Crane v. State of Tex.

• Decision Date: 02 May 1985
• Docket Number: No. 83-1650,83-1650
• Citation: 759 F.2d 412
• Parties: Stephen C. CRANE, on Behalf of himself and others similarly situated, Plaintiff-Appellee-Cross Appellant, v. STATE OF TEXAS, Defendant-Appellant, v. COUNTY OF DALLAS, Ben Ellis, John Orvis, Mike Schwille, Berlaind Brashear and Chuck Miller, Defendants-Appellants-Cross Appellees, v. Henry WADE and L. E. Murdoch, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 412

759 F.2d 412

Stephen C. CRANE, on Behalf of himself and others similarly

situated, Plaintiff-Appellee-Cross Appellant, v. STATE OF TEXAS, Defendant-Appellant, v. COUNTY OF DALLAS, Ben Ellis, John Orvis, Mike Schwille, Berlaind Brashear and Chuck Miller, Defendants-Appellants-Cross Appellees, v. Henry WADE and L. E. Murdoch, Defendants-Appellees.

No. 83-1650.

United States Court of Appeals Fifth Circuit.

May 2, 1985.

Rehearing and Rehearing En Banc Denied July 22, 1985.

Earl Luna, Dallas, Tex., for Ellis et al. and Dallas County.

Jim Mattox, Atty. Gen., Mary F. Keller, Lawrence J. King, Asst. Attys. Gen., Austin, Tex., for State of Texas.

Peter Lesser, Johnston & Larson, Douglas R. Larson, Dallas, Tex., for Crane.

Sue L. Lagarde, Asst. Dist. Atty., Dallas, Tex., for Henry Wade & Larry Murdoch.

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

Before GEE, WILLIAMS and JOLLY, Circuit Judges.

GEE, Circuit Judge:

On behalf of himself and others similarly situated, Stephen Crane brought an action pursuant to 42 U.S.C. Secs. 1983, 1988, and the common law of Texas, against the State of Texas, Dallas County, the judges of the Dallas County Criminal Courts, the Dallas County Clerk, the Dallas County Criminal District Attorney, the City of Dallas, and divers Dallas police officers. The gravamen of his complaint was that Dallas County regularly issued misdemeanor capias without a finding of probable cause by a neutral and detached magistrate in violation of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution and Article 23.04, Tex.Code Crim.Proc.Ann. (Vernon). Alternatively, he alleged that articles 23.01 and 23.04 of the Tex.Code Crim.P. were unconstitutional if they allowed a clerk to issue a capias on nothing more than a District Attorney's information and affidavit. Crane sought declaratory and injunctive relief as well as monetary damages.

In an Order filed April 30, 1981, the trial court certified maintenance of the case as a class action and granted the motion to dismiss of the State of Texas on the ground of the State's Eleventh Amendment immunity from suit in the federal courts. The trial court also denied the judges' motions to dismiss on the ground that their common law judicial immunity did not extend to Sec. 1983 suits seeking equitable relief.

The legality of the challenged practices was considered separately from Crane's entitlement to damages. In an order filed November 30, 1981, the trial court concluded that under Texas law a determination of probable cause by a neutral magistrate must precede the issuance of a valid misdemeanor capias; the Dallas practice therefore violated Texas law. Defendants were invited to submit proposals for reform of the Dallas County misdemeanor capias system. By February 4, 1982, defendants had done more than submit proposals; they had changed the County system to ensure that misdemeanor capias issued only after the requisite finding of probable cause by a properly neutral magistrate. The trial court therefore denied Crane's request for injunctive relief.

The remaining issues of damages and attorneys' fees were tried to a jury. The jury awarded Crane $40,000 in compensatory damages to be paid by the County and the District Attorney. It found that District Attorney Wade, as legal advisor to the County, knew or should have known that the County capias system infringed Crane's established constitutional rights, but that the police, the City of Dallas, and Murdoch, the County Clerk, had acted in good faith and without knowledge of the constitutional infringement.

The court held, in a memorandum opinion filed March 11, 1982, that the County was immune from liability for damages because the illegal practices were not a "county policy or custom." The District Attorney was immune from liability for damages because he was primarily responsible to the State and breached no duty he owed to the County. Crane thus took nothing. He was, however, awarded attorneys' fees as a "prevailing party" under 42 U.S.C. Sec. 1988. The award was made against the State of Texas because defendants were "wearing their state hats" when they performed the acts complained of. The trial court modified its original order of September 8, 1982; and, in a memorandum opinion filed July 26, 1983, reduced the fees to be awarded Crane. The reduction was based on Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). All parties appeal from those aspects of the trial court's holdings adverse to themselves.

Facts

The facts underlying this action are simple and undisputed. A lawyer with whom Crane shared office space listed Crane, without Crane's knowledge or consent, as an initial director of Crystal Theater, Inc., in the corporation's Articles of Incorporation. The Crystal Theater showed dirty movies in Dallas. Dallas police visited the theater and determined its movies to be obscene. Proceeding solely on the basis of the Articles of Incorporation, and without further investigation, the Dallas police prepared a case report charging Crane with distribution of commercial obscenity, a misdemeanor. The police sent the report to the Dallas County Criminal District Attorney's office. The District Attorney's office decided to prosecute Crane and prepared an information and accompanying affidavit charging him with the misdemeanor offense. The information and affidavit were filed with the Dallas County Clerk's office. The Clerk's office typed Crane's name on a writ of capias form, thereby authorizing Crane's arrest, and gave the form to the police, who duly arrested Crane. He spent about four hours in the Dallas County jail before being released on bail. The charges against him were later dismissed for insufficient evidence at the request of the District Attorney's office, which had belatedly discovered Crane's lack of connection with the theater. This suit followed.

Eleventh Amendment Immunity

Dallas County contended at trial and contends on appeal that its status as a state agency entitled it to Eleventh Amendment ¹ immunity from federal suit, and therefore to dismissal for lack of jurisdiction. The trial court found it unnecessary to decide this question, and declined to do so. This was error. Because the Eleventh Amendment acts as a jurisdictional bar, Edelman v. Jordan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974); Laje v. R.E. Thomason General Hospital, 665 F.2d 724, 726 n. 2 (5th Cir.1982), an assertion of Eleventh Amendment immunity cannot be ignored, for a meritorious claim to that immunity deprives the court of subject matter jurisdiction of the action. Dallas County's claim of Eleventh Amendment immunity as an arm or agent of the State of Texas, Chiz's Motel v. Mississippi State Tax Com'n, 750 F.2d 1305, 1307 (5th Cir.1985); United Carolina Bank v. Board of Regents, 665 F.2d 553, 557 (5th Cir.1982), thus put in question the trial court's jurisdiction over the subject matter of Crane's action against the County; it was incumbent upon the trial court to settle the question before proceeding further. The error was harmless, however, in view of our conclusion that the immunity to federal suit granted by the Eleventh Amendment to the State of Texas does not extend to Dallas County.

The Supreme Court has "held that the Eleventh Amendment does not apply to 'counties and similar municipal corporations.' " Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, ---- n. 34, 104 S.Ct. 900, 920 n. 34, 79 L.Ed.2d 67, 93 n. 34 (1984), quoting Mt. Healthy City School District v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), the Supreme Court stated that it "has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a 'slice of state power.' " 440 U.S. at 401, 99 S.Ct. at 1177, citing in support Mt. Healthy; Moor v. County of Alameda, 411 U.S. 693, 717-721, 93 S.Ct. 1785, 1799-1802, 36 L.Ed.2d 596 (1973), and Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890). The Lincoln Court explicitly rejected a county's assertion of Eleventh Amendment immunity:

[I]t may be observed that the records of this court for the last thirty years are full of suits against counties, and it would seem as though by general consent the jurisdiction of the federal courts in such suits had become established. But irrespective of this general acquiescence, the jurisdiction of the circuit courts is beyond question. The Eleventh Amendment limits the jurisdiction only as to suits against a State.

133 U.S. at 530, 10 S.Ct. at 363. Although the Lincoln Court acknowledged the Eleventh Amendment as a bar to suits "in which the State is a real, if not a nominal, defendant," it did not place suits against counties in this category:

[W]hile the county is territorially a part of the State, yet politically it is also a corporation created by and with such powers as are given to it by the State. In this respect it is a part of the State only in that remote sense in which any city, town or other municipal corporation may be said to be a part of the State.

Id., see also Mercer County v. Cowles, 74 U.S. (7 Wall) 118, 122, 19 L.Ed. 86 (1868). Given such unambiguous pronouncements by the Supreme Court, repeated over so long a period of time, it is scarcely surprising that other courts have considered as settled the Eleventh Amendment's lack of applicability to counties. ² See, e.g., Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th Cir.1984) ("Eleventh Amendment immunity does not extend to independent political entities, such as counties"); Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir.1984) (...