Filed in January of 2018, plaintiffs in Daves v. Dallas County alleged that bail practices in the county were unconstitutional since indigent defendants could be denied release from pretrial incarceration if they did not have the ability to pay cash bail.
The Daves lawsuit followed a very similar case, ODonnell v. Harris County, which had been filed two years earlier and was well underway. Plaintiffs in the Dallas suit are represented by many of the same attorneys including activist attorney Alexander Karakatsanis of the Civil Rights Corps. Although the Harris County case only concerned misdemeanor bail practices, Daves included scrutiny of bail schedules for both misdemeanor and felony offenses.
By September of 2018, judicial panels consisting of two or three justices from the Fifth Circuit had ruled that Harris County’s misdemeanor bail practices were unconstitutional, leading federal Judge David Godbey of the U.S. District Court in Dallas to issue a preliminary injunction blocking the use of bail schedules in Dallas County as well.
Now however, after an en banc consideration that includes all of the Fifth Circuit Court Judges, the Court has vacated the preliminary injunction for Dallas County and sent the Daves case back to the lower court to consider whether there is justification for federal intervention, and the court has specifically overruled ODonnell on important points such as the jurisdiction to sue judges.
After the 2018 elections that gave Democrats control of the commissioners court, Harris County ceased to appeal the ODonnell case and instead moved to draw up an expansive consent decree, effectively preventing an en banc consideration of ODonnell before the Fifth Circuit.
Harris County also moved to fire lead counsel for the case, Katharine David of Husch Blackwell, who had been working to draw attention to some of the issues the court is now scrutinizing. Dallas County, however, hired David to represent the defendants in the Daves case.
In the 77-page ruling issued January 7, which includes a concurrence and a dissent, the majority opinion written by Judge Leslie Southwick states that previous rulings in both the Dallas and Harris County lawsuits failed to adequately consider crucial “threshold questions” on standing or “abstention” doctrine that determines whether the federal court has jurisdiction.
In re-examining the case in light of such questions, the court concluded that both county and state district court judges in Dallas County do not act on behalf of the county, but on behalf of the state and therefore do not qualify as defendants in the case. Under the remand, the Dallas federal district court judge has been instructed to consider whether the judicial magistrates or the county sheriff could be considered proper defendants.
“We reverse the district court’s holding that these 11 defendant County Judges were acting for Dallas County when addressing issues of bail. We also overrule the ODonnell opinions on this issue.”
The court also rejected precedent from the Harris County ODonnell case in determining whether the federal court should intervene.
“The ODonnell court’s [abstention] analysis is not binding on this remand. When the case returns, none of our precedent will be binding on us.”
Within the reconsideration of the Daves and ODonnell cases, the courts may also examine the effects of Senate Bill (SB) 6 passed by the state legislature last year. Under SB 6, the Damon Allen Act, magistrates are required to seek the least restrictive conditions for pretrial release of suspects, but along with judges will have additional training and access to a statewide database with robust criminal background information to assist in setting bail.
The effects of SB 6, along with recognition that defendants are not without recourse since there is an option to appeal bail orders, could lead the Fifth Circuit Court to completely overrule ODonnell as well as previous actions in Daves.
In light of the Daves decision, Chief U.S. District Judge Lee Rosenthal in Houston could order the parties to brief her on the jurisdictional issues of ODonnell and a second case on felony bail also pending before the court, and dismiss both cases as well as the consent decree.
The controversial consent decree settlement has governed misdemeanor bail setting and required judges and magistrates to release most misdemeanor defendants on personal recognizance bonds for the past two years. Although the settlement does not govern felony bonds, many criminal court judges in Harris County have adopted a similar approach to felony bond setting that favors the release of suspects, even in cases of capital murder.
The ODonnell consent decree also required county taxpayers to provide $3.7 million to Civil Rights Corps, and mandated increased funding for pretrial services and prompted the creation of a county-level Justice Administration Department to promote changes to the criminal justice system.
Prior to the ODonnell consent decree, Harris County was beginning to implement a risk assessment tool that allowed for individualized bail hearings. Tarrant County as well as others in Texas have adopted such tools in the past few years.
A status conference with Judge Rosenthal for the Russell case on felony bail in Harris County has been scheduled for January 10 at 10:30 a.m.
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Holly Hansen is a freelance writer living in Harris County. Her former column, “All In Perspective” ran in The Georgetown Advocate, Jarrell Star Ledger, and The Hill Country News, and she has contributed to a variety of Texas digital media outlets. She graduated summa cum laude from the University of Central Florida with a degree in History, and in addition to writing about politics and policy, also writes about faith and culture.