differences as causal, they suggest that pretrial detention has a greater criminogenic than deterrent effect.”); Christopher T. Lowenkamp, Marie VanNostrand & Alexander Holsinger, The Hidden Costs of Pretrial Detention 19–20 (November 2013) (“Defendants detained pretrial were 1.3 times more likely to recidivate compared to defendants who were released at some point pending trial.”).
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73. More fundamentally, people who are rearrested or commit a new crime don’t lose their bail money. Texas law does not permit courts to keep an arrestee’s bail money because she is rearrested or charged with a new crime. In fact, getting rearrested is a defense to bail forfeiture. Paying bail does not even give an arrestee a theoretical incentive to avoid committing a new crime or getting rearrested.
74. The use of secured bail has a severely disparate impact on Black and Latino arrestees. African-Americans are five times more likely to be detained than their white counterparts, and three times more likely to be detained than their Latino counterparts.7 African-Americans and Latinos are more likely than whites to be detained because they cannot afford their bail.8 People who cannot afford to pay for their release— disproportionately African-American and Latinos—are significantly more likely to abandon valid defenses and plead guilty just to get out of jail. They are also more likely to receive longer jail sentences.
75. An audit by the Texas Indigent Defense Commission showed that in Galveston County, misdemeanor arrestees who can afford to pay bail and fight their cases from the outside are six times likelier to have their charges fully dismissed.9 Felony cases show similar patterns in case outcomes: for example, a felony arrestee who cannot afford
7 See, e.g., Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, Justice Policy Inst. 15 (2012). 8 See Stephen Demuth, Racial and Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black and White Felony Arrestees, 41 Criminology 873, 899 n. 89 (2003). 9 Texas Indigent Defense Commission, Limited Scope Policy Monitoring Review: Galveston County 22–23 (June 2017).
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to pay bail is four times likelier to be sentenced to more than a year in prison and is half as likely to be sentenced to probation or deferred adjudication.10
76. Galveston County has other, more effective and less harmful release conditions available. Recognizing the limitations and dangers of secured bail, other jurisdictions rely on alternative measures to ensure that people show up for court. The simplest of these measures is a personal bond, which means a person is released in exchange for her promise to pay money if she actually fails to appear in court. Personal bond is equally as effective at securing court appearances as secured bail.11
77. Other alternatives range from simple interventions to help people appear in court,12 such as reminders of court dates and transportation to court, to more intensive supervision,13 such as required reporting or electronic monitoring. The key to effective implementation of these alternatives is to tailor conditions of release or detention according to the needs of each individual.
78. This approach works. For example, Washington, D.C. has relied heavily on alternatives to prepaid bail for more than twenty years. They enjoy a reappearance rate of
10 Id. at 25–26. 11 ODonnell, 882 F.3d at 545 (upholding the district court’s “thorough review of empirical data and studies [finding] that the County had failed to establish any ‘link between financial conditions of release and appearance at trial or law-abiding behavior before trial.’”). E.g., Gupta, Hansman, & Frenchman at 21 (“Our results suggest that money bail has a negligible effect or, if anything, increases failures to appear.”); Jones at 11 (“Whether released defendants are higher or lower risk or in-between, unsecured bonds offer the same likelihood of court appearance as do secured bonds.”). 12 E.g., Brice Cooke et al., Using Behavioral Science to Improve Criminal Justice Outcomes: Preventing Failures to Appear in Court 15–18 (Jan. 2018). 13 E.g., Christopher Lowenkamp & Marie VanNostrand, Exploring the Impact of Supervision on Pretrial Outcomes 17 (Nov. 2013).
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90%, with no rearrest for violent crime for over 98% of people. The cost of release is approximately $18 per person per day (at Washington, D.C., salary rates), compared with the cost of approximately $59 per person per day to lock someone in Galveston County Jail.
79. Galveston County does not consider any of these alternatives. Instead, the County chooses to jail thousands of people on the basis of their relative wealth, without offering them an individualized hearing about their ability to pay bail and without consideration of less restrictive alternatives to pretrial detention.
B. The Bail Schedule Policy Deprives People of Liberty Without Adequate Procedural Protections
80. The Bail Schedule Policy also violates procedural due process by depriving people of their liberty without adequate procedural protections.
81. As described above, bail is initially set ex parte, either by the arresting officer for misdemeanor arrestees, or by the duty prosecutor for felony arrestees. At magistration, the County deprives arrestees of advance notice of the basis for the predetermined bail amount and an opportunity to be heard on why the Magistrate should lower bail or grant personal bond.
82. The County does not admit any attorneys to magistration. The proceedings take place in the absence of a prosecutor to present the Magistrates with individualized evidence demonstrating flight risk or dangerousness (despite the prosecutors’ ethical obligations noted above) or a defense attorney to argue that the prosecution has failed to meet its burden.
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83. Instead of holding a meaningful hearing, Magistrates automatically adopt bail amounts that keep less-wealthy arrestees behind bars. Magistrates issue these de facto pretrial detention orders without satisfying the heightened procedural requirements for a pretrial detention order: a counseled hearing where the arrestee can present and rebut evidence concerning flight risk or danger; advance notice of the hearing; and individualized, reasoned findings, by clear and convincing evidence, that no other condition or combination of conditions of release could address the arrestee’s risk of flight or danger.
84. After magistration, people are jailed under the bail schedule for more than a week—often much more than a week—before the County offers a bail hearing with any of the required procedural protections. County policymakers could mandate constitutionally adequate pretrial detention proceedings consistent with Texas law, but instead, they have chosen a pretrial detention system based on wealth.
C. Galveston County’s Bail Schedule Policy Deprives People of Defense Counsel at a Critical Stage of Prosecution
85. Refusing to conduct a procedurally proper bail hearing before ordering pretrial detention, and denying counsel for such a bail hearing, have a devastating effect on the fairness of plea bargaining and trial. The outcome of magistration—pretrial detention or release—has the power to settle the fate of the person accused and render subsequent proceedings a mere formality.
86. If the Magistrate orders pretrial detention, the person accused is likelier to abandon a valid defense and plead guilty in order to get out of jail. People stuck in jail are
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likelier to plead guilty, not based on the merits of their cases, but instead to avoid interruptions in housing, employment, education, and child care. Convictions based on these coerced guilty pleas are inherently unreliable. By the time counsel can secure a meaningful bail hearing (at least a week and often much longer), the accused will have been detained long enough to coerce a guilty plea.
87. If the Magistrate orders pretrial detention, the person accused is less able to help her attorney gather evidence and mount a defense. The person accused can do little to help her attorney prepare a bail reduction application or motion to dismiss from jail. In addition, critical evidence (including witness memory) may fade or disappear during the weeks immediately following arrest, when the person accused is detained and less able to assist with investigation.
88. For these reasons, controlling for other factors, pretrial detention is the single greatest predictor of a conviction and a sentence to jail or prison time.14
89. Galveston County data are consistent with this finding. Misdemeanor arrestees who can afford to pay bail and fight their cases from the outside are six times likelier to have their charges fully dismissed. Felony arrestees who are released pretrial
14 See Christopher T. Lowenkamp, Marie VanNostrand & Alexander Holsinger, Investigating the Impact of Pretrial Detention on Sentencing Outcomes 10–11 (2013) (finding that people detained until case disposition are 4.44 times more likely to be sentenced to jail and 3.32 times more likely to be sentenced to prison); Mary T. Philips, New York City Crim. Justice Agency, Inc., Pretrial Detention and Case Outcomes, Part 1: Nonfelony Cases 25–29 (2007) (finding conviction rate jumps from 50% for people released immediately pretrial, to 92% for people detained until case disposition).
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are nearly twice as likely to receive probation or deferred adjudication as their counterparts who are detained.15
90. Conducting a procedurally proper bail hearing before detaining an arrestee, and appointing defense counsel for the bail hearing, is necessary to avoid this prejudice and protect the fairness of criminal proceedings in Galveston County. Appointment of a defense attorney more than doubles the chance that a judge will release the accused on her own recognizance. In cases where judges do choose to order bail, appointment of a defense attorney can more than double the chance that the judge would lower the bail amount to an affordable amount.16
91. Denying counsel at magistration causes substantial prejudice to the fairness of criminal proceedings in Galveston County. IV. Galveston County is Liable for the Bail Schedule Policy
92. Galveston County is liable for the Bail Schedule Policy. County policymakers know about—and share responsibility for creating and maintaining—the Bail Schedule Policy. Galveston County officials also have the power to correct the Bail Schedule Policy, yet have failed to do so.
15 Texas Indigent Defense Commission, Limited Scope Policy Monitoring Review: Galveston County 22–26 (June 2017). 16 Douglas L. Colbert et al., Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 Cardozo L. Rev. 1719, 1720 (2002).
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93. The Misdemeanor Judges, the Felony Judges, the District Attorney, and the Commissioners’ Court are all Galveston County policymakers who know about and perpetuate the Bail Schedule Policy.
94. The District Attorney has issued formal written instructions to prosecutors to “use the following revised bond schedule when you are called on for bond recommendations,” specifying that “this is a minimum schedule and may be increased.” The Judges and the Commissioners’ Court know about these instructions. The District Attorney also affirmatively moved to expand a list of blanket “Reasons for Rejection” for personal bond, also referred to as a list of “non-bailable offenses.” (The list has since been rescinded by the Commissioners’ Court.) The District Attorney is well aware that, for people who are denied personal bond, the minimum bail schedules function as de facto orders of pretrial detention for those who cannot afford the required amounts.
95. The Commissioners’ Court has established a personal bond office as authorized by state law, but has instructed the employees of that office to refrain from making individualized pretrial release recommendations to Magistrates. The personal bond office does not interview arrestees or offer meaningful interventions to facilitate appearances in court for people who are released.
96. The Misdemeanor Judges, the Felony Judges, the District Attorney, and the Commissioners’ Court know that the Magistrates have a widespread, well-settled practice of automatically adopting bail amounts set by prosecutors and arresting officers under the minimum bail schedules. They know that these bail amounts are set without any inquiry into ability to pay or consideration of less restrictive alternatives, without adequate
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procedural protections, and without appointment of counsel. And they also know that the bail amounts result in pretrial detention of people who are too poor to pay.
97. The Bail Schedule Policy is imposed frequently, flagrantly, and routinely. It results in severe and obvious constitutional violations, to which, as explained below, the Judges’, the District Attorney’s, and the Commissioners’ Court’s attention has been called, and which have been the subject of considerable public debate.
98. Prosecutors and arresting officers set secured bail amounts under the minimum bail schedules, and magistrates automatically adopt these bail amounts, without any individualized determination of ability to pay or the need for particular conditions of release, in dozens of cases every week.
99. Magistrates issue these orders openly, by reading a script and signing preprinted bail orders, in proceedings that last less than a minute, without any inquiry into ability to pay, flight risk, or dangerousness. These proceedings are broadcast into the lobby of the jail every single day.
100. The Judges, the District Attorney, and the Commissioners’ Court have received formal reports from the Texas Indigent Defense Commission and the Council on State Governments detailing the Bail Schedule Policy.
101. The reports conclude that: a. Magistrates do not set individualized bail amounts, and instead set bail based on a bail schedule. b. Magistrates set bail under the bail schedule without any individualized inquiry into ability to pay, flight risk, or danger.
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c. Magistrates do not make bail decisions from a presumption of release on recognizance or personal bond.
d. Neither the Magistrates nor the Judges have implemented any meaningful alternatives to pretrial detention, other than trying to collect money from people who are released.
e. No County official has electronically aggregated data on rates of failure to appear in court, prohibiting the County from tailoring pretrial release practices to evidence of failure to appear.
f. The proportion of people locked in Galveston County Jail awaiting trial (71%) is a much higher proportion than in similar counties.
g. There is no jail diversion program or pre-booking screening for people charged with misdemeanors, meaning that everyone charged with a Class A or B misdemeanor is arrested and booked into jail. Nearly half of all misdemeanor charges are dismissed upon review by the prosecutor. This outcome persists because County policymakers rejected a 2016 proposal from an outside contractor that would have implemented pre-booking screening for misdemeanors and eliminated approximately 1,850 misdemeanor jail bookings per year.17
h. The average length of stay in Galveston County Jail has been trending upward, increasing by 27% in 2016 and costing the County an additional $7.3 million in jail costs. The Sheriff’s budget has also increased at a rate that significantly outpaces increases to the overall County budget, and now consumes about 30% of the overall County budget.
102. The Judges, the District Attorney, and the Commissioners’ Court have also
received written correspondence from the ACLU of Texas detailing substantially similar
findings about the Bail Schedule Policy.
17 Chacour Koop, Galveston County Contemplates Idea to cut Costs in Criminal Justice System, Galveston County Daily News (Feb. 4, 2016), http://www.galvnews.com/news/article_35cacafe-6806-5398-a9ac-0ead7b0d221c.html (describing rejected proposal that would “strengthen cases against the guilty and keep innocent people out of jail”).
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103. The Judges and the Commissioners’ Court received an earlier audit from
the consulting firm Griffith, Mosely, Johnson & Associates in 2014, summarizing
interviews with over 65 stakeholders in the justice system and analyzing ways to
modernize the County’s justice system and reduce the jail population. Though the
Commissioners’ Court declined to release that audit to the public, Defendant Judge Cox
suggested in an opinion piece that the audit described the County’s bail practices in great
detail, suggesting solutions such as remote bonding and nonfinancial conditions of
release for people charged with minor crimes.18
104. There has been significant public discussion about Galveston’s Bail
Schedule Policy. For over three years, local news outlets have repeatedly reported that a
significant number of people locked in Galveston County Jail are there only because they
cannot afford to pay for their release.19
18 See Lonnie Cox, Commissioners Continue Meddling and Wasting Taxpayer Money, Galveston County Daily News (Feb. 28, 2017), http://www.galvnews.com/opinion/guest_columns/article_9e1ed632-e26c-532b-87b1fac70e887102.html. 19 See, e.g., Marissa Barnett, County Returns to Jail Reforms With New To-Do List, Galveston County Daily News (Oct. 3, 2017), http://www.galvnews.com/news/article_bfdd5ccc-2af9-5e4b-857e-872287400a5b.html (describing bail schedule investigation as “one of the latest pieces in a yearslong discussion among officials about the county’s criminal justice system, particularly the system for assigning bail bond and other pretrial practices”); Laura Elder, Justice Isn’t Just for Those Who Can Afford It, Galveston County Daily News (Dec. 2, 2017), http://www.galvnews.com/opinion/editorials/article_83e4545c-c966-5fec-bb98-64f139a56ba2.html (“Judges need enough discretion to keep truly dangerous people locked up, but those decisions should be made on factors other than the accused’s ability to raise money . . . .”); Marissa Barnett, Myriad Factors Blamed for County Jail Crowding, Galveston County Daily News (Jan. 14, 2017), http://www.galvnews.com/news/article_f7bfaf7a-081a58c5-bf52-28d1cf71a298.html (“Local defense attorneys and civil rights groups, along with some inmates’ relatives, largely attribute the crowding to a requirement that inmates post monetary bonds for release.”); Meagan Flynn, In Galveston County, Even Personal Bonds Keep Defendants in Jail, Houston Press (Nov. 22, 2016), http://www.houstonpress.com/news/ingalvestoncountyevenpersonalbondskeepdefendantsinjail8966521 (quoting former County Commissioner Ryan Dennard: “We’re currently going through some heightened incarceration rates that are not based upon anything other than internal management, in terms of how folks in the justice system are administering the bail process.”); Erin Heffernan, As Pretrial Jail Population Grows, County Officials Act,
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105. The Judges, the District Attorney, and members of the Commissioners’ Court themselves are quoted in many of these articles. In fact, in one recent article, Defendant Judge Cox was quoted as saying that the “standard bond amounts have not changed in pretty close to 20 years.”20
106. In response to this public debate, the Commissioners’ Court issued a resolution promising a minimum of $2 million to modernize the County’s pretrial release system and calling for a prompt end to pretrial detention for people charged with misdemeanors and state jail felonies. Though the Commissioners’ Court has not actually budgeted or spent this money, the County appears to have resources available to end unnecessary wealth-based detention.
107. The Misdemeanor and Felony Judges could act to correct the Bail Schedule Policy. They have the authority to set policy for magistration procedures and pretrial release. They have repeatedly exercised this authority by voting, en banc as an administrative body, to issue standing orders governing magistration procedures and pretrial release. But the Judges have not taken any action to require individualized bail hearings in Galveston County.
108. The Local Administrative Judges, who are elected to set administrative policies for Galveston County courts, could unilaterally correct the Bail Schedule Policy.
Galveston County Daily News (Mar. 9, 2015), http://www.galvnews.com/news/article_1e44ff44-c61b-11e4-9e8f3f6d4e542c2d.html (“To qualify [for personal bond], defendants must prove they are low-risk by providing proof of things such as employment, a permanent residence and community support.”). 20 Barnett, Myriad Factors Blamed for County Jail Crowding.
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They have the administrative authority to promulgate local rules of administration where the other judges fail to do so, supervise cases to ensure timely settings in court, set the hours and places for holding court, and supervise the performance of nonjudicial personnel. The Local Administrative Judges have repeatedly exercised this authority by issuing standing administrative orders to set County policy, including policies concerning post-arrest practices at Galveston County Jail. But the Local Administrative Judges have not issued administrative orders requiring, or even facilitating, individualized bail hearings in Galveston County.
109. The District Attorney could also correct the Bail Schedule Policy. He has the authority to rescind the felony bail schedule and instruct prosecutors to stop setting minimum bail amounts, which, the District Attorney knows, are later automatically adopted by Magistrates and transformed into de facto pretrial detention orders for those who cannot afford the required amounts. But the District Attorney has not taken any action to attend magistrations, rescind the bail schedule, or otherwise stop prosecutors from recommending minimum bail amounts.
110. The Commissioners’ Court could correct the Bail Schedule Policy. The Commissioners’ Court has the authority under state law to hire staff for the personal bond office and instruct them to interview arrestees; produce informed, individualized pretrial release recommendations; provide Magistrates with those recommendations to facilitate individualized pretrial release decisions; and make themselves available for pretrial interventions and supervision to facilitate pretrial release. But the Commissioners’ Court has not funded, staffed, or instructed the personal bond office to do so.
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CLASS ACTION ALLEGATIONS 111. Plaintiffs seek injunctive relief, on behalf of themselves and all others similarly situated, under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs seek to represent the class of all people who are or will be detained in Galveston County Jail because they are unable to pay secured bail set at magistration. I. It is Impracticable to Join Every Member of the Class, Both of Which Number Well Over 100 People 112. Galveston County operates one of the largest jails in the State of Texas, with capacity to lock up more than 1,000 people. Typically, more than 700 of these people are pretrial detainees who have not been convicted of a crime. The vast majority of pretrial detainees are jailed because they cannot afford bail set at magistration. As a result, the number of current and future arrestees subjected to Galveston County’s Bail Schedule Policy easily numbers in the thousands. 113. The population of people detained pretrial is constantly changing. Approximately 20 people are booked into jail and magistrated every day. 114. Joinder is impracticable because the class is both too numerous and too fluid for the Court to feasibly hear their independent claims. 115. Joinder is also impracticable because the members of the class are too poor to hire lawyers to bring independent claims. II. The Class’s Claims Raise Common Questions of Law and Fact That Will Generate Common Answers 116. The named Plaintiffs’ claims raise common legal and factual questions arising from one central set of policies and practices: the Bail Schedule Policy. The
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Policy applies openly and in materially the same manner every day with respect to all
people booked into jail. Resolution of these legal and factual issues will determine
whether all of the members of the class are entitled to the constitutional relief that they
seek.
117. Among the most important common questions of fact for the class are:
• Whether Magistrates have a widespread, well-settled practice of setting secured bail without inquiry into ability to pay or consideration of alternatives less restrictive than unaffordable secured bail, without the presence of counsel;
• Whether Magistrates have a widespread, well-settled practice of setting secured bail without adequate procedural protections including notice, an opportunity to present and contest evidence, appointment of counsel, reasoned findings based on clear and convincing evidence on the record that unaffordable secured bail is the least restrictive means of mitigating an individual’s flight risk or danger;
• Whether Magistrates conduct bail hearings without the presence of counsel for the defendant;
• Whether Magistrates’ secured bail orders result in pretrial detention;
• Whether unaffordable secured bail undermines the fairness of plea bargaining or trial; and
• How long class members must wait in jail after arrest before they have an opportunity to raise their inability to pay for their release or to request alternative, non-financial conditions.
Among the most common questions of law with respect to the classes are:
• Whether imposing unaffordable secured bail without an ability to pay hearing violates the Fourteenth Amendment Due Process and Equal Protection Clauses;
• Whether imposing unaffordable secured bail without adequate procedural protections including notice, an opportunity to present and contest evidence, appointment of counsel, and reasoned findings on the record that
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unaffordable secured bail is the least restrictive means of mitigating an individual’s flight risk or danger violates the Fourteenth Amendment’s Due Process Clause; and • Whether denying counsel at a bail hearing violates the Sixth Amendment’s Right to Counsel Clause. III. The Named Plaintiffs’ Claims Are Typical of The Class 118. The Named Plaintiffs’ claims are typical of the claims of the other members of the class. Each class member suffers, or suffered, the same injury because Defendants refused to comply with basic constitutional requirements: class members are confined in jail because they could not afford to pay secured money bail set under the Bail Schedule Policy. The answer to whether the Bail Schedule Policy is constitutional will determine the claims of the Named Plaintiffs and every other class member. IV. The Named Plaintiffs Will Fairly and Adequately Represent The Class 119. The Named Plaintiffs are adequate representatives of the class because their interests in the vindication of the legal claims they raise are entirely aligned with the interests of the other class members, each of whom has the same basic constitutional claims. The Named Plaintiffs are members of the class, and their interests do not conflict with those of the other class members. 120. There are no known conflicts of interest among class members. All of the members of the respective class have a similar interest in vindicating their constitutional rights against pretrial detention the Bail Schedule Policy. 121. Plaintiffs are represented by attorneys from the American Civil Liberties Union, the American Civil Liberties Union of Texas, and Arnold & Porter Kaye Scholer
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LLP, each of whom has experience litigating class actions and complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are set forth in the pending Motion for Class Certification.
122. The combined efforts of counsel have so far included extensive investigation into the Bail Schedule Policy over a period of months, including interviews with witnesses, court employees, jail inmates, Judges, attorneys practicing in courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and national experts in constitutional law, postarrest procedure, pretrial services, and jails.
123. Counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipalities.
124. Counsel have devoted significant time and resources to becoming intimately familiar with Galveston County’s pretrial detention practices and with all of the relevant state and federal laws and procedures that can and should govern them. The interests of the members of the class will be fairly and adequately protected by the Plaintiffs and their attorneys. V. Defendants Have Acted on Grounds That Apply Generally to the Injunctive
Relief Class, Meriting Final Injunctive and Declaratory Relief
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125. Class-action status under Rule 23(b)(2) is appropriate because the Defendants, through the Bail Schedule Policy, have acted in the same unconstitutional manner with respect to all class members.
126. Plaintiffs seek declaratory and injunctive relief requiring adequate procedures and appointment of counsel before imposition of unaffordable secured bail. The relief sought is appropriate for the class as a whole.
CLAIMS FOR RELIEF Count One: Wealth-Based Imprisonment Fourteenth Amendment Due Process & Equal Protection Clauses
Against All Defendants 127. Plaintiffs incorporate allegations in the foregoing paragraphs. 128. Under the Bail Schedule Policy, Defendants lock Plaintiffs in jail because they are unable to pay secured bail set under a bail schedule, while releasing other, similarly-situated people who are able to pay. Galveston County’s wealth-based system of imprisonment locks poorer—and presumptively innocent—people in jail while allowing wealthier individuals accused of the same crimes to go free until trial. 129. Defendants set these unaffordable secured bail amounts without any inquiry into or findings concerning an arrestee’s ability to pay or the propriety of less restrictive, alternate means of achieving a compelling government interest, and without determining that detention is necessary notwithstanding an arrestee’s inability to pay. 130. Galveston County’s wealth-based Bail Schedule Policy violates Plaintiffs’ rights to equal protection and due process under the Fourteenth Amendment to the United States Constitution.
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Count Two: Procedural Due Process Fourteenth Amendment Due Process Clause Against Galveston County, Felony Judges, Misdemeanor Judges, and Magistrates 131. Plaintiffs incorporate allegations in the foregoing paragraphs. 132. Under the Bail Schedule Policy, Defendants set unaffordable secured bail under a bail schedule in magistrations lasting less than a minute for each person. Defendants then lock Plaintiffs in jail because Plaintiffs are unable to pay their bail. 133. These unaffordable bail amounts function as de facto pretrial detention orders. Defendants set these unaffordable bail amounts at magistration without advance notice of the rights at stake, appointment of defense counsel, the opportunity to present or contest evidence, or a written record of reasoned findings by clear and convincing evidence that secured bail in the amount set is the least restrictive means of achieving the a compelling government interest.
Count Three: Right to Counsel Sixth Amendment Right to Counsel Clause Against the Misdemeanor and Felony Judges 134. Plaintiffs incorporate allegations in the foregoing paragraphs. 135. Under the Bail Schedule Policy, Defendants set unaffordable secured bail in magistrations without defense counsel present. Defendants then lock Plaintiffs in jail because Plaintiffs are unable to pay their bail. 136. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel at each critical stage of the criminal process. Critical stages include all pretrial hearings that may prejudice the fairness of subsequent criminal proceedings.
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137. Bail-setting hearings have the power to severely prejudice the fairness of subsequent criminal proceedings. These hearings can settle the fate of the person accused and render subsequent proceedings a mere formality. Bail setting is a critical stage of prosecution, and the Sixth Amendment requires that arrestees have the benefit of counsel at such proceedings. By setting the Plaintiffs’ bail without first appointing defense counsel to represent and assist them, Defendants denied Plaintiffs their constitutional right to counsel and thereby materially prejudiced the fairness of their subsequent trials.
REQUEST FOR RELIEF Plaintiffs request that this Court issue the following relief:
1. An order certifying the class defined above; 2. An injunction against Galveston County requiring, as a precondition to
issuance of an unaffordable secured money bail order: a. A prompt hearing inquiring into ability to pay, and permitting the
arrestee to present and rebut evidence concerning flight risk or dangerousness, b. Appointment of defense counsel for the hearing, for anyone who cannot afford to retain counsel, c. Advance written notice of the critical questions in the hearing, d. Reasoned written findings of the arrestee’s ability to pay, and
e. Reasoned written findings, by clear and convincing evidence, that secured money bail in the amount set is the least restrictive means of achieving the government’s interest in mitigating the arrestee’s risk of flight or danger to the community.
3. A declaration against all Defendants that issuance of an unaffordable secured money bail order without meeting the above preconditions violates the Plaintiffs’ rights to equal protection and due process;
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4. A declaration against the Misdemeanor and Felony Judges that a bail hearing is a critical stage of prosecution for purposes of the Sixth Amendment right to counsel;
5. An order granting reasonable attorneys’ fees and costs under 42 U.S.C. § 1988; and
6. Any other relief this Court deems just and proper.

May 3, 2018

Respectfully Submitted, /s/ Trisha Trigilio
Trisha Trigilio (Attorney-in-Charge) Texas Bar No. 24065179 S.D. Tex. Bar No. 2461809 ttrigilio@aclutx.org Adriana Piñon Texas Bar No. 24089768 S.D. Tex. Bar. No. 1829959 apinon@aclutx.org Andre Segura, admitted pro hac vice Texas Bar No. 24107112 asegura@aclutx.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 1500 McGowen Street, Suite 250 Houston, Texas 77004 Tel: 713-942-8146 Fax: 713-942-8966

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Case 3:18-cv-00104 Document 31 Filed in TXSD on 05/04/18 Page 38 of 41
/s/ Kali Cohn Kali Cohn Texas Bar. No. 24092265 S.D. Tex. Bar No. 3053958 kcohn@aclutx.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TEXAS 6440 N. Central Expressway Dallas, TX 75206 Tel: 214-346-6575 Fax: 713-942-8966
/s/Brandon J. Buskey Brandon J. Buskey, admitted pro hac vice Alabama Bar Number: ASB-2753-A50B bbuskey@aclu.org AMERICAN CIVIL LIBERTIES UNION FOUNDATION CRIMINAL LAW REFORM PROJECT 125 Broad Street, 18th Floor New York, NY 10004 Tel: 212-284-7364 Fax: 212-549-2654
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/s/Christopher M. Odell Christopher M. Odell Texas Bar No. 24037205 S. D. Tex. Bar No. 33677 christopher.odell@arnoldporter.com Hannah Sibiski Texas Bar No. 24041373 S.D. Tex. Bar No. 559957 hannah.sibiski@arnoldporter.com Andrew D. Bergman Texas Bar No. 24101507 S.D. Tex. Bar No. 3169886 andrew.bergman@arnoldporter.com ARNOLD & PORTER KAYE SCHOLER LLP 700 Louisiana Street, Suite 4000 Houston, TX 77002-2755 Tel: 713-576-2400 Fax: 713-576-2499 Attorneys for Plaintiffs
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CERTIFICATE OF SERVICE
I affirm that Counsel for all defendants have been served with this document on the 3rd of May, 2018 in accordance with the Federal Rules of Civil Procedure by electronic mail after consenting to same, as follows:
Joseph M. Nixon AKERMAN LLP 1300 Post Oak Blvd., Suite 2300 Houston, TX 77056 joseph.nixon@akerman.com
Counsel for Defendant Galveston County
Leah O’Leary, Assistant Attorney General Christopher Lindsey, Assistant Attorney General Emily Landon, Assistant Attorney General Deputy Chief-Law Enforcement Defense Division STATE OF TEXAS P.O. Box 12548, Capitol Station Austin, TX 78711-2548 Leah.Oleary@oag.texas.gov Christopher.Lindsey@oag.texas.gov Emily.Landon@oag.texas.gov Melissa.Holmes@oag.texas.gov Phylicia.McClain@oag.texas.gov
Counsel for Defendants District Court Judges Hon. Lonnie Cox, Hon. Anne Darring, Hon. John Ellisor, Hon. Patricia Grady, Hon. Kerry Neves, and Hon. Michelle Slaughter
George W. Vie III Carla Cotropia MILLS SHIRLEY LLP 2228 Mechanic Street Suite 400 Galveston, Texas 77550 gvie@millsshirley.com
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ccotropia@millsshirley.com Counsel for Galveston County Court at Law Judges Hon. John Grady, Hon. Barbara Roberts, and Hon. Jack Ewing
Douglas W. Poole MCLEOD, ALEXANDER, POWEL & APFFEL 802 Rosenberg P.O. Box 629 Galveston, Texas 77553 dwpoole@mapalaw.com Counsel for Magistrate Judges Hon. Stephen W. Baker, Hon. Kerri Foley and Hon. James Woltz
Andrew Mytelka GREER, HERZ & ADAMS, LLP One Moody Plaza 18th Floor Galveston, TX 77550 AMytelka@greerherz.com Counsel for Galveston County District Attorney Hon. Jack Roady
/s/ Hannah Sibiski Hannah Sibiski
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 Case 3:18-cv-00104 Document 1 Filed in TXSD on 04/08/18 Page 1 of 37

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

Aaron Booth, on behalf of himself and all others similarly situated,
Plaintiff, v.
Galveston County;
Hon. Kerry L. Neves, Hon. Lonnie Cox, Hon. John Ellisor, Hon. Patricia Grady, Hon. Anne B. Darring, Hon. Michelle M. Slaughter,
Galveston County District Court Judges;
Hon. John Grady, Hon. Barbara Roberts, Hon. Jack Ewing,
Galveston County Court at Law Judges;
Hon. Mark Baker, Hon. Kerri Foley, Hon. James Woltz,
Galveston County Magistrates;
Hon. Jack Roady, Galveston County District Attorney,
Defendants.

Civil Action No. 18-cvClass Action

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COMPLAINT 1. Instead of administering equal justice in criminal cases, Galveston County locks the accused who cannot afford a payment in jail, while allowing those who can afford a payment to go free. The County sets these payment amounts without any meaningful hearing. The result is a jail filled with hundreds of people who are incarcerated simply because they are cannot afford to purchase their release. 2. Named Plaintiff Aaron Booth is currently imprisoned at the Galveston County Jail because he cannot afford to pay his bail. His bail amounts was set according to a fixed schedule. The County did not appoint him an attorney before his bail was set. No official has even asked whether he can afford his bail, and he will not have an opportunity to explain his inability to pay for days or weeks. Outside experts—including county-funded experts—have confirmed that this is standard operating procedure in Galveston County. 3. Being incarcerated for days or weeks is a dramatic deprivation of liberty. The consequences extend beyond the harm of jail time itself. A person who is detained for even a few days may lose income or even employment from missing work; she may miss rent payments and get evicted; she may miss school; she may even lose custody of her children because of her inability to arrange for child care. 4. Because of the substantial and well-recognized liberty interests at stake, federal courts have not hesitated to enjoin strikingly similar bail practices in Texas and elsewhere in the United States. The County’s practices in this case violate the Plaintiff’s
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substantive and procedural due process rights, infringe Equal Protection guarantees, and undermine the constitutional right to counsel.
5. Galveston County policymakers have refused to correct these practices despite considerable public pressure. In the absence of injunctive relief, the County will continue locking away hundreds of people because they cannot make a payment, and depriving them of any meaningful way to seek release.
6. The named Plaintiff brings this action for injunctive relief on behalf of himself and all similarly situated people imprisoned in Galveston County Jail.
JURISDICTION AND VENUE 7. This is a civil rights action arising under 42 U.S.C. § 1983 and the Sixth and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction under 28 U.S.C. § 1331 (federal question jurisdiction) and § 1343 (civil rights jurisdiction). 8. Venue in this district is proper under 28 U.S.C. § 1391(b)(1), because Galveston County is located in this district, and under § 1391(b)(2), because a substantial part of the events giving rise to the Plaintiff’s claims occurred in this district.
PARTIES 9. Plaintiff Aaron Booth is currently imprisoned at Galveston County Jail solely because he cannot afford to pay his bail. He also cannot afford to retain private counsel.
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10. Defendant Galveston County is a county organized under the laws of the State of Texas. The Galveston County Commissioners’ Court is the final County policymaker for funding and operating a personal bond office.
11. Felony Judges. Defendants Kerry L. Neves, Lonnie Cox, John Ellisor, Patricia Grady, Anne B. Darring, and Michelle M. Slaughter are District Judges in Galveston County (“Felony Judges”). They vote en banc as an administrative body to pass local rules of administration for felony cases in Galveston County. Lonnie Cox is the Local Administrative District Judge for Galveston County. In areas where the Felony Judges fail to promulgate rules, he is the final Galveston County policymaker for postarrest procedures in Galveston County. He is also the final Galveston County policymaker for enforcing local rules of administration for felony cases. The Felony Judges are sued in their individual and official capacities for declaratory and injunctive relief.
12. Misdemeanor Judges. Defendants John Grady, Barbara Roberts, and Jack Ewing are County Court at Law Judges in Galveston County (“Misdemeanor Judges”). They vote en banc as an administrative body to pass local rules of administration for felony cases in Galveston County. Jack Ewing is the Local Administrative Statutory County Court Judge for Galveston County. In areas where the Misdemeanor Judges fail to promulgate rules, he is the final Galveston County policymaker for post-arrest procedures in Galveston County. He is also the final Galveston County policymaker for enforcing local rules of administration for misdemeanor cases. The Misdemeanor Judges are sued in their individual and official capacities for declaratory and injunctive relief.
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13. Magistrates. Defendants Mark Baker, Kerri Foley, and James Woltz are Magistrates in Galveston County. They carry out Felony and Misdemeanor Judges’ pretrial release procedures at the first proceeding after booking into Galveston County Jail, commonly referred to as magistration. They are sued in their individual and official capacities for declaratory relief only.
14. District Attorney. Defendant Jack Roady is the Galveston County District Attorney. He is the final Galveston County policymaker for bail-setting policies that govern his prosecutors. He is sued in his official capacity for declaratory and injunctive relief.
FACTS I. Galveston County Jailed the Named Plaintiff Solely Because He Could Not
Afford a Payment 15. Plaintiff Aaron Booth is a thirty-six-year-old man who lives in Galveston County. He and his mother live near the poverty line. Aaron was arrested on April 8, 2018, for a felony drug possession charge. 16. Aaron’s arresting officer consulted with a prosecutor who set his bail at $20,000, the minimum amount permitted under Galveston County’s felony bail schedule. The felony bail schedule is a predetermined list of minimum bail amounts that correspond to different felony charges. The officer booked Aaron into Galveston County Jail in the early morning hours of April 8, 2018. 17. Aaron saw a magistrate who automatically adopted his bail amount the morning of April 8, 2018. The magistrate did not ask about his ability to pay the $20,000
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bail set under the minimum bail schedule. The magistrate did not ask about any facts or make any findings concerning whether Aaron is a flight risk or a danger to the community.
18. Aaron asked the magistrate for a court-appointed attorney, and completed a “pauper’s oath” form to demonstrate that he is too poor to hire his own attorney. The County has not yet appointed an attorney to represent him.
19. Aaron remains locked in jail because he cannot afford his bail. II. Galveston County Jails People Who Cannot Afford a Payment While
Allowing People Who Are Similar, But Wealthier, to Go Free 20. It is Galveston County policy to set secured bail according to a bail schedule. “Secured bail” is an order to pay a bail amount in full up front, as a condition of release from jail.1 By contrast, “unsecured bail” or “personal bond” is a promise to pay the bail amount later, if you fail to appear in court. 21. It is Galveston County policy to impose secured bail under a minimum bail schedule without any inquiry into ability to pay bail, and the potential flight risk or danger posed by each individual person. This policy applies in both misdemeanor and felony cases: wealthier people can purchase their release, while similarly situated, but less wealthy people accused of the same crimes are locked in jail. The practices that comprise this Bail Schedule Policy are detailed below.
1 Generic references to “bail” throughout the complaint mean “secured bail” unless otherwise specified.
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A. Arresting Officers Set Bail Amounts Under a Minimum Bail Schedule Without Asking About Ability to Pay
22. In order to book anyone into Galveston County Jail, the arresting officer must complete a preprinted bail order for the Magistrate to sign. It is written County policy to refuse to accept a person into the jail unless the arresting officer completes a preprinted bail order listing each of that person’s charges and a bail amount for each charge.
23. To set a bail amount for felony charges, the arresting officer calls the Galveston County prosecutor on duty. The officer describes the allegations and the duty prosecutor makes a charging decision. If the duty prosecutor decides to file charges, the District Attorney requires the duty prosecutor to set bail on each charge by referring to the felony bail schedule. The felony bail schedule specifies that it is a “minimum schedule”: the District Attorney’s policy permits the duty prosecutor to set bail amounts that deviate upward from this schedule, but not down. The arresting officer lists the bail amounts set by the duty prosecutor on the arrestee’s preprinted bail order. Throughout this process, neither the arresting officer nor the duty prosecutor makes any inquiry into whether the person arrested can afford the bail amount set.
24. To set bail for misdemeanor charges, the arresting officer simply sets bail according to a predetermined misdemeanor bail schedule. There is no pre-booking prosecutorial screening for misdemeanor charges. The arresting officer makes no inquiry into whether the person arrested can afford the bail amounts listed in the schedule.
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25. After completing a preprinted bail order with bail amounts for each charge, the arresting officer books the person arrested into the Galveston County Jail.
B. Magistrates Automatically Adopt Bail Determinations at a Process Called “Magistration,” Without Inquiry Into Ability to Pay
26. A Galveston County Magistrate conducts a proceeding at the jail every morning around 8:00 AM for all people who were booked into the jail in the last 24 hours, regardless of their charge. This proceeding is referred to as “magistration.”
27. The County does not interview arrestees, or otherwise determine their ability to afford bail, before magistration. Although the County has established a personal bond office, the office does no more than inform magistrates whether or not Texas law permits release of each arrestee on personal bond. The personal bond office does not make any recommendations about whether or not to release arrestees on personal bond.
28. To conduct magistration, Sheriff’s deputies bring people who have been arrested, mostly clad in jail-issued jumpsuits, into a cinder-block room at the jail with rows of bare metal benches. Typically, about twenty people are brought into the room and magistrated simultaneously. The Magistrates stand in another room, visible to the arrestees through a plexiglass window, and conduct the proceeding.
29. Before bringing arrestees into magistration, Sheriff’s deputies instruct the arrestees to be quiet and speak only when they are spoken to.
30. County officials have used the threat of higher bail to deter people from speaking. For example, during a recent magistration when someone commented on
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investigation by the ACLU of Texas, a Sheriff’s deputy raised his voice and warned the man that the Magistrate might raise his bail if the man kept upsetting the Magistrate.
31. The Magistrates themselves also make it clear that people are not welcome to speak other than to answer questions with a “yes” or “no.” Unsurprisingly, few do. On the rare occasion when someone does ask a question, it is common for the Magistrates to raise their voices in frustration. The Magistrates also frequently respond to questions by stating that they cannot give “legal advice,” and the question is best answered by an attorney. But there are no defense attorneys appointed for these proceedings.
32. The Magistrates begin proceedings by stating “I’m going to give you your magistrate warning and read you your rights.”
33. The Magistrates then read each person’s name, the charges against them, and the bail amount the arresting officer wrote on their preprinted bail order.
34. Finally, the Magistrates read a list of rights as required by the Texas Code of Criminal Procedure—none of which concern pretrial release.
35. The presiding Magistrate and a clerk then call people forward to answer three yes-or-no questions: Are you a United States citizen? Have you served in the armed forces? Are you out on bail for another offense? The presiding Magistrate and the clerk call people forward simultaneously and record their answers. The arrestees called forward by the clerk do not ever speak to a Magistrate.
36. After these three questions, the proceeding is over. The Magistrates automatically adopt the preprinted bail amount.
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37. Magistration typically takes less than sixty seconds for each person, consisting solely of the foregoing three questions. The Magistrates do not allow argument to revisit the preprinted bail amount, nor as a matter of practice do they revisit bail sua sponte. The Magistrates do not ask questions about ability to pay bail, the potential flight risk or danger posed by each individual person, or the availability of less restrictive conditions of pretrial release. There is simply no individualized determination of appropriate bail amounts.
38. After magistration ends, the presiding Magistrate or the clerk hands a form to anyone who requests appointed counsel. The form is called a “pauper’s oath.” The Magistrates instruct people to complete the form to demonstrate their inability to pay for a lawyer and request appointed counsel.
39. Most people request appointed counsel. 57.1% of people arrested for misdemeanors and 67.9% of people arrested for felonies complete a pauper’s oath.
40. Despite the strong implication that many people who complete a pauper’s oath also cannot afford their bail, the Magistrates do not reconsider bail amounts set under the bail schedule. In fact, the Magistrates and their clerks typically leave the room before each person has completed their pauper’s oath.
41. The Magistrates have the authority to grant personal bond, which is release based on a promise to pay bail if the arrestee later fails to appear in court, but the Magistrates refuse to grant personal bond in the majority of cases. The Magistrates do not ask any questions about ability to pay bail, or the potential flight risk or danger posed by each individual person, before deciding whether to grant personal bond. Instead, they
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refer at the outset of Magistration only to those arrestees who are eligible for a personal bond as “eligible for pretrial release.” The implication is that people who are not released on personal bond will not be released at all, because they likely cannot afford their bail under the bail schedule.
42. Neither the Judges, nor the Magistrates, or the District Attorney requires the attendance of prosecutors, who are ethically obligated to protect people who are innocent until proven guilty, cooperate with pretrial release arrangements, avoid illegitimate delay, and above all ensure that defendants’ rights are protected.2
43. People who cannot afford to purchase their freedom—more than a quarter of people arrested for misdemeanors, and more than half of people arrested for felonies— remain imprisoned at Galveston County Jail.
C. People Who Cannot Pay for Their Release Are Imprisoned for More Than a Week Before a Judge Will Consider Lowering Bail
44. After magistration, Galveston County arrestees wait in jail for more than a week, often much longer, before holding a meaningful bail hearing.
45. Sitting in jail for more than a week is an inherently harmful deprivation of liberty. And beyond the jail time itself, a person who is detained for even a few days can face serious collateral consequences. She may lose income from missing work or even
2 See ABA Prosecution Function Standard 3-1.2(b) (“The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”); Standard 3-2.9(b) (“A prosecutor should not intentionally use procedural devices for delay for which there is no legitimate basis.”); Standard 33.10 (“The prosecutor should cooperate in good faith in arrangements for release under the prevailing system for pretrial release.”).
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get fired altogether. She may miss rent payments and get evicted. She may suffer setbacks in an educational program. She may even lose custody of her children because of her inability to arrange for child care. For example, Plaintiff Aaron Booth is concerned about losing his new job and missing child support payments because he is incarcerated.
46. Rather than face an extended delay before a bail hearing, many people charged with low-level crimes plead guilty rather than spending weeks sitting in jail in order to assert their innocence.
1. Misdemeanor Judges Require “Jail Docket” Appearances for the Sole Purpose of Eliciting Guilty Pleas
47. Once a day, generally five hours after their magistration, the misdemeanor arrestees who cannot afford to pay their bail are brought to the “jail docket,” conducted by a Misdemeanor Judge.3 The Judge presiding over the jail docket does not consider lowering bail or release on personal bond. The sole purpose of the proceeding is to elicit a guilty plea.
48. Jail docket takes place in the jail in the same room as magistration. The Misdemeanor Judges assign two defense attorneys who attempt to represent everyone on the jail docket over the course of a week, typically about ten people per day.
49. The attorneys meet with each of their new clients shortly before the proceeding to communicate the prosecution’s plea offer. These attorney/client meetings
3 There is no jail docket on weekends—misdemeanor arrestees magistrated on Saturdays and Sundays are brought to jail docket on Monday afternoon.
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take place in a hallway area outside the magistration room, where conversations are audible to other defendants and jail staff.
50. An arrestee who rejects the prosecution’s offer is reset for another appearance by court staff. Arrestees do not actually appear before the judge unless they agree to plead guilty. Those who maintain their innocence are ordered back to their cells.
51. The Misdemeanor Judge does not begin proceedings until after plea negotiations have concluded. When the Misdemeanor Judge begins proceedings, she is not physically present at the jail. She appears on a television monitor in the magistration room to accept guilty pleas.
52. Guilty pleas are the only matter the jail docket judge will consider. The jail docket judge and court staff make it clear that defense attorneys should not bother raising other matters, including reconsideration of an arrestee’s bail.
53. Prosecutors appear at the jail docket, but they take no action to raise the possibility of personal bond or affordable bail for arrestees who, in virtue of their appearance at jail docket, plainly cannot afford the bail set under the misdemeanor bail schedule.
54. For people who are steadfast enough to maintain their innocence, Misdemeanor Judges maintain policies that require arrestees to wait about a week after jail docket before their first status conference before the judge assigned to their case.
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2. Felony Judges Require People to Wait Weeks for Their First Appearance
55. People charged with felonies do not appear on a “jail docket.” However, their first appearance before the Felony Judge assigned to their case is for the sole purpose of appointing defense counsel and eliciting guilty pleas. This first appearance typically takes days after arrest, or in some cases, more than a month.
56. The Felony Judges have not set any rules governing how quickly a case must be set for a first appearance.
57. Thus, whether someone faces misdemeanor or felony charges, the Judges force them to wait in jail for a few days, at a minimum, before their scheduling their first appearance before the judge assigned to their case.
3. Judges Refuse to Expedite Hearings on Bail Reduction Motions 58. Judges do not appoint defense counsel immediately upon magistration. The appointment process typically takes two to four days, and sometimes longer, in felony cases. 59. But regardless of when the Judges appoint defense counsel, the Misdemeanor and Felony Judges enforce procedures that prevent a defense attorney from securing a prompt and meaningful bail reduction hearing for her client. 60. Texas law permits defense attorneys to make a written or oral motion for bail reduction. But even if a defense attorney tried to get her client out as expeditiously as possible by filing a written motion on the same day she was appointed, both Misdemeanor and Felony Judges refuse to schedule prompt hearings on bail reduction
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applications. Judges instead delay hearing bail reduction applications for at least a week, but most often two to three weeks, after the written application is filed.
61. Because the Judges do not schedule prompt bail reduction hearings as a matter of practice, even arrestees represented by the most zealous and well-resourced defense counsel face a week or more of wealth-based detention under a bail schedule. III. Galveston County’s Bail Schedule Policy Violates Plaintiff’s Constitutional
Rights 62. Galveston County’s pretrial detention practices described above constitute the Bail Schedule Policy. Under this policy, the County jails the vast majority of people booked into Galveston County Jail for more than a week unless they plead guilty or pay the secured bail listed in the applicable bail schedule. Of course, every one of these people is presumed to be innocent. A. The Bail Schedule Policy Unjustifiably Treats Poorer People
Differently 63. Galveston County keeps anyone who cannot afford a predetermined payment locked in jail, while allowing similarly situated people who can afford that payment to go free. The County jails people under a bail schedule without any inquiry into ability to pay or consideration of less restrictive alternatives. 64. The County lacks any legitimate justification for refusing to release people who cannot make a payment. Research shows, and a federal court in neighboring Harris
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County recently found, that secured bail is no more effective at securing court appearances than personal bond.4
65. As for public safety, secured bail is demonstrably harmful. Requiring
people to pay for their release means that people with low incomes spend more time in
jail. And after just brief periods of detention, each additional day a person spends locked in jail increases the likelihood that she will be rearrested after she is released.5
66. More fundamentally, people who are rearrested or commit a new crime
don’t lose their bail money. Texas law does not permit courts to keep an arrestee’s bail
money because she is rearrested or charged with a new crime. In fact, getting rearrested is
a defense to bail forfeiture. Paying bail does not even give an arrestee a theoretical
incentive to avoid committing a new crime or getting rearrested.
67. The use of secured bail has a severely disparate impact on Black and Latino
arrestees. African-Americans are five times more likely to be detained than their white
4 ODonnell v. Harris Cnty., 882 F.3d 528, 545 (5th Cir. 2018) (upholding the district court’s “thorough review of empirical data and studies [finding] that the County had failed to establish any ‘link between financial conditions of release and appearance at trial or law-abiding behavior before trial.’”). E.g., Arpit Gupta, Christopher Hansman, & Ethan Frenchman, The Heavy Costs of High Bail: Evidence from Judge Randomization 21 (May 2, 2016) (“Our results suggest that money bail has a negligible effect or, if anything, increases failures to appear.”); Michael R. Jones, Unsecured Bonds: The As Effective and Most Efficient Pretrial Release Option 11 (October 2013) (“Whether released defendants are higher or lower risk or in-between, unsecured bonds offer the same likelihood of court appearance as do secured bonds.”). 5 Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711, 762 (2017) (“by one month after the hearing the average number of new charges for detainees has exceeded that of their similarly situated counterparts who were released. To the extent that the rich set of controls allows one to construe these differences as causal, they suggest that pretrial detention has a greater criminogenic than deterrent effect.”); Christopher T. Lowenkamp, Marie VanNostrand & Alexander Holsinger, The Hidden Costs of Pretrial Detention 19–20 (November 2013) (“Defendants detained pretrial were 1.3 times more likely to recidivate compared to defendants who were released at some point pending trial.”).
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counterparts, and three times more likely to be detained than their Latino counterparts.6 African-Americans and Latinos are more likely than whites to be detained because they cannot afford their bail.7 People who cannot afford to pay for their release— disproportionately African-American and Latinos—are significantly more likely to abandon valid defenses and plead guilty just to get out of jail. They are also more likely to receive longer jail sentences.
68. An audit by the Texas Indigent Defense Commission showed that, in Galveston County, misdemeanor arrestees who can afford to pay bail and fight their cases from the outside are six times likelier to have their charges fully dismissed.8 Felony cases show similar patterns in case outcomes: for example, a felony arrestee who cannot afford to pay bail is four times likelier to be sentenced to more than a year in prison, and is half as likely to be sentenced to probation or deferred adjudication.9
69. Galveston County has other, more effective and less harmful, release conditions available. Recognizing the limitations and dangers of secured bail, other jurisdictions rely on alternative measures to ensure that people show up for court. The simplest of these measures is a personal bond, which means a person is released in
6 See, e.g., Bail Fail: Why the U.S. Should End the Practice of Using Money for Bail, Justice Policy Inst. 15 (2012). 7 See Stephen Demuth, Racial and Ethnic Differences in Pretrial Release Decisions and Outcomes: A Comparison of Hispanic, Black and White Felony Arrestees, 41 Criminology 873, 899 n. 89 (2003). 8 Texas Indigent Defense Commission, Limited Scope Policy Monitoring Review: Galveston County 22– 23 (June 2017). 9 Id. at 25–26.
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exchange for her promise to pay money if she actually fails to appear in court. Personal bond is equally as effective at securing court appearances as secured bail.10
70. Other alternatives range from simple interventions to help people appear in court,11 such as reminders of court dates and transportation to court, to more intensive supervision,12 such as required reporting or electronic monitoring. The key to effective implementation of these alternatives is to tailor conditions of release or detention according to the needs of each individual.
71. This approach works. For example, Washington, D.C., has relied heavily on alternatives to prepaid bail for more than twenty years. They enjoy a reappearance rate of 90%, with no rearrest for violent crime for over 98% of people. The cost of release is approximately $18 per person per day (at Washington, D.C., salary rates), compared with the cost of approximately $59 per person per day to lock someone in Galveston County Jail.
72. Galveston County does not consider any of these alternatives. Instead, the County chooses to jail thousands of people on the basis of their relative wealth, without
10 ODonnell, 882 F.3d at 545 (upholding the district court’s “thorough review of empirical data and studies [finding] that the County had failed to establish any ‘link between financial conditions of release and appearance at trial or law-abiding behavior before trial.’”). E.g., Gupta, Hansman, & Frenchman at 21 (“Our results suggest that money bail has a negligible effect or, if anything, increases failures to appear.”); Jones at 11 (“Whether released defendants are higher or lower risk or in-between, unsecured bonds offer the same likelihood of court appearance as do secured bonds.”). 11 E.g., Brice Cooke et al., Using Behavioral Science to Improve Criminal Justice Outcomes: Preventing Failures to Appear in Court 15–18 (Jan. 2018). 12 E.g., Christopher Lowenkamp & Marie VanNostrand, Exploring the Impact of Supervision on Pretrial Outcomes 17 (Nov. 2013).
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offering them an individualized hearing about their ability to pay bail and without consideration of less restrictive alternatives to pretrial detention.
B. The Bail Schedule Policy Deprives People of Liberty Without Adequate Procedural Protections
73. The Bail Schedule Policy also violates procedural due process by depriving people of their liberty without adequate procedural protections.
74. As described above, bail is initially set ex-parte, either by the arresting officer for misdemeanor arrestees, or by the duty prosecutor for felony arrestees. At magistration, the County deprives arrestees of advance notice of the basis for the predetermined bail amount, and an opportunity to be heard on why the Magistrate should lower bail or grant personal bond.
75. The County does not admit any attorneys to magistration. The proceedings take place in the absence of a prosecutor to present the Magistrates with individualized evidence demonstrating flight risk or dangerousness (despite the prosecutors’ ethical obligations noted above), or a defense attorney to argue that the prosecution has failed to meet its burden.
76. Instead of holding a meaningful hearing, Magistrates automatically adopt bail amounts that keep less-wealthy arrestees behind bars. Magistrates issues these de facto pretrial detention orders without satisfying the heightened procedural requirements for a pretrial detention order: a counseled hearing where the arrestee can present and rebut evidence concerning flight risk or danger; advance notice of the hearing; and individualized, reasoned findings, by clear and convincing evidence, that no other
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condition or combination of conditions of release could address the arrestee’s risk of flight or danger.
77. After magistration, people are jailed under the bail schedule for more than a week—often much more than a week—before the County offers a bail hearing with any of the required procedural protections. County policymakers could mandate constitutionally adequate pretrial detention proceedings consistent with Texas law, but instead, they have chosen a pretrial detention system based on wealth.
C. Galveston County’s Bail Schedule Policy Deprives People of Defense Counsel at a Critical Stage of Prosecution
78. Refusing to conduct a procedurally proper bail hearing before ordering pretrial detention, and denying counsel for such a bail hearing, have a devastating effect on the fairness of plea bargaining and trial. The outcome of magistration—pretrial detention or release—has the power to settle the fate of the person accused and render subsequent proceedings a mere formality.
79. If the Magistrate orders pretrial detention, the person accused is likelier to abandon a valid defense and plead guilty in order to get out of jail. People stuck in jail are likelier to plead guilty, not based on the merits of their cases, but instead to avoid interruptions in housing, employment, education, and child care. Convictions based on these coerced guilty pleas are inherently unreliable. By the time counsel can secure a meaningful bail hearing (at least a week and often much longer), the accused will have been detained long enough to coerce a guilty plea.
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80. If the Magistrate orders pretrial detention, the person accused is less able to help her attorney gather evidence and mount a defense. The person accused can do little to help her attorney prepare a bail reduction application or motion to dismiss from jail. In addition, critical evidence (including witness memory) may fade or disappear during the weeks immediately following arrest, when the person accused is detained and less able to assist with investigation.
81. For these reasons, controlling for other factors, pretrial detention is the single greatest predictor of a conviction and a sentence to jail or prison time.13
82. Galveston County data are consistent with this finding. Misdemeanor arrestees who can afford to pay bail and fight their cases from the outside are six times likelier to have their charges fully dismissed. Felony arrestees who are released pretrial are nearly twice as likely to receive probation or deferred adjudication as their counterparts who are detained.14
83. Conducting a procedurally proper bail hearing before detaining an arrestee, and appointing defense counsel for the bail hearing, is necessary to avoid this prejudice and protect the fairness of criminal proceedings in Galveston County. Appointment of a
13 See Christopher T. Lowenkamp, Marie VanNostrand & Alexander Holsinger, Investigating the Impact of Pretrial Detention on Sentencing Outcomes 10–11 (2013) (finding that people detained until case disposition are 4.44 times more likely to be sentenced to jail and 3.32 times more likely to be sentenced to prison); Mary T. Philips, New York City Crim. Justice Agency, Inc., Pretrial Detention and Case Outcomes, Part 1: Nonfelony Cases 25–29 (2007) (finding conviction rate jumps from 50% for people released immediately pretrial, to 92% for people detained until case disposition). 14 Texas Indigent Defense Commission, Limited Scope Policy Monitoring Review: Galveston County 22– 26 (June 2017).
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defense attorney more than doubles the chance that a judge will release the accused on her own recognizance. In cases where judges do choose to order bail, appointment of a defense attorney can more than double the chance that the judge would lower the bail amount to an affordable amount.15
84. Denying counsel at magistration causes substantial prejudice to the fairness of criminal proceedings in Galveston County. IV. Galveston County is Liable for the Bail Schedule Policy
85. Galveston County is liable for the Bail Schedule Policy. County policymakers know about—and share responsibility for creating and maintaining—the Bail Schedule Policy. Galveston County officials also have the power to correct the Bail Schedule Policy, yet have failed to do so.
86. The Misdemeanor Judges, the Felony Judges, the District Attorney, and the Commissioners’ Court are all Galveston County policymakers who know about and perpetuate the Bail Schedule Policy.
87. The District Attorney has issued formal written instructions to prosecutors to “use the following revised bond schedule when you are called on for bond recommendations,” specifying that “this is a minimum schedule and may be increased.” The Judges and the Commissioners’ Court know about these instructions. The District Attorney also affirmatively moved to expand a list of blanket “Reasons for Rejection” for
15 Douglas L. Colbert et al., Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 Cardozo L. Rev. 1719, 1720 (2002).
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personal bond, also referred to as a list of “non-bailable offenses.” (The list has since been rescinded by the Commissioners’ Court). The District Attorney is well aware that, for people who are denied personal bond, the minimum bail schedules function as de facto orders of pretrial detention for those who cannot afford the required amounts.
88. The Commissioners’ Court has established a personal bond office as authorized by state law, but has instructed the employees of that office to refrain from making individualized pretrial release recommendations to Magistrates. The personal bond office does not interview arrestees or offer meaningful interventions to facilitate appearances in court for people who are released.
89. The Misdemeanor Judges, the Felony Judges, the District Attorney, and the Commissioners’ Court know that the Magistrates have a widespread, well-settled practice of automatically adopting bail amounts set by prosecutors and arresting officers under the minimum bail schedules. They know that these bail amounts are set without any inquiry into ability to pay or consideration of less restrictive alternatives, without adequate procedural protections, and without appointment of counsel. And they also know that the bail amounts result in pretrial detention of people who are too poor to pay.
90. The Bail Schedule Policy is imposed frequently, flagrantly, and routinely. It results in severe and obvious constitutional violations, to which, as explained below, the Judges’, the District Attorney’s, and the Commissioners’ Court’s attention has been called, and which have been the subject of considerable public debate.
91. Prosecutors and arresting officers set secured bail amounts under the minimum bail schedules, and magistrates automatically adopt these bail amounts, without
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any individualized determination of ability to pay or the need for particular conditions of
release, in dozens of cases every week.
92. Magistrates issue these orders openly, by reading a script and signing
preprinted bail orders, in proceedings that last less than a minute, without any inquiry into
ability to pay, flight risk, or dangerousness. These proceedings are broadcast into the
lobby of the jail every single day.
93. The Judges, the District Attorney, and the Commissioners’ Court have
received formal reports from the Texas Indigent Defense Commission and the Council on
State Governments detailing the Bail Schedule Policy.
94. The reports conclude that:
a. Magistrates do not set individualized bail amounts, and instead set bail based on a bail schedule.
b. Magistrates set bail under the bail schedule without any individualized inquiry into ability to pay, flight risk, or danger.
c. Magistrates do not make bail decisions from a presumption of release on recognizance or personal bond.
d. Neither the Magistrates nor the Judges have implemented any meaningful alternatives to pretrial detention, other than trying to collect money from people who are released.
e. No County official has electronically aggregated data on rates of failure to appear in court, prohibiting the County from tailoring pretrial release practices to evidence of failure to appear.
f. The proportion of people locked in Galveston County Jail awaiting trial (71%) is a much higher proportion than in similar counties.
g. There is no jail diversion program or pre-booking screening for people charged with misdemeanors, meaning that everyone charged with a Class A or B misdemeanor is arrested and booked into jail. 24

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Nearly half of all misdemeanor charges are dismissed upon review by the prosecutor. This outcome persists because County policymakers rejected a 2016 proposal from an outside contractor that would have implemented pre-booking screening for misdemeanors and eliminated approximately 1,850 misdemeanor jail bookings per year. Chacour Koop, Galveston County Contemplates Idea to cut Costs in Criminal Justice System, Galveston County Daily News (Feb. 4, 2016), http://www.galvnews.com/news/article_35cacafe-6806-5398-a9ac0ead7b0d221c.html (describing rejected proposal that would “strengthen cases against the guilty and keep innocent people out of jail”).
h. The average length of stay in Galveston County Jail has been trending upward, increasing by 27% in 2016 and costing the County an additional $7.3 million in jail costs. The Sheriff’s budget has also increased at a rate that significantly outpaces increases to the overall County budget, and now consumes about 30% of the overall County budget.
95. The Judges, the District Attorney, and the Commissioners’ Court have also
received written correspondence from the ACLU of Texas detailing substantially similar
findings about the Bail Schedule Policy.
96. The Judges and the Commissioners’ Court received an earlier audit from
the consulting firm Griffith, Mosely, Johnson & Associates in 2014, summarizing
interviews with over 65 stakeholders in the justice system and analyzing ways to
modernize the County’s justice system and reduce the jail population. Though the
Commissioners’ Court declined to release that audit to the public, Defendant Judge Cox
suggested in an opinion piece that the audit described the County’s bail practices in great
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detail, suggesting solutions such as remote bonding and nonfinancial conditions of
release for people charged with minor crimes.16
97. There has been significant public discussion about Galveston’s Bail
Schedule Policy. For over three years, local news outlets have repeatedly reported that a
significant number of people locked in Galveston County Jail are there only because they
cannot afford to pay for their release.17
98. The Judges, the District Attorney, and members of the Commissioners’
Court themselves are quoted in many of these articles. In fact, in one recent article,
Defendant Judge Cox was quoted as saying that the “standard bond amounts have not
16 See Lonnie Cox, Commissioners Continue Meddling and Wasting Taxpayer Money, Galveston County Daily News (Feb. 28, 2017), http://www.galvnews.com/opinion/guest_columns/article_9e1ed632-e26c532b-87b1-fac70e887102.html. 17 See, e.g., Marissa Barnett, County Returns to Jail Reforms With New To-Do List, Galveston County Daily News (Oct. 3, 2017), http://www.galvnews.com/news/article_bfdd5ccc-2af9-5e4b-857e872287400a5b.html (describing bail schedule investigation as “one of the latest pieces in a yearslong discussion among officials about the county’s criminal justice system, particularly the system for assigning bail bond and other pretrial practices”); Laura Elder, Justice Isn’t Just for Those Who Can Afford It, Galveston County Daily News (Dec. 2, 2017), http://www.galvnews.com/opinion/editorials/article_83e4545c-c966-5fec-bb98-64f139a56ba2.html (“Judges need enough discretion to keep truly dangerous people locked up, but those decisions should be made on factors other than the accused’s ability to raise money . . . .”); Marissa Barnett, Myriad Factors Blamed for County Jail Crowding, Galveston County Daily News (Jan. 14, 2017), http://www.galvnews.com/news/article_f7bfaf7a-081a-58c5-bf52-28d1cf71a298.html (“Local defense attorneys and civil rights groups, along with some inmates’ relatives, largely attribute the crowding to a requirement that inmates post monetary bonds for release.”); Meagan Flynn, In Galveston County, Even Personal Bonds Keep Defendants in Jail, Houston Press (Nov. 22, 2016), http://www.houstonpress.com/news/ingalvestoncountyevenpersonalbondskeepdefendantsinjail8966521 (quoting former County Commissioner Ryan Dennard: “We’re currently going through some heightened incarceration rates that are not based upon anything other than internal management, in terms of how folks in the justice system are administering the bail process.”); Erin Heffernan, As Pretrial Jail Population Grows, County Officials Act, Galveston County Daily News (Mar. 9, 2015), http://www.galvnews.com/news/article_1e44ff44-c61b-11e4-9e8f-3f6d4e542c2d.html (“To qualify [for personal bond], defendants must prove they are low-risk by providing proof of things such as employment, a permanent residence and community support.”).
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changed in pretty close to 20 years.” Barnett, Myriad Factors Blamed for County Jail Crowding.
99. In response to this public debate, the Commissioners’ Court issued a resolution promising a minimum of $2 million to modernize the County’s pretrial release system, and calling for a prompt end to pretrial detention for people charged with misdemeanors and state jail felonies. Though the Commissioners’ Court has not actually budgeted or spent this money, the County appears to have resources available to end unnecessary wealth-based detention.
100. The Misdemeanor and Felony Judges could act to correct the Bail Schedule Policy. They have the authority to set policy for magistration procedures and pretrial release. They have repeatedly exercised this authority by voting, en banc as an administrative body, to issue standing orders governing magistration procedures and pretrial release. But the Judges have not taken any action to require individualized bail hearings in Galveston County.
101. The Local Administrative Judges, who are elected to set administrative policies for Galveston County courts, could unilaterally correct the Bail Schedule Policy. They have the administrative authority to promulgate local rules of administration where the other judges fail to do so, supervise cases to ensure timely settings in court, set the hours and places for holding court, and supervise the performance of nonjudicial personnel. The Local Administrative Judges have repeatedly exercised this authority by issuing standing administrative orders to set County policy, including policies concerning post-arrest practices at Galveston County Jail. But the Local Administrative Judges have
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not issued administrative orders requiring, or even facilitating, individualized bail hearings in Galveston County.
102. The District Attorney could also correct the Bail Schedule Policy. He has the authority to rescind the felony bail schedule and instruct prosecutors to stop setting minimum bail amounts, which, the District Attorney knows, are later automatically adopted by Magistrates and transformed into de facto pretrial detention orders for those who cannot afford the required amounts. But the District Attorney has not taken any action to attend magistrations, rescind the bail schedule, or otherwise stop prosecutors from recommending minimum bail amounts.
103. The Commissioners’ Court could correct the Bail Schedule Policy. The Commissioners’ Court has the authority under state law to hire staff for the personal bond office and instruct them to interview arrestees; produce informed, individualized pretrial release recommendations; provide Magistrates with those recommendations to facilitate individualized pretrial release decisions; and make themselves available for pretrial interventions and supervision to facilitate pretrial release. But the Commissioners’ Court has not funded, staffed, or instructed the personal bond office to do so.
CLASS ACTION ALLEGATIONS 104. Plaintiff seeks injunctive relief, on behalf of himself and all others similarly situated, under Rule 23(b)(2) of the Federal Rules of Civil Procedure. Plaintiff seeks to represent the class of all people who are or will be detained in Galveston County Jail because they are unable to pay secured bail set at magistration.
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I. It is Impracticable to Join Every Member of the Class, Which Numbers Well Over 100 People 105. Galveston County operates one of the largest jails in the State of Texas,
with capacity to lock up more than 1,000 people. Typically, more than 700 of these people are pretrial detainees who have not been convicted of a crime. The vast majority of pretrial detainees are jailed because they cannot afford bail set at magistration. As a result, the number of current and future arrestees subjected to Galveston County’s Bail Schedule Policy easily numbers in the thousands.
106. The population of people detained pretrial is constantly changing. Approximately 20 people are booked into jail and magistrated every day.
107. Joinder is impracticable because the class is both too numerous and too fluid for the Court to feasibly hear their independent claims.
108. Joinder is also impracticable because the members of the class are too poor to hire lawyers to bring independent claims. II. The Class’s Claims Raise Common Questions of Law and Fact That Will
Generate Common Answers 109. The named Plaintiff’s claims raise common legal and factual questions arising from one central set of policies and practices: the Bail Schedule Policy. The Policy applies openly and in materially the same manner every day with respect to all people booked into jail. Resolution of these legal and factual issues will determine whether all of the members of the class are entitled to the constitutional relief that they seek. 110. Among the most important common questions of fact for the class are:
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• Whether Magistrates have a widespread, well-settled practice of setting secured bail without inquiry into ability to pay or consideration of alternatives less restrictive than unaffordable secured bail, without the presence of counsel;
• Whether Magistrates have a widespread, well-settled practice of setting secured bail without adequate procedural protections including notice, an opportunity to present and contest evidence, appointment of counsel, reasoned findings based on clear and convincing evidence on the record that unaffordable secured bail is the least restrictive means of mitigating an individual’s flight risk or danger;
• Whether Magistrates conduct bail hearings without the presence of counsel for the defendant;
• Whether Magistrates’ secured bail orders result in pretrial detention;
• Whether unaffordable secured bail undermines the fairness of plea bargaining or trial; and
• How long class members must wait in jail after arrest before they have an opportunity to raise their inability to pay for their release or to request alternative, non-financial conditions.
Among the most common questions of law with respect to the classes are:
• Whether imposing unaffordable secured bail without an ability to pay hearing violates the Fourteenth Amendment Due Process and Equal Protection Clauses;
• Whether imposing unaffordable secured bail without adequate procedural protections including notice, an opportunity to present and contest evidence, appointment of counsel, and reasoned findings on the record that unaffordable secured bail is the least restrictive means of mitigating an individual’s flight risk or danger violates the Fourteenth Amendment’s Due Process Clause; and
• Whether denying counsel at a bail hearing violates the Sixth Amendment’s Right to Counsel Clause.
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III. The Named Plaintiff’s Claims Are Typical of The Class 111. The Named Plaintiff’s claims are typical of the claims of the other members
of the class. Each class member suffers, or suffered, the same injury because Defendants refused to comply with basic constitutional requirements: class members are confined in jail because they could not afford to pay secured money bail set under the Bail Schedule Policy. The answer to whether the Bail Schedule Policy is constitutional will determine the claims of the Named Plaintiff and every other class member. IV. The Named Plaintiff Will Fairly and Adequately Represent The Class
112. The Named Plaintiff is an adequate representative of the class because his interests in the vindication of the legal claims he raises are entirely aligned with the interests of the other class members, each of whom has the same basic constitutional claims. The Named Plaintiff is a member of the class, and his interests do not conflict with those of the other class members.
113. There are no known conflicts of interest among class members. All of the members of the respective class have a similar interest in vindicating their constitutional rights against pretrial detention the Bail Schedule Policy.
114. Plaintiff is represented by attorneys from the American Civil Liberties Union, the American Civil Liberties Union of Texas, and Arnold & Porter Kaye Scholer LLP, each of whom has experience litigating class actions and complex civil rights matters in federal court and extensive knowledge of both the details of Defendants’ scheme and the relevant constitutional and statutory law. Counsels’ relevant qualifications are set forth in the pending Motion for Class Certification.
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115. The combined efforts of counsel have so far included extensive investigation into the Bail Schedule Policy over a period of months, including interviews with witnesses, court employees, jail inmates, Judges, attorneys practicing in courts throughout the region, community members, statewide experts in the functioning of state and local courts, empirical researchers, and national experts in constitutional law, postarrest procedure, pretrial services, and jails.
116. Counsel have a detailed understanding of state law and practices as they relate to federal constitutional requirements. Counsel have studied the way that these systems function in other cities and counties in order to investigate the wide array of lawful options in practice for municipalities.
117. Counsel have devoted significant time and resources to becoming intimately familiar with Galveston County’s pretrial detention practices and with all of the relevant state and federal laws and procedures that can and should govern them. The interests of the members of the class will be fairly and adequately protected by the Plaintiff and his attorneys. V. Defendants Have Acted on Grounds That Apply Generally to the Injunctive
Relief Class, Meriting Final Injunctive and Declaratory Relief 118. Class-action status under Rule 23(b)(2) is appropriate because the Defendants, through the Bail Schedule Policy, have acted in the same unconstitutional manner with respect to all class members.
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119. Plaintiff seeks declaratory and injunctive relief requiring adequate procedures and appointment of counsel before imposition of unaffordable secured bail. The relief sought is appropriate for the class as a whole.
CLAIMS FOR RELIEF Count One: Wealth-Based Imprisonment Fourteenth Amendment Due Process & Equal Protection Clauses
Against All Defendants 120. Plaintiff incorporates allegations in the foregoing paragraphs. 121. Under the Bail Schedule Policy, Defendants lock Plaintiff and other members of the class in jail because they are unable to pay secured bail set under a bail schedule, while releasing other, similarly-situated people who are able to pay. Galveston County’s wealth-based system of imprisonment locks poorer—and presumptively innocent—people in jail while allowing wealthier individuals accused of the same crimes to go free until trial. 122. Defendants set these unaffordable secured bail amounts without any inquiry into or findings concerning an arrestee’s ability to pay or the propriety of less restrictive, alternate means of achieving a compelling government interest, and without determining that detention is necessary notwithstanding an arrestee’s inability to pay. 123. Galveston County’s wealth-based Bail Schedule Policy violates Plaintiff’s rights to equal protection and due process under the Fourteenth Amendment to the United States Constitution.
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Count Two: Procedural Due Process Fourteenth Amendment Due Process Clause Against Galveston County, Felony Judges, Misdemeanor Judges, and Magistrates 124. Plaintiff incorporates allegations in the foregoing paragraphs. 125. Under the Bail Schedule Policy, Defendants set unaffordable secured bail under a bail schedule in magistrations lasting less than a minute for each person. Defendants then lock Plaintiff and other members of the class in jail because they are unable to pay their bail. 126. These unaffordable bail amounts function as de facto pretrial detention orders. Defendants set these unaffordable bail amounts at magistration without advance notice of the rights at stake, appointment of defense counsel, the opportunity to present or contest evidence, or a written record of reasoned findings by clear and convincing evidence that secured bail in the amount set is the least restrictive means of achieving the a compelling government interest.
Count Three: Right to Counsel Sixth Amendment Right to Counsel Clause Against the Misdemeanor and Felony Judges 127. Plaintiff incorporates allegations in the foregoing paragraphs. 128. Under the Bail Schedule Policy, Defendants set unaffordable secured bail in magistrations without defense counsel present. Defendants then lock Plaintiff and other members of the class in jail because they are unable to pay their bail. 129. The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to counsel at each critical stage of the criminal process.
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Critical stages include all pretrial hearings that may prejudice the fairness of subsequent criminal proceedings.
130. Bail-setting hearings have the power to severely prejudice the fairness of subsequent criminal proceedings. These hearings can settle the fate of the person accused and render subsequent proceedings a mere formality. Bail setting is a critical stage of prosecution, and the Sixth Amendment requires that arrestees have the benefit of counsel at such proceedings. By setting the Plaintiff’s bail without first appointing defense counsel to represent and assist them, Defendants denied Plaintiff his constitutional right to counsel and thereby materially prejudiced the fairness of their subsequent trials.
REQUEST FOR RELIEF Plaintiff requests that this Court issue the following relief:
1. An order certifying the class defined above; 2. An injunction against Galveston County requiring, as a precondition to
issuance of an unaffordable secured money bail order: a. A prompt hearing inquiring into ability to pay, and permitting the
arrestee to present and rebut evidence concerning flight risk or dangerousness, b. Appointment of defense counsel for the hearing, for anyone who cannot afford to retain counsel, c. Advance written notice of the critical questions in the hearing, d. Reasoned written findings of the arrestee’s ability to pay, and
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e. Reasoned written findings, by clear and convincing evidence, that secured money bail in the amount set is the least restrictive means of achieving the government’s interest in mitigating the arrestee’s risk of flight or danger to the community.
3. A declaration against all Defendants that issuance of an unaffordable secured money bail order without meeting the above preconditions violates the Plaintiff’s rights to equal protection and due process;
4. A declaration against the Misdemeanor and Felony Judges that a bail hearing is a critical stage of prosecution for purposes of the Sixth Amendment right to counsel;
5. An order granting reasonable attorneys’ fees and costs under 42 U.S.C. § 1988; and
6. Any other relief this Court deems just and proper.
Respectfully Submitted,
/s/ Trisha Trigilio Trisha Trigilio (Attorney-in-Charge) Texas Bar No. 24065179 S.D. Tex. Bar No. 2461809 Adriana Piñon Texas Bar No. 24089768 S.D. Tex. Bar. No. 1829959 Andre Segura (Pro Hac Vice pending) Texas Bar No. 24107112 American Civil Liberties Union Foundation of Texas 1500 McGowen Street, Suite 250 Houston, Texas 77004 Tel: 713-942-8146 Fax: 713-942-8966 ttrigilio@aclutx.org apinon@aclutx.org asegura@aclutx.org
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/s/ Kali Cohn Kali Cohn Texas Bar. No. 24092265 S.D. Tex. Bar No. 3053958 American Civil Liberties Union Foundation of Texas 6440 N. Central Expressway Dallas, TX 75206 Tel: 214-346-6575 Fax: 713-942-8966 kcohn@aclutx.org
/s/Brandon J. Buskey* Brandon J. Buskey (Pro Hac Vice pending) Alabama Bar Number: ASB-2753-A50B American Civil Liberties Union Foundation Criminal Law Reform Project 125 Broad Street, 18th Floor New York, NY 10004 Tel: 212-284-7364 Fax: 212-549-2654 bbuskey@aclu.org
/s/Christopher M. Odell Christopher M. Odell Texas Bar No. 24037205 S. D. Tex. Bar No. 33677 christopher.odell@arnoldporter.com Hannah Sibiski Texas Bar No. 24041373 S.D. Tex. Bar No. 559957 hannah.sibiski@arnoldporter.com ARNOLD & PORTER KAYE SCHOLER LLP 700 Louisiana Street, Suite 4000 Houston, TX 77002-2755 Telephone: 713-576-2400 Facsimile: 713-576-2499
Attorneys for Plaintiff
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 Case 3:18-cv-00104 Document 151 Filed on 12/10/18 in TXSD
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

Page 1 of 45
United States District Court Southern District of Texas
ENTERED
December 10, 2018
David J. Bradley, Clerk

AARON BOOTH Plaintiff.
VS. GALVESTON COUNTY, ET AL.
Defendants.

§ § § § § CIVIL ACTION NO. 3:18–CV–00104 § § § §

MEMORANDUM AND RECOMMENDATION This lawsuit concerns Galveston County’s pretrial detention system. Plaintiff Aaron Booth (“Booth”) alleges that arrestees in Galveston County (“the County”) are routinely detained before trial solely due to their inability to pay bail in violation of the Equal Protection and Due Process Clauses of the United States Constitution. Booth brings claims under 42 U.S.C. § 1983 against the County, six District Court Judges, three County Magistrates, and County District Attorney Jack Roady, asking for declaratory and injunctive relief. The case was referred to this Court pursuant to 28 U.S.C. § 636(b)(1). See Dkt. 102. Pending before the Court are Galveston County’s First Amended Motion to Dismiss All Claims Pursuant to Rule 12(b)(6) (Dkt. 45); Magistrates’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedures 12(b)(1) and 12(b)(6) and Brief in Support (Dkt. 46); District Court Judges’ Motion to Dismiss for Lack of Subject-Matter Jurisdiction and for Failure to State a Claim (Dkt. 47); Defendant Hon. Jack Roady’s Motion to Dismiss (Dkt.

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48); District Court Judge Defendants’ Second Motion to Dismiss for Lack of Subject-Matter Jurisdiction (Dkt. 94); and Galveston County’s First Motion to Dismiss Pursuant to Rule 12(b)(1) (Dkt. 127) (collectively “Defendants’ Motions to Dismiss”).
Having considered the parties’ briefing, the applicable legal authorities, and oral argument, the Court recommends that: (i) all claims brought against the District Court Judges in their individual capacities be dismissed; (ii) all claims brought against the Magistrates in their official capacities be dismissed; and (iii) in all other respects, Defendants’ Motions to Dismiss be denied.
BACKGROUND1 Booth was arrested and charged with felony drug possession in the County on April 8, 2018. In consultation with a County prosecutor, the arresting officer set Booth’s “bail at $20,000, the minimum amount permitted under [the] County’s felony bail schedule.” Dkt. 31 ¶ 16. Thereafter, the arresting officer booked Booth “into Galveston County Jail in the early morning hours of April 8.” Id. Later that morning, Booth “saw a magistrate who automatically adopted [the $20,000] bail amount” without inquiring “about his ability to pay . . . [or] whether [Booth] is a flight risk or a danger to the community.” Id. ¶ 17. During his appearance before the magistrate, Booth alleges that he “asked . . . for a court-appointed attorney and completed a ‘pauper’s oath’ form to demonstrate that he is too poor to hire his own attorney.” Id. ¶ 18. Booth also alleges that he “did not have the benefit of counsel at
1 The following factual allegations are taken from the First Amended Complaint. At the motion to dismiss stage, the Court must accept the factual allegations set forth in the live complaint as true. The inclusion of these factual allegations here should not be misconstrued as findings of fact by this Court.
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the time his bond was set, and so he did not have the opportunity to request, through counsel, an individualized bond determination based on his particular circumstances.” Id. Because Booth did not have the ability to satisfy the $20,000 bail at the time of magistration, he was held in the County Jail.
The same day as his incarceration, Booth filed this suit asserting that the County’s pretrial detention “practices . . . violate [his] substantive and procedural due process rights, infringe Equal Protection guarantees, and undermine the constitutional right to counsel.” Dkt. 1 ¶ 4. Almost one month later, on May 4, 2018, Booth filed a First Amended Complaint asserting three counts: (1) “Wealth-Based Imprisonment Fourteenth Amendment Due Process & Equal Protection Clauses Against All Defendants”; (2) “Procedural Due Process Fourteenth Amendment Due Process Clause Against Galveston County, Felony Judges, [County Court at Law] Judges, and Magistrates”; and (3) “Right to Counsel Sixth Amendment Right to Counsel Clause Against the [County Court at Law] and [District Court] Judges.”2 Dkt. 31 ¶¶ 127–137. The First Amended Complaint seeks declaratory and injunctive relief, not monetary damages. See id. ¶ 6. The lawsuit names the District Court Judges and Magistrates in their individual and official capacities; the District Attorney is sued solely in his official capacity. See id. ¶¶ 11, 13–14.
In support of his constitutional claims, Booth alleges that the County has an unconstitutional standard operating procedure for ordering pretrial detention without first taking into consideration an arrestee’s eligibility for release on nonfinancial conditions or
2 The County Court at Law Judges are no longer parties to this case. See Dkt. 95 (voluntary dismissal of all claims against the County Court at Law Judges).
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inability to pay bail.3 Booth refers to this standard operating procedure as Galveston County’s Bail Schedule Policy. See id. ¶ 69 (explaining that the “County’s pretrial detention practices” as described in the First Amended Complaint “constitute the Bail Schedule Policy”).
The Bail Schedule Policy, as alleged, is multipronged. After an arrestee is taken into custody, but before being booked into the County Jail, the arresting officer must prepare a preprinted bail order form identifying the charges levied against the arrestee, as well as a bail amount for each charge. See Dkt. 31 ¶ 29. In setting the bail amounts, for misdemeanor charges, the arresting officer utilizes bail amounts contained on a misdemeanor bail schedule promogulated by the District Attorney. See id. ¶ 31. For felony charges, the arresting officer calls the County prosecutor, who then relays the appropriate bail amount based solely on a felony bail schedule, which is also promulgated by the District Attorney. See id. ¶ 30. After completing the preprinted bail order form, an arrestee can be booked into the jail. See id. ¶ 32. An arrestee is then taken before a Magistrate, usually within 24 hours of incarceration. See id. ¶ 33. This proceeding is referred to as a “magistration.”
At the magistration, the Magistrate conducts a brief hearing—Booth alleges the hearing lasts no more than one minute—where the arrestee is: (1) instructed not to ask questions; (2) unrepresented by counsel; and (3) only permitted to answer a few questions that are all unrelated to the issue of bail. See id. ¶¶ 38–42, 44. Sometime before the end of
3 Booth’s allegations are strikingly similar to a recent case involving Harris County. See ODonnell v. Harris Cty. (ODonnell I), 227 F. Supp. 3d 706, 715–22 (S.D. Tex. 2016).
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the hearing, the Magistrate, who is empowered to make individual bail determinations, rubber stamps the preprinted bail amounts promulgated by the District Attorney without ever inquiring about the arrestee’s ability or inability to pay bail. See id. ¶¶ 43, 48. Arrestees that can afford to pay the specified bail amounts can make a payment and go free. Arrestees who cannot afford to purchase their freedom remain imprisoned at the County Jail. See id. ¶ 50.
Booth alleges that, within a week or so after magistration, an arrestee will have an opportunity to appear before a County Court at Law Judge. See id. ¶¶ 51, 54. The County Court at Law Judge only considers guilty pleas, so if an arrestee does not intend to plead guilty, the arrestee will remain imprisoned for approximately another week before appearing before a District Court Judge that may finally—though not immediately—consider the issue of bail reduction. See id. ¶¶ 54–61.
In sum, Booth alleges that the overall impact of the Bail Schedule Policy is that “the vast majority of people booked into Galveston County Jail,” many of whom simply cannot afford bail, will spend “more than a week [incarcerated] unless they plead guilty or pay the secured bail listed in the applicable bail schedule.” Id. ¶ 69. Booth alleges that the County’s Bail Schedule Policy is, therefore, unconstitutional. Booth has filed this lawsuit on behalf of himself and all others similarly situated under Federal Rule of Civil Procedure 23(b)(2). See id. ¶ 111.
The Defendants have filed motions to dismiss contesting the sufficiency of Booth’s factual allegations and many of his legal suppositions.
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MOTION TO DISMISS STANDARD Because Defendants’ Motions to Dismiss seek dismissal under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), the Court will first address the applicable legal standards. A. Rule 12(b)(1) Federal Rule of Civil Procedure 12(b)(1) allows a party to challenge the subject matter of the district court to hear a case. When a court evaluates subject matter jurisdiction, it may consider “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Spotts v. United States, 613 F.3d 559, 566 (5th Cir. 2010) (internal quotation marks and citation omitted). The standard of review for a 12(b)(1) motion to dismiss turns on whether the defendant has made a “facial” or “factual” jurisdictional attack on the plaintiff’s complaint. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A defendant makes a “facial” jurisdictional attack by merely filing a motion under Rule 12(b)(1) challenging the court’s jurisdiction. See id. Under a “facial” attack, the court is only required to assess the sufficiency of the allegations contained in the plaintiff’s complaint, which are presumed to be true. See id. A “factual” attack, however, is made by providing affidavits, testimony, and other evidentiary materials challenging the court’s jurisdiction. See id. When a “factual” jurisdictional attack is made by a defendant, the plaintiff must submit facts in support of the court’s jurisdiction, and he bears the burden of proving by a preponderance of the evidence that the court, in fact, has subject-matter jurisdiction. See id.
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B. Rule 12(b)(6) A pleading must 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 pleading standard does not require “detailed factual allegations, but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (internal quotation marks omitted). Under Rule 12(b)(6), a party may “move for dismissal for a failure to state a claim upon which relief can be granted.” Lemieux v. Am. Optical Corp., 712 F. App’x 409, 412 (5th Cir. 2018) (internal quotation marks omitted). “The complaint must be liberally construed in favor of the plaintiff, and all facts pleaded in the complaint must be taken as true.” Lowrey v. Tex. A&M Univ. Syst., 117 F.3d 242, 247 (5th Cir. 1997) (citation omitted).
Dismissal is appropriate “when a plaintiff fails to allege sufficient facts that, taken as true, state a claim that is plausible on its face.” Amacker v. Renaissance Asset Mgmt. LLC, 657 F.3d 252, 254 (5th Cir. 2011) (citation omitted). However, “[m]otions to dismiss under Rule 12(b)(6) are viewed with disfavor and are rarely granted.” Lormand v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (internal quotation marks and citation omitted). “Determining whether the plausibility standard has been met is ‘a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.’” Turner v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).
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THE COURT POSSESSES SUBJECT MATTER JURISDICTION A. The Mootness Doctrine
1. Booth’s Release from Jail Does Not Moot This Case As an initial matter, Defendants challenge whether Booth’s First Amended Complaint presents a justiciable controversy under the constitutional case-or-controversy requirement. See U.S. CONST. art. III, § 2, cl. 1. Defendants assert that Booth’s claims are moot because his criminal case is over4 and he, therefore, lacks any personal stake in how magistration is conducted in the future. “Under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990) (citation omitted). Generally speaking, “[t]he mootness doctrine requires that the controversy posed by the plaintiff‘s complaint be ‘live’ not only at the time the plaintiff files the complaint but also throughout the litigation process.” Rocky v. King, 900 F.2d 864, 866 (5th Cir. 1990). There is, however, a notable exception. When class actions are involved, the Supreme Court has explained that “the Art[icle] III mootness doctrine” is “flexible.” U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 400 (1980). Indeed, the Supreme Court has expressly held on several occasions that, in a class action challenging procedures for pretrial detention, the release of the named plaintiff from jail does not moot the action. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975).
4 On August 3, 2018, Booth pled guilty to felony possession of a controlled substance. See Dkt. 941 at 31–37.
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In Gerstein, a putative class of pretrial detainees alleged the state violated their constitutional rights by not providing a prompt probable cause hearing. 420 U.S. at 106– 107. In explaining why the class claims were not rendered moot by the release of the named plaintiffs from jail, the high court noted:
Pretrial detention is by nature temporary, and it is most unlikely that any given individual could have his constitutional claim decided on appeal before he is either released or convicted. The individual could nonetheless suffer repeated deprivations, and it is certain that other persons similarly situated will be detained under the allegedly unconstitutional procedures. The claim, in short, is one that is distinctly capable of repetition, yet evading review. Id. at 110 n.11. This authority is directly on point and compels a finding that the class action allegations generate a continuing controversy even though Booth’s pretrial detention has ended. The District Court Judges direct the Court to the Supreme Court’s recent opinion in U.S. v. Sanchez-Gomez, 138 S. Ct. 1532 (2018), to support their argument that this case should be dismissed as moot because Booth has no pending criminal charges against him. The District Court Judges’ reliance on Sanchez-Gomez is completely misplaced. In Sanchez-Gomez, the Supreme Court did find that the constitutional challenges of four pretrial detainees’ were rendered moot because they were no longer in pretrial custody, but, importantly, there were no class action allegations at play—a fact that significantly distinguishes Sanchez-Gomez from the case at hand. See id. at 1538. Writing for a unanimous Court, Chief Justice John Roberts specifically noted in Sanchez-Gomez that “‘class-like claims’ seeking ‘class-like relief’” are “sufficient to trigger the application of Gerstein and save [a] case from mootness” despite the termination of a named plaintiff’s
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criminal case. Id. At the same time, Justice Roberts made clear that “[w]e reject the notion that Gerstein supports a freestanding exception to mootness outside the class action context.” Id. The case currently before the Court is a putative class action and, as such, the case remains live even if the named representative’s interest in the case expires before the litigation is completed. See ODonnell v. Harris Cty. (ODonnell II), No. H-16-1414, 2017 WL 1542457, at *7 (S.D. Tex. Apr. 28, 2017) (certifying class of pretrial detainees challenging procedures for pretrial detention months after named plaintiffs were released).
2. Recent Changes to the County’s Bail Setting Process Do Not Moot Booth’s Claims
The County claims that recent changes to its bail setting process deprive the Court of subject matter jurisdiction over this case because any constitutionally required prospective change sought by Booth has already been put in place. According to the County, new procedures implemented on July 1, 2018, give arrestees the opportunity to complete a financial affidavit and have such information provided to the Magistrates before a bail decision is made. Additionally, the County observes that starting October 1, 2018, within 48 hours of arrest, arrestees who have not been released will be taken before a Magistrate for a bail review hearing where a defense lawyer is present to assist the arrestee in presenting a case to the Magistrate for reduced bail. The County also contends that Magistrates are now asked to provide written factual findings or provide a factual finding on the record to explain decisions not to lower bail. Moreover, the Commissioners Court allegedly recently hired new Magistrates and created, funded, and filled new positions in a pretrial release department, helping to reduce the backlog arrestees face when awaiting a
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bail determination. By specifically considering an arrestee’s ability to pay and providing a bail review hearing with counsel within 48 hours of arrest, the County argues that even if Booth had a colorable complaint about the policies and procedures in place at the time the lawsuit was filed, there is no longer a live controversy and nothing more to grant Booth in this case.
A party seeking to moot an issue in litigation through its own “voluntary conduct” bears a “heavy,” “stringent,” and “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189–90 (2000) (emphasis added, citations omitted). “A defendant’s voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a case.” Id. at 174. See also K.P. v. LeBlanc, 729 F.3d 427, 438 (5th Cir. 2013) (“[a] defendant cannot automatically moot a case simply by ending its [challenged] conduct once sued.”). “If it did, the courts would be compelled to leave the defendant . . . free to return to his old ways.” Friends of the Earth, 528 U.S. at 189 (internal quotation marks, brackets, and citations omitted).
Here, the County cannot bear its heavy burden of proving that the complained of conduct will not recur in the future. For starters, although the County contends that “steps have been taken to put in place additional procedural safeguards to ensure an arrestee’s ability to pay is taken into consideration,” the record is not altogether clear as to what actual changes have been made to the County’s bail setting process. Dkt. 127 at 9. The County points to a document it says represents the newly adopted County bail procedures, but there is no admissible evidence indicating whether these bail procedures have actually been
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adopted, by whom they were adopted, and/or whether they are being utilized today. The issue is further muddled by certain deposition testimony presented to the Court, which suggests that the alleged new County bail processes are not uniformly and consistently employed today. For example, Magistrate Kerri Foley readily acknowledges that she does not believe that “anybody is ordering me to follow [the new procedures]” and it is in her “discretion as a magistrate to follow or not follow these procedures.” Dkt. 139-1 at 32. See also id. at 38 (testifying that the Commissioners’ Court has never formally or informally instructed her on how to perform magistration). Judge Lonnie Cox, the Local Administrative District Court Judge, testified that he does not know who proposed the purported new procedures document, and does not believes it is “an accurate statement of the bail procedures in Galveston County as of August 8, 2018.” Dkt. 120-1 at 32.
The County steadfastly maintains that there are new and improved bail processes in place, and even presented the Court within the past few days recent deposition testimony from County Judge Mark Henry asserting that changes have, in fact, been made to the magistration process. But the issue is, in the Court’s mind, jumbled and far from clear, especially given the contradictory testimony from Magistrate Foley and Judge Cox. Moreover, as Booth points out, the County continues to defend the bail system that was in place at the time of the filing of the lawsuit. This factor weighs against the County satisfying its heavy burden of proof on the subject matter jurisdiction issue because it belies an intention to return to such conduct in the future. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 719 (2007). Indeed, a number of courts across the country considering class actions challenging bail procedures have held that there exists a
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live controversy even though the local governmental unit recently adopted procedural changes to the bail system. See Walker v. City of Calhoun, 901 F.3d 1245, 1271 (11th Cir. 2018); Schultz v. Alabama, 330 F. Supp. 3d 1344, 1357 (N.D. Ala. 2018); Caliste v. Cantrell, 329 F. Supp. 3d 296, 305 (E.D. La. 2018).
Because the County bears such a stout burden to demonstrate that the alleged wrongful behavior could not reasonably be expected to recur, the Court is unwilling to dismiss the case at this stage for a lack of subject matter jurisdiction.5 That being said, the Court is quite interested in hearing details concerning any new bail procedures recently implemented by the County and will certainly revisit the subject matter jurisdiction issue, if appropriate, after the record is more fully developed at the class certification/preliminary injunction hearing. See Mansfield, C. & L. M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884) (a challenge to a federal court’s subject-matter jurisdiction may be made at any stage of the proceedings, and the court should raise the question sua sponte); FED. R. CIV. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). To be clear, the Court fully recognizes that the subject matter jurisdiction issue “will not always be conclusively resolved at the pleading stage and must be evaluated at ‘the successive stages of the litigation.’” Galveston Open Gov’t Project v.
5 Booth also claims that even if new bail procedures are, as the County contends, fully implemented and in effect, the procedures are inadequate to remedy the ongoing constitutional harm. This is a merits-based inquiry that the Court will not wade into at this time. That issue is best left for the class certification/preliminary injunction hearing. See Montez v. Dep’t of Navy, 392 F.3d 147, 150 (5th Cir. 2004) (where there is an intertwined attack on jurisdiction and merits, “resolution of the jurisdictional issue on a 12(b)(1) motion [is] improper”).
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U.S. Dep’t of Hous. & Urban Dev., 17 F. Supp. 3d 599, 610 n.8 (S.D. Tex. 2014) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). B. The Standing Doctrine
The District Court Judges and District Attorney next argue that Booth lacks standing to proceed against them. As noted above, the thrust of Booth’s claim in this lawsuit is that the County routinely detains arrestees by imposing money bail using a preset bail amount without first taking into consideration an arrestee’s eligibility for release on nonfinancial conditions or inability to pay bail. The District Court Judges assert that Booth lacks standing against them because they took no part in the initial detention proceeding and did not create a policy that required Magistrates to ignore the financial condition of the arrestees when making an initial bail determination. Meanwhile, the District Attorney asserts that Booth’s claims fail because the District Attorney does not set the bail amount and there are no actionable allegations of specific conduct tying the District Attorney to the alleged violation of any constitutional rights.
Article III of the U.S. Constitution limits the power of federal courts to the resolution of “Cases” and “Controversies.” U.S. CONST. art. III, § 2. The requirement that a plaintiff establish standing to bring suit “is an essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan, 504 U.S. at 560. Every federal court plaintiff must therefore meet the “irreducible constitutional minimum” of Article III standing, which requires: (1) an injury in fact that is concrete, particularized, and actual or imminent; (2) that the injury be fairly traceable to the challenged action; and (3) that the
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injury can be redressed by a favorable ruling. Id. at 560–61. See also Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010).
Article III standing does not require the District Court Judges or District Attorney to be the most immediate cause, or even a proximate cause, of Booth’s injuries; rather, it requires only that those injuries be “fairly traceable” to the District Court Judges or District Attorney. See League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 431 (5th Cir. 2011) (“The causation element does not require a party to establish proximate causation, but only requires that the injury be ‘fairly traceable’ to the defendant.”) (citing Bennett v. Spear, 520 U.S. 154, 168–69 (1997)). Thus, Booth need only allege an injury that can be fairly traced to the actions of a particular defendant. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
Although the District Court Judges and District Attorney attempt to distance themselves from the decision making process related to how bail is set in the County, Booth makes detailed allegations in the First Amended Complaint that both the District Court Judges and District Attorney are highly involved in the policies and procedures that result in certain individuals being detained solely because they cannot pay the set bail amounts. With respect to the District Attorney, Booth alleges that (i) “the District Attorney requires the duty prosecutor to set bail on each charge by referring to the felony bail schedule”; (ii) the District Attorney “permits the duty prosecutor to set bail amounts that deviate upward from this schedule, but not down”; (iii) in setting the bail amount, the District Attorney makes no inquiry into the arrestee’s ability to pay; and (iv) the District Attorney knows that
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the bail amounts set by his duty prosecutors are “automatically” adopted by the Magistrates. Dkt. 31 ¶¶ 17, 30, 96.
As far as the District Court Judges are concerned, Booth clearly alleges that the District Court Judges contributed to his injury by authorizing, maintaining, and enforcing the County’s Bail Schedule Policy. In Booth’s response to Defendants’ Motions to Dismiss, he points to the specific allegations he made in the First Amended Complaint:
Despite having actual knowledge of the constitutional deprivations caused by the Bail Schedule Policy and the power to prevent them, the [District Court] Judges ‘have not taken any action to require individualized bail hearings in Galveston County,’ Am. Compl. ¶ 107, and have failed to ‘implement[] any meaningful alternatives to pretrial detention, other than trying to collect money from people who are released.’ Id. ¶ 101(d). Dkt. 111 at 13. Because the Court must accept the material allegations in the First Amended Complaint as true and construe them in the light most favorable to the complaining party, this Court’s hands are tied at this stage of the case. See Warth v. Seldin, 422 U.S. 490, 501 (1975). The allegations set forth above are, undoubtedly, sufficient to establish standing. See Spokeo, 136 S. Ct. at 1547 (“Where, as here, a case is at the pleading stage, the plaintiff must clearly allege facts demonstrating each element.”) (internal quotation marks, alteration, and citation omitted). C. The Younger Abstention Doctrine Defendants next argue that the Court should abstain from hearing this lawsuit under the Younger abstention doctrine. In Younger v. Harris, 401 U.S. 37, 43–44 (1971), the Supreme Court held that principles of comity and federalism require federal courts to avoid interference with ongoing state proceedings if the state court provides an adequate forum to
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present federal constitutional challenges. Younger abstention is required when there is: (1)
“an ongoing state judicial proceeding”; (2) that “implicate[s] important state interests”; and
(3) offers “adequate opportunity” to “raise constitutional challenges.” Middlesex Cty. Ethics
Comm’n v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).
Defendants’ Younger abstention doctrine argument is foreclosed by the Fifth
Circuit’s decision earlier this year in ODonnell v. Harris Cty. (ODonnell III), 892 F.3d 147
(5th Cir. 2018). ODonnell III was a challenge to Harris County’s pretrial bail system
similar in many respects to this case. In ODonnell III, the Fifth Circuit held that the
defendants could not meet the third prong of the Younger test.
As the Supreme Court has already concluded, the relief sought by ODonnell— i.e., improvement of pretrial procedures and practice—is not properly reviewed by criminal proceedings in state court. See Gerstein v. Pugh, 420 U.S. 103, 108 n.9, 95 S. Ct. 854, 43 L.Ed.2d 54 (1975) (noting that abstention did not apply because “[t]he injunction was not directed at the state prosecutions as such, but only at the legality of pretrial detention without a judicial hearing, an issue that could not be raised in defense of the criminal prosecution”); see also Pugh v. Rainwater, 483 F.2d 778, 781–82 (5th Cir. 1973) (noting that a federal question whose “resolution . . . would [only] affect state procedures for handling criminal cases . . . is not ‘against any pending or future court proceedings as such’” (quoting Fuentes v. Shevin, 407 U.S. 67, 71 n.3, 92 S. Ct. 1983, 32 L.Ed.2d 556 (1972))), rev’d on other grounds by Gerstein, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54. As the district court noted, the adequacy of the state court review of bail-setting procedures is essential to ODonnell’s federal cause of action. In short, “[t]o find that the plaintiffs have an adequate hearing on their constitutional claim in state court would decide [its] merits.”
We also note that the policy concerns underlying this doctrine are not applicable here. The injunction sought by ODonnell seeks to impose “nondiscretionary procedural safeguard[s],” which will not require federal intrusion into pre-trial decisions on a case-by-case basis. Tarter v. Hury, 646 F.2d 1010, 1013–14 (5th Cir. Unit A June 1981); compare O’Shea v. Littleton, 414 U.S. 488, 499–502, 94 S. Ct. 669, 38 L.Ed.2d 674 (1974) (noting that the enforcement of the improper injunction in question required “continuous
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supervision by the federal court over the conduct of the petitioners in the course of future criminal trial proceedings involving any of the members of the respondents’ broadly defined class”). Such relief does not implicate our concerns for comity and federalism. Id. at 156–57. The same analysis applies with equal force to this case. To their credit, Defendants readily admitted at oral argument that the Fifth Circuit ODonnell III decision is binding on this Court and requires rejection of the Younger abstention argument. Defendants, nonetheless, continue to advance the Younger abstention argument simply to preserve the argument for a possible future appeal. Not surprisingly, the Court follows the Fifth Circuit precedent directly on point and finds that the Younger abstention doctrine does not apply in this case. D. Habeas Corpus is Not Booth’s Sole Federal Remedy Next, citing Preiser v. Rodriguez, 411 U.S. 475 (1973), Defendants contend that Booth’s sole federal remedy is a writ of habeas corpus—not a Section 1983 action. In Preiser, plaintiffs were state prisoners who brought a civil rights action in federal court under Section 1983, alleging that they had been deprived unconstitutionally of their good conduct time credits. See id. at 476. The plaintiffs sought injunctive relief to restore the credits, which in each case would have resulted in their immediate release. See id. The Supreme Court held that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” Id. at 500.
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The Supreme Court has explained that, under Preiser, a Section 1983 “action is
barred . . . if success in that action would necessarily demonstrate the invalidity of
confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005) (second
emphasis added). Where an individual does not seek an “injunction ordering . . . immediate
or speedier release into the community . . . and a favorable judgment would not necessarily
imply the invalidity of their convictions or sentences,” he or she may “properly invoke[ ] §
1983.” Skinner v. Switzer, 562 U.S. 521, 523–24 (2011) (internal quotation marks, brackets,
and citation omitted). In other words, Booth is not barred from bringing a Section 1983
claim simply because he “hope[s]” or “believe[s] that victory . . . will lead to speedier release from prison.” Dotson, 544 U.S. at 78.6
In rejecting a Preiser argument raised by the defendants in the ODonnell case, Chief
Judge Lee Rosenthal observed:
In general, the cases applying Preiser hold that its requirement that parties resort to the federal habeas statutes rather than to § 1983 applies most strongly in cases challenging an ongoing detention on the ground that a prisoner’s conviction or sentence was legally invalid. See, e.g., Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994); Caldwell v. Line, 679 F.2d 494 (5th Cir. 1982). A party challenging nonconviction administrative decisions, such as decisions of a parole board, must exhaust habeas remedies “[i]f a prisoner challenges a single hearing as constitutionally defective.” Serio, 821 F.2d at 1118. But “broad-based attacks,” such as class actions challenging regulatory procedures that do not “automatically entitle” claimants to release but only “enhance
6 Preiser is not as expansive as Defendants suggest. Indeed, the Fifth Circuit has recognized that “[a]lthough the principles set forth in Preiser are couched in absolute terms, [subsequent decisions] dim its bright-line test by demonstrating that Preiser does not preclude all § 1983 challenges that would, if successful, cast doubt on the validity of state administrative decisions bearing on the fact or duration of state prisoners’ confinement.” Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 1116 (5th Cir. 1987) (citing Greenholtz v. Inmates of the Neb. Penal and Corr. Complex, 442 U.S. 1 (1979); Gerstein, 420 U.S. 103; and Wolff v. McDonnell, 418 U.S. 539 (1974)).
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eligibility for accelerated release,” may be brought under § 1983 without a habeas exhaustion requirement. Id. at 1119. ODonnell v. Harris Cty. (ODonnell IV), 260 F. Supp. 3d 810, 816 (S.D. Tex. 2017). Defendants’ Preiser argument fails because, just like the plaintiffs in ODonnell IV, Booth seeks nothing that requires or hastens any person’s release, that is, nothing that necessarily “demonstrate[s] the invalidity of [anyone’s] confinement or its duration.” Dotson, 544 U.S. at 74–75. Importantly, Booth does not challenge the validity of his arrest or any ongoing confinement. To the contrary, he readily acknowledges that he pled guilty to the charged offense and his case has concluded so he no longer is behind bars. In an effort to vindicate basic rights, Booth seeks an injunction requiring constitutionally adequate processes to determine post-arrest release or detention. Such an injunction, Booth claims, would fundamentally alter how the bail system in the County operates by, among other thing, requiring a prompt hearing inquiring into ability to pay, appointment of defense counsel for such a hearing, and reasoned written findings of the arrestee’s ability to pay. Like the plaintiffs in the recent challenge to Harris County’s pretrial detention system, Booth “mount[s] a broad-based challenge to [the] County’s administration of its bail procedures, but [does] not seek or assert ‘entitlement’ to pretrial release.” ODonnell IV, 260 F. Supp. 3d at 816. Preiser is, therefore, inapplicable here. See Holland v. Rosen, 277 F. Supp. 3d 707, 738 (D.N.J. 2017) (Preiser inapplicable because the plaintiff “does not seek an injunction ordering his immediate or speedier release into the community, but rather an injunction ordering a hearing that conforms to his conception of his constitutional rights under the Fourth, Eighth, and Fourteenth Amendments.”); Walker v. City of Calhoun, No. 4:15-CV-
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0170-HLM, 2016 WL 361612, at *13 (N.D. Ga. Jan. 28, 2016) (in a similar challenge to pretrial detention system, the district court found “unpersuasive Defendant’s argument that Plaintiff should have brought his challenge in a petition for a writ of habeas corpus. As Plaintiff points out, a successful challenge to this litigation would not necessarily shorten Plaintiff’s time in custody.”), vacated on other grounds, 682 F. App’x 721 (11th Cir. 2017).
Defendants’ reliance on Gerstein to support their position is improper. In Gerstein, a Florida case that challenged pretrial detention without a probable cause hearing, the Supreme Court found the Preiser doctrine inapplicable because plaintiffs did not seek and the court did not order release from custody as a remedy. See 420 U.S. at 107 n.6. The only relief sought in Gerstein was an order that the state grant plaintiffs a probable cause hearing. See id. As in Gerstein, Booth does not allege a general entitlement to pretrial release but rather challenges the policies and practices that comprise the County’s pretrial detention policy. See Coleman v. Stanziani, 570 F. Supp. 679, 684 (E.D. Pa. 1983) (Preiser inapplicable because “[i]n the case at bar, plaintiffs are not seeking release from pretrial detention as a remedy. Just as in [a number of Supreme Court cases, including Gerstein], plaintiffs here challenge the standards and procedures by which they are committed rather than the fact or duration of their incarceration.”). Accordingly, the Court finds that Booth has properly invoked Section 1983 and need not proceed exclusively through a petition for a writ of habeas corpus.
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OTHER DEFENSES A. The Parratt/Hudson Doctrine
The Magistrates argue that Booth’s procedural due process claim under the Fourteenth Amendment is barred by the Parratt/Hudson doctrine. The Parratt/Hudson doctrine provides that a state actor’s random and unauthorized deprivation of a plaintiff‘s property does not result in a violation of procedural due process rights if the state provides an adequate post-deprivation remedy. See Parratt v. Taylor, 451 U.S. 527, 544 (1981); Hudson v. Palmer, 468 U.S. 517 (1984). The underlying rationale of the doctrine “is that when deprivations of property are effected through random and unauthorized conduct of a state employee, predeprivation procedures are simply ‘impracticable’ since the state cannot know when such deprivations will occur.” Hudson, 468 U.S. at 533. Accordingly, the Parratt/Hudson doctrine does not apply when “erroneous . . . deprivation[s are] foreseeable” and “predeprivation procedures are practicable.” Plumer v. Maryland, 915 F.2d 927, 931 (4th Cir. 1990).
Booth does do not allege that his deprivation was unforeseeable, random, and unauthorized. Just the opposite, it is Booth’s contention that the County and its officials have violated his constitutional rights through a standard operating procedure created by systematic, deliberate policy choices. As a result, Booth has sufficiently alleged that the challenged conduct was authorized, the deprivation was foreseeable, and a pre-deprivation process would have been practicable. See Zinermon v. Burch, 494 U.S. 113, 128 (1990). Therefore, the Parratt–Hudson doctrine does not bar Booth’s claim at this stage of the proceedings.
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B. Immunity Issues The District Attorney contends that three types of immunity—sovereign immunity,
prosecutorial immunity, and qualified immunity—protect him from suit. The District Court Judges contend that sovereign immunity protects them from suit. The Court will examine each type of immunity asserted, but ultimately finds these arguments unavailing.
Sovereign Immunity: The Eleventh Amendment provides: The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. CONST. amend. XI. “Absent waiver by the state of sovereign immunity or a valid congressional override, the Eleventh Amendment bars the institution of a damages action in federal court against a state or state instrumentality.” Sabine Pipe Line, LLC v. A Permanent Easement of 4.25 +/- Acres of Land in Orange Cty., 327 F.R.D. 131, 138 (E.D. Tex. 2017) (collecting cases). The Ex parte Young doctrine, however, provides a narrow exception to Eleventh Amendment immunity when a plaintiff sues official capacity defendants for an allegedly ongoing violation of federal law and seeks prospective, declaratory, or injunctive relief. See Ex parte Young, 209 U.S. 123, 155–56 (1908). To determine whether Ex parte Young applies, the “court need only conduct a ‘straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.’” Verizon Md., Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Couer d’Alene Tribe of Idaho, 521 U.S.
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261, 296 (1997) (O’Connor, J., concurring in part, and dissenting in part)). Because Booth seeks prospective relief in this lawsuit, his claim is not barred by sovereign immunity.
The District Attorney argues that the reasoning in Couer d’Alene precludes the application of the Ex parte Young doctrine in this case. The Court respectfully disagrees. Couer d’Alene addressed a unique, narrow exception that is not present in this action. In Couer d’Alene, the Couer d’Alene Tribe sought an injunction for an allegedly “ongoing violation of its property rights in contravention of federal law.” 521 U.S. at 281. The Supreme Court viewed the “the Tribe’s suit [as] the functional equivalent of a quiet title action.” Id. In the high court’s view, the “implicat[ion of] special sovereignty interests” in Couer d’Alene prevented the tribe from proceeding with its action against state officials who, allegedly, were wrongfully in possession of tribal lands. Id. at 265–66. Those facts are significantly different from the facts in this case. There are no special sovereignty interests at issue when it comes to the County’s pretrial bail system. As such, the Court finds that the Ex parte Young exception applies in this case, and Couer d’ Alene does not dictate a contrary result.
Prosecutorial Immunity: The District Attorney also argues that prosecutorial immunity protects him from a Section 1983 lawsuit challenging his bail recommendations. Under the prosecutorial immunity doctrine, prosecutors are entitled to absolute immunity in civil rights damage lawsuits when their prosecutorial activities are “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Importantly, absolute prosecutorial immunity is inapplicable to suits for prospective relief. See Johnson v. Kegans, 870 F.2d 992, 998–99 (5th Cir. 1989) (citing Pulliam v.
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Allen, 466 U.S. 522, 541 (1984)). Because Booth brings a claim for prospective relief, the District Attorney cannot rely on judicial immunity as a defense.
Qualified Immunity: Last but not least, the District Attorney contends that the doctrine of qualified immunity shields him from claims brought against him in his official capacity. As was the case with sovereign immunity and prosecutorial immunity, qualified immunity does not provide the District Attorney the panacea he seeks. This is because qualified immunity does not apply to claims for prospective relief. See Williams v. Ballard, 466 F.3d 330, 334 & n.7 (5th Cir. 2006). Therefore, the District Attorney’s qualified immunity argument fails as a matter of law. C. Booth’s Claims are Not “Covered” by the Fourth or Eighth Amendments
The Magistrates next contend that Booth’s substantive due process claims should be dismissed because they are “covered” by the Fourth and Eighth Amendments. In this regard, the Magistrates argue that the Fourth and Eighth Amendments “provide[] an explicit textual source of constitutional protection” against the County conduct underlying Booth’s claims, and thus, “th[e] Amendment[s], not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing [Booth’s] claims.” Graham v. Connor, 490 U.S. 386, 395, (1989).
In seeking to apply the Fourth and Eighth Amendment rubrics to this case, the Magistrates describe Booth’s claims in two ways. First, the Magistrates construe Booth’s claim as a simple challenge to his detention. See Dkt. 46 at 25 (“Plaintiffs’ claim for a violation of the alleged substantive due process right to pretrial release on bond is actually a challenge to Plaintiffs’ detention.”). Based on this construction, the Magistrates cite to
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Mercado v. Dallas Cty., No. 3:15-CV-3481-D, 2016 WL 3166306 (N.D. Tex. June 7, 2016) and Mercado v. Dallas Cty., 229 F. Supp. 3d 501 (N.D. Tex. 2017) for the proposition that challenges to detention are properly brought under the Fourth Amendment, which requires that a seizure be supported by probable cause. Next, the Magistrates construe Booth’s claim as a “challenge [to the Magistrates] . . . setting . . . bond that [he] could not afford.” Dkt. 46 at 26. Based on this construction, the Magistrates argue such a “claim should be brought under the Eighth Amendment,” which “specifically prohibits excessive bail.” Id.
Each of the Magistrates’ constructions miss the mark, and so their legal arguments fall flat. Booth is not simply contesting the fact of his detention or asserting a right to affordable bail (i.e., bail that is not excessive). Rather, Booth is challenging the process by which bail terms are set for indigents in the County. In ODonnell III, the Fifth Circuit expressly held in a strikingly similar dispute that it should be evaluated under due process and equal protection concerns rather than the Eighth Amendment. See 892 F.3d at 157. “‘The incarceration of those who cannot [pay money bail], without meaningful consideration of other possible alternatives, infringes on both due process and equal protection requirements.’” Id. (quoting Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978)). See also Walker, 901 F.3d at 1258 (“[T]he demands of equal protection of the laws and of due process prohibit depriving pre-trial detainees of the rights of other citizens to a greater extent than necessary to assure appearance at trial and security of the jail.”) (quoting Rainwater, 572 F.2d at 1057). Booth’s claims fall within this framework, and the Magistrates have offered no authority to convince this Court to hold otherwise.
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SIXTH AMENDMENT LIABILITY In addition to arguing that the County violates Equal Protection and Due Process rights by jailing arrestees when they are unable to pay set bonds, Booth contends that the absence of court-appointed counsel at the time of an initial bail hearing violates an arrestee’s rights to counsel under the Sixth Amendment. In response, the District Court Judges argue that the Sixth Amendment does not require court-appointed counsel to be present at the initial bail-setting hearing. The Sixth Amendment guarantees an accused the right to the assistance of counsel, providing in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. CONST. amend. VI. The importance of the Sixth Amendment’s right to counsel is hardly open to debate; its inclusion in the Bill of Rights firmly establishes its significance. In determining the parameters of the right to counsel, the Supreme Court has held that the Sixth Amendment requires that the government provide counsel for those who cannot afford it at “critical stages” of criminal proceedings. See Bell v. Cone, 535 U.S. 685, 695–96 (2002). “Critical stages” are those that “h[o]ld significant consequences for the accused.” Id. See also Rothgery v. Gillespie Cty., 554 U.S. 191, 212 n.16 (2008) (“The cases have defined critical stages as proceedings between an individual and agents of the State (whether formal or informal, in court or out) that amount to trial-like confrontations, at which counsel would help the accused in coping with legal problems or meeting his adversary.”) (internal quotation marks and citations omitted); McAfee v. Thaler, 630 F.3d 383, 391 (5th Cir. 2011) (“Critical stages” occur “where ‘the accused required aid in coping
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with legal problems or assistance in meeting his adversary,’ and the ‘substantial rights of the accused may be affected.’”) (quoting United States v. Ash, 413 U.S. 300, 311 (1973)). The Supreme Court has found “critical stage” proceedings include preliminary hearings, arraignments, and plea negotiations. See Coleman v. Alabama, 399 U.S. 1, 10 (1970) (preliminary hearings); Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (arraignments); Missouri v. Frye, 566 U.S. 134, 139 (2012) (plea negotiations).
There can really be no question that an initial bail hearing should be considered a critical stage of trial. See Higazy v. Templeton, 505 F.3d 161, 172 (2d Cir. 2007) (“a bail hearing is a critical stage of the State’s criminal process”) (internal quotation marks and citation omitted); Caliste, 329 F. Supp. 3d at 314 (“the issue of pretrial detention is an issue of significant consequence for the accused”). As a District Court in the Eastern District of Louisiana recently noted:
[W]ithout representative counsel the risk of erroneous pretrial detention is high. Preliminary hearings can be complex and difficult to navigate for lay individuals and many, following arrest, lack access to other resources that would allow them to present their best case. Considering the already established vital importance of pretrial liberty, assistance of counsel is of the utmost value at a bail hearing. Caliste, 329 F. Supp. 3d at 314. The importance of providing counsel at the initial detention hearing is underscored by empirical research which indicates that case outcomes for pretrial detainees are much worse—in terms of an increased likelihood of conviction and harsher sentences—than for those who are released pending trial. See, e.g., Douglas L. Colbert et al., Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail, 23 CARDOZO L. REV. 1719, 1720 (2002). Given this research, it is imperative from a
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constitutional standpoint that individuals facing a pretrial detention hearing be afforded counsel to help guide them through the complicated and overwhelming process.
Citing the Supreme Court’s opinion in Rothgery, the District Court Judges claim that there is no Sixth Amendment right to counsel at magistration. The Court disagrees. In Rothgery, the plaintiff brought a civil rights lawsuit alleging that Gillespie County refused to appoint him a lawyer until six months after his initial appearance in court. 554 U.S. at 196. In an admittedly “narrow” ruling, the Supreme Court held that the plaintiff’s right to counsel “attached” at the initial appearance in court. See id. at 213. In accordance with a long list of Supreme Court cases, Rothergy held that once the right to counsel has attached, the Sixth Amendment requires that defendants be represented by counsel at any “critical stage of trial.” Id. Because bail was not contested in Rothgery, the high court never addressed whether an initial bail hearing is a critical stage of trial. Even so, this Court is confident that, based on longstanding precedent, the Supreme Court would undoubtedly conclude that a pretrial detention hearing is a “critical stage” for Sixth Amendment purposes. See Coleman, 399 U.S. at 9–10 (holding that Sixth Amendment required the presence of counsel at preliminary hearing because, in part, counsel could make effective arguments about necessity of bail); Smith v. Lockhart, 923 F.2d 1314, 1319 (8th Cir. 1991) (holding that hearing on bail reduction motion was a critical stage of proceeding requiring representation by counsel).
To conclude, the Court finds that Booth has adequately stated a claim for relief under the Sixth Amendment since the Constitution requires representation by counsel at a pretrial detention hearing.
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SECTION 1983 LIABILITY A. The Legal Standard
“Section 1983 provides a remedy against ‘any person’ who, under color of state law, deprives another of rights protected by the Constitution.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 120 (1992). A local government may not be sued under Section 1983 for the deprivation of rights guaranteed by the Constitution or federal law inflicted solely by its employees or agents. See Monell v. New York City Dept. of Soc. Servs., 436 U.S. 658, 691 (1978) (“[A] municipality cannot be held liable under § 1983 on a respondeat superior theory.”). Instead, it is “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government entity is responsible under [Section] 1983.” Id. To plausibly allege a claim under Section 1983 against the County, “a plaintiff must show that (1) an official policy (2) promulgated by the municipal policymaker (3) was the moving force behind the violation of a constitutional right.” Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th Cir. 2009).
Liability under Section 1983 attaches to local government officers “whose [unlawful] decisions represent the official policy of the local governmental unit.” Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 737 (1989). Whether an officer has been given this authority is “a question of state law.” Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). “Official policy” includes unwritten widespread practices that are “so common and well settled as to constitute a custom that fairly represents municipal policy.” Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992) (quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (5th Cir. 1984)).
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And unlawful decisions include “acquiescence in a longstanding practice or custom which constitutes the standard operating procedure of the local governmental entity.” Jett, 491 U.S. at 737 (internal quotation marks omitted). B. Booth Sufficiently Alleges a Section 1983 Claim
1. Official Policy Booth alleges that the District Court Judges and Local Administrative District Court Judge are final policymakers who have the authority to correct the County’s Bail Schedule Policy, but instead of acting, they have acquiesced in the Bail Schedule Policy. Booth cites to Sections 74.092 and 74.093 of the Texas Government Code as the basis for the District Court Judges’ and Local Administrative District Court Judge’s authority to reform the policy. Booth’s allegation with respect to the District Attorney is a little more nuanced. Booth alleges that, based on the facts described above, the Magistrates always strictly adhere to the bail amounts promulgated by the District Attorney—and the District Attorney, District Court Judges, and Local Administrative District Court Judge are all aware of this fact. Booth contends that in this way the District Attorney operates in conjunction with the District Court Judges and Local Administrative District Court Judge and acts as a County policymaker in determining bail amounts. For these reasons, Booth alleges the County is liable for constitutional violations resulting from the Bail Schedule Policy. Accepting all of Booth’s allegations as true, the Court finds that although the County’s Bail Schedule Policy is not an “official policy” in the traditional sense of the term, it is clearly a practice “so common and well settled as to constitute a custom that fairly
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represents municipal policy.” ODonnell III, 892 F.3d at 155 (finding “official policy” to “include . . . practices that are ‘so common and well settled as to constitute a custom that fairly represents municipal policy’”) (quoting Johnson, 958 F.2d at 94).
2. Policymakers The County argues that it cannot be liable under Section 1983 because the District Court Judges, Local Administrative District Court Judge, District Attorney, and Magistrates are not County policymakers. Similarly, each Defendant has moved to dismiss, arguing that they are not County policymakers. The Section 1983 policymaking liability of each party is considered in turn.
a. District Court Judges and Local Administrative District Court Judge The Texas Constitution vests the State’s judicial power “in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justice of the Peace, and in such other courts as may be provided by law.” TEX. CONST. Art. V, § 1. District Court Judges are constitutionally created, and their jurisdiction is set forth in both the Texas Constitution and various statutes. Id. at §§ 7, 8; TEX. GOV’T CODE §§ 24.007, 24.008. Under the Texas Government Code, “[t]he district . . . court judges in each county shall, by majority vote, adopt local rules of administration, which “must provide for: . . . assignment, docketing, transfer, and hearing of all cases, subject to jurisdictional limitations of the district courts and statutory county courts.” TEX. GOV’T CODE § 74.093. The title of Local Administrative District Court Judge is a statutorily created position to be filled by a sitting District Court Judge. Id. at § 74.091. The judge selected for the
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position fulfills a variety of administrative duties, including “implement[ing] and
execut[ing]the local rules of administration, including the assignment, docketing, transfer,
and hearing of cases”; “promulgat[ing] local rules of administration if the other judges do
not act by a majority vote”; “supervis[ing] the expeditious movement of court caseloads,
subject to local, regional, and state rules of administration”; and “set[ting] the hours and
places for holding court in the county.” Id. at § 74.092.
With respect to the District Court Judges, Booth contends that in ODonnell III, based
on authority conveyed by Texas Government Code Section 75.403(f), the Fifth Circuit held
that the County Judge was a policymaker because he was “imbued with broad authority to
promulgate rules that will dictate post-arrest policies consistent with the provisions of state
law.” ODonnell III, 892 F.3d at 155. Booth argues that because the authority described in Section 75.403(f) 8 is nearly identical to the authority conveyed to the District Court Judges by Section 74.0939, ODonnell III compels the same policymaker determination here.
8 TEX. GOV’T CODE § 75.403(f) states: “The judges [of Harris County] may adopt rules consistent with the Code of Criminal Procedure, 1965, and the Texas Rules of Civil Procedure for practice and procedure in the courts. A rule may be adopted by a two-thirds vote of the [Harris County] judges, and on adoption shall be entered verbatim in the minutes of each court. The clerk of the court shall supply copies of the rules to any interested person.” 9 TEX. GOV’T CODE § 74.093 states, in pertinent part: (a) The district and statutory county court judges in each county shall, by majority vote, adopt local rules of administration. (b) The rules must provide for:
(1) assignment, docketing, transfer, and hearing of all cases, subject to jurisdictional limitations of the district courts and statutory county courts; (2) designation of court divisions or branches responsible for certain matters; (3) holding court at least once a week in the county unless in the opinion of the local administrative judge sessions at other intervals will result in more efficient court administration; (4) fair and equitable division of caseloads; and
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With respect to the Local Administrative District Court Judge, Booth contends that
the plain language of Section 74.09210 conveys “final authority to remedy the Bail Schedule
(5) plans for judicial vacation, sick leave, attendance at educational programs, and similar matters. (c) The rules may provide for: (1) the selection and authority of a presiding judge of the courts giving preference to a specified class of cases, such as civil, criminal, juvenile, or family law cases; (2) other strategies for managing cases that require special judicial attention; (3) a coordinated response for the transaction of essential judicial functions in the event of a disaster; and (4) any other matter necessary to carry out this chapter or to improve the administration and management of the court system and its auxiliary services. (c-1) The rules may provide for the establishment and maintenance of the lists required by Section 37.003, including the establishment and maintenance of more than one of a list required by that section that is categorized by the type of case, such as family law or probate law, and the person's qualifications. 10 TEX. GOV’T CODE § 74.092: (a) A local administrative judge, for the courts for which the judge serves as local administrative judge, shall: (1) implement and execute the local rules of administration, including the assignment, docketing, transfer, and hearing of cases; (2) appoint any special or standing committees necessary or desirable for court management and administration; (3) promulgate local rules of administration if the other judges do not act by a majority vote; (4) recommend to the regional presiding judge any needs for assignment from outside the county to dispose of court caseloads; (5) supervise the expeditious movement of court caseloads, subject to local, regional, and state rules of administration; (6) provide the supreme court and the office of court administration requested statistical and management information; (7) set the hours and places for holding court in the county; (8) supervise the employment and performance of nonjudicial personnel; (9) supervise the budget and fiscal matters of the local courts, subject to local rules of administration; (10) coordinate and cooperate with any other local administrative judge in the district in the assignment of cases in the courts' concurrent jurisdiction for the efficient operation of the court system and the effective administration of justice; (11) if requested by the courts the judge serves, establish and maintain the lists required by Section 37.003 and ensure appointments are made from the lists in accordance with Section 37.004; (12) perform other duties as may be directed by the chief justice or a regional presiding judge; and
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Policy by automatically scheduling prompt, individualized bail review hearings.” Dkt. 111 at 39. Thus, Booth argues, the Local Administrative District Court Judge is also a policymaker.
The County and the District Court Judges contend that ODonnell III is inapposite because Sections 75.403(f) and 74.093 are not almost identical. First, they note that by its terms, Section 75.403(f) applies only to Harris County. Based on this fact alone, they argue that the holding of ODonnell III cannot be precedent for all counties. Next, they argue that the language of Section 74.093 simply does not convey any authority to the District Court Judges to control or otherwise direct the conduct of the Magistrates. In this vein, the County elaborates that Section 74.093 has been interpreted to exclude policy-making authority. Similarly, the County and the District Court Judges contend that although Section 74.092 conveys some scheduling authority to the Local Administrative District Court Judge, such authority is limited to district courts and does not include County courts or hearings before
(13) establish a court security committee to adopt security policies and procedures for the courts served by the local administrative district judge that is composed of:
(A) the local administrative district judge, or the judge's designee, who serves as presiding officer of the committee; (B) a representative of the sheriff's office; (C) a representative of the county commissioners court; (D) one judge of each type of court in the county other than a municipal court or a municipal court of record; (E) a representative of any county attorney's office, district attorney's office, or criminal district attorney's office that serves in the applicable courts; and (F) any other person the committee determines necessary to assist the committee. (b) A court security committee may recommend to the county commissioners court the uses of resources and expenditures of money for courthouse security, but may not direct the assignment of those resources or the expenditure of those funds.
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Magistrates. Thus, the argument goes, the Local Administrative District Court Judge cannot be a policymaker regarding bail.
The Court has reviewed ODonnell III and the plain language of Texas Government Code Sections 75.403(f) and 74.093. The Court finds that the County and District Court Judges are correct in their assertions that ODonnell III’s holding, which relies upon Section 75.403(f), is not necessarily controlling. By its terms, Section 75.403(f) applies only to “[t]he judges of the courts in Harris County.” TEX. GOV’T CODE ANN. § 75.403(a). This fact weakens Booth’s argument that the Court should simply rely upon ODonnell III. However, this determination does not end the Court’s inquiry because Booth did not simply argue that the statutes are the same, he argues that they are nearly identical. Thus, the Court must compare the statutes.
Section 75.403(f) of the Texas Government Code contains very broad language authorizing Harris County judges to “adopt rules consistent with the Code of Criminal Procedure, 1965, and the Texas Rules of Civil Procedure for practice and procedure in the courts.” Id. § 75.403(f). This broad language was found to include the authority to “promulgate rules . . . dictat[ing] post-arrest policies consistent with the provisions of state law.” ODonnell III, 892 F.3d at 155. Section 74.093 also contains very broad language, which provides that “[t]he district . . . court judges in each county shall, by majority vote, adopt local rules of administration, which “must provide for: . . . assignment, docketing, transfer, and hearing of all cases, subject to jurisdictional limitations of the district courts and statutory county courts. . . .” Id. § 74.093. The Court begins by noting that the language contained in each statute is different. Section 75.403(f) specifies that the relevant
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judges may adopt a wide variety of rules for “practice and procedure” in the courts, whereas Section 74.093 deals with the promulgation of “local rules of administration.” This differentiation in language begs the question: is “practice and procedure” synonymous with “local rules of administration”? The answer to this question is less than clear.
The County, relying on Scham v. Dist. Courts Trying Criminal Cases, 967 F. Supp. 230, 233 (S.D. Tex. 1997), argues that “Section 74.093 has been specifically interpreted not to grant any policy-making authority as it serves only an administrative purpose.” Dkt. 117 at 6. And the District Court Judges, relying on Ex parte Clear, 573 S.W.2d 224 (Tex. Crim. App. 1978) and Guerra v. Garza, 987 S.W.2d 593 (Tex. Crim. App. 1999), argue that “once [a] Magistrate . . . exercise[s] jurisdiction over . . . an[] arrestee . . ., the Magistrate is the sole person that alters, amends, or revises bail—to the express exclusion of the District Court Judges.” Dkt. 116 at 3. Standing alone, these authorities seem to support the County’s and District Court Judges’ position. However, these authorities stand in the face of Booth’s well pled factual allegations,11 and a document that Booth attached to his Motion for Preliminary Injunction, which was discussed at oral argument: the Galveston County Indigent Defense Plan.
In the Galveston County Indigent Defense Plan dated October 20, 2016, which was in effect at the time of Booth’s arrest, there is an entire section devoted to “Magistrate Responsibilities.”12 Dkt. 3-11 at 6–7. Among the many items discussed in that section is an
11 See Dkt. 31. 12 The most recent Amended Galveston County Indigent Defense Plan was enacted in October 2018, during the pendency of this suit. In the now effective plan, the section devoted to Magistrate
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enumerated list of duties that the “Magistrate shall perform,” including duties related to bail. Id. at 6 (emphasis added). The duties also seem to provide a deadline by which certain posthearing activities shall be performed. See id. Importantly, this document is executed by the County Court at Law Judges and District Court Judges,13 including the Local Administrative District Court Judge. See id. at 27. In other words, the Galveston County Indigent Defense Plan appears to be evidence of the District Court Judges and Local Administrative District Court Judge doing that which they claim to lack authority to do: promulgating rules dictating post-arrest policies. The existence of this document coupled with Booth’s allegations creates a great deal of uncertainty and undercuts the County and District Court Judge’s arguments that: (1) Section 74.093 does not convey any authority to the District Court Judges to control or otherwise direct the conduct of the Magistrates; and (2) Section 74.092 does not convey authority to the Local Administrative District Court Judge to control the setting of bail review hearings before Magistrates.
Given the uncertainty created by the existence of the Galveston County Indigent Defense Plan, and accepting Booth’s well pled facts as true, the Court finds that Booth’s allegation that the District Court Judges and Local Administrative District Court Judge acquiesced in an unwritten, countywide process for setting bail that violated the Constitution provides a plausible basis to find that the District Court Judges and Local Administrative
Responsibilities has been stripped bare, containing none of the specific details contained in its former iteration. 13 The document is even signed by District Court Judge Anne Daring, who presides over a family law court. See Dkt. 3-11 at 27. This fact defeats the District Court Judges’ argument that Judge Darring should be dismissed because the family law court plays no role in the bail process. See Dkt. 47 at 14–15.
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District Court Judge act for the County in their allegedly unconstitutional policies, customs, or practices regulating bail for arrestees.14
b. District Attorney “[A] county may only be held liable for acts of a district attorney when he ‘functions as a final policymaker for the county.’” Brown v. Lyford, 243 F.3d 185, 192 (5th Cir. 2001) (quoting Esteves v. Brock, 106 F.3d 674, 678 (5th Cir.1997)). “Texas law makes clear . . . that when acting in the prosecutorial capacity to enforce state penal law, a district attorney is an agent of the state, not of the county in which the criminal case happens to be prosecuted.” Esteves, 106 F.3d at 678; see also TEX. CODE CRIM. PROC. ANN. ART 2.01 (“Each district attorney shall represent the State in all criminal cases in the district courts of his district and in appeals therefrom . . . .”). Fifth Circuit precedent clearly distinguishes a district attorney’s “prosecutorial” duties—which are conducted on behalf of the state—from those duties that are “administrative or managerial in nature”—which are conducted on behalf of the county. See Esteves, 106 F.3d at 678. Thus, in assessing a district attorney’s status as policymaker under Section 1983, “the Court must first determine whether the district attorney was acting as a county official or an arm of the state.” Coates v. Brazoria Cty., No. CIV.A. 3-10-71, 2012 WL 6160678, at *8 (S.D. Tex. Dec. 11, 2012).
14 With respect to the individual capacity claims, the District Court Judges argue that Booth cannot obtain declaratory or injunctive relief against them in their individual capacities. See Dkt. 47 at 15. Booth did not respond to this argument in his papers. At oral argument Booth’s counsel stated:
Our position is official capacity relief is the only appropriate relief in this case because the Plaintiff is seeking an injunction that runs against the office, not the person. We don't want it to follow the person out of office, we want the injunction to run against the office itself. Dkt. 140 at 140. Accordingly, the claims against the District Court Judges in their individual capacities are dismissed.
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As described above, Booth alleges that the District Attorney, in his administrative role, promulgated a misdemeanor and a felony bail schedule. Booth alleges that these bail schedules, with full knowledge of the District Attorney, District Court Judges, and Local Administrative District Court Judge, are strictly adhered to, and administered by, Magistrates in setting bail for County arrestees. These allegations, if true, sufficiently allege the District Attorney’s policymaker status at this 12(b)(6) stage.
c. Magistrates The Magistrates15 move to dismiss, arguing they are not policymakers. Booth responds that he “does not contend that the Magistrates are final policymakers” and only “brought claims against the Magistrates . . . [to obtain] declaratory relief . . . .” Dkt. 111 at 37 n.24. Given Booth’s concession that the Magistrates are not policymakers, “[t]he official capacity claims against the [Magistrates] cannot support municipal liability against [the] County and are dismissed.” ODonnell II, 227 F. Supp. 3d at 754. However, based on the alleged role the Magistrates play in implementing the Bail Schedule Policy, the Magistrates shall “remain parties to this suit only in their personal capacities and only for declaratory relief.” Id.
15 Magistrates are not creations of the Texas Constitution. Rather, certain individuals, including “justices of the peace, and the mayors and recorders and the judges of the municipal courts of incorporated cities or towns,” are deemed Magistrates under the Texas Code of Criminal Procedure. TEX. CRIM. PROC. CODE ANN. § 2.09. “It is the duty of every magistrate to . . . to cause the arrest of offenders by the use of lawful means in order that they may be brought to punishment.” Id. § 2.10. “When the magistrate sits for the purpose of inquiring into a criminal accusation against any person, this is called an examining court.” Id. § 2.11. When sitting as an examining court, the Texas Code of Criminal Procedure provides that “[t]he amount of bail to be required in any case is to be regulated by the . . . magistrate . . . taking the bail.” TEX. CODE CRIM. PRO. art. 17.15.
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3. Causation: Moving Force To establish that the County is liable as a municipality, a policy must have been the “moving force” behind Booth’s constitutional violation. See Piotrowski v. City of Houston, 237 F.3d 567, 580 (5th Cir. 2001) (quoting Monell, 436 U.S. at 694). “Stated differently, [Booth] must show direct causation, i.e., that there was a direct causal link between the policy and the violation.” Alvarez v. City of Brownsville, 904 F.3d 382, 390 (5th Cir. 2018) (internal quotation marks and citation omitted). Additionally, Booth “must demonstrate that the policy was implemented with deliberate indifference to the known or obvious consequences that constitutional violations would result.” Id. (internal quotation marks and citation omitted). The causal link “moving force” requirement and the degree of culpability “deliberate indifference” requirement must not be diluted, for “where a court fails to adhere to rigorous requirements of culpability and causation, municipal liability collapses into respondeat superior liability.” Snyder v. Trepagnier, 142 F.3d 791, 796 (5th Cir. 1998) (citation omitted). Only the District Attorney challenges Booth’s allegation of causation. The District Attorney contends that as a matter of law, Booth has failed to sufficiently allege causation. Specifically, the District Attorney argues that Magistrates make independent bail determinations, and such independent judgments break any potential chain of causation linking the District Attorney to those bail determinations. In his motion to dismiss, the District Attorney offers two cases purportedly standing for the proposition that a judicial officer’s exercise of independent judgment in the course of his official duties may act as a superseding cause breaking the chain of causation. See, e.g., Galen v. Cty. of Los Angeles,
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477 F.3d 652, 663 (9th Cir. 2007); Harding v. Sacramento Cty. Dist. Attorney, No. 2:15CV-1890 CKD P, 2015 WL 7271744, at *1 (E.D. Cal. Nov. 18, 2015). In his reply brief, the District Attorney cites Hand v. Gary, 838 F.2d 1420, 1428 (5th Cir. 1988) for the proposition that “[a]n independent intermediary breaks the chain of causation . . . .”
The Court finds each of the District Attorney’s proffered authorities unpersuasive because in each case the court’s determination presupposed the intervening action of an independent intermediary. In this case, at this 12(b)(6) stage, Booth’s well pled factual allegations undercut such a presupposition. Indeed, the Bail Schedule Policy alleged by Booth expressly describes the Magistrates’ actions with respect to bail as anything but “independent.” For this reason alone, the District Attorney’s argument fails. C. Other County Arguments
The County makes a few additional arguments against liability. The County argues that under state law, all the judges are state actors and thus, they were acting on behalf of the state and not the County. This argument fails because as already decided above, Booth has sufficiently alleged that the District Court Judges, Local Administrative District Court Judge, and District Attorney have acquiesced in an unwritten, countywide process for setting bail that violates the Constitution. This well pled acquiescence theory necessarily demonstrates that the judges were acting, at least in relevant part, on behalf of the County. The County further argues that Booth’s argument is really an attack on judicial conduct, which is impermissible. Again, this argument fails for the same reason as the first argument—the acquiescence theory demonstrates that Booth is not simply challenging judicial conduct, he is challenging a County wide practice.
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The County also seems to contend that Booth’s procedural due process claim should be dismissed because bail in Texas is controlled by Texas law, as opposed to federal law. See Dkt. 45 at 20–21. This argument misses the mark because “while state law may define liberty interests protected under the procedural due process clause, it does not define the procedure constitutionally required to protect that interest.” ODonnell III, 892 F.3d at 160 (collecting cases).16 D. Conclusion on Section 1983 Liability
Booth “has alleged sufficiently specific details about the policy and policymakers he challenges, and the alleged constitutional violations they caused, to rise above the level of a ‘barebones recitation.’” Brown v. City of Houston, 297 F. Supp. 3d 748, 767 (S.D. Tex. 2017). Accordingly, the Court recommends that the request to dismiss the Section 1983 claim against the County be denied. Similarly, the Court believes the First Amended Complaint sufficiently alleges that the District Court Judges (including the Local Administrative District Court Judge) and District Attorney are properly sued in their official capacities. The claims against the District Court Judges in their individual capacities should be dismissed. The Magistrates should remain parties to this suit only in their personal capacities for declaratory relief.
16 There is some argument in the parties’ briefing concerning the scope of relief that might be attainable in this case. To the extent that such arguments have any validity, the Court will entertain them at a later stage with the benefit of a more fully developed factual record.
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CONCLUSION AND RECOMMENDATION For the reasons stated above, the Court RECOMMENDS that:  Galveston County’s First Amended Motion to Dismiss All Claims Pursuant to Rule 12(b)(6) (Dkt. 45) be DENIED;  Magistrates’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedures 12(b)(1) and 12(b)(6) and Brief in Support (Dkt. 46) be GRANTED in part and DENIED in part. Specifically, the claims asserted against the Magistrates in their official capacities should be DISMISSED. The motion should be denied in all other respects;  District Court Judges’ Motion to Dismiss for Lack of Subject-Matter Jurisdiction and for Failure to State a Claim (Dkt. 47) be GRANTED in part and DENIED in part. Specifically, the claims asserted against the District Court Judges in their individual capacities should be DISMISSED. The motion should be denied in all other respects;  Defendant Hon. Jack Roady’s Motion to Dismiss (Dkt. 48) be DENIED;  District Court Judge Defendants’ Second Motion to Dismiss for Lack of SubjectMatter Jurisdiction (Dkt. 94) be DENIED; and  Galveston County’s First Motion to Dismiss Pursuant to Rule 12(b)(1) (Dkt. 127) be DENIED. The Clerk shall provide copies of this Memorandum and Recommendation to the respective parties who have fourteen days from the receipt thereof to file written objections
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Case 3:18-cv-00104 Document 151 Filed on 12/10/18 in TXSD Page 45 of 45 pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002–13. Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal.
SIGNED at Galveston, Texas, this 10th day of December, 2018. _____________________________________ ANDREW M. EDISON UNITED STATES MAGISTRATE JUDGE
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United States District Court Southern District of Texas

ENTERED

March 12, 2019

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

David J. Bradley, Clerk

AARON BOOTH Plaintiff.
VS. GALVESTON COUNTY, ET AL.
Defendants.

§ § § § § CIVIL ACTION NO. 3:18–CV–00104 § § § §

MEMORANDUM AND RECOMMENDATION This Memorandum and Recommendation addresses Plaintiffs’ Amended Motion for Class Certification (Dkt. 32).1 The class certification motion has been referred to this Court for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See Dkt. 102. For the reasons set forth below, the Court recommends that the Amended Motion for Class Certification be GRANTED.
BACKGROUND This lawsuit concerns Galveston County’s pretrial detention system. Booth was arrested and charged with felony drug possession in Galveston County (the “County”) in April 2018. After his arrest, Booth claims his bail was set at $20,000 in accordance with the County’s standard operating procedures (“Bail Schedule Policy”). Booth was

1 The Amended Motion to Class Certification was filed by Plaintiffs Aaron Booth (“Booth”) and Cody Tucker (“Tucker”), both of whom sought to represent a purported class in this litigation. In September 2018, Tucker filed a Notice of Voluntary Dismissal, dismissing all of his claims without prejudice. See Dkt. 93. That leaves Booth as the sole individual seeking class certification.

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dissatisfied with this bail determination because he believed that the County’s standard operating procedure resulted in arrestees being routinely detained before trial solely due to their inability to pay bail in violation of the Equal Protection and Due Process Clauses of the United States Constitution.
Booth filed this suit on behalf of himself and all others similarly situated, asserting that the County’s pretrial detention practices violated his substantive and procedural due process rights, infringed Equal Protection guarantees, and undermined his constitutional right to counsel. Booth asserted his claims against several categories of defendants based on their various alleged roles in his constitutional deprivation: the County; a group of Galveston County District Court Judges (the “District Court Judges”); several Galveston County Magistrate Judges (the “Magistrates”); and Galveston County District Attorney Jack Roady (“Roady”). Booth sued the District Court Judges and the Magistrates in their official and individual capacities. Booth sued Roady in his official capacity as the County District Attorney.
At the motion to dismiss stage, the Court recommended the dismissal of all claims against the Magistrates in their official capacities and all claims against the District Court Judges in their individual capacities. See Dkt. 151. The Court recommended that all other claims survive the initial pleading challenge. United States District Court Judge George C. Hanks, Jr. adopted this Court’s recommendation. See Dkt. 165.
Booth has moved to certify the following class under Federal Rule of Civil Procedure 23(b)(2): all people who are or will be detained in Galveston County Jail on
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felony and state-jail felony charges because they are unable to pay secured bail set at magistration. See Dkt 106-1.
THE LEGAL STANDARD FOR CLASS CERTIFICATION A class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013) (quoting Califano v. Yamasaki, 442 U.S. 682, 700–701 (1979)). “Class actions permit representative plaintiffs to litigate their claims on behalf of members of the class not before the court.” Caliste v. Cantrell, No. 17-6197, 2018 WL 1365809, at *1 (E.D. La. Mar. 16, 2018). “The purpose of a class action is to avoid multiple actions and to allow claimants who could not otherwise litigate their claims individually to bring them as a class.” Id. (citing Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 349 (1983)). Class certification is controlled by Federal Rule of Civil Procedure 23. To certify a Rule 23 class, Booth must show that his proposed class meets the requirements of Rule 23(a) and at least one of the three criteria for certification under Rule 23(b). See FED. R. CIV. P. 23; Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 345 (2011). Rule 23(a) imposes four prerequisites on a class seeking certification: “(1) numerosity (a ‘class [so large] that joinder of all members is impracticable’); (2) commonality (‘questions of law or fact common to the class’); (3) typicality (named parties’ claims or defenses ‘are typical . . . of the class’); and (4) adequacy of representation (representatives ‘will fairly and adequately protect the interests of the class’).” Ackal v. Centennial Beauregard Cellular, LLC, 700 F.3d 212, 216 (5th Cir. 2012) (quoting Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997)) (alterations in original).
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Here, Booth seeks certification under Rule 23(b)(2), which applies when “injunctive relief . . . is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2).
“The party seeking [class] certification bears the burden of demonstrating that the requirements of [R]ule 23 have been met.” O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 737–38 (5th Cir. 2003) (citing Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th Cir. 1998)). Before certifying a class, “[a] district court must rigorously analyze Rule 23’s prerequisites.” Spence v. Glock, Ges.m.b.H., 227 F.3d 308, 310 (5th Cir. 2000) (collecting cases). Importantly, “Rule 23 does not set forth a mere pleading standard.” Wal-Mart, 564 U.S. at 350. Rather, a party seeking class certification must “be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, typicality of claims or defenses, and adequacy of representation” and to satisfy at least one of Rule 23(b)’s provisions “through evidentiary proof.” Comcast Corp., 569 U.S. at 27, 33 (internal quotation marks and citation omitted) (emphasis in original).
While the district court must perform a “rigorous analysis” to determine whether to certify a class, it may not require a plaintiff to establish his claims at the class certification stage. Wal-Mart, 564 U.S. at 351. See also Amgen Inc. v. Conn. Ret. Plans and Trust Funds, 568 U.S. 455, 466 (2013) (“Rule 23 grants courts no license to engage in freeranging merits inquiries at the certification stage. Merit questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”) (citation omitted). Simply stated, the certification stage is not a “dress rehearsal for the merits.” In re Deepwater Horizon, 739 F.3d 790, 811 (5th Cir. 2014).
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ANALYSIS The class certification motion before the Court does not present a novel legal issue. It is certainly not the first time a court has had to determine whether to certify a class of arrestees allegedly detained because they are unable to pay secured bail. Indeed, within the last two years, three district courts within the Fifth Circuit have granted class certification in cases challenging the constitutionality of a county’s pretrial detention system. See Daves v. Dallas Cty., No. 3:18-cv-0154-N, 2018 WL 4537202 (N.D. Tex. Sept. 20, 2018) (Dallas County, Texas); ODonnell v. Harris Cty., No. H-16-1414, 2017 WL 1542457 (S.D. Tex. Apr. 28, 2017) (Harris County, Texas); Caliste, 2018 WL 1365809 (Orleans Parish, Louisiana). These cases provide solid guidance since the classes certified are very similar to the class Booth seeks to certify in this case. See Daves, 2018 WL 4537202, at *1 (certifying a class of “[a]ll arrestees who are or will be detained in Dallas County custody because they are unable to pay a secured financial condition of release”); ODonnell, 2017 WL 1542457, at *1 (certifying a class of “[a]ll Class A and Class B misdemeanor arrestees who are detained by Harris County from the date of this order through the final resolution of this case, for whom a secured financial condition of release has been set and who cannot pay the amount necessary for release on the secured money bail because of indigence”); Memorandum in Support of Plaintiffs’ Motion to Certify a Class Action at 2, Caliste, 2018 WL 1365809, at *3, ECF No. 5-1 (certifying a class of “all presumptively innocent arrestees who are now before or will come before Defendant Magistrate Judge of Orleans Parish Criminal District Court for proceedings concerning
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pretrial detention and who are unable to pay the financial condition imposed as a
requirement for their immediate release”).
A. Rule 23(a)
As noted above, Rule 23 requires a plaintiff seeking to certify a class to establish
four elements: numerosity, commonality, typicality, and adequacy. See Wal-Mart, 564
U.S. at 345. The Court is required to independently analyze each of the Rule 23 factors
and will do so below. See Stirman v. Exxon Corp., 280 F.3d 554, 563 n.7 (5th Cir. 2002).
1. Numerosity
Class certification is only appropriate where “the class is so numerous that joinder
of all members is impracticable.” FED. R. CIV. P. 23(a)(1). The Fifth Circuit has
summarized the so-called numerosity requirement as follows:
“[A] plaintiff must ordinarily demonstrate some evidence or reasonable estimate of the number of purported class members.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038 (5th Cir. 1981). This court, however, has repeatedly noted that “the number of members in a proposed class is not determinative of whether joinder is impracticable.” In re TWL Corp., 712 F.3d 886, 894 (5th Cir. 2013) (quoting Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999)). Rather, “a number of facts other than the actual or estimated number of purported class members may be relevant to the ‘numerosity’ question; these include, for example, the geographical dispersion of the class, the ease with which class members may be identified, the nature of the action, and the size of each plaintiff’s claim.” Zeidman, 651 F.2d at 1038.
Ibe v. Jones, 836 F.3d 516, 528 (5th Cir. 2016). Although the Defendants do not dispute
the satisfaction of the numerosity requirement, this Court must, at a minimum, “identify
the approximate number of potential class members in this matter and other factors, if any,
that bear on a determination of numerosity, as well as to explain the effect of those factors
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on its conclusion.” Ward v. Hellerstedt, No. 17-50899, --- F. App’x ---, 2018 WL 5045675, at *6 n.16 (5th Cir. Oct. 16, 2018) (citing Ibe, 836 F.3d at 528).
There is no question that the proposed class in this case passes the numerosity test. There are hundreds, possibly thousands of potential class members. The uncontroverted evidence reflects that, at any given time, the County’s jail population hovers around 1,000 arrestees, and pretrial arrestees represent approximately 70 percent of the population. See Dkt. 185-31 at 23–24. Booth also presented statistical evidence and firsthand accounts from arrestees indicating that individuals are routinely detained in Galveston County Jail because they are unable to pay secured bail set at magistration. Booth has, therefore, met the numerosity requirement.
2. Commonality In order to satisfy the commonality requirement under Rule 23(a)(2), Booth must demonstrate that “there are questions of law or fact common to the class.” FED. R. CIV. P. 23(a)(2). The Supreme Court’s 2011 decision in Wal-Mart “heightened the standards for establishing commonality.” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 839 (5th Cir. 2012) (citing Wal-Mart, 564 U.S. at 349–51). In the wake of Wal-Mart, the claims of all class members “must depend upon a common contention . . . of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” WalMart, 564 U.S. at 350. While “any competently crafted class complaint literally raises common questions,” commonality goes further and “requires the plaintiff to demonstrate that the class members
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have suffered the same injury.” Perry, 675 F.3d at 840 (citing Wal-Mart, 564 U.S. at 350–
51) (internal quotation marks omitted). Under Wal-Mart, “[w]hat matters to class
certification . . . is not the raising of common ‘questions’—even in droves—but, rather the
capacity of a class wide proceeding to generate common answers apt to drive the resolution
of the litigation. Dissimilarities within the proposed class are what have the potential to
impede the generation of common answers.” 564 U.S. at 350 (citation omitted). As the
Fifth Circuit recently observed: “[t]o satisfy the commonality requirement under Rule
23(a)(2), class members must raise at least one contention that is central to the validity of
each class member’s claims.” Deepwater Horizon, 739 F.3d at 810.
In the present case, Booth contends the commonality requirement is met because
the claims of all class members raise common factual and legal questions that will generate
common questions. According to Booth, the most common questions of fact with respect
to the class are:
x Whether Magistrates have a widespread, well-settled practice of setting secured bail without inquiry into ability to pay or consideration of alternatives less restrictive than unaffordable secured bail, without the presence of counsel;
x Whether Magistrates have a widespread, well-settled practice of setting secured bail without adequate procedural protections including notice, an opportunity to present and contest evidence, appointment of counsel, reasoned findings based on clear and convincing evidence on the record that unaffordable secured bail is the least restrictive means of mitigating an individual’s flight risk or danger;
x Whether Magistrates conduct bail hearings without the presence of counsel for the defendant;
x Whether Magistrates’ secured bail orders result in pretrial detention; x Whether unaffordable secured bail undermines the fairness of plea
bargaining or trial; and
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x How long class members must wait in jail after arrest before they have an opportunity to raise their inability to pay for their release or to request alternative, non-financial conditions.
Dkt. 32 at 11. Booth further asserts that the most common questions of law with respect
to the class are:
x Whether imposing unaffordable secured bail without an ability to pay hearing violates the Fourteenth Amendment Due Process and Equal Protection Clauses;
x Whether imposing unaffordable secured bail without adequate procedural protections including notice, an opportunity to present and contest evidence, appointment of counsel, and reasoned findings on the record that unaffordable secured bail is the least restrictive means of mitigating an individual’s flight risk or danger violates the Fourteenth Amendment’s Due Process Clause; and
x Whether denying counsel at a bail hearing violates the Sixth Amendment’s Right to Counsel Clause.
Id.
The Court agrees with Booth that common questions of fact and law pervade this
case, favoring class certification. The resolution of these factual and legal issues is
dispositive to the claims for affirmative relief brought on behalf of all members of the class.
See Caliste, 2018 WL 1365809 at *2 (“Commonality is satisfied because the claims of each
class member rest on common fact questions surrounding Defendant’s policies and
practices of setting bail in state criminal cases. Further, the claims share a common
question of law: whether these policies and practices violate the Fourteenth Amendment’s
Due Process and Equal Protection clauses.”).
The Court wants to emphasize that, in accordance with Supreme Court precedent, it
is not considering the merits of Booth’s claims at this class certification stage. See Eisen
v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (“In determining the propriety of a class 9

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action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.”) (internal quotation marks and citation omitted). See also Unger v. Amedisys, Inc., 401 F.3d 316, 321 (5th Cir. 2005) (“Class certification hearings should not be mini-trials on the merits of the class or individual claims.”) (citation omitted). A complete evaluation into the underlying merits of Booth’s case is simply not something the Court will wade into at the class certification stage.
In challenging class certification, Defendants argue that the proposed class lacks commonality due to the varying nature of the crimes included, different factors a judge might consider when setting bail for different arrestees, differences in how crimes are treated under Texas law, and different inquiries that arise when determining whether an arrestee can pay. This argument misses the boat. It is axiomatic that there will always be some differences among class members. Individual factual differences among the individual litigants or groups of litigants will not, by themselves, preclude a finding of commonality. The critical question is whether the resolution of common questions of fact and law would have the capacity to “generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 564 U.S. at 350 (internal quotation marks and citation omitted). In Daves, the recent case challenging the pretrial detention system in Dallas County, the district court noted that the common question in the case “is whether or not the alleged procedures that apply to all arrestees and result in unaffordable bail deprive the proposed class members of constitutionally required process. Resolving that question will resolve the claims of every proposed class member, regardless of what crime they
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committed.” 2018 WL 4537202, at *2. The same analysis applies with equal force here. In finding that the proposed class raises common questions of fact, the Court is convinced that the class members’ claims do not require individualized determinations but can be handled on a class-wide basis.
To summarize, the Court finds this case meets the commonality requirement of Rule 23(a)(2).
3. Typicality Rule 23(a)(3) requires that “the claims or defenses of the representative parties [be] typical of the claims or defenses of the class.” FED. R. CIV. P. 23(a)(3). “[A] class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 401 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 216 (1974)). The test for typicality is not particularly demanding. See Mullen, 186 F.3d at 625. As the Fifth Circuit has noted: Typicality does not require a complete identity of claims. Rather, the critical inquiry is whether the class representative’s claims have the same essential characteristics of those of the putative class. If the claims arise from a similar course of conduct and share the same legal theory, factual differences will not defeat typicality. Stirman, 280 F.3d at 562 (quotation omitted). The Supreme Court has observed that “commonality and typicality . . . tend to merge,” as both requirements “serve as guideposts for determining . . . whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class
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members will be fairly and adequately protected in their absence.” Wal-Mart, 564 U.S. at 350 n.5.
With this legal framework in mind, the Court concludes that Booth has met the typicality standard as set forth in Rule 23(a)(3). The claims Booth asserts share the same essential characteristics as the claims of the other class members. His claims arise from the same course of conduct and are brought under the same legal theory. To put a finer point on the allegations, Booth contends that his pretrial detention was a result of the County’s Bail Schedule Policy, a policy that purportedly applies in the same manner to each putative class members. The class members Booth seeks to represent have allegedly suffered the exact same constitutional violations as he endured: having bail set at a closed door hearing pursuant to a bail schedule with no representation by counsel and no individualized inquiry into their ability to pay, flight risk, or dangerousness. See Daves, 2018 WL 4537202, at *2 (finding typicality satisfied because “this action challenges universal policies and practices that allegedly results in certain individuals being detained solely because they could not pay the set bail. The constitutional challenges brought by Plaintiffs against these procedures are the same challenges that any member of the class would bring”).
4. Adequacy The final requirement under Rule 23(a) requires that “the representative parties will fairly and adequately protect the interests of the class.” FED. R. CIV. P. 23(a)(4). It is improper for a district court to simply presume that Booth and his counsel are adequate representatives. Instead, the party seeking to certify the class must affirmatively prove that
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he is an adequate class representative. See Berger v. Compaq Corp., 257 F.3d 475, 481 (5th Cir. 2001). The adequacy requirement is not a mere formality, but is vital to protect the rights of class members. Since class members are bound by the judgment, “the court must be especially vigilant to ensure that the due process rights of all class members are safeguarded through adequate representation at all times.” Id. at 480 (collecting cases). The adequacy requirement also “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., 521 U.S. at 625 (citation omitted).
The adequacy analysis encompasses two separate inquiries: (1) the willingness and ability of the named plaintiff “to take an active role in and control the litigation and to protect the interests of absentees”; and (2) “the zeal and competence of the representative’s counsel.” Berger, 257 F.3d at 479 (quoting Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 484 (5th Cir. 1982)) (brackets omitted).
Named Plaintiff: The Fifth Circuit has “identified a ‘generic standard’ for the adequacy requirement, noting that ‘class representatives [must] possess a sufficient level of knowledge and understanding to be capable of ‘controlling’ or ‘prosecuting’ the litigation.” Feder v. Elec. Data Sys. Corp., 429 F.3d 125, 131–32 (5th Cir. 2005) (quoting Berger, 257 F.3d at 482–83). Class representatives “need not be legal scholars.” Feder, 429 F.3d at 132 n.4 (citation omitted). Instead, class representatives “are entitled to work with, and rely upon, their counsel in pursuing their claims and navigating the complicated legal and factual issues associated with” complex litigation. Stoffels v. SBC Commc’ns, Inc., 238 F.R.D. 446, 455 (W.D. Tex. 2006). A class representative is considered adequate
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when he has “familiarity with the complaint and the concept of a class action.” Horton, 690 F.2d at 484.
Booth easily satisfies the adequacy requirement. He has volunteered his time to serve as a class representative and states a genuine willingness to vigorously prosecute the interests of the class. To date, Booth has gathered documents, sat for a deposition, and met numerous times with counsel to discuss the case. He possesses a fundamental understanding of the case sufficient to allow him to actively participate in the lawsuit as it progresses. Booth’s interests appear to be completely aligned with the putative class such that the Court is confident that there is no conflict of interest between Booth and the class he seeks to represent. See ODonnell, 2017 WL 1542457, at *6 (“Each named plaintiff is a member of the class he or she seeks to represent, does not have claims in conflict with those of other class members, and adequately represents the class.”).
Defendants challenge Booth’s adequacy by asserting that he lacks honesty and credibility. In advancing this argument, Defendants point to a criminal conviction for check fraud, a criminal conviction for family violence, various alleged false statements, and the invocation of his Fifth Amendment right against self-incrimination in response to certain questions concerning gun ownership. It is true that a class representative’s character deficiencies may serve as a viable challenge to a finding of adequacy, but “courts look to personal characteristics only insofar as they touch upon the lawsuit.” Jane B. by Martin, v. New York City Dep’t of Soc. Servs., 117 F.R.D. 64, 71 (S.D.N.Y. 1987). Accordingly, any inquiry “into the representatives’ personal qualities is not an examination into their moral righteousness, but rather an inquiry directed at improper or questionable
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conduct arising out of or touching upon the very prosecution of the lawsuit.” Id. (collecting cases). Defendants’ repeated attacks on Booth’s credibility and honesty do not touch upon the prosecution of this lawsuit, nor do Defendants even attempt to argue that they do. This is fatal to Defendants’ position since a class representative does not have to be “morally upstanding”; instead, adequacy requires only that “he or she must not have damaged his or her credibility regarding those issues that are central to the action.” Gortat v. Capala Bros., Inc., 257 F.R.D. 353, 364 (E.D.N.Y. 2009) (emphasis added).
Counsel: Booth is represented by attorneys from the American Civil Liberties Union Foundation, the American Civil Liberties Union Foundation of Texas, and Arnold & Porter Kaye Scholer, LLP. These lawyers have considerable experience in litigating complex class action cases and civil right cases, including cases concerning the constitutionality of pretrial detention systems. The adequacy of counsel is not in dispute.
In conclusion, the Court finds that the adequacy requirement of Rule 23(a)(4) has been satisfied. B. Rule 23(b)(2)
In addition to meeting the numerosity, commonality, typicality, and adequacy requirements set forth in Rule 23(a), a proposed class must also satisfy one of the three requirements under Rule 23(b) to be certified. In this case, Booth seeks certification under Rule 23(b)(2), which provides for class certification if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). The Supreme Court has explained that Rule 23(b)(2) applies when:
15

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a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. Wal-Mart, 564 U.S. at 360–61 (emphasis in original). Booth’s First Amended Complaint only seeks injunctive and declaratory relief. “[I]f the plaintiffs [seek] only injunctive and declaratory relief, [the] case [can] readily be certified as a class action under Rule 23(b)(2).” Allison, 151 F.3d at 411. This is because “[w]hen a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident.” Wal-Mart, 564 U.S. at 362–63. The injunctive and declaratory relief sought by Booth in this case, if granted, would declare the current pretrial detention system in Galveston County unconstitutional and provide relief to every member of the class. The new pretrial detention procedures Booth seeks to implement would, among other things, provide an arrestee a prompt hearing inquiring into the ability to pay, and permit the arrestee to present and rebut evidence concerning flight risk and dangerousness. Booth also asks for a declaration that a bail hearing is a critical stage of prosecution for Sixth Amendment right to counsel, and any potential declaration or injunction on that front would also inure to the benefit of the entire class. Accordingly, Booth has satisfied Rule 23(b)(2). See Daves, 2018 WL 4537202, at *2 (certification under Rule 23(b)(2) appropriate in a challenge to Dallas County’s pretrial
16

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detention system because injunctive “[r]elief in the form of reformed procedures is relief for every class member.”). C. Class Certification is Necessary
Finally, Defendants contend that class-based relief is unnecessary because the prospective declaratory and injunctive relief Booth seeks in this case will apply to all putative class members regardless of whether a class is actually certified. In Daves, the court addressed this very issue, stating that “[t]he Fifth Circuit has decided . . . that it is an abuse of discretion to refuse ‘to certify an otherwise appropriate class because of lack of need when there is a risk of mootness.’” 2018 WL 4537202, at *3 (quoting Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981) (quotation marks omitted)). Booth posits that “[c]lass certification is necessary here because [his] individual claims for relief are moot; certification is the only means to protect the class.” Dkt. 121 at 19. The Court agrees.
The Supreme Court has expressly held that class action allegations generate a continuing controversy even though a class representative’s pretrial detention has ended. See Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991) (the release of the named plaintiff from jail does not moot the action when a class action is brought challenging procedures for pretrial detention); Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975) (same). By bringing this case as a class action, Booth “preserve[s] the merits of the controversy for . . . review” and ensures that other similarly situated arrestees can proceed with their claims even though Booth’s individual claims might be rendered moot as a result of his release from jail. McLaughlin, 500 U.S. at 51. If the Court refused to allow this case to proceed
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as a class action, Booth would unquestionably be precluded from pursuing this case individually. His claims would be moot because he has been released from jail and there is no live controversy. Thus, the putative class members’ only chance to obtain injunctive or declaratory relief occurs if the case proceeds as a class action. Because the “risk of mootness is great . . . and the issue raised is important not only to [Plaintiffs] but others similarly situated,” the Court declines to deny certification due to a lack of need. Johnson, 658 F.2d at 1069 (citation omitted).
CONCLUSION AND RECOMMENDATION For the reasons stated above, Court recommends that the Amended Motion for Class Certification be GRANTED and the following class be certified under Rule 23(b)(2): all people who are or will be detained in Galveston County Jail on felony and state-jail felony charges because they are unable to pay secured bail set at magistration. The Clerk shall provide copies of this Memorandum and Recommendation to the respective parties who have fourteen days from the receipt thereof to file written objections pursuant to Federal Rule of Civil Procedure 72(b) and General Order 2002–13. Failure to file written objections within the time period mentioned shall bar an aggrieved party from attacking the factual findings and legal conclusions on appeal. SIGNED at Galveston, Texas, this 11th day of March, 2019.
______________________________________ ANDREW M. EDISON
UNITED STATES MAGISTRATE JUDGE
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 Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD
UN ITED STA TES D ISTRICT COURT SOU TH ERN D ISTRICT O F TEX AS
GA LVESTON DIV ISION

Page 1 of 45
United States District Court Southern District of Texas
ENTERED
August 07, 2019
David J. Bradley, Clerk

A ARON BOOTH

Plaintiff.

V S. GALVESTON COU NTY ,ET A L.l

CIVIL ACTION N O .3:18-CV-00104

D efendants.

M EM O M N DU M A ND RECO M M EN DATIO N
PendingbeforetheCourtaretwoseparatem otionsforprelim inaryinjunctionfiled by PlaintiffAaron800th (û% ooth''). Thefirstm otion,PlaintiffsM otion forPrelim inary lnjunction,contends thatGalveston County'sbailsystem violatesthe United States
Constitution and asksthisCourtto issue an orderrequiring certain proceduralchangesin how Galveston County'sseeured m oney bailsystem operates. See Dkt.3-1. Thesecond
motion,PlaintiffsM otionforPreliminaryInunction(sic)RequiringCounselatInitialBail
Hearings,seeks an orderrequiring Galveston County to provide counselatinitialbail hearingsforthose felony arresteeswho cannotafford representation. SeeD kt.205. The parties have subm itted extensive briefing on the legal issues involved, provided volum inous exhibits, and presented live testim ony from 11 w itnesses at a day-long

1On M arch 19, 2019,Counselforthe G alveston County D istrictCourtJudgesprovided the Court
withnoticethat:(l)DefendantM ichelleM .Slaughter,formerJudgeofthe405thDistrictCourt, hasassum edaseatontheTexasCourtofCrim inalAppeals',(2)JaredRobinsonhasbeenappointed andconfinnedasthenew Judgeofthe405thDistrictCoul't;and(3)pursuanttoFederalRuleof CivilProcedure25(d),JudgeJaredRobinsonisautom aticallysubstitutedasaparty.SeeDkt.2l5.

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 2 of 45
preliminary injunctionhearing. Afterthoroughlyreviewingthebriefing,analyzingthe
applicable law ,considering the evidentiary subm issions,entertaining live testim ony,and hearing argum ent from counsel, the Court RECO M M END S that the M otion for
Preliminarylnjunction(Dkt.3-1)beDENIED andtheM otionforPreliminarylnunction (siclRequiring CounselatInitialBailHearings (Dkt.205)be GRANTED. This
M em orandum and Recom m endation constitutes the Court's findings of facts and conclusionsoflaw pursuantto Rule52 oftheFederalRulesofCivilProcedure.
INTR OD U CTIO N ln recentyears,a num beroflaw suitshave been filed allacrossthis greatnation challenging long-established bailpractices.Thiscaseisone ofthose law suits.Itfocuses onGalvestonCounty'spretrialdetentionsystem forfelonyarresteesandrequiresthisCourt to assesstheconstitutionality ofthatpretrialdetention system . 800thw asarrested in April2018foranalleged felony.A prosecutorrecom m ended
Booth'sbailbesetat$20,000.00. A fterbeing booked into G alveston County Jail,800th appearedbefoream agistrate.Them agistrateinform ed800th ofthechargesagainsthim , advised him ofhisrights,and setbail. M ore specitically,the m agistratesigned an order
requiring800thtoposta$20,000.00bondtobereleasedfrom jailpendingtheresolution
ofhiscrim inalcase. 800th did nothave an attorney atthetim e bailw asset. Only after the hearing atwhich bailw asdeterm ined did 800th havethe opportunity to com pletethe paperwork dem onstrating his financialinability to hirecounsel. 800th received a courtappointedcounseltheday afterhisbailhearing.8 00th claim sthathecould notaffordthe

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am ountrequired forhisrelease and,as a result,spent54 days in custody before a bail reduction hearing w asheld.
800th brings this lawsuiton behalf ofhim selfand a11 others sim ilarly situated,
allegingthatGalveston County,agroup ofGalveston County DistrictCourtJudges(the çr istrictCourtJudges''),severalGalveston County M agistrate Judges,and Galveston County DistrictAttorney Jack Roady (theûr istrictAttorney'')allacttogethertoemploy
an unconstitutionalbailpolicy thatresultsin the routine detention ofGalveston County felony arresteesbeforetrialsolely duetotheirinabilitytopaybail.800th alsoallegesthat thesam epolicy deniesarresteestheirconstitutionalrighttocounselataûûcriticalstage''of theprosecution'.the initialbailhearing.
800thseeksboth injunctiveanddeclaratoryrelief.
H ISTO R Y O F BAIL
Black'sLaw Dictionary definesûûbail''asttla)security such ascash,abond,or
property;esp.,securityrequiredby acoul'tforthereleaseofacrim inaldefendantwhom ust
appearincourtatafuturetime.''Bail,BLACK'SLAW DICTIONARY (11th ed.2019).See also TEX.CODE CRIM.PRO.ART.17.01(defining lûbail''asûçthe security given by the
accused thathe w illappear and answerbefore the propercourtthe accusation brought
againsthim ,andincludesabailbondorapersonalbond'').
G iven thatthiscaseconcernstheuseofbailinG alveston County,abriefhistory of bailisappropriateto setthestagefortheanalysisto com e.
Bailoriginated in m edievalEngland as a device to free untried prisoners. Thepenalty form ostcrim esw asafinepaid ascom pensation to thevictim . W hen capitaland corporalpunishm entreplaced fines,abusesin the delay
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betw eenarrestandtrialbegan to em erge.In response,thecom m onlaw right to bailw as codified into English law ,and the principlesthatan accused is presum ed innocent and entitled to personal liberty pending trial w ere incorporated intotheM agnaCarta.
Buffînv.CityandC/y.ofsanFrancisco,No.15-CV-04959-YGR,2019W L 1017537,at *11(N.D.Cal.M ar.4,2019)(internalquotationmarks,footnote,andcitationsomitted).
ûtAm erican history m akesclearthatthe settlersbroughtthispractice w ith them to
America.'' Jenningsv.Rodriguez,138 S.Ct.830,863(2018)(Breyer,J.,dissenting).
Colonialconstitutions,theN orthw estOrdinanceof1787,theJudiciary A ctof1789,and
thevastmajorityofstateconstitutionsthroughouthistoryhaveprotectedarighttobailby
sufficientsureties. See id.at863-64. The United StatesConstitution also addressesthe useofbail.TheEighth Am endm ent,whichprohibitsûûexcessivebail,''recognizesboththe
obviousliberty interestofpretrialdetainees(thoseaccused,butnotyetconvicted)andthe
governm ent'slegitim ateinterestin ensuringtheaccused'sappearanceattrial.U .S.CONST. A MEND.V 111. ltdoesso by ensuring thatûtthefixing ofbailforany individualdefendant m ustbe based upon standards relevantto the purpose ofassuring the presence ofthat
defendant.''Stackv.Boyle,342U.S.1,5(1951).Accordingly,theamountofbailcannot
betûexcessive'' thatis,ûçhigherthan ...reasonably calculated to''ensure theaccused's
appearance.1d.(citationomitted).
The presum ption of innocence is a bedrock principle ofthe Am erican crim inal
justicesystem .AstheSupremeCourthasexplained:iûunlessthgelrighttobailbeforetrial
ispreserved,thepresum ptionofinnocence,securedonly aftercenturiesofstruggle,w ould lose itsm eaning.'' 1d.at4. Thus,in oursystem ,m onetary bailis the m echanism that
4

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protectsthe w ell-established tûrightto freedom before conviction,''w hile also protecting society's interest in ensuring that defendants answ er the charges against them . A ccordingly,tlliberty isthenorm ,and detention ...isthe carefully lim ited exception.''
UnitedStatesv.Salerno,481U .S.739,755(1987).
TH E OD ONN ELL O PIN IO N Justlastyear,the Fifth Circuitissued a landm ark opinion in a case challenging HarrisCounty'szsystem ofsetting bailforpoorm isdem eanorarrestees. See OD onnellv
.
HarrisC/y.(ODonnell11.),892F.3d147(5thCir.2018).3Asaresult,ODonnellS provides
the fram ew ork by w hich the constitutionality ofany pretrialdetention system w ithin the
FifthCircuitmustbem easured.InODonnelllh theplaintiffsbroughtaclassactionlawsuit
againstHarrisCounty and severalofitsofficialsalleging thatH arrisCounty'ssystem of setting bailforindigentm isdem eanorarresteesviolated Texasstatutory and constitutional law, as w ell as the Equal Protection and Due Process Clauses of the Fourteenth
Amendment.Afteraneight-dayprelim inaryinjunctionhearing,theDistrictCourtgranted therequestforaprelim inaryinjunction,findingthattheplaintiffswerelikelytoprevailon
theirEqualProtection and D ue Process claim s. See id.at 152. The DistrictCourt's
injunctionrequiredtheimplem entationofsafeguardstopreventtheautomaticimposition
2 Harris County, w hich is contiguous w ith Galveston County,is the third largestcounty in the U nited States. 3ODonnell11largelyaftirmed ChiefJudgeLee Rosenthal'sunderlying decision in OD onnellv.
HarrisC/y.(ODonnell1),251F.Supp.3d 1052(S.D.Tex.2017).AfterissuingODonnellI1,the
Fifth Circuitreleased a subsequentrelated opinion in which itexam ined the tennsofaproposed
preliminaryinjunctionissuedinthewakeofODonnell1I.SeeODonnellv.Goodhart(ODonnell 111.),900F.3d220(5thCir.2018).
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of pretrial detention on indigent m isdem eanor arrestees and the release of num erous
detaineessubjectedtoHarrisCounty'sconstitutionallydeficientbailsystem. Seeid.at
TheFifthCircuitlargelyupheldtheinjunction,concludingthatitisconstitutionally
im perm issible to autom atically im pose pretrial detention on indigent m isdem eanor
arrestees.On thedueprocessfront,theFifth Circuitheld thatproceduresm ustbeinplace
thatûûsufficiently protectdetainees from m agistrates im posing bailas an ûinstrum entof
oppression.'''1d.at159.Becausebailforindigentarresteesin H arrisCounty w asalm ost
alwayssetatan am ountthatdetainedthedefendant,the Fihh Circuitfound aviolation of
theDueProcessClause.See id.Interm softheEqualProtection Clause,theFifth Circuit
affirm ed theDistrictCourt'sholding thatHarrisCounty'sbail-settingproceduresviolated
theEqualProtection Clausebecauseçûthey treatotherwisesim ilarly-situated m isdem eanor
arresteesdifferentlybasedsolelyontheirrelativewealth.''1d.at161.A stheFifth Circuit
explained'.
In sum ,the essence ofthe districtcourt's equalprotection analysis can be boiled down to the following:take tw o m isdem eanor arrestees who are identical in every w ay- sam e charge, sam e crim inalbackgrounds,sam e circum stances, etc.- except that one is w ealthy and one is indigent. A pplying the County's current custom and practice, w ith their lack of individualized assessm ent and m echanicalapplication ofthe secured bail schedule,both arresteesw ouldalm ostcertainlyreceiveidenticalsecuredbail am ounts.O nearresteeisabletopostbond,andtheotherisnot.A saresult, the w ealthy arrestee isless likely to plead guilty,m ore likely to receive a shortersentence orbe acquitted,and less likely to bearthe socialcostsof incarceration. Thepoorarrestee,by contrast,m ustbearthe bruntofal1of these,sim ply becausehehaslessm oney than hisw ealthy counterpart. The districtcourtheldthatthisstateofaffairsviolatestheequalprotection clause, and weagree.
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1d.at163.
lnaddressing theappropriatescopeoftheinjunction,theFifth Circuitheldthat
individualized hearings aher which m agistrates had to ttspecifically enunciate their
individualized,case-specificreasonsfor(imposingbaillisasufficientremedy.''1d.at160.
Theproceduresrequired forsuch hearingsincludeûûnotice,an opportunitytobeheard and subm it evidence w ithin 48 hours of arrest,and a reasoned decision by an im partial decisionm aker.'' 1d.at163. TheFifth Circuitthen provided detailed guidance on how a
properly crafted injunction should look,cautioningthatitshould notStamountlltothe
outrightelim ination ofsecuredbailforindigentm isdem eanorarrestees.''1d. TH E BA IL SY STEM FO R FELO NY AR R ESTEES IN G A LV ESTO N C O UNTY The procedures governing how the Galveston County bailsystem functions for
felony arresteeshave changed dram atically since this law suitw as initially filed. A sa result,thefactsdescribedbelow arearranged in two categories:PastBailSchedulePolicy andCurrentBailSchedulePolicy.PastBailSchedulePolicy referstothesystem in place atthe tim e ofBooth's arrestin April2018. CurrentBailSchedule Policy refersto the proceduresutilized today.
PastBailSchedulePolicy.A tthetim eofBooth'sarrest,G alveston County'sbail system forfelony arresteesfunctionedinthefollow ing m anner:
* A ftera felony arrestee w astaken into custody,the arresting officer w ould prepare a preprinted bailorder form identifying the charges levied againstthearrestee,asw ellasabailam ountforeach charge.
* In setting the bailam ounts for felony charges,the arresting officer w ould calltheintakedistrictattorney,w how ouldthen recom m end a bond am ountbased on am ountsretlected in a schedule prepared by
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theDistrictAttorney foruseby attorneysin hisoffice.lfthearrestee hadm ultiplecharges,therecom m endedbailam ountsforeach charge w ereaddedtogether.
@ Afterthe arresting oftk ercompleted the bailorderform ,the felony
arresteecouldbebookedintotheGalvestonCountyjail.
@ Usually w ithin 24 hoursofincarceration,an arresteeappearedbefore am agistrateforaproceedingreferredtoasttm agistration.''4 Thisw as
thefirsttim ean arresteewould appearbeforeajudicialofficer. At
m agistration,them agistratew ould brietly explain thechargeslevied againstthe arrestee,inform thearrestee ofhisbasic rights,including
therightto remain silent,and ask thearresteea few questions(Are
you a United States citizen? H ave you served in the arm ed forces?
Areyououtonbailforanotheroffense?).Themagistratealsosetbail
at this proceeding. H ow ever,the m agistrate did not possess any financialinform ation indicating an arrestee's ability or inability to m akebail,nordid them agistrate inquire into thearrestee'sfinancial status.A sapracticalm atter,them agistrateroutinely adoptedthebail am ountscontained onthebailorderform ,w hichhadbeencom pleted
bythearrestingofficerinconjunctionwiththeintakedistrictattorney.
* Arresteesw erenotrepresentedby counselduring m agistration.
@ A fterm agistration,an arrestee would finally have an opportunity to com plete a pauper's oath,declaring his indigency and requesting a courtappointed attorney.
* Thenexthearing,w hich wouldbethefirsthearing thearresteew ould havecourtappointed counsel,w ouldoccuranyw herefrom afew days to a few w eeks afterm agistration. Accordingly,ifan arrestee w as unable to pay the bailsetatm agistration,the arresteem ightbe held forw eekssolely based on hisinability topay.
4(tM agistration''isatenn notfound in theTexasCodeofCrim inalProcedureorelsew here in the law . In Texas,the term s lsm agistration,''ûûinitialappearance,''ûûprobable cause hearing,''and (ûArtiele 15.17 healing''areoflen used interchangeably to deseribe thefirsttime an arresteeis
broughtbeforeamagistrate.Article l5.17(a)oftheTexasCodeofCriminalProcedurerequires
an officerm aking an arrestto ttw ithoutunnecessary delay ...taketheperson arrested ...before som em agistrate ofthecounty w herethe accused wasarrested.'' A rticle 15.17 also setsforth the basicresponsibilitiesand dutiesofam agistrateatthisinitialappearance.
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Current Bail Schedule Policy. Som etim e after Booth's arrest and during the
pendency of this law suit, significant changes w ere m ade to G alveston County's
m agistration system with the expressgoalto bring itinto com pliancew ith OD onnell11.
Thenew system functionsasfollow s:
@ A fter a felony arrestee is taken into custody,the arresting officer prepares a bailorderform identifying the charges levied againstthe arrestee,aswellasabailam ountforeach charge.
@ ln setting the bailam ounts for felony charges,the arresting officer calls the intake districtattorney,who recom m ends a bond am ount based on am ountsreflected in a schedule prepared by the D istrict Attorneyforuseby attorneysinhisoffice.Ifthearresteehasm ultiple charges,the recom m ended bailam ounts foreach charge are added together.
@ A fterthe arresting officercom pletesthe bailorderform ,the felony
arresteeisbookedintotheGalvestonCountyjail.
@ The firsttime an arrestee appearsbefore ajudicialofsceris at
m agistration. Galveston County m agistrations occurtw ice a day at 7:00a.m .and7:00p.m .G iven thisdaily schedule,an arresteeusually appearsform agistration within 12 hoursofincarceration. Som etim e priortom agistration,thearresteeisinterview edbyan individualfrom thePersonalBond Office. Created in July 2018,thePersonalBond Officeisresponsibleforinterview ing individualsabouttheirfinancial
condition asthey arebooked intojail. During thisinterview,the
arrestee com pletes a detailed financial affidavit. This detailed financialaffidavitisincluded inthepacketpresentedtothem agistrate beforem agistration.
@ A t m agistration, the m agistrate still explains the charges levied againstthearrestee,providesstatutory w arningssuch asthe rightto rem ain silent,asksafew questions,and setsbail.H ow ever,underthe new system ,atthetim e bailissetthem agistrate now possessesthe detailed financialaffidavitthe arresteecom pleted.
* A ttheinitialbailhearingheld atm agistration,G alveston Countydoes notprovide defense counselto those arrestees who are financially
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unable to afford representation. There is a written policy officially adopted by theD istrictCourtJudges,effective October 1,2018,that m akes clear that indigent arrestees do not receive appointed representation during theinitialbailhearing.
* G alveston County'sw ritten policy providesthatw ithin 48 hoursof m agistration,arrestees whose financialaffidavits indicate thatthey w ould notbeableto posttheam ountsetasbailarebroughtbeforea m agistrate fora bailreview hearing. A sapracticalm atter,thisbail review hearing typically occurs 12 hoursafterm agistration,eitherat 7:00 a.m .or 7:00 p.m . The bailreview hearings take place right beforethe initialm agistrations.
* Atthe bailreview hearing,G alveston County providesan indigent arrestee w ith counsel. M ore specifically,the D istrictCourtJudges appointasingledefenselawyerto appearatevel'y bailreview docket, and thatattorney is available to advise and representarrestees atthe bailreview hearing. Priorto the bailreview hearing,arresteescan m eetprivately w ith the law yerto discusstheirfinancialsituation in preparation for the bail review hearing. The defense lawyer is appointed forthelim itedpurposeofhandlingthebailreview hearing.
* A tthe bailreview hearing,defense counseland a prosecutorm ake argum ents and present evidence to either reduce or m aintain the previously setbailam ount.Them agistrateissupposedto explainthe reason for his or her decision either in writing orverbally for the record.
PRELIM IN AR Y ISSUES TO CO N SIDER
Before addressing the substantive legal issues, which w ill determ ine whether
injunctivereliefisappropriate in thiscase,theCourtmustruleon somepreliminary
m atters.
A . EVIDENTIARY ISSUES
TheDistrictCourtJudgeshavefiledlengthyobjectionstothedeclarationssubmitted
insupportofPlaintiffsM otionforPreliminaryInunction(sicqRequiringCounselatInitial
BailH earings.SeeD kt.235.A m ong otherthings,theDistrictCourtJudgescom plainthat
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the declarations lack proper foundation, contain irrelevant inform ation, and advance
improperlegalopinion testimony. In considering theseobjections,theCourtismindful thattheproceduresgoverningapreliminaryinjunctionaremorerelaxedthanthoseutilized attrial. AstheUnited StatesSupremeCourthasnoted:ût(A1preliminary injunction is
custom arilygrantedonthebasisofproceduresthatarelessform alandevideneethatisless
completethanin atrialonthemerits.'' Univ.ofTex.v.Camenisch,451U.S.390,395 (1981).TheFifth Circuithasfollowed suit,stating ûtattheprelim inary injunction stage,
the procedures in the districtcourtare less form al,and the districtcourtm ay rely on otherwise inadm issible evidence,including hearsay evidence.'' Sierra Club,Lone Star
Chapterv.FDIC,992 F.2d 545,551(5th Cir.1993)(citation omitted). Districtscourts
acrossthe State of Texas have uniform ly follow ed the guidance provided by the Fifth
Circuitand considered evidenceatthetemporary injunction phase thatwould notbe
adm issibleattrial.See,e.g.,CompassBankv.D ixon,N o.11-17-1576,2018 W L 6733018,
at11n.2(S.D.Tex.Nov.16,2018)tûtBoththerulesofevidence,aswellastheprocedural predicatesforthe admission ofevidence,can be relaxed in the injunction context.'') (citationomittedl;Tujaguev.Adkins,No.4:18-CV-631,2018W L 4816094,at*1n.2(E.D. Tex.Oct.4,2018),.BarJ-B Co.,Inc.v.Fcx.Dep'tofTransp.,No.3:18-CV-0576,2018 WL2971157,at111(N.D.Tex.M ay15,2018).Guidedbythelenientevidentiarystandard
in place at this early stage of the proceedings,the Courtis reluctantto exclude the declarationsprovidedby 800th.TheCoul't,therefore,overrulestheD istrictCourtJudges'
evidentiary objections.

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B. APPROPRIATENESSOFINJUNCTIVE RELIEFA GAINST THE DISTRICTA TTORNEY
Priorto,and during the preliminary injunction hearing,the DistrictAttorney strenuouslyarguedthat800th should notbeperm ittedtopursueinjunctivereliefagainst
him since 800th had previously represented thathe would notbe seeking aprelim inary
injunction againsttheDistrictAttorney.Inmakingthisargument,theDistrictAttorney
presented clearand unm istakable evidence ofsuch representations. See Dkt.170-1at1
(emailfrom Booth'scounselconfirm ingthat800th lldoesnotmoveforreliefagainst(the DistrictAttorneyl''l;170-2at1(emailfrom Booth'scounselnotingthatûtnothingaboutthe preliminary injunction hearing concernstheDistrictAttorney....Asforyourquestions aboutinjunctivereliefagainsttheDistrictAttorney,1can confinnthatwearenotseeking preliminaryinjunctiverelieffrom theDA.'').ThefirsttimetheDistrictAttorneylearned that800thintendedtoseekinjunctivereliefagainsthim inthiscasewasroughly 10days beforethetemporary injunction hearing when 800th submitted aproposed orderfor injunctivereliefasking torestrain theDistrictAttorney,aswellasotherparties.lnlight
oftheclearrepresentationsm adeby Booth'scounsel,onw hichtheD istrictA ttorneyrelied
bynotsubmittingabriefopposingtheoriginalprelim inaryinjunctionmotion,itwouldbe
patently unfair to allow 800th to change course atthe last m inute and actively seek
injunctivereliefagainsttheDistrictAttorney.Accordingly,theCourtrefusestoconsider Booth'seleventhhourrequestforinjunctivereliefagainsttheDistrictAttorney.
INJUN CTIO N STAN DA RD
Toobtainprelim inaryinjunctiverelief,800th hastheburden ofdemonstrating:(1) asubstantiallikelihoodthathewillprevailon them erits;(2)a substantialthreatthathe

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 13 of 45
willsufferirreparableinjuryiftheinjunctionisnotgranted;(3)thathisthreatenedinjury outweighsthethreatened harm to thoseheseeksto enjoin',and (4)thatgrantingthe preliminaryinjunction isinthepublic'sinterest.SeePC1Transp.,lnc.v.FortWorth tt I'r'lR.R.Co.,418F.3d535,545(5thCir.2005).lf800thfailstocarrytheburdenttonany oneofgthese)fourprerequisites,aprelim inaryinjunctionmaynotissue,andifissued,will bevacated.''Anderson v.Douglas& Lomason Co.,835F.2d 128,133(5thCir.1988) (internalquotationmarksandcitationomitted).
TheU nited States Suprem eCourtand the Fifth Circuithave cautioned repeatedly
thatapreliminaryinjunction isapowerfulremedytobeusedsparinglyincaseswithaset ofextraordinarycircumstances.SeeWinterv.Nat.Res.Def Council,Inc.,555U.S.7,22 (2008)(ttinjunctivereliefgisjan extraordinaryrem edythatmay only beawardedupon a clearshowingthattheplaintiffisentitledtosuchrelief.'')(citationomittedl;ODonnell11, 892 F.3d at155 (ttinjunctivereliefisa drasticremedy,notto be applied asam atterof course'') (internal quotation marks and citation om ittedl;Holland Am.Ins. Co. v. SuccessionofRoy,777F.2d992,997(5thCir.1985)(iûlnjunctivereliefisanextraordinary
and drastic rem edy,notto be granted routinely,butonly w hen the m ovant,by a clear
showing,carriestheburden ofpersuasion.'')(citationomitted).Evenif800thestablishes al1fourprerequisitestoapreliminaryinjunction,thedecisiontograntordenyapreliminary injunctionremainsdiscretionarywith thedistrictcourt.SeeM iss.PowertfLightCo.v. United GasPipeline Co.,760F.2d6l8,621(5thCir.1985). In short,ûûltlhedecision to grantapreliminary injunctionistobetreatedastheexceptionratherthantherule.''fJ. (citationomitted).

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 14 of 45
LEG A L A NA LY SIS
In his request for a preliminary injunction,800th seeks to vindicate three substantive federalrights:(1)the rightagainstwealth-based detention,arising outofa
convergenceoftheFourteenth A m endm ent'sEqualProtection and DueProcessClauses;
(2)therightagainstthedeprivation ofthefundamentalinterestinpretrialliberty,arising undertheDueProcessClausealone;and (3)therighttocounsel,arisingundertheSixth
Am endm ent. A. W EALTH-BASED IM PRISONM ENT:D UE PROCESSAND EQUALPROTECTION
In thiscase,800th claim sthatGalveston County's CurrentBailSchedule Policy violatestheEqualProtection andD ueProcessClausesbecauseitsûûpracticeisto orderbail under a predeterm ined m inim um bail schedule w ithout a hearing, and without any
meaningfulconsiderationofotherpossiblealternatives.''Dkt.3-1at21(internalquotation marksandcitation omitted). Thisissubstantially similartotheargumentconsidered in ODonnell11,where the Fihh Circuit explained that ûlgtjhe fundam ental source constitutionaldeticiencyinthedueprocessandequalprotectionanalysesisthesam e:(Tlhe
County's m echanical application of the secured bail schedule w ithoutregard for the individualarrestee'spersonalcircum stances.'' 892 F.3d at163.
W erethefactsin thiscase substantially sim ilarto thefactsconsidered in OD onnell 11,theCourtwouldhavenoproblem findingthat800th hasshown asubstantiallikelihood ofsucceedingonthem erits.See,e.g.,D avesv.D allasC/y.,341F.Supp.3d 688,694-95
(N .D.Tex.2018)(applying ODonnell11basedon substantiallysimilarfacts). However,
thisisnotthe ease here.
14

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G alveston County specifically m odeled its CurrentBailSchedule Policy afterthe
suggestedpreliminaryinjunctiontheFifthCircuitprovidedin ODonnell11.See892F.3d
at164-66. Priorto m agistration,arrestees in Galveston County are now interview ed by the PersonalBond O ffice and a financialaffidavit is completed and presented to the m agistrate.Further,G alvestonCountynow providesanindividualizedbailreview hearing w ithin 48 hours ofm agistration,w here the arrestee is represented by counseland can present evidence and m ake argum ents concerning the reduction of bail. A nd at the conclusion ofthebailreview hearing,them agistrateissupposed to explainthereason for hisorherdecision eitherinwriting orverbally fortherecord.Thisnew processseem ingly satisfies the requirem ents laid out in OD onnell I1, i.e., Galveston County provides individualized hearings after w hich m agistrates have to iûspecifically enunciate their
individualized,case-specificreasonsforgimposingbailj,''andtheproceduresrequiredfor
such hearingsinclude ûçnotice,an opportunity to beheard and subm itevidence w ithin 48 hoursofarrest,andareasoned decisionby an im partialdecisionm aker.''fJ.at160,163.
Atthe preliminary injunction hearing,800th presented arguments and some evidencecontesting(1)theextenttowhichthisnew processhasbeenimplemented;(2)the
extentto which the m agistratesand otherG alveston County personneladhereto thenew
process;and(3)whetherthenew processhaschangedbaildeterminationoutcom esinany
m eaningfulway since itsalleged implem entation. Based on theevidencepresented thus far,the Courtcannotconcludethat800th has a substantiallikelihood ofsuccesson this

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claim .800thhasnotcarriedtheburdenofpersuasionsufficienttojustifytheextraordinary
anddrasticrem edy heseeks.s B. PRETRIAL LIBERTY:PROCEDURALD UE PROCESS
The Court reaches a sim ilar conclusion w ith respect to Booth's D ue Process argum entseeking tovindicatehisrighttopretrialliberty.
TO succeed On aproceduraldueprocesstheory,6800th mustshow :(1)thatthere existsa liberty orproperty rightthathasbeen infringed by the State;and (2)thatthe
proceduresprotectingthatrightw ereconstitutionally deficient.SeeOD onnell11,892F.3d atl57.
Bynow,an arrestee's(an accusedwhohasnotbeenconvicted ofacrim e)pretrial
liberty interestisaw ell-recognized legalright. Thus,in evaluating Booth'slikelihood of success,thesalientissueisw hethertheproceduresinplaceadequatelyprotectthatright.
A lthough OD onnell11 w as notconfronted w ith a direct argum entbased on the arrestee'spretrialliberty interest,as isthe case here,OD onnell11 nonethelessindicated thatthe proceduralsafeguards itannounced should apply w ith equalforce to such an
argum ent. See id.at 159 (describing theproceduralsafeguardsdiscussed above,after
noting tûthattheliberty interestofthearresteeshereareparticularly im portant:therightto
5Thisdetenninationshould notbeconstruedasacom m enton theultim atem eritsofBooth'sclaim . Atthistim e,the Courtonly considersBooth's likelihood ofsuccessbased on the evidence now before the Court. 6800th is sufficiently clear that his argument is proceduralin nature:çsplaintiffhere seeks proceduralprotection,notfrom the deprivation ofthatstate liberty interest,butfrom deprivation oftheir federal substantive due process rightto pretrialliberty and right againstw ealth-based
detention.''Dkt.3-1at2911.22(em phasisadded).

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pretriallibertyofthoseaccused(thatis,presum edinnocent)ofm isdemeanorcrimesupon thecourt'sreceiptofreasonableassuranceoftheirretunf')(citationomitted).800thseeks
proceduralsafeguardsthatw ould go a littlebitfurtherthan those announced in OD onnell
Ih buttheCourtisnotconvincedthattheConstitutionmandatessuchanextension.Tobe
clear,theFifth Circuitin OD onnell11clearly explained thatitsanalysisoftheprocedures requiredto m eetconstitutionalm usterw asguided by theConstitution,asopposed to state law .Seeid.Thosesam eproceduresseem tohavebeen im plem entedbyG alveston County in thiscase. Given thatOD onnell11recognized an arrestee'spretrialliberty rightbefore delineating theproceduresasadequateto satisfy proceduraldueprocess,the Courtisnot convinced thatthe Constitution requiresm ore. Thus,asto thisclaim ,the Courtcannot concludethat8 00th hasa substantialIikelihood ofsuccess. C. R IGHT TO COUNSELATAN INITIALBAILH EARING:SIXTH AM ENDM ENT
800th nextcontendsthatthe absence ofcourt-appointed counselatthetim e ofan
initialbailhearing(anallegedcriticalstageoftheprosecution)violatesanarrestee'sright
to counselunderthe Sixth Am endm ent. ln response,the D istrictCourtJudges and the DistrictA ttorneyarguethattheSixthA m endm entdoesnotrequirecourt-appointedcounsel to bepresentatthe initialbail-setting hearing.7
1. 800th H asShow n a Likelihood ofSuccesson theM erits
800th bringsaclaim under28 U.S.C.j 1983. kçsection 1983providesaremedy
againstûanyperson'who,undercolorofstate law ,deprivesanotherofrightsprotectedby

1Curiously ,

Galveston

County

did

not tile

an

opposition

to

Plaintiff s

M

otion

for Prelim

inary

Inunction gsiclRequiringCounselatInitialBailHearings.

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 18 of 45
theConstitution.''Collinsv.City ofHarkerHeights,503U .S.115,120(1992). Section
1983 is notan independentsource of constitutionalor statutory rights. Instead,Section 1983 simply providesacause ofaction forgovernm entalviolationsofrightsprotectedby
theConstitutionorotherfederalstatutes.SeeAlbrightv.O/jvcr,510U .S.266,271(1994). To succeed on a Section 1983 claim,800th ûçmustshow that(1)an officialpolicy (2) prom ulgatedbythemunicipalpolicymaker(3)wasthemoving forcebehindtheviolation ofaconstitutionalright.''Petersonv.CityofFortWorth,588F.3d838,847(5thCir.2009) (citationomitted).
The firstelem ent an officialpolicy is easily m et. There is a written policy, effectiveOctober1,2018,prom ulgatedbytheCounty CourtatLaw JudgesandtheDistrict CourtJudgesforG alveston County,creating iûcounty wide procedures,rulesand orders'' forthe appointm entofcounselfor indigentaccused personsin Galveston County. Dkt. 185-43 at4. Thatw ritten policy,referred to by 800th astheG alveston County Indigent Defense Plan,expressly instructs Galveston County officialsto provide defense counsel
ahertheinitialbailhearingandbeforethebailreview hearing.Seeid.at19.
The second elem ent- a m unicipal policym aker is also satisfied. W hen the DistrictCourtJudgesadoptedtheG alveston County lndigentDefensePlan,theyw erenot
actingintheirjudicialcapacity,butrathertûin theircapacity ascountypolicymakers.''
ODonnellIh 892F.3dat156.Seealso800thv.Galveston C/y,.,352F.Supp.3d718,744
(S.D.Tex.2019)(holdingthattheDistrictCourtJudgesarepolicymakersforpost-arrest practices). In short,the Galveston County lndigentDefense Plan isan officialpolicy
prom ulgated by a County policym akerthatbecam e the driving force behind an alleged
18

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constitutionalviolation. Because the D istrictCourtJudgesw ere acting aspolicym akers for Galveston County in determ ining w hen indigent defendants receive counsel,their
actionscansubjectGalvestonCountytoliabilityunderSection 1983.
Thatleavesthethird elem ent- violation ofaconstitutionalright- forthe Courtto address. 800th asserts thathis Sixth A m endm ent rightto counselhas been violated becauseGalveston County refusestoprovideindigentdefendantsw ith appointed counsel untilafteran initialbailhearing. To analyze the likelihood of800th prevailing on the m eritsofhisSixth A m endm entclaim ,itisnecessary to startwith the textofthe United
StatesConstitution.TheSixthAmendmentprovides,inrelevantpart,thatûtlijna1lcriminal prosecutions,theaccusedshallenjoytheright...tohavetheAssistanceofCounselfor hisdefence.''U.S.CONST.AMEND.V1.AlthoughtheSixthAmendmentcontainsjust19
w ordsconcerning the rightto counsel,the im portance ofthattextcannotbe m inim ized. To this end,the Suprem e Courthas expressly recognized the rightto the assistance of counselguaranteedbytheSixth Am endm enttûisindispensabletothefairadm inistrationof
ouradversarialsystem ofcriminaljustice.''Mainev.Moulton,474U.S.159,168(1985).
tûEm bodying ûarealistic recognition ofthe obvioustruth thatthe average defendantdoes nothavetheprofessionallegalskillto protecthim self,'therightto counselsafeguardsthe otherrightsdeem ed essentialforthefairprosecution ofacrim inalproceeding.''1d.at169
(quotingJohnsonv.Zerbst,304U.S.458,462-63(1938)).
The Suprem eCourt'srecognition ofthe Sixth Am endm ent'srightto counseldates back to 1932,w hen thehigh courteloquently and em phatically stated:

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The rightto be heard w ould be,in m any cases,oflittle availifitdid not com prehend the rightto be heard by counsel. Even the intelligent and educated laym an hassm alland som etim esno skillin the science oflaw .If charged with crim e,he is incapable,generally,ofdeterm ining forhim self w hetherthe indictm entisgood orbad. He is unfam iliarw ith the rules of evidence. Leftw ithoutthe aid ofcounselhe m ay be puton trialw ithouta proper charge, and convicted upon incom petent evidence, or evidence irrelevanttothe issueorotherwiseinadm issible.H elacksboththeskilland know ledgeadequately topreparehisdefense,eventhough hehaveaperfect one.Herequirestheguidinghandofcounselateverystep intheproceedings againsthim .
Powellv.Alabama,287 U.S.45,68-69 (1932)(emphasisadded). Seealso Gideon v. Wainwrlkht,372 U.S.335,344 (1963)(recognizing the tûobvioustruth''thatûtin our adversarysystem ofcriminaljustice,anypersonhaledintocourtwhoistoopoortohirea lawyer,cannotbe assured a fair trialunless counselis provided for him .'')',Ake v.
Oklahoma,470U.S.68,77(1985)(explainingthatincasesinvolvingtherightsofindigent crim inal defendants, such as G ideon, tûlmleaningfulaccess to justice has been the consistentthem e''ofthecourt'sjurisprudencebecausethecourtçûrecognizedlongagothat
m ereaccessto thecourthousedoorsdoesnotby itselfassure aproperfunctioning ofthe
adversary process,and thata crim inaltrialisfundam entally unfairifthe State proceeds
againstan indigentdefendantw ithoutm aking certainthathehasaccesstotheraw m aterials
integraltothebuildingofaneffedivedefense'').
Itis indubitable thatthe rightto counselis criticalduring an actualtrial,w hen
evidencem ustbesubm itted in adm issibleform ,w itnessesm ustbeexam inedand argum ent
persuasivelypresentedtothefactfinder,whetheritbeajudgeorjury.But,astheSupreme
CourtrecognizedinPowelland alitany ofothercasesthroughouttheyears,counselisalso
required tûatevery stage ofa crim inalproceeding w here substantialrights ofa crim inal
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accusedmaybeaffected.''M empav.Rhay,389U.S.128,134(1967).SeealsoM issouri v.Fryc,566U .S.134,140(2012)(ûûltiswellsettledthattherighttotheeffectiveassistance ofcounselappliestocertainstepsbeforetrial.'')',M oulton,474U.S.at170(ûûtodeprivea
person ofcounselduring the period priorto trialm ay be m ore dam aging than denialof
counselduringthetrialitself').
TheSuprem eCourthasclearlystatedthatç:acrim inaldefendant'sinitialappearance
beforeajudicialoftscer,wherehelearnsthechargeagainsthim andhislibertyissubject torestriction,marksthestartofadversaryjudicialproceedingsthattriggertheattachment
oftheSixthAmendmentrighttocounsel.''Rothgery v.GillespieC@.,554U.S.191,213
(2008).Thatdoesnot,however,meanthatacriminaldefendantisentitledto counselas soon asthe Sixth Am endm entrightattaches. See id.at213-14 (Alito,J.,concurring) (ûûg-l-lheterm tattachment'signifiesnothing morethan the beginning ofthedefendant's
prosecution.ltdoesnotm ark thebeginning ofasubstantiveentitlem entto the assistance
ofcounsel.''). Rather,the Supreme Courthasheld thattûlolnce attachmentoccurs,the
accused atleastisentitled tothepresenceofappointed counselduring any çcriticalstage'
ofthepostattachmentproceedings.''1d.at212.SeealsoM ontejo v.Louisiana,556U.S. 778,786(2009)(ûûtheSixth Amendmentguaranteesadefendanttherighttohavecounsel presentatallçcriticalstages'ofthecriminalproceedings'')(citing UnitedStatesv.Wade, 388U.S.218,227-28(1967)andPowell,287U.S.at57).
Thus,thecentralquestion in thiscaseiswhetheran initialbailhearingconstitutesa ûtcriticalstage''ofacrim inalproceeding. Ifabailhearing isaûûcriticalstage,''G alveston County m ustprovidean indigentdefendantw ith counselatabailhearing. 1f,on theother

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 22 of 45
hand,abailhearing isnota ûçcriticalstage,''Galveston County isunderno obligation to appointcounselto an indigentdefendantfacing abailhearing.
Sow hatexactly isaGûcriticalstage''? In sim pleterm s,aiûcriticalstage''isçûastep of
acrim inalproceeding ...thathrolds)significantconsequencesfortheaccused.''Bellv. Cone,535U.S.685,696(2002)(citationsomitted).AstheSupremeCourtexplained in
Rothgery,tûthecaseshavedefinedcriticalstagesasproceedingsbetw eenanindividualand
agentsoftheState(whetherform alorinfonnal,incourtorout)thatamounttotrial-like
confrontations,atwhich counselw ouldhelp theaccused in coping w ith legalproblem sor
meeting his adversary.'' 554 U.S.at212 n.16 (internalquotation marks and citations omitted). Seealso Wade,388U.S.at227(explaining thattheççcriticalstage''analysis requiresacourttodeterm inetûwhetherpotentialsubstantialprejudicetodefendant'srights
inheres in the particular confrontation and the ability of counsel to help avoid that
prejudice-'');M cAfeev.Thaler,630F.3d383,391(5thCir.2011)(ûûcriticalstagegsq''occur
ûûw here ûtheaccused required aid in coping w ith legalproblem sorassistance in m eeting
hisadversary,'and the tsubstantialrights ofthe accused may be affected.''')(quoting United Statesv.Ash,413U.S.300,311(1973)). Putanotherway,ttwhatmakesastage
criticalisw hatshow stheneed forcounsel'spresence.''Rothgery,554 U .S.at212. A m ong the stagesofa crim inalproceeding thathave been deem ed Stcritical''for
SixthAm endmentpurposesincludepreliminary hearings(seeColeman v.Alabama,399 U.S.1,10(1970));arraignments(seeHamiltonv.Alabama,368U.S.52,54(1961)).,plea negotiations(seeFrye,566U.S.at139).,postindictmentidentificationlineups(see Wade, 388U .S.at237).,guilty pleas(seeArgersingerv.Hamlin,407U.S.25,34(1972));and

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postindictmentinterrogations(seeM assiah v.United States,377 U.S.201,205 (1964)).
Therearecom m onthem esrunning through thesecases.Forstarters,com petentcounselis necessary to help a defendant navigate the com plicated,treacherous and,ohentim es,
confusinglandscapeofthecriminaljusticesystem. A defendantcannotbereasonably
presum edtom akecriticaldecisionsconcerninghiscasew ithouttheadviceofcounsel.In addition,itisim perativein al1thesecasesthatcounselbepresentûûatpretrialproceedings wherethe resultsm ightwellsettlethe accused's fate and reduce the trialitselfto a m ere
formality.''Wade,388U .S.at224.AstheSuprem eCourtnotedinWade:ttl-llheaccused
isguaranteedthatheneednotstandaloneagainstthe Stateatany stageoftheprosecution, fonnalor inform al,in courtor out,w here counsel's absence m ightderogate from the
accused'srighttoafairtrial.''1d.at226(citationsom itted).
To assessw hetherabailhearing isaûçcriticalstage''ofa crim inalprosecution,the Courtmustfirstinquireastow hethercounselw ouldbe needed to help a defendantcope w ith complex legalproblem sraised during such ahearing. The answ eris a no-brainer. Unrepresented defendants,especially those thathave had no experience in the crim inal
justice system,are in no position atan initialbailhearing to presentthe best,most
persuasive case on w hy they should be released pending trial. A lawyer w ould unquestionably provide invaluable guidance to a crim inal defendant facing a bail determ ination.
Two districtcourtsin theFihh Circuit- m orethan 40 yearsapart- haveperfectly captured how im portantitisto have counselpresentata bailhearing. Back in 1975,a districtcourtintheSouthern D istrictofTexascom m ented:
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(Ijfcounselcanreview andcogentlyrepresenthisincarceratedclient,acourt
m ightreduceorelim inateam oney bond,perm ittingtheclienttobereleased from incarceration pending trial....Theaccused arefrequently ignorantof theirlegalrights and unaware ofthe stepsw hich m ustbe taken to trigger prompt processing of the case pending against them . lt m ust also be recognized thatcourtsarem ore readily ableto com m unicatew ith attorneys than prisoners and are m ore likely to rely upon the representations ofan attorneyindecidingw hethertoreleaseadefendantpendingtrialortodism iss thechargesagainsthim .
Albertiv.kv/ccrf ofHarrisCy'.,406F.Supp.649,660(S.D.Tex.1975). Similarly,a districtcourtintheEasternDistrictofLouisiananotedjustlastyear:
(W jithoutrepresentative counseltherisk oferroneouspretrialdetention is
high. Prelim inary hearingscan becom plex and difficultto navigate forlay individualsand m any,follow ing arrest,lack accessto otherresourcesthat w ould allow them to present their best case. Considering the already establishedvitalim portanceofpretrialliberty,assistanceofcounselisofthe utm ostvalueatabailhearing.
Calistev.Cantrell,329F.Supp.3d296,314(E.D .La.2018).
A lthough these legalauthorities arehelpfulin fram ing the issue,thetestim ony in
thiscaseunm istakably dem onstratesthestarkrealitythatarresteesarehesitantto advocate
forthem selves w ithoutcounselpresent. A s 800th,him self,testified w hen asked ifhe
posed any questionsto the m agistrate athisbailhearing:111w as lw as kind ofunder
inform ed. I didn't- ovem helm ed,and 1 w asn't represented by any- an attorney or
anythinglikethat.Ididn'tknow w hich direction togo.''Dkt.184 at218.M aking m atters
w orse,the m agistrates w ho m ake the baildeterm inations in G alveston County readily
acknowledgethatthey arereluctantto engageadefendantin conversationattheinitialbail
hearing,given therepeated adm onitionsto arresteeofhisrightto rem ain silent. SeeDkt.
184 at207(tûI'm notgoing to forceadefendantinto aconversation with me,especially
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afterIjusttoldhim he'sgottherightnottotalktoanybody.'').ltishardtoimaginehow
adefendantcan possibly beexpected to champion forhisreleaseatan initialbailhearing when he is,understandably,disinclined to speak w ithoutan attorney presentand,atthe sam etim e,them agistratesarehesitantto askthedefendantany questionsthatm ightelicit inform ation favoringrelease.
Itshould shock absolutely nobody thatthe failureto have counselduring an initial bailhearing,when acriticaldecision ism adeconcerningpretrialrelease,leadsto concrete harm in theform ofoutcom esthatarefarw orsethan ifcounselw ereprovided. See,e.g., CharlieG erstein,Plea Bargaining and theRightto CounselatBailH earings,111M ICH.
L.REv.1513,1516 (2013)(tûAppointing counselatbailhearings...willsubstantially reducetheamountoftimea substantialnumberofindigentdefendantsspend injail awaitingtheirtrials.'').Thisharm isnotjustanecdotalortheoretical.Ampleempirical
researchindicatesthatûEdelayingrepresentationuntilafterthepretrialreleasedeterm ination
(isjthesinglemostimportantreason forlengthypretrialincarceration ofpeoplecharged with nonviolentcrimes. W ithoutcounselpresent,judicialofficersmagkje lessthan infonned decisionsand (alre more likely to setormaintain apretrialrelease financial conditionthatgarelbeyondthatindividual'sabilitytoplay.''DouglasL.Colberteta1.,Do AttorneysReallyM atter?TheEmpiricalandLegalCasefortheRightofcounselatBail, 23CARDOZO L.REV.1719,1720 (2002)(study in Baltimore,M aryland concludingthat
havingadequatelyprepared andresourceddefensecounselattheinitialbailhearingresults in defendantsbeing released on theirow n recognizance tw ice asoften than ifthey w ere
unrepresented,andbailbeing reduced fourtimesasoften fortherem aining defendants).
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SeealsoErnestJ.Fazio,eta1.,Nat'llnstituteofJustice,EarlyRepresentation byDefense CounselField Test.FinalEvaluationReportati(1985)(study on theeffectlawyershad
onpretrialreleasedecisionsin Passaic,N ew Jersey,Shelby County,Tennessee,andPalm Beach,Florida;concludingthatrepresentation atan initialbailhearingûlhad aninteresting and im portantim pactupon pretrialdetention''in thatûçtestdefendants obtained pretrial
releasemuchsooner'');Dkt.205-5(notinginBexarCounty,Texasthat77percentofthose
represented by the public defender's office atthe initialbailhearing w ere released on personalbond com pared to a 57 percentrate forthosenotrepresented atthe initialbond
hearing).
ln additiontoan indigentdefendant'sobviousneedtohavecounselatan initialbail hearing to provide general advice and advocate for release,there are tangible adverse consequences as to the ultim ate disposition ofthe crim inalcase thatcan result if an individualisnotrepresented atan initialbailhearing. Ifacrim inaldefendantdoesdecide tospeakup atan initialbailhearing withoutthepresenceofcounsel,itisohen inan effort to explain the situation in thehopesofobtaining release. Thisincreasesthe likelihood of the individualm aking an incrim inating statem entthatcan be used againsthim ata later date. A nd if an individualm akes an incrim inating statem ent at a bail hearing,the appointm entofa lawyerto representthe individuallaterin the crim inalcase w ould,in
effect,bemeaningless. See,e.g.,UnitedStatesv.Dohm,618F.2d 1169,1174 (5th Cir. 1980)(permittinguncounseledadmissionofguiltatinitialbailhearingl;Cowardsv.State, 465S.E.2d677,679(Ga.1996)(sam e).Indeed,ûûtherighttousecounselattheformaltrial (would be)avery hollow thing (i9,forallpracticalpurposes,theconviction isalready
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assured by thepretrialexamination.'' Wade,388U.S.at226 (quotation and citation omitted).ThatiswhyûçgojurConstitution,unlikesomeothers,strikesthebalanceinfavor
ofthe right ofthe accused to be advised by his law yer of his privilege against self-
incrim ination.'' Escobedo v. Illinois, 378 U .S. 478, 488 (1964) (citation omitted).
Representation atan initialbailhearing unquestionably lessenstherisk thata defendant m akesastatem entthatcan beused againsthim later. To safeguard theprivilege against
self-incrimination from being jeopardized, counsel must be provided to indigent
defendantsatthose stagesoftheproceedings liketheinitialbailhearing thatinvolvea substantial risk that the indigent defendant m ight incrim inate him self. A n indigent defendantshould,therefore,beperm itted to discussw ith appointed counseltheprosand
cons associated with waiving the rightagainstself-incrimination before determining
whether to speak his m ind atan initialbailhearing. See W ade,388 U .S.at225-26
(discussing the importance ltofcounsel's presence ifthe accused (islto have a fair opportunitytopresentadefenseatthetrialitself').
In trying to determ ine w hethera bailhearing should be categorized asa tûcritical stage'' of a crim inal prosecution, the Suprem e Court's Colem an decision is quite instructive. 399 U .S. 1. The issue presented in that case was whether an A labam a prelim inaryhearingrepresenteda:scriticalstage''forwhich theSixth Am endm entrequired the assistance ofcounsel. See id.at9-10. A tan Alabam aprelim inary hearing,thetrial
courtGûdeterm inelslwhetherthere issufficientevidenceagainstthe accused to warrant presentinghiscasetothegrandjuryand,ifso,tofixbailiftheoffenseisbailable.''1d.at

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 28 of 45
8(citationomitted).Inexplaininghow theguidinghandofcounselcanprotectanindigent
defendantataprelim inary hearing,thehigh courtnoted:
First,the lawyer'sskilled exam ination and cross-exam ination ofw itnesses m ay exposefatalw eaknessesintheState'scasethatm ay leadthem agistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of w itnesses by an experienced lawyer can fashion a vital impeachm enttoolforusein cross-exam inationoftheState'sw itnessesatthe trial,orpreserve testim ony favorableto the accused ofa witnesswho does notappearatthetrial. Third,trained counselcan m ore effectively discover thecasetheStatehasagainsthisclientand m akepossiblethepreparation of aproperdefenseto m eetthatcase atthetrial. Fourth,counselcan also be intluentialattheprelim inary hearing in m aking effective argum entsforthe accusedon such m attersasthenecessity foran earlypsychiatricexam ination or bail.
f#.at9. Because a defendantcannotrealize these advantageson his own,the Suprem e
Courtheld thata defendantwas as m uch entitled to the aid ofcounselatthe Alabam a
prelim inary hearing as atthetrialitself. See id. M ake no m istake:The Suprem e Court
reached thisconclusion because,in part,a crim inaldefense attom ey can m ake effective
argum entsabouttheû:necessity for...bail''thatadefendantw ouldbeunlikely toadvance.
1d.
Followingthissam elogic,courtsacrossthecountryhaveheldthatabailproceeding
isaûtcriticalstage''requiringtheappointm entofcounselforindigentdefendants.See,e.g.,
H igazy v.Templeton,505F.3d 161,172(2dCir.2007)(ç:abailhearing isacriticalstage oftheState'scriminalprocess'')(internalquotationm arksand citation omittedl;D itch v. Grace,479 F.3d 249,252-53 (3rd Cir.2007)(aprelim inary hearing,which includesa
determ ination astowhetheradefendantwillbedischarged orbound overtothecourt,isa
ûûcriticalstage''l;Smith v.Lockhart,923 F.2d 1314,1319 (8th Cir.1991)(holding that
28

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 29 of 45
hearing on bail reduction m otion w as a ûûcritical stage'' of proceeding requiring
representation by counsel);Caliste,329 F.Supp.3d at314 (holding thatan initialbail
hearingisaçlcriticalstage''oftheproceedingsbecauseûlltqhereisnoquestionthattheissue
ofpretrialdetentionisan issueofsignificantconsequencefortheaccused'').Gonzalezv.
Comm 'rof Corn,68A.3d 624,631-37 (Conn.2013)(criminaldefendanthasaSixth
Amendmentrightto counselin proceedingspertaining tothesetting ofbond);Hurrell-
Harringv.New York,930N.E.2d217,223(N.Y.2010)(çt-l-hereisnoquestionthatabail
hearing isacriticalstageoftheState'scrim inalprocess'')(internalquotationm arksand
citationom itted);Statev.Fann,571A.2d 1023,1030(N .J.Super.Ct.1990)(ûû-f'hesetting
ofbailcertainlyisatcriticalstage'inthecriminalproceedings'').
A pplying thereasoning used in these cases,itshould com easno surprisethatthe
Courtconcludes thata hearing at which bailis set is a tûcriticalstage,''requiring the
appointm entofcounselforindigentdefendants.N otonlyisabailhearinga ûtcriticalstage''
in thecrim inalprocess,butitisarguably them ostûûcriticalstage.''A sonecourtnoted:
Thesetting ofbailcertainly isaçtcriticalstage''in the crim inalproceedings. Itis an action thatoccursafter adversary crim inalproceedings have been com m enced. 1ts im portance to defendantin term s of life and livelihood cannotbe overstated. The effecton fam ily relationshipsand reputation is extrem ely dam aging. Failure of pretrialrelease causes serious financial hardship in m ostcases. Jobsand therefore incom earelost. Theim m ediate consequence ofthe absence ofbailorthe inability to m akebail-deprivation
offreedom-standing alone,iscritically consequential. Beingjailed,for
how evershorta tim e,is a significantly unpleasantexperience. There are
otherconsequentialresults....(Tlhe prospect of conviction is greatly increasedwhen an accused isjailed betweenthetimeofarrestand final adjudication;soistheseverityofsentence.Theopportunitytoconsultwith
counsel,to find w itnesses,to obtain evidence and,in general,to prepare a
defenseisclearlyrestrictedwhenadefendantiskeptinjail.
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Fann,571A .2d at1030.IfG alveston County doesnotprovide counselto a defendantat an initialbailhearing,the Sixth Am endm ent'srightto counselisnothing m ore than an em pty right.
Inopposingtheissuanceofapreliminary injunction,theDistrictAttorneyandthe
DistrictCourtJudgescitetheSuprem eCourt'sopinioninRothgery forthepropositionthat there isno Sixth A m endm entrightto counselatan initialbailhearing. This argum ent greatly overstatestheholding ofRothgery.ln Rothgery,theplaintiffbroughtacivilrights law suitalleging thatGillespie County refused to appointhim a lawyeruntilsix m onths afterhisinitialappearance in coul't. 554 U .S.at196. ln an adm ittedly lknarrow''ruling, the Suprem e Court held that the plaintiff's rightto counsel ûûattached''at the initial appearanceincourt.Seeid.at213.In accordancew ith along listofSuprem eCourtcases, Rothgery held thatoncetherightto counselhasattached,the Sixth A m endm entrequires thatdefendantsberepresentedby counselatany ûûcriticalstagebeforetrial.''1d. Thesole
questionatissueinRothgery ultim atelywastûwhetherattachm entoftherightgtocounselj alsorequiresthatapublicprosecutor(asdistinctfrom apolice ofticer)be awareofthat
initialproceeding orinvolvedinitsconduct.''1d.at194-95.TheSuprem eCoul'tansw ered thatquestionin thenegative.Seeid.Theissuanceofbailw asnotanissuein thecasesince Rothgery hadw aived therightto haveappointedcounselpresentattheinitialbailhearing. See id.at 196 n.5. Because bailwas notcontested in Rothgery,the high courtnever addressed whetheran initialbailhearing isa çûcriticalstage''oftrial. Thatquestion w as leftforanotherday.

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TheD istrictAttorney also arguesthatforthereto bea ûtcriticalstage''proceeding,
itm ustinvolve alltrial-like confrontation.'' Dkt.236 at20. Thisassertion ism isguided.
ln nouncertainterm s,theSuprem eCourthasexplainedthattûcriticalstages''donotrequire
thepresenceofaprosecutororany legalproceeding rem otelyresem blingatrial.See,e.g.,
Frye,566 U .S.at 140. There are num erous exam ples of ûûcriticalstages''of crim inal
proceedings that arise outside courtroom or any trial-like setting. For instance, the
Suprem eCourthasheldthatthe Sixth Am endm entrighttoeffectiveassistanceofcounsel
extendstoapost-indictmentlineup(see Wade,388U.S.at237),andtheconsideration of pleaoffers(seeftzWcrv.Cooper,566U.S.156,162(2012))- twoactivitiesthatoftentake
place far from the courtroom . The im portantquestion to ask is whether the pretrial
proceeding has the potentialto ultim ately im pactthe fairness atthe trialitself if the
defendantisnOtrepresentedbycounsel.B Allthatbeing said,thefactremainsthatûûgblail
hearings fitcom fortably w ithin the sphere ofadversarialproceedings closely related to
trial.''UnitedStatesv.Abuhamra,389F.3d309,323(2dCir.2004).
Baillitigation arisesonly ahera defendantisform ally charged w ith crim es thattheprosecution m ustbepreparedtoprovew ithin aspecifiedtim eattrial. Thestatutorypresum ptionsandburdensapplicabletobaildeterm inationsare a11defined in term sofadefendant'strialstatus. Further,bailhearings,like probablecauseand suppression hearings,are frequently hotly contested and requirea court'scarefulconsideration ofahostoffactsaboutthedefendant

8 In

United

States

v .

M

endoza-cecelia,963F.2d

1467

(11thCir.1992),acaserelieduponbythe

D istrictAttorney,an arrestee offered an adm ission ofguiltathisinitialbailhearing. The 11th

Circuitrejected adefendant'sSixth Amendmentclaim,holding thatan ççinitialappearanceis

largelyadministrative''anddtthebailhearingisnotatrialonthemerits.'' 1d.at1473 (citation

omitted). The Courtdeclinesto follow Mendoza-cecelia,believing thatthe 1lth Circuit

erroneously focused on the sim ilaritiesbetw een an initialappearance and an actualtrialw ithout

properly analyzing whetherthedenialofcounselata bailhearing can irreparably prejudicethe

outcom eofthecase.

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andthecrim escharged.Thus,thereisan interestinconducting suchhearings in open courtroom s so thatpersons w ith relevant inform ation can com e forward....W hilethepresentationofevidenceatbailhearingsm aybem ore inform althan atprobable cause and suppression hearings,the m atter in disputeisofno lesspublic concern. Bailhearingsdo notdeterm ine sim ply whethercertainevidencem ay beused againstadefendantattrialorwhether
certain personswillserveastrialjurors;bailhearingsdeterm inewhethera
defendantw illbeallow edto retain,orforced tosurrender,hisliberty during thependency ofhiscrim inalcase. 1d.at323-24.
In OD onnell11,theFifth Circuitexplained thatan initialbail-setting hearing m ust take place w ithin 48 hours ofan individual's arrestto pass constitutionalm uster. See OD onnell11,892 F.3d at 168. A governm entalentity m ay,of course,accelerate this scheduleandprovidean initialbailhearing onam oreexpeditedbasis.Thatisexactlyw hat Galveston County hastried to do by holding initialbailhearingsw ithin roughly 12hours of booking an individualinto the G alveston County Jail. Given that every m inute in custody can havea dram atic effecton an individual'slife,Galveston County'seffortsto
speedup the bailprocessshould be applauded. But,atthe sam etim e,Galveston County cannotconvenientlyignoretheconstitutionalrequirem enttoprovidecounselattheseinitial bailhearings.ThisCourthasconcluded thattheSixth Am endm entm andatesarighttoan appointed law yeratbailhearingsforthose financially unableto hire counsel. Thatright
m ustberespected whethertheinitialbailhearing takesplace 12,24,36 or48hoursaher the initialarrest.
To be clear,the Courtisnotsuggesting thatradicalchangesneed to be m ade to Galveston County'spretrialdetention system to ensure thatitis in com pliance w ith the Sixth Am endm ent'srightto counselguarantee. Galveston County currently schedules
32

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initialbailhearingsandbailreview hearingsevery day at7:00 a.m .and 7:00 p.m .U nder thecurrentsystem ,counselisnotprovidedto indigentdefendantsattheinitialbailhearing, butcounselisprovidedatthebailreview hearing,which isusuallyheld w ithin 12hoursof the initialbailhearing and w ithin 24 hoursofthe arrest. Atthe bailreview hearing,an appointed lawyerison-callto assistany indigentdefendantwho requestsassistance. To satisfy the Constitution'sbasic requirem entsunderthe Sixth A m endm ent,allG alveston
Countyneedstodoisprovidecounseltoindigentdefendantsattheinitialbailhearing,just
12 hoursearlierthan itcurrently does.ltishard tofathom how thiscouldbeproblem atic, giventhatGalvestonCountyhasapparentlybeen ableto effectivelym akecounselavailable atthebailreview hearingsheldtwicedaily.
In arguing thatan A rticle 15.17 hearing is nota ttcriticalstage''thatrequiresthe appointm entofdefensecounselforindigentarrestees,theD istrictAttorneyandtheD istrict CourtJudgesrely on a num berofcases. The Courthascarefully review ed each one of thesecasesand findsthatthey areunpersuasiveorreadily distinguishablefrom theinstant case. M any ofthe casescited by the DistrictAttorney and theD istrictCourtJudges,for exam ple,do notdiscuss the rightto counselathearings Avere bailNvas set,butrather generally discussthepropriety ofhaving alaw yerappointed atan initialappearance.See,
e.g.,Gilleyv.State,418S.W .3d114(Tex.Crim .App.2014);O 'Kelley v.State,604S.E.2d 509 (Ga.2004).,Green v.State,872 S.W .2d 717 (Tex.Crim.App.1994).9 Two ofthe
9In Green,theTexasCourtofCrim inalAppealsheldthatacrim inaldefendant'sSixthA m endm ent rightto counselw as notviolated when he appeared w ithoutcounselbefore a m agistrate forhis lçprelim inary initialappearance''afterarrest.See 872 S.W .2d at720.Therecord in Green did not indicatew hetherbailhad been setattheinitialappearance.But,even m oreim portantly,the Grccn

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 34 of 45
opinions dism isspro se prisoners'claim thatRothgery requirescounselatm agistration.
See,e.g.,Kennedy v.BexarC/.y.,No.16-ca-262,2016W L 1715200 (W .D .Tex.Apr.27, 2016);Mortlandv.HaysC@.Cmty.Supervision& Corrs.Dep't,No.12-ca-488,2013W L 1455657(W .D.Tex.Apr.8,2013).Butthosecasesdo notindicatewhetherbailwasset
atm agistration andtheargum entspresentedby counselinthiscaseare,as800th correctly notes,ûûm oredeveloped and depend on interpretation ofotherSuprem eCourtcases.''D kt. 238 at7.
ItisimportanttoclarifythattheCoul'tisnotsuggestingthatanA rticle 15.17hearing is,in al1cases,aûçcriticalstage''proceeding thatautom atically requirestheappointm entof counselforindigentdefendants.A herRothgery,anA rticle 15.17 hearing Gûplainly signals attachm ent,''butthe Courtm ustdig a little deeperto determ ine ifthe initialappearance risestothelevelofaûûcriticalstage.''Rothgery,554 U .S.at212.R em em ber,itisonly at the pointin which the proceedings rise to a tlcriticalstage''thatappointed counselis constitutionallym andated.Ifthereisnobailsetting determ ination attheinitialappearance, itislikely notaû'criticalstage''oftheproceedingsrequiring representation.O n theother hand,when an Article 15.17 hearing includesan initialbaildeterm ination,itisaûûcritical stage''in the crim inalproeeedings,requiring the appointm ent of counsel for indigent defendants.Thisisbecauseanaccused'srightto counselextendstothoseçûcritical''pretrial
proceedingsinwhichçltheaccusedisconfronted,justasattrial,bytheproceduralsystem ,
opinioncameoutfouryearsbeforeRothgery.AflerRothqerh itisblack-letterlawthatanArticle
15.17 hearing is an initialappearance atwhich the constltutlonalrightto counselattaches. See Rothgery,554 U .S.at199.

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orbyhisexpertadversary,orbyboth ...inasituationw heretheresultsoftheconfrontation m ightw ellsettletheaccused'sfateandreducethetrialitselfto am ereform ality.'' United
Statesv.Gouveia,467U .S.180,189(1984).
TheD istrictAttorney andtheD istrictCourtJudgesnextarguethatby conducting a
bailreview hearing so quickly afteran initialbaildeterm ination (roughly 12 hours in practice),Galveston County isableto cure any potentialdamage orprejudicethatm ay
arise from the lack of counselat an initialbailhearing. The prem ise is that even if
individualsareunnecessarilyjailedaftertheinitialbailhearing,theyonlyremainjailedfor
a shortperiod oftim ebefore the bailreview hearing rem ediesthe situation. Although a defendantin Galveston County canurgereconsideration ofan initialbaildeterm ination at
abailreview hearing (which mustbeheld,according to theGalveston County lndigent Plan,within48hoursoftheinitialbaildetermination),thatdoesnotobviatetheharm.A
bail review hearing does not rem edy the harm caused by uncounseled statem ents at m agistration. A bailreview hearing also doesnotrem ovethepossibility,no m atterhow slight,thatan initialbaildeterm ination has an ûtanchoring effect''thatm ay m ake itm ore
difficulttopersuadethereviewingjudgetomodifywhathasalready beenordered. In
short,abailreview hearing is an adm irable step,butsuch a hearing doesnotm agically elim inatea1ltheharm incurred asaresultofalawyer-lessinitialbailhearing.
Therearetwö New JerseycasestheDistrictAttorneypointstowhich suggestthata bailreview hearing is sufficientto am eliorate any harm caused by nothaving counsel
representindigentdefendantsataninitialbailhearing.SeeRojasv.Cit.yofNew Brunswick, No. 04-3195, 2008 W L 2355535 (D.N .J. June 4, 2008); Fann, 571 A.2d 1023.

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 36 of 45
Interestingly,in both cases,the courts concluded,w ith apparently no hesitation,thatthe
tûsettingofbailcertainlyisaécriticalstage'inthecrim inalproceedings.''Rojas,2008'WL 2344435,at*16(quotingFann,571A.2dat1030).Nonetheless,theNew Jerseycourts-
onestateand onefedera1- both declinedto ordercounselatinitialbailhearingsbased on
the dçpradicalconsiderationll''thatdoing so would delay bailsetting. 1d. ThisCourt
strongly disagreesw ith these holdings. There isabsolutely no precedentsupporting the courts' ûûpractical considerations'' analysis. lndeed,the Suprem e Court in Rothgery indicated thatonce a determ ination is m ade thata proceeding is a Gçcriticalstage,''an attorney'spresence ism andatory. See554 U .S.at212. In thiscase,thereisno evidence w hatsoeverthatproviding counselattheinitialbailsetting w ould delay m agistration. To the contrary,there isam plehistoricalevidencethatG alveston County isfully capableof having appointed defense counselattend bailreview hearingsw ithin approxim ately 24 hours ofan arrest. There isno rationalreason to believe thatG alveston County orthe D istrictA ttorney'softice w illbesubstantially harm ed ifcounselm ustbeprovided atthe initialbailsetting,which currentlytakesplace 12 hoursafterarrest.lo
To conclude,theCourtfindsthat800th hasadequately established a likelihood to prevail under the Sixth A m endm ent since the Constitution requires representation by counselatan initialbail-setting hearing.
10A san aside, in the federalsystem ,counselisappointed to indigentdefendants attheir initial
appearancebeforeamagistratejudge,and thelawyersrepresentthedefendantsatallbailand detentionhearings.See18U.S.C.jj3006A (c),(d)(4)(B)(ii)(I1).
36

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2. 800th hasEstablished a R isk oflrreparableH arm
ltistimetotul'ntothenextpartoftheprelim inaryinjunctiontest:irreparableharm.
The Suprem e Courthasheld that,as a m atter oflaw ,the deprivation ofa constitutional
righttûunquestionably constitutesin-eparableinjury.''Elrodv.Burns,427U.S.347,373 (1976). Thisconceptthataviolation ofaeonstitutionalrightin and ofitselfeonstitutes irreparableinjuryhasbeenuniversallyrecognizedandisnotopentodebate.SeeDeerfeld M ed.Centerv.City ofDeerheldBeach,661F.2d 328,338(5th Cir.1981)(thedenialof constitutionalrightsçûforeven minimalperiodsoftime constitutes irreparable injury justifyingthegrantofapreliminary injunction'')(collectingcasesl;ODonnell1,251F. Supp.3d at1157(ûtW henanallegeddeprivation ofaconstitutionalrightisinvolved ... mostcourtsholdthatno furthershowing ofirreparableinjury isnecessary.'')(citation omitted). SincetheCourthasdeterminedthatan indigentdefendantisentitledunderthe Sixth Am endmenttocounselataninitialbailhearing,theirreparableinjury requirement
isautom atically satisfied. Even if a further show ing of irreparable harm is required,thathurdle is easily
overcom e in thiscase. A snoted above,there is a significantpotentialfor inculpatory statem entsto bem adeatm agistration ifcounselisunabletoadvisearresteesoftheirright to rem ain silentatan initialbailhearing. Furtherm ore,num erous studies indicate that Defendantsrepresentedby counselatan initialbailhearing arelesslikely tohavehighbail set,and consequently,less likely to be detained pending trial. See e.g.Colbert,Do
AttorneysReallyM atter?TheEmpiricalandLegalCasefortheRightofcounselatBail, 23 CARDOZO L.REV.1719,1720 (2002). The lack ofcounselatinitialbailhearings,

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 38 of 45
therefore,leadsto unw arranted pretrialdetention. Havingrepresentation attheinitialbail
hearing m eans that fewer defendants w illbe held in custody unnecessarily. This is
undoubtedlyagoodthingsince,astheAmericanBarAssociation(tW BA'')hasobserved,
ûtltlheconsequencesofpretrialdetentionaregrave.''AmericanBarAssociationProjecton
Standards forCrim inalJustice,StandardsRelating to PretrialRelease-Approved D rtz-/t
1968@ ew York:AmericanBarAssociation,1968)at2-3. TheABA furthernoted:
(As a result of pretrial detention,j Defendants presum ed innocent are subjectedtothepsychologicalandphysicaldeprivationsofjaillife,usually
underm ore onerousconditions than are im posed on convicted defendants.
The jailed defendant loses his job if he has one and is prevented from
contributing to thepreparation ofhisdefense.Equally im portant,theburden of his detention frequently falls heavily on the innocentm em bers of his fam ily. M oreover,there is strong evidence thata defendant's failure to secure pretrialrelease has an adverse effecton the outcom e ofhis case. Studiesin Philadelphia,theD istrictofColum biaand N ew York allindicate
thattheconvictionrateforjaileddefendantsmateriallyexceedsthatofbailed
defendants. Forexam ple,ofdefendantscharged w ith grand larceny fortythreepercentofthoseonbailpendingtrialw ereconvictedwhileseventy-tw o
percentofthoseinjailwereconvicted.lntermsofthesentenceim posedon
convicted persons, the bailed defendant is far m ore likely to receive
probation;hisjailed counterpart,having been unable to demonstratehis
reliabilityundersupervision,m orefrequentlygoestoprison.O fcoursesom e ofthefactors,such asstrong evidenceofguiltora long crim inalrecord,that lead to high bailand hence detention,w illalso cause a courtto find the defendant guilty and to sentence him to prison rather than to give him probation.Butarecentstudywhich attem ptedto holdothercausativefactors constantindicatesthatthere is astrong relationship betw een detention and unfavorable disposition.
f#.Seealso800th,352F.Supp.at739(ût-l'heimportanceofprovidingcounselattheinitial
detention hearing isunderscoredby em piricalresearchw hichindicatesthatcaseoutcom es
forpretrialdetaineesare much w orse- in term sofan increased likelihood ofconviction
andharshersentences- than forthosewhoarereleasedpendingtrial.'')(citation omitted).
38

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Even if, hypothetically, the bail review hearings are able to cure all those cases of unnecessary pretrialdetention,the fact rem ains that som e individuals w illrem ain in custody fora m inim um of 12 hours from the tim e ofthe initialbailhearing to thebail review hearing. ûûEven tem porary unconstitutional deprivations of liberty''suffice to
establishirreparableharm .Pughv.Rainwater,483F.2d778,782-83(5thCir.1973),rcv'# inpartonothergroundssubnom.Gersteinv.Pugh,420U.S.103(1975).
ln short,800th m eetshisburden to establish irreparableharm .
3. BalancingtheHarmsW eighsinFavorofanlnjunction Thethird preliminary injunction factorrequires800th to show that,absentan injunction,thethreatenedinjuryoutweighsanyharm thedefendantswillsufferasaresult oftheinjunction.See Winter,555U .S.at24(çûcourtsmustbalancethecompetingclaim s ofinjul'yandmustconsidertheeffecton eachparty ofthegrantingorwithholdingofthe requested relief.''). tûlfacourthasmadea finding ofirreparableharm ,aparty opposing injunctiverelieftwouldneedtopresentpowerfulevidenceofharm to itsinterests'to preventthescalesfrom weighinginthemovant'sfavor.''CampaignforS.Equal.v.Bryant, 64F.Supp.3d906,950(S.D.M iss.2014)(quotingOpulentLfeChurchv.CityofHolly Springs,697 F.3d 279,297(5th Cir.2012)). ûçgW lhen plaintiffisclaim ingthelossofa
constitutionalright,courtscom m only rulethateven atemporary lossoutw eighsany harm
todefendantandthatapreliminaryinjunction shouldissue.''1IA CharlesAlanW right& ArthurR.M iller,FED.PRAC.& PROC.CIV.j2948.2(3ded.2019).
A ccording to the D istrictA ttorney and the D istrictCourtJudges,there isa heavy adm inistrativeburden thatwillbeplacedon Galveston County andtheDistrictAttorney's

Case 3:18-cv-00104 Document 267 Filed on 08/07/19 in TXSD Page 40 of 45
officeintheeventaninjunctionisissued. Specifically,thereisaconcernthatrequiring
the appointm entofcounselatinitialbailhearingswillnecessitatetheD istrictAttorney to furnish prosecutorsto attend thehearings,and ûkdo nothing butadd complexity and m ore tim e.'' D kt.234 at25. The Courtis notconvinced. There m ightend up being som e additionalcosts incurred if defense counselhas to be provided to indigent defendants tw ice ataninitialbailhearingand,later,atabailreview hearingaswell.But,atthesam e tim e,itisverypossiblethatbyprovidingcounselatan initialbailhearing,m oreindividuals willbereleased from pretrialdetention and therew illbequantifiablecostsavingsin term s ofcostsofincarceration.The financialcost,ifany,on theD istrictAttorneyandG alveston County isfarfrom clear.By contrast,indigentdefendantsareunquestionably m ore likely to rem ain in custody- even ifonly for a shorttim e- ifthey do notreceive appointed counselearly in theprocess,leading to tim e aw ay from theirfriends,fam ily,school,and em ploym ent.
By any m etric,the hardship classm em bers suffer from being denied counselfar outweighsanyharm totheDefendants.A ssuch,theCourtfindsthatthebalanceofequities
weighsheavilyinfavorofaninjunction. 4. ThePubliclnterestFavorsan lnjunction
The fourth factor a court m ust consider when deciding w hether to grant a
preliminaryinjunction istheimpactaninjunctionmayhaveonthepublicinterest.Itis
axiom atic thatthe public interestis notserved by allowing constitutionalviolationsto
continue.AstheFifthCircuithasexplained,ûûliltisalwaysinthepublicinteresttoprevent
theviolation ofaparty'sconstitutionalrights.''Jackson Women'sH ealth Org.v.Currier,
40

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760F.3d448,458n.9(5thCir.2014)(citationom itted).Seealso Tex.D emocraticf'tzrfy v.Benkiser,459F.3d582,595(5thCir.2006)(thepublicinterestisestablishedifaplaintiff canshow asubstantiallikelihoodofsuccessonthemeritsofaconstitutionalclaiml;Nobby Lobby,Inc.v.Dallas,970 F.2d 82,93 (5th Cir.1992)(ûçg-l-jhepublicinterestalwaysis
served when public officialsactw ithin theboundsofthelaw andrespecttherightsofthe
citizenstheyserve.''l(citationomittedl;Jackson Women'sHealthOrg.v.Currier,940F. Supp.2d416,424(S.D.M iss.2013)(û1(Tjhegrantofaninjunctionwillnotdisservethe publicinterest,an elementthatisgenerallym etwhen an injunction isdesignedto avoid constitutionaldeprivations.''),aff'dinpart,760F.3d448.Inthiscase,giventherealharms
thatbefallan indigentarrestee w ho doesnotreceive appointed counselatan initialbail
hearing,thepublicinterestisservedbyissuingapreliminaryinjunction.
TH E PR ELIM INA RY INJUN CTIO N N ow thattheCourthasconcluded thatindigentarresteesin Galveston County are constitutionally entitled torepresentation atinitialbailhearings,theCourtm ustdeterm ine how to fashion an appropriate rem edy. 800th has subm itted a proposed prelim inary
injunctionorder,butthatproposedpreliminaryinjunctionorderisincrediblyoverbroad.
Tobegin w ith,800thsuggeststhatGalveston County beorderedtoprovidedefense counselto Gnany felony arrestee iswho unable to retain counsel''- regardless ofw hether
theycanaffordtheirown attorney. Dkt.205-1at1(emphasisadded).Thereisnolegal
basisforthisrequest.TheConstitution requiresthe appointm entofcounselto thosewho cannotafford to hire an attorney atûûcriticalstages''ofthe crim inalproceedings. The Constitution does notm andate thatthe governm entprovide counselto every crim inal
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defendant,rich orpoor.W hileagovernm entalbody could,conceivably,decidetoprovide counseltoa1lcrim inaldefendantsirrespectiveoftheirindigentstatus,thatisnotadecision fora districtcourtto m ake. The undersigned w illrefrain from stepping in and playing
policymaker.A districtcourtisonlypermittedtodeviseaninjunctiveremedythatmeets Constitutionalminimums.Asaresult,theinjunction issuedinthiscasewillbelim itedto
requiring thatindigentfelony arresteesin Galveston County beprovided with counselat the initialbailhearing.
Booth'sproposed injunction would also require Galveston County to provide
defense counselw ith atleastthreehoursoflead tim e to m eetw ith a crim inaldefendant beforeabailhearing.H ow 8 00th cam eup with thethree-hourperiod isunclear.Thereis certainly no evidentiary support for this request anyw here in the record. The only testim ony on this issue indicates that a three-hour preparation period is com pletely
unnecessary.Dkt.239-2at64-65(HarrisCounty ChiefPublicDefenderexplainingthat ûçltqheredoesn'tneedtobearule''thatanattorney mustmeethisclientacertainnumber
ofhoursbeforeadetention hearing,andnotingthatheoften m eetsw ith clientsforthefirst
timeûûwithinminutes,halfhour''ofabailhearing).Asaresult,theCourtw illnot,atthis
tim e,setam inim um num berofm inutesorhoursofleadtim ethathavetobeprovided so thata defense law yercan consultw ith hisclientbefore an initialbailhearing. Once the
injunction goes into effect,800th is certainly entitled to ask the Courtto revise the preliminaryinjunction intheunlikelyeventhebelievesthatGalvestonCounty istaking
affirm ative steps to frustrate a m eaningfulattorney-clientrelationship atthe initialbail hearings.
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Theproposed injunction advanced by 800th alsorequeststhatGalveston County
providea w eekly reportto theCourtwith detailed inform ation including,butnotlim ited
to5the nam e ofeach ûtarrestee'scounsel,gtheltim e thatcounselwasprovided to the arrestee, . the time ofthe arrestee's initialbailhearing .gand)any outstanding
conditionsofrelease applicabletothearrestee.'' Dkt.205-1at2. TheCourtfully agrees with theD istrictCourtJudgesthatthese requestsûtare tim econsum ing,unnecessary,and only serveto addaburden on theCounty.'' Dkt.234 at28.Thereisno need toplacethis added adm inistrativeburden on Galveston County.
Inaccordancewiththesefindings,theCourtrecommendsthattheinjunctionbind
Galveston County and itsofficers,agents,servants,em ployees,and attorneys,asw ellas otherpersonsw ho are in active concertorparticipation w ith them . Thespecificterm sof
theinjunctionshouldbeasfollows: (1)Galveston County mustprovideany indigentfelony arresteewith counselto
represent the arrestee at the initial hearing concerning conditions of pretrial release.
(2)TheCourtdoesnotorderinjunctivereliefagainstthem agistratesortheDistrict Attorney.TheCourtdoesnotorderinjunctivereliefagainsttheDistrictCourt Judgesin theirjudicialcapacities,butratherdoesso in theirpolicymaking
capacities.
(3)Therecomm ended injunctionshouldexpireontheentry ofafinaljudgmentin
thiscase,unlessthe Courtordersotherw ise. Any party m ay seek m odification
oftheinjunctionbyawrittenmotionservedona11counselandon ashowingof
good cause.
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CO N CLU SIO N A ND RECO M M END ATIO N
In findingthataprelim inaryinjunction waswarrantedinODonnell1,ChiefJudge
Rosenthalm ade the follow ing observation,w hich this Courtw holeheartedly adopts as equally applicabletothecaseathand:
Thiscaseisnoteasy.lnstitutionschargedw ith safeguardingthepublichave an extraordinarytrustand adifticulttask.The difficulty and im portance of thetask cannotdefeatan equally im portantpublictrust,which the courtand the defendantsshare- to enforce the Constitution. The courthasdone its
besttorecognizeandworktowardboth.gGalvestonCountyjischangingits
bailprocedures. Thatiscom m endable. The reliefordered hereisintended tofitintothatw ork,to dischargetheresponsibilitiesthecourtandtheparties share. OD onnell1,251F.Supp.3d at1168. Accordingly,forthereasonsstatedabove,the Coul'tR ECO M M EN D Sthat:
@ TheM otionforPreliminaryInjunction(Dkt.3-1)beDENIED;and * TheM otionforPreliminarylnunctiongsiclRequiringCounselatInitialBail
Hearings (Dkt. 205) be GRANTED to the extent described in this
M em orandum and Recom m endation.
The Clerk shallprovide copiesofthisM em orandum and Recom m endation to the
respectivepartieswhohavefourteendaysfrom thereceiptthereoftofilewrittenobjections pursuanttoFederalRuleofCivilProcedure72(b)andGeneralOrder2002-13.Failureto filewrittenobjectionswithinthetimeperiodmentionedshallbaran aggrievedpartyfrom
attacking thefaetualfindingsand legalconclusionson appeal.
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SIGN ED atGalveston,Texas,this7th day ofA ugust,2019.
' '
z.z',
AN DREW M .EDISON UN ITED STATES M A GISTRATE JU D GE
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