565 F.3d 214 (5th Cir. 2009), 07-11223, Davis v. Tarrant County, Tex.

Docket Nº:07-11223.
Citation:565 F.3d 214
Party Name:Lawrence Patrick DAVIS, Plaintiff-Appellant, v. TARRANT COUNTY, TEXAS; Sharen Wilson, Honorable, in Individual and Official Capacity; Wayne Salvant, Honorable, in Individual and Official Capacity; Elizabeth Berry, Honorable, in Individual and Official Capacity; Mike Thomas, Honorable, in Individual and Official Capacity; Mollee Westfall, Honorable,
Case Date:April 08, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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565 F.3d 214 (5th Cir. 2009)

Lawrence Patrick DAVIS, Plaintiff-Appellant,

v.

TARRANT COUNTY, TEXAS; Sharen Wilson, Honorable, in Individual and Official Capacity; Wayne Salvant, Honorable, in Individual and Official Capacity; Elizabeth Berry, Honorable, in Individual and Official Capacity; Mike Thomas, Honorable, in Individual and Official Capacity; Mollee Westfall, Honorable, in Individual and Official Capacity; Everett Young, Honorable, in Individual and Official Capacity; Scott Wisch, Honorable, in Individual and Official Capacity; George Gallagher, Honorable, in Individual and Official Capacity; Robert K. Gill, Honorable, in Individual and Official Capacity; James Wilson, Honorable, in Individual and Official Capacity; Jeff Walker, Honorable, in Individual and Official Capacity, Defendants-Appellees.

No. 07-11223.

United States Court of Appeals, Fifth Circuit.

April 8, 2009

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[Copyrighted Material Omitted]

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Ricardo De Los Santos (argued), Law Office of Ricardo De Los Santos, Cleburne, TX, for Davis.

Christopher W. Ponder (argued), Fort Worth, TX, for Tarrant Cty., TX.

David Alan Harris, Asst. Atty. Gen. (argued), Austin, TX, for Wilson.

Anthony Gerard Brocato, Jr., Asst. Atty. Gen., Austin, TX, for Wilson.

Andrea M. Marsh (argued), Texas Fair Defense Project, Austin, TX, for Texas Fair Defense Project, Amicus Curiae.

Appeal from the United States District Court for the Northern District of Texas.

Before BENAVIDES, SOUTHWICK and HAYNES, Circuit Judges.

BENAVIDES, Circuit Judge:

Appellant Lawrence Patrick Davis, a criminal defense attorney who practices primarily in Tarrant County, Texas, filed this suit because the Tarrant County criminal district judges denied his application to be included on the list of attorneys eligible for court appointment in felony cases in Tarrant County, known as " the wheel." Davis sued the district judges hearing felony cases in Tarrant County and the presiding judge of the Eighth Judicial Administrative Region (collectively, the " defendant judges" ) in

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both their individual and official capacities, and Tarrant County, under 42 U.S.C. § 1983, asserting that the establishment and implementation of the county policy for the appointment of counsel to represent indigent defendants and the denial of his application violated the due process and equal protection clauses of the Fourteenth Amendment and the due process clause of the Fifth Amendment.

The district court granted the motions to dismiss filed by the defendant judges and Tarrant County on the grounds: (1) that the defendant judges were immune from suit in their individual capacities because they were acting in their judicial capacities when they established and implemented the appointment policy and denied Davis's application; (2) that the defendant judges were immune from suit in their official capacities under the Eleventh Amendment; and (3) that Tarrant County was not liable as a matter of law because the defendant judges were acting on behalf of the state of Texas, not Tarrant County. The district court did not address the alternative grounds for dismissal raised in the motions to dismiss, including that Davis had failed to allege any violation of a protected property right or liberty interest and that the defendant judges were entitled to qualified and legislative immunity.

Davis appealed, arguing: (1) that the defendant judges' acts were not judicial in nature; (2) that the Eleventh Amendment did not bar his request for prospective declaratory relief; and (3) that Tarrant County was liable for the defendant judges' actions because the Texas Fair Defense Act, passed in 2001, makes the defendant judges county policymakers. An amicus brief was submitted by the Texas Fair Defense Project (" TFDP" ) in support of Davis's position that the defendant judges acted as county policymakers and that Tarrant County may be held liable for the defendant judges' actions in establishing and implementing the appointment policy.

For the reasons stated below, we AFFIRM.

I. Standard of Review

A district court's grant of a motion to dismiss is reviewed de novo, using the same standard as the district court. See Frank v. Delta Airlines, Inc., 314 F.3d 195, 197 (5th Cir.2002). In ruling on a motion to dismiss, a court " accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff." Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir.2008). " To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to state a claim to relief that is plausible on its face." Id. (internal quotations omitted).

II. Background

A. Davis's Application for Felony Court Appointments

On June 1, 2005, Davis submitted an application to be included on the Tarrant County felony court appointment wheel. His application was denied on August 1, 2005. On October 28, 2005, Davis's attorney sent a letter to the Tarrant County criminal district judges asking for an explanation of the denial and requesting a hearing. The judges did not respond to the letter. On June 2, 2006, Davis sent another letter to the judges asking for an explanation of the denial of his application and requesting a hearing. The judges did not respond to the second letter.

Davis alleges that the judges denied his application to be included on the felony court appointment wheel because he did not have good personal relationships with the judges, he was not part of the judges' " good ol' boys" network, and the judges

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were trying to exclude qualified attorneys from the wheel in order to increase the conviction rate and clear the criminal court's docket.

B. The Texas Fair Defense Act

In 2001, the Texas Fair Defense Act (the " Act" ) was passed. The Act substantially revised Article 26.04 of the Texas Code of Criminal Procedure, which governs the procedures for the appointment of counsel. Prior to January 1, 2002, when the Act went into effect, Article 26.04 provided that decisions regarding the appointment of counsel would be made by individual judges on a case-by-case basis. Article 26.04 stated:

Court shall appoint counsel

(a) Whenever the court determines that a defendant charged with a felony or a misdemeanor punishable by imprisonment is indigent or that the interests of justice require representation of a defendant in a criminal proceeding, the court shall appoint one or more practicing attorneys to defend him ....

Tex.Code Crim. Pro. Ann. art. 26.04 (Vernon 1989).

The 2001 amendment established a much more detailed procedural regime for the appointment of counsel in criminal cases that requires judges in each county to establish standardized countywide procedures. The 2001 amendment provides that the countywide policy may be based on the establishment of a public appointment list, the appointment of a public defender, the creation of an " alternate program," or simply allowing judges to appoint attorneys from any county in the court's administrative judicial region. The text of Article 26.04 following the 2001 amendment provides in relevant part:

Procedures for Appointing Counsel

(a) The judges of the county courts, statutory county courts, and district courts trying criminal cases in each county, by local rule, shall adopt and publish written countywide procedures for timely and fairly appointing counsel for an indigent defendant in the county arrested for or charged with a misdemeanor punishable by confinement or a felony .... A court shall appoint an attorney from a public appointment list using a system of rotation, unless the court appoints an attorney under [those subsections addressing the appointment of the public defender, the creation of a countywide alternative program, or a judge's ability to appoint a counsel from any county in the court's administrative judicial region]. The court shall appoint attorneys from among the next five names on the appointment list in the order in which the attorneys' names appear on the list, unless the court makes a finding of good cause on the record for appointing an attorney out of order. An attorney who is not appointed in the order in which the attorney's name appears on the list shall remain next in order on the list.

Tex.Code Crim. Pro. Ann. art. 26.04 (Vernon 2009). Article 26.04 sets out a number of requirements for the countywide procedures, such as that they authorize only the judges of the county courts, statutory county courts, and district courts trying criminal cases in the county, or the judges' designee, to appoint counsel for indigent defendants in the county; that they ensure that appointments are allocated among qualified attorneys in a manner that is fair, neutral, and nondiscriminatory; and that the judges specify the objective qualifications necessary for an attorney to be included on the public appointment list. Id.

C. The Tarrant County Appointment Policies

In order to comply with the Texas Fair Defense Act, the judges of the Tarrant

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County criminal district courts published a set of guidelines for felony court appointments. The guidelines in effect at the time Davis applied for felony court appointments in Tarrant County in June 2005 stated that appointments were to be made from a rotating list of the names of eligible attorneys, arranged according to the chronological date of receipt of an approved application, and that an attorney was to receive one defendant per rotation on the appointment list. The guidelines set out mandatory general qualifications for attorneys who sought criminal court appointments. These qualifications appear to be mostly objective, e.g., being a member in good standing of the state bar who...

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