Clements, In re

• Decision Date: 11 August 1989
• Docket Number: No. 89-2706,89-2706
• Citation: 881 F.2d 145
• Parties: In re William P. CLEMENTS, et al., Petitioners.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 145

881 F.2d 145

In re William P. CLEMENTS, et al., Petitioners.

No. 89-2706.

United States Court of Appeals Fifth Circuit.

Aug. 11, 1989.

John B. Worley, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Robert Ozer, Asst. Atty. Gen., Austin, Tex., for U.S.

Harold M. Streicher, Roderick Q. Lawrence, Lisa S. Rice, Asst. Harris County Attys., Houston, Tex., for Johnny Klevenhagem, Sheriff of Harris County.

James Oitzinger, and Gerald M. Birnberg, Williams, Birnberg & Anderson, Houston, Tex., for L. Alberti, et al.

On Petition for Writ of Mandamus to the United States District Court for the Southern District of Texas.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

This proceeding is a petition for writ of mandamus. Petitioners are William P. Clements, Governor of the State of Texas, James Lynaugh, Director of the Texas Department of Corrections ("TDC," the Texas state agency responsible for the Texas state prison system), the members of the Texas Board of Corrections (the governing body of TDC), ¹ all in their respective official capacities, and the State of Texas, each appearing herein by and through the Attorney General of Texas, Jim Mattox.

This petition arises from the case of Lawrence R. Alberti, et al. v. the Sheriff of Harris County, Texas, et al., civil action No. 72-H-1094 on the docket of the United States District Court for the Southern District of Texas, Houston Division, a long-pending prisoner class action suit, now presided over by Chief Judge James DeAnda, in which complaint is made of allegedly unconstitutional conditions of confinement in the Harris County, Texas jail. ² Our individual petitioners, in their respective official capacities, have been made third-party defendants in Alberti to the third-party complaint therein of the Alberti defendants, the sheriff, county judge, and county commissioners of Harris County, Texas, who allege that the third-party defendants are responsible for overcrowding in the Harris County jail because of TDC's refusal to accept sufficient numbers of convicted felons confined in the Harris County jail and ready for transfer to TDC. The Alberti defendants/third-party plaintiffs seek judgment of the Alberti district court ordering the third-party defendants, our individual petitioners, "to immediately remove from the Harris County Jail, all persons who are currently 'convicted felons ready for transfer to TDC' ... and to continue thereafter" to do so.

Petitioners seek our writ of mandamus to compel transfer of this Alberti third-party complaint to the "Ruiz " court, the court in which is pending the case of Ruiz v. Lynaugh, civil action No. H-78-987, United States District Court for the Southern District of Texas, Houston Division. The Ruiz case, of course, is the class action by inmates of TDC-operated prisons which successfully challenged the conditions of confinement there as being invalid under the United States Constitution. Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.Tex.1980), aff'd in part and vacated in part, 679 F.2d 1115, amended in part, 688 F.2d 266 (5th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). The Ruiz district court has entered extensive remedial decrees, retained jurisdiction until the plaintiff class obtains complete relief, and has exercised continuing oversight of TDC's efforts to comply with the decrees. Id. See also Ruiz v. Lynaugh, 811 F.2d 856 (5th Cir.1987). ³

Context Facts and Proceedings

In the original 1975 consent decree in the Alberti case, the district court retained jurisdiction to issue further orders until the Harris County jail facilities and operations were brought into compliance by the defendants there, the Sheriff and members of the Commissioners Court of Harris County. In April 1987, the district court appointed monitors to assess conditions in the facilities and make findings respecting the defendants' compliance with the consent decree and subsequent court orders and, inter alia, the maximum capacities of the county's various jail facilities. Alberti, 660 F.Supp. at 608. In their report of September 12, 1988, the monitors found several different specific areas of noncompliance, and also concluded that the jail had become dangerously overcrowded, largely because TDC was not accepting sufficient numbers of the convicted felons being held in the jail awaiting transfer to TDC. The monitors noted that from January 1988 to July 31, 1988 the jail population had grown from 4,376 to 5,642 and that of the latter figure some 1,300 were convicted felons awaiting transfer to TDC. In the three months ended July 31, 3,475 prisoners became eligible for transfer to TDC but only 2,303 were transferred, thus increasing the number ready for transfer by 1,172. The monitors considered the jail's design capacity to be 4,315, which was expected to increase to 4,745 by January 1989 when completion of a new 430-person facility was expected. They recommended a population "cap" of 110 percent of design capacity (or 5,220) when this new facility was operational, which would be reduced to 95 percent of design capacity when an additional 4,000-person contemplated facility was ready or in any case by June 1, 1991. The monitors noted that "[i]t makes sense for the defendants to seek to implead TDC into these proceedings, since it is unlikely that the ceiling and reductions recommended here can be met without the active involvement of the State correctional system."

On the basis of this report, the district court sua sponte entered an order on November 8, 1988 requiring the Harris County Sheriff to transport and deliver to TDC every week, commencing December 5, 1988, 250 of the male and 40 of the female convicted felon inmates of the Harris County jail who had been ready for transfer to TDC for at least ten days. This order was to continue in effect until all such prisoners had been transferred to TDC. The district court observed that under Texas law, TDC was "responsible for housing persons ... convicted of felony offenses in the State criminal courts," citing Tex. Penal Code Ann. Secs. 12.32-12.34 and Tex.Code Crim.Proc.Ann. Sec. 42.09, and was required to provide for the " 'speedy transportation of prisoners from counties where sentenced to the State penitentiary,' " citing Tex.Rev.Civ.Stat.Ann. art. 6166r. The court found that "dangerously overcrowded conditions exist" in the Harris County jail which "have been exacerbated substantially, if not caused primarily or solely, by the failure of TDC to receive convicted felons ready for transfer to TDC in sufficient numbers and in a sufficiently timely manner."

TDC, however, refused to accept all of the prisoners tendered by Harris County pursuant to the Alberti court's November 8 order, stating that it would not accept prisoners from Harris County, or any other county, above the number allocated to that county pursuant to TDC's scheduled admissions policy. This policy was formulated in response to certain developments in the Ruiz case. The Ruiz "decree contains specific provisions that limit [TDC] prison population." 688 F.2d at 267. In 1985, the Ruiz parties entered into a "Crowding Stipulation," which the Ruiz court approved and adopted, the effect of which was "to limit the state-wide prison population to 95% of TDC's maximum capacity," calculated with reference only to those facilities, new or existing, which complied with certain formulas for maximum inmate populations and other specified standards, and excluding (with narrow exceptions) all temporary housing. 811 F.2d 857, 858. In September 1986, TDC moved to modify certain aspects of the Crowding Stipulation so it could increase the capacity of the prison system without new construction, citing an asserted "unforeseen and extraordinary 12.02% [inmate] increase in 1985-86," but the Ruiz court refused the requested relief and we affirmed. 811 F.2d 856, 858. TDC adopted its scheduled admissions policy in September 1987, allegedly in response to administrative difficulties it experienced in the spring and summer of 1987 when, in order to maintain its population under the Ruiz-specified 95 percent of capacity limitation, it periodically refused all admissions, with the consequence that when admissions were "open," large groups of prisoners would be transferred from the various counties at one time, resulting, according to TDC, in "a chaotic intake situation" and adverse effects on TDC's ability to comply with certain requirements of the Ruiz decree relating to inmate classifications and population limits of individual TDC units. Under TDC's scheduled admissions policy, admissions are allocated among all Texas counties on the basis of their respective records of past admissions to TDC, a formula which apparently gives Harris County a quota of 25.25 percent of all TDC admissions. According to TDC, its scheduled admissions policy greatly reduced the number of days TDC had to be closed to admissions to stay within the Ruiz required 95 percent of capacity limitation.

In January 1989, following TDC's refusal to accept Harris County inmates in the numbers and at the rate specified by the Alberti court's November 8 order, the Alberti defendants, with leave of the Alberti court, filed their third-party complaint against our individual petitioners, the Governor, the TDC director, and the members of TDC's governing board, in their official capacities. The third-party complaint recites the Alberti court's November 8 order, and alleges that under Texas law TDC has the duty to speedily accept convicted felons from Texas counties, including Harris County. It also alleges that the Governor has not invoked the Texas Prison Management Act, Tex.Rev.Civ.Stat.Ann. art. 6184o, which provides that when the attorney general certifies in writing to the governor that TDC "has reached 95 percent of capacity" then "the governor shall immediately certify that an emergency overcrowding situation exists and...