Russell v. Harris Cnty.

• Decision Date: 10 November 2020
• Docket Number: CIVIL ACTION NO. H-19-226
• Citation: 500 F.Supp.3d 577
• Parties: Dwight RUSSELL, et al., Plaintiffs, v. HARRIS COUNTY, TEXAS, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

500 F.Supp.3d 577

Dwight RUSSELL, et al., Plaintiffs,

v.HARRIS COUNTY, TEXAS, et al., Defendants.

CIVIL ACTION NO. H-19-226

United States District Court, S.D. Texas, Houston Division.

Signed November 10, 2020

Alec George Karakatsanis, Elizabeth Anne Rossi, Pro Hac Vice, Jeffrey David Stein, Civil Rights Corps, Washington, DC, Joseph S. Grinstein, Neal S. Manne, Susman Godfrey LLP, Liyah Brown, Meagan Taylor Harding, Texas Civil Rights Project, Houston, TX, Michael Gervais, Susman Godfrey L.L.P., Los Angeles, NY, MIMI Murray Digby Marziani, Peter Blackmer Steffensen, Texas Civil Rights Project, Austin, TX, for Plaintiffs Dwight Russell, Johnnie Pierson, Joseph Ortuno.

Jeffrey David Stein, Elizabeth Anne Rossi, Civil Rights Corps, Washington, DC, Peter Blackmer Steffensen, Texas Civil Rights Project, Austin, TX, for Plaintiff Maurice Wilson.

Peter Blackmer Steffensen, Texas Civil Rights Project, Austin, TX, Elizabeth Anne Rossi, Civil Rights Corps, Washington, DC, for Plaintiff Christopher Clack.

Melissa Lynn Spinks, Brandon Marc Draper, Rachel Susan Fraser, Seth Barrett Hopkins, Harris County Attorney's Office, Houston, TX, for Defendant Texas Harris County.

Murray J. Fogler, Fogler, Brar, O'Neil & Gray LLP, Victoria Lynn Jimenez, Harris County Attorney's Office, Houston, TX, for Defendant Sheriff Ed Gonzalez.

Courtney Brooke Corbello, Emily Marie Landon, Jonathan M. Pena, Landon Allen Wade, Office of the Attorney General, Austin, TX, for Defendants Judge Hazel B. Jones, Nikita Harmon, Robert Johnson, Kelli Johnson, Randy Roll, DaSean Jones, Abigail Anastasio, Jason Luong, Greg Glass, Frank Aguilar, Chris Morton, Josh Hill, Hilary Unger, Amy Martin, Herb Ritchie, Ramona Franklin, Jesse McClure, III, George Powell, Brock Thomas.

George Allan Van Fleet, G. Allan Van Fleet, P.C., Houston, TX, Courtney Brooke Corbello, Emily Marie Landon, Jonathan M. Pena, Landon Allen Wade, Office of the Attorney General, Austin, TX, for Defendant Danilo Lacayo.

George Allan Van Fleet, G. Allan Van Fleet, P.C., Houston, TX, Courtney Brooke Corbello, Office of the Attorney General Law Enforcement Defense DIV, Austin, TX, for Defendant Lori Chambers Gray.

Courtney Brooke Corbello, Office of the Attorney General Law Enforcement Defense DIV, Austin, TX, for Defendant Lisa A. Gray.

MEMORANDUM AND OPINION

LEE H. ROSENTHAL, Chief United States District Judge

Courts across the country are being asked to examine our nation's approach to pretrial bail for those accused of a wide range of felony offenses, who are allegedly too poor to post bond and who are detained, while those who can pay are released.¹ The arrestees are innocent; no judge or jury has found them guilty. They have a right to liberty from detention for the offenses charged, unless and until they are convicted. See, e.g. , ODonnell v. Harris County (ODonnell I) , 892 F.3d 147, 157–58 (5th Cir. 2018). At the same time, the public must be protected against the risk that, if released, a felony arrestee will fail to appear or will commit other offenses. The interests in individual liberty and public safety are complicated, more recently, by pandemic. To this mix, add the inevitable but complicating factor of politics. The challenges of maintaining a system that meets federal and state constitutional requirements, and is workable, effective, and fair, are formidable, but our laws demand no less.

Dwight Russell, Johnnie Pierson, Joseph Ortuno, Christopher Clack, and Maurice Wilson, seeking to represent a class, sued Harris County, the Harris County Sheriff, Ed Gonzalez, and 23 Harris County Felony District Court Judges² under 42 U.S.C. § 1983, alleging that the defendants promulgate, enforce, and acquiesce in pretrial bail policies for individuals arrested on felony charges that violate the Equal Protection and Due Process Clauses of the United States Constitution. (Docket Entry No. 195-1). The alleged violations include detaining individuals who have not been convicted of the crimes charged, solely because they are unable to post an upfront secured financial bail bond, without finding that detention is necessary to serve governmental interests, without holding a timely hearing at which the individuals can present evidence, while arrestees with similar charges and criminal backgrounds who can afford to pay are released. The alleged result is "mass detention caused by arrestees’ inability to access money." (Id. at ¶ 9).

The plaintiffs also challenge the governor's March 29, 2020 Executive Order GA-13, providing that "no authority should release on personal bond any person previously convicted of a crime that involves physical violence or the threat of physical violence, or any person currently arrested for such a crime that is supported by probable cause." (Docket Entry No. 39-1 at 3). The plaintiffs allege that Executive Order GA-13 keeps pretrial detainees in jail solely because of their inability to pay and without finding that pretrial detention is necessary, violating equal protection and procedural and substantive due process. (Docket Entry No. 259 at 34–35).

The plaintiffs seek injunctive and declaratory relief against Harris County, Sheriff Gonzalez, and the 23 Harris County felony district judges in their official capacities. (Docket Entry No. 195-1 at ¶ 197). The State of Texas, the Governor of Texas, and the Attorney General of Texas successfully moved to intervene. (Docket Entry Nos. 38, 46).

The state intervenors and felony judges have moved to dismiss, (Docket Entry Nos. 214, 228), the plaintiffs responded, (Docket Entry No. 259), and the state intervenors and felony judges replied, (Docket Entry Nos. 292, 293). The court held oral argument in October 2020. Based on the pleadings; the motions, responses, and replies; the record; the applicable law; and the oral arguments of counsel, the court denies the state intervenors’ and felony judges’ motions to dismiss because the record raises vigorously disputed factual allegations that must be developed further to resolve the legal issues the parties present. The parties may reassert their arguments later in the case, on a record that will allow accurate resolution. The present record does not provide a sufficient basis to do so.

The reasons for these rulings are set out below.

I. Background

Harris County is one of the largest counties in the United States, both geographically and by population. Many overlapping officials and authorities coordinate and control the County's felony pretrial procedures. The parties sharply dispute basic facts about the pretrial procedures that govern Harris County's felony bail system, including the sources of authority governing bail procedures; the entities or persons operating under that authority; and the roles those entities and officials play in exercising their authority. Taking the plaintiffs’ plausible factual allegations as true for the Rule 12(b)(6) motions, and considering the record as required for the Rule 12(b)(1) motions,³ Harris County's bail procedures are administered as described below.

A. The Sources of Felony Bail Regulation

The Texas Constitution states that "[a]ll prisoners shall be bailable by sufficient sureties, unless for capital offenses, when the proof is evident." TEX. CONST. art. I, § 11. The Texas Constitution also forbids "[e]xcessive bail." Id. at § 13. The Texas Government Code grants magistrates, known as criminal law hearing officers, "limited concurrent jurisdiction over criminal cases filed in the district courts and county criminal courts at law." Tex. Gov't Code § 54.856(a). Hearing officers may commit an arrestee to jail, discharge the arrestee from custody, or admit the arrestee to bail. Id. This grant of limited jurisdiction, however, does not "limit or impair the jurisdiction of the court in which the complaint, information, or indictment is filed to review or alter the decision of the criminal law hearing officer."⁴ Id. § 54.856(b).

The Texas Code of Criminal Procedure states that "a magistrate may, in the magistrate's discretion, release [an arrestee] on personal bond without sureties or other security," unless the arrestee is charged with certain serious felonies.⁵

Tex. Code Crim. Proc. art. 17.03. Under the Texas Code of Criminal Procedure, "[t]he amount of bail to be required in any case is to be regulated by the court, judges, magistrate or officer taking the bail." Id. § 17.15. Five rules govern their authority:

1. The bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with.

2. The power to require bail is not to be so used as to make it an instrument of oppression.

3. The nature of the offense and the circumstances under which it was committed are to be considered.

4. The ability to make bail is to be regarded, and proof may be taken upon this point.

5. The future safety of a victim of the alleged offense and the community shall be considered.

Id.

The Texas Government Code authorizes felony judges to "adopt rules consistent with the Code of Criminal Procedure ... for practice and procedure in the courts." Tex. Gov't Code § 75.403(f). On September 12, 1996, the Harris County Criminal Court Board of Judges approved the Rules of the Judicial District Courts of Harris County for District Courts Trying Criminal Cases. Rule 6.12 requires hearing officers to "set bail," "determine whether the defendant is eligible for release on personal recognizance, and commit [the] defendant to custody of the Sheriff subject to defendant's posting bond in the amount of set bail." Rule 6.12 of the Judicial District Courts of Harris County for District Courts Trying Criminal Cases.⁶

On December 12, 2006, the Harris County Administrative Judge for the Criminal Division issued the current Direct Filing Order. (Docket Entry No. 259-6). Rule I of the Direct Filing Order states:

The district judges shall enter a written general order setting the initial amount of bail required of any person charged with a felony offense. The initial amount of

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