2017-06-19 Appellants' Brief (Harris County)

Case: 17-20333 Document: 00514039445 Page: 1 Date Filed: 06/19/2017
No. 17-20333
___________________________________________________________
In the United States Court of Appeals

Fifth Circuit
___________________________________________________________
MARANDA LYNN ODONNELL,

Plaintiff Appellee,
v.
HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH
LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ;
JILL WALLACE; PAULA GOODHART; BILL HARMON; NATALIE C.
FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY STANDLEY;
PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON;
DAN SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD
SMYTH; JUDGE MIKE FIELDS; JEAN HUGHES,
Defendants Appellants.
-----------------------------------------------------
LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,
Plaintiffs Appellees,
v.
HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART
HAGSTETTE; JOSEPH LICATA, III; RONALD NICHOLAS; BLANCA
ESTELA VILLAGOMEZ,
Defendants Appellants.
___________________________________________________________
Appeal from U.S. District Court, S.D. Texas

Nos. 4:16-CV-1414, 4:16-CV-1436
___________________________________________________________
Brief of Appellants
Harris County, Texas; Eric Stewart Hagstette; Joseph Licata III;
Ronald Nicholas; Blanca Estela Villagomez; and Jill Wallace
___________________________________________________________
[caption continued on following page]

Mike Stafford John Odam

mstafford@gardere.com john.odam@cao.hctx.net
Katharine D. David Melissa Spinks
kdavid@gardere.com melissa.spinks@cao.hctx.net
Stacy R. Obenhaus Office of the Harris County Atty
sobenhaus@gardere.com 1019 Congress, 15th Floor
Philip J. Morgan Houston, Texas 77002
pmorgan@gardere.com Tel: 713.274.5101
Benjamin R. Stephens
bstephens@gardere.com
Gardere Wynne Sewell LLP
1000 Louisiana, Suite 2000
Houston, Texas 77002-5011
Tel: 713.276.5500
Counsel for Appellants

Harris County, Texas; Harris County, Texas; Eric Stewart Hagstette; Joseph
Licata III; Ronald Nicholas; Blanca Estela Villagomez; and Jill Wallace
ii
Certificate of Interested Persons
ODonnell v. Harris County, Texas, No. 17-20333
The undersigned counsel of record certifies that the following listed
persons and entities as described in Rule 28.2.1 have an interest in the
outcome of this case. These representations are made in order that the
judges of this court may evaluate possible disqualification or recusal.
Parties: Counsel:
Maranda Lynn ODonnell Alec George Karakatsanis

Loetha Shanta McGruder Elizabeth Rossi
Robert Ryan Ford Civil Rights Corps
Rebecca Bernhardt
Susanne Ashley Pringle
Texas Fair Defense Project
Neal Stuart Manne

Alexandra Giselle White
Michael Gervais
Krisina Janaye Zuniga
Susman Godfrey LLP
Arpit Kumar Garg

Daniel Volchok
Seth Paul Waxman
Wilmer Hale
iii
Harris County, Texas John Odam

Eric Stewart Hagstette Melissa Spinks
Joseph Licata III
Ronald Nicholas Mike Anthony Stafford
Blanca Estela Villagomez Katharine D. David
Jill Wallace James G. Munisteri
Stacy R. Obenhaus
Philip J. Morgan
Gardere Wynne Sewell LLP
Paula Goodhart Charles Justin Cooper

Bill Harmon Michael Kirk
Natalie C. Fleming William C. Marra
John Clinton John David Ohlendorf
Margaret Harris Harold Reeves
Larry Standley Cooper & Kirk PLLC
Pam Derbyshire
Jay Karahan John E. ONeill
Analia Wilkerson John R. Keville
Dan Spjut Sheryl Anne Falk
Diane Bull Robert L. Green
Robin Brown Winston & Strawn LLP
Donald Smyth
Mike Fields
Jean Hughes
Darrell Jordan Laura Beckman Hedge
Ed Gonzalez Murray Jules Fogler

Fogler Brar Ford ONeil & Gray LLP
Victoria Jimenez
/s/ Stacy R. Obenhaus

Stacy R. Obenhaus
iv
Statement Regarding Oral Argument

This Court should grant oral argument because (a) this is a case that
has national implications for bail bond reform, raising compelling issues of
equal protection and due process; (b) the district courts opinion includes a
novel interpretation of the United States Constitution; and (c) the record is
substantial, and it includes several studies and statistics whose significance
may not be readily apparent.
v
Table of Contents
Certificate of Interested Persons ......................................................................... iii
Statement Regarding Oral Argument................................................................. v
Table of Contents .................................................................................................. vi
Table of Authorities ............................................................................................viii
Jurisdictional Statement .......................................................................................13
Statement of the Case ...........................................................................................16
I. Nature of the Case............................................................................16
II. Facts Relevant to the Issues ............................................................16
III. Procedural History/Rulings to Review ........................................17
Summary of Argument ........................................................................................19
Argument.. .............................................................................................................22
I. Standard of Review. .........................................................................22
II. No County PolicySo No Injunction Against Harris

County................................................................................................22
A. County liability under 1983 requires that the plaintiffs

injury arise from a county policy. ..................................................22
B. The Sheriff is not acting as a county policymaker when he

is carrying out functions in the manner required by Texas
law.......................................................................................................24
1. The Sheriff lacks statutory authority to choose an

alternate procedure................................................................25
2. Under McMillian, the Sheriff is performing a state

function when holding arrestees pretrial. ..........................30
vi
3. Recent case law supports this interpretation. ........................32
4. The district court cited inapplicable authority to

support its ruling....................................................................35
C. The County Judges failure to act was compelled by

Texas law, and it cannot constitute a county policy. ..................37
1. The County Judges could not lawfully issue local rules

to control the Hearing Officers statutory discretion
in setting bail...........................................................................38
2. The alleged policies are judicial in nature and cannot

form the basis of county liability under 1983. ................42
3. No court has found that a judge enacts county policy

when promulgating bail policies. ........................................48
D. There is no causal link between the County Judges policy

of verifying arrestee information and any constitutional
violation. ............................................................................................51
III. District Court Could Not Properly Enjoin Judicial

Conduct IndirectlyBy Enjoining the Sheriffs Conduct..........52
IV. This Court Should Vacate the Injunction and Dismiss

Harris County. ..................................................................................54
V. Harris County Adopts the County Judges Arguments.............56
Conclusion .............................................................................................................57
Certificate of Service .............................................................................................58
Certificate of Compliance ....................................................................................59
vii
Table of Authorities
CASES
Anderson v. Valdez,
845 F.3d 580 (5th Cir. 2016).......................................................................13, 22
Atl. Coast Line R.R. v. Brotherhood of Locomotive Engrs,

398 U.S. 281 (1970)............................................................................................53
Ballard v. Wall,
413 F.3d 510 (5th Cir. 2005).............................................................................44
BCCA Appeal Group, Inc. v. City of Houston,

496 S.W.3d 1 (Tex. 2016)..................................................................................25
Buenrostro v. Collazo,
777 F. Supp. 128 (D.P.R. 1991) ........................................................................31
Buffin v. City and Cnty. of San Francisco,

2016 WL 6025486 (N.D. Cal. Oct. 14, 2016) ..........................32, 33, 34, 35, 50
Burkette v. City of El Paso,

513 F. Supp. 2d 800 (W.D. Tex. 2007) ............................................................29
Carbalan v. Vaughn,
760 F.2d 662 (5th Cir. 1985).............................................................................47
Cobb. v. City of Harahan,

516 F. Appx 337 (5th Cir. 2013) ...............................................................13, 55
Combs v. State,
652 S.W.2d 804 (Tex. App.Houston [1st Dist.] 1983, no pet.) ................38
Davis v. Tarrant Cnty., Tex.,

565 F.3d 214 (5th Cir. 2009).............................................. 23, 43, 44, 45, 46, 47
De Luna v. Hidalgo County,

853 F. Supp. 2d 623 (S.D. Tex. 2012) ..............................................................36
viii
Doe v. Angelina County,

733 F. Supp. 245 (E.D. Tex. 1990) ...........................................14, 15, 19, 35, 54
Eggar v. City of Livingston,

40 F.3d 312 (9th Cir. 1995)...............................................................................42
Familias Unidas v. Briscoe,

619 F.2d 391 (5th Cir. 1980).................................................................24, 25, 42
Francis v. Lyman,
216 F.2d 583 (1st Cir. 1954) .............................................................................31
Greater Los Angeles Cnty. on Deafness, Inc. v. Zolin,

812 F.2d 1103 (9th Cir. 1987)...........................................................................50
Griffin v. Birkman,
266 S.W.3d 189 (Tex. App.Austin 2008, pet. denied)..............................25
Harris v. City of Austin,

No. A-15-CA-956, 2016 WL 1070863 (W.D. Tex. Mar. 16, 2016) .........45, 46
Hill v. Martin,
296 U.S. 393 (1935)............................................................................................54
Jett v. Dall. ISD,

491 U.S. 701 (1989)............................................................................................23
Johnson v. Moore,
958 F.2d 92 (5th Cir. 1992)...................................................................42, 47, 48
In re Lease Oil Antitrust Litig.,

200 F.3d 317 (5th Cir. 2000).......................................................................13, 55
Malina v. Gonzalez,
994 F.2d 1121 (5th Cir. 1993)...........................................................................44
McBeath v. Campbell,
12 S.W.2d 118 (Tex. Commn App. 1929, holding approved) ...................32
McMillian v. Monroe Cnty., Ala.,

520 U.S. 781 (1997)..........................................................................24, 30, 33, 48
ix
Monell v. N.Y.C. Dept of Soc. Servs.,

436 U.S. 658 (1978)................................................................................22, 51, 52
Pembaur v. City of Cincinnati,

475 U.S. 469 (1986)......................................................................................23, 27
Peterson v. City of Fort Worth,

588 F.3d 838 (5th Cir. 2009).............................................................................23
Pruitt v. Kimbrough,
536 F. Supp. 764 (N.D. Ind. 1982)...................................................................49
Rhode v. Denson,
776 F.2d 107 (5th Cir. 1985).............................................................................32
Roundys Inc. v. NLRB,

674 F.3d 638 (7th Cir. 2012).............................................................................41
Snyder v. Trepagnier,
142 F.3d 791 (5th Cir. 1998).............................................................................52
Soto v. Ortiz,
526 F. Appx 370 (5th Cir. 2013) .....................................................................31
State v. Martin,
833 S.W.2d 129 (Tex. Crim. App. 1992)...................................................28, 29
Turner v. Upton Cnty., Tex.,

915 F.2d 133 (5th Cir. 1990).............................................................................32
U.S. v. Izydore,
167 F.3d 213 (5th Cir. 1999).............................................................................41
U.S. v. Williams,
343 F.3d 423 (5th Cir. 2003).............................................................................41
United States v. Billingsley,

615 F.3d 404 (5th Cir. 2010).............................................................................54
Valle v. City of Houston,

613 F.3d 536 (5th Cir. 2010).............................................................................51
x
Woods v. City of Michigan City, Ind.,

940 F.2d 275 (7th Cir. 1991).......................................................................48, 49
STATUTES AND RULES
28 U.S.C. 1292......................................................................................................13
28 U.S.C. 1331......................................................................................................13
28 U.S.C. 1343......................................................................................................13
28 U.S.C. 2283......................................................................................................53
42 U.S.C. 1983............................................................................................. passim
42 U.S.C. 2201......................................................................................................13
Cal. Pen. Code 1269............................................................................................34
Cal. Pen. Code 4004............................................................................................34
Tex. Code Crim. Proc. art. 2.09......................................................................26, 38
Tex. Code Crim. Proc. art. 2.16......................................................................31, 32
Tex. Code Crim. Proc. art. 2.18............................................................................31
Tex. Code Crim. Proc. art. 14.06..........................................................................29
Tex. Code Crim. Proc. art. 17.15....................................................................29, 33
Tex. Code Crim. Proc. art. 17.20..............................................................27, 28, 29
Tex. Govt Code 25.0001....................................................................................50
Tex. Govt Code 75.403......................................................................................39
Tex. Govt Code 311.016....................................................................................38
xi
Tex. Govt Code 351.041....................................................................................31
Tex. Loc. Govt Code 51.072 .............................................................................25
Tex. Loc. Gov't Code 351.041............................................................................31
Fed. R. App. P. 28(i) ......................................................................15, 16, 21, 22, 56
Fed. R. Civ. P. 52....................................................................................................22
Fed. R. Evid. 701 ....................................................................................................41
Fed. R. Evid. 702 ....................................................................................................41
Fed. R. Evid. 704 ....................................................................................................41
Ind. Const. Art. VII, 1.........................................................................................49
Tex. Const. art. V 1 .............................................................................................49
Tex. Const. Art. V. 1-a........................................................................................50
Tex. Const. art. V, 18 ..........................................................................................25

OTHER AUTHORITIES
Attorney General Opinion H-856 (1976) ...........................................................29
David Brooks, 36 Texas Practice 22.4 (2d ed. 2002) ........................................50
xii
Jurisdictional Statement
In separate lawsuits later consolidated, plaintiffs sued Harris County
and others seeking relief pursuant to 42 U.S.C. 1983 and 2201 and
alleging violation of equal protection and due process guarantees in the
Fourteenth Amendment. ROA.281-310, 908, 1170-1297, 10115-50. The
district court had jurisdiction under 28 U.S.C. 1331 and 1343.
On April 28, 2017, the district court entered a preliminary injunction
and its findings relating thereto. ROA.5553-745, 5762-65. On May 9, Harris
County and the Hearing Officers filed their notice of appeal. ROA.5795-97.
This Court has jurisdiction under 28 U.S.C. 1292(a)(1). This Court also has
pendent jurisdiction to review rulings on a motion to dismisscontesting
Harris County liability for policies promulgated by judicial or state actors,
ROA.3229-3306because the propriety of 1983 relief as to Harris County
was confirmed by that ruling. ROA.5712-23. Anderson v. Valdez, 845 F.3d
580, 588-89 (5th Cir. 2016); Cobb. v. City of Harahan, 516 F. Appx 337, 340-41
(5th Cir. 2013); In re Lease Oil Antitrust Litig., 200 F.3d 317, 319-20 (5th Cir.
2000). The trial court later entered an order clarifying its injunction.
ROA.6342-45. Harris County and the Hearing Officers filed a timely appeal
from that order as well. ROA.10245-47.
13
Statement of Issues
The district court erred in concluding that the Constitution requires
release of misdemeanor arrestees within 24 hours of arrest if the arrestee
professes the inability to pay secured bail. The County Judges, in their brief
filed simultaneously with this one, argue those issues. Putting that aside,
this brief challenges whether Harris County is a proper party to enjoin.
Under 42 U.S.C. 1983, an injunction may only issue against Harris
County if plaintiffs injury resulted from a county policy promulgated by a
county policymakernot from a policy mandated by state law:
State law does not authorize the Sheriff to issue unsecured bail, i.e., a
personal bond. If the Sheriffs refusal to release arrestees on personal
bond violated the Constitution, was that refusal a county policy for
which an injunction could issue against Harris County?
State law vests magistrates (i.e., Hearing Officers in Harris County)
with sole discretion whether to issue a personal bond. The County
Judges declined to issue rules requiring the Hearing Officers to issue
personal bond for indigent arrestees. If the failure to issue such rules
violated the Constitution, was that refusal a county policy for which
an injunction could issue against Harris County?
If the County Judges were to issue such rules, would they be acting in
a judicial capacitythus precluding 1983 injunctive relief?
14
The County Judges required verification of an arrestees references

before release on a personal bond. Was that practice the moving force
behind the alleged constitutional injuries, and did it create a county
policy for which Harris County can have 1983 liability?
2. Section 1983 prohibits enjoining judicial conduct. May the court
circumvent this prohibition by enjoining the Sheriff from following judicial
orders? And if it could, is the County liable for actions taken by the Sheriff
as an officer of the courts?
3. Harris County and the Hearing Officers adopt the Statement of
the Issues in the County Judges brief. Fed. R. App. P. 28(i).
15
Statement of the Case

I. NATURE OF THE CASE.
This is a civil rights action wherein the plaintiffs seek declaratory and
injunctive relief pursuant to 42 U.S.C. 1983. The district court certified the
case as a class action, with the named plaintiffs as the class representatives.
ROA.5746-61. This appeal involves the question whether the district courts
preliminary injunction was proper under 1983, and whether the district
court properly denied the Harris County defendants motion to dismiss.
II. FACTS RELEVANT TO THE ISSUES.
Harris County, Texas, and the five Harris County magistrates known
as Hearing Officers Eric Stewart Hagstette, Joseph Licata III, Ronald
Nicholas, Blanca Estela Villagomez, and Jill Wallace are referred to in
this brief as the Harris County defendants. The district court dismissed
the injunctive relief claims against the Hearing Officers, and they remain in
this lawsuit only in their personal capacities with regard to the claims for
declaratory reliefas indicated in the district courts opinion. ROA.3304.
The Harris County defendants otherwise adopt the Statement of the Case
in the County Judges brief. Fed. R. App. P. 28(i).
16
III. PROCEDURAL HISTORY/RULINGS TO REVIEW.
The Harris County defendants seek a review of the district courts
ruling denying their motion to dismiss the complaint on the grounds that
the plaintiffs could not obtain injunctive relief against Harris County under
1983. ROA.3229-3306. They also seek a review of the courts preliminary
injunction ruling. ROA.5553-5745, 5762-65.
The basis for 1983 injunctive relief against Harris County was the
district courts holding that the Sheriff and the County Judges were county
policymakers, and that they had adopted a county policy (for which Harris
County was liable) by acquiescing in supposedly unconstitutional practices
by the Hearing Officers, during the bail settings, of imposing secured bail
on indigents charged with misdemeanors. The court concluded that Harris
County has a consistent and systematic policy and practice of imposing
secured money bail as de facto orders of pretrial detention in misdemeanor
cases. ROA.5559. The court ruled that the Hearing Officers maintained an
unwritten custom and practice of interpreting Texas law to use secured
money bail set at prescheduled amounts to achieve pretrial detention, a
custom and practice which is neither created by judges in their judicial
capacity nor mandated by Texas state law. ROA.5679, 5682, 5712.
17
The Hearing Officers are not, the court ruled, county policymakers.
ROA.5559. Instead, the court ruled that the County Judges and the Sheriff
were each a county policymaker, and that each had promulgated a county
policy by acquiescing in the Hearing Officers practices in setting bail.
The court ruled that the County Judges acquiesced in the Hearing
Officers alleged practice by declining to issue directives correcting iti.e.,
a local rule requiring unsecured bond for indigents. The court reasoned
(incorrectly) that the County Judges could change these customs and
practices legislatively through amendments to the local rules, but chose
not to. ROA.5712-13.
As to the Sheriff, the court ruled that he acquiesced in the Hearing
Officers practices by detaining arrestees and enforcing orders the sheriff
knows or should reasonably know are unconstitutional. ROA.5722.
Erroneously concluding that the Sheriff had statutory authority to release
arrestees on unsecured bail (or rewrite a judges order requiring secured
bail into one requiring unsecured bail), the court held that that choosing
not to exercise this supposed authority to release people on unsecured bail
is a policy choice the Sheriff makes on Harris Countys behalf. ROA.5723,
5737.
18
Summary of Argument
The court awarded a preliminary injunction, under 42 U.S.C. 1983,
against Harris County. But the plaintiffs did not establish a likelihood they
could obtain final 1983 injunctive relief against Harris County, and so a
preliminary injunction was improper.
Injunctive relief against a county under 1983 is proper only if the
plaintiffs injury arises from an unconstitutional county policy promulgated
or ratified by a county policymaker. The district court identified two county
policymakers: the County Judges and the Sheriff. The plaintiffs failed to
show that any injury arose from a county policy promulgated by either.
A county policy can consist of a practice that is so widespread and
persistent as to effectively have the force of law. The practice at issue here
is the Harris County Hearing Officers alleged routine imposition of secured
bail as opposed to unsecured bail on indigents arrested on misdemeanor
charges. The plaintiffs had to show that the county policymakers had
authority or discretion under state law to legislatively or administratively
alter that practice, but refused to. If state law precluded such authority or
discretion, the refusal to act was state policy, not county policy, and thus no
1983 injunction could issue against Harris County based on that.
19
The plaintiffs did not show this as to the Sheriff. First, under Texas
law the Sheriff is required to honor orders that the Hearing Officers (or any
other judge) issues. Second, the Sheriff has no authority to release arrestees
on unsecured bond (i.e., personal bond). In short, by continuing to detain
arrestees, the Sheriff was implementing the states policy; by state statute
he had no choice or discretion in the matter.
The plaintiffs also did not show a county policy promulgated by the
County Judges that was the moving force behind their injuries.
First, 1983 injunctive relief cannot reach action taken in a judicial
capacity, and the County Judges acted in a judicial capacity in reviewing
the Hearing Officers bail determinations.
Second, the County Judges had no authority or discretion to issue
local rules or directives requiring that the Hearing Officers impose only
unsecured bond. The Texas Code of Criminal Procedure gives magistrates
discretion to set bail on either a secured or unsecured basisand provides
no exceptions to that rule. By state statute, the County Judges could not, by
local rule, nullify the magistrates statutorily-assigned discretion.
20
Third, even if the County Judges could issue such a rule, such a rule
would be so inextricably intertwined with the judicial process that it would
represent judicial policy for which Harris County cannot be liable.
The injunction fails for one more reason. Under 1983, no injunction
could issue against the County Judges in their judicial capacity. The court
improperly circumvented this bar by effectively enjoining judicial conduct
through the courts injunction against the Sheriff, ordering him to ignore
court directives and release indigent arrestees because the court could not
order the judges to do so.
As a result, the plaintiffs did not show they could prevail in obtaining
final 1983 injunctive relief against Harris County or the Sheriff. Thus, the
preliminary injunction in its entiretyissued as it is against the Sheriff and
the Harris County department of pretrial servicesmust be vacated.
The Harris County defendants also adopt the Summary of Argument
of the County Judges principal brief. Fed. R. App. P. 28(i).
21
Argument
I. STANDARD OF REVIEW.
A district courts ruling on a motion to dismiss is reviewed de novo,
accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiffs. Anderson v. Valdez, 845 F.3d 580, 589 (5th
Cir. 2016) (footnotes omitted).
With regard to the preliminary injunction, the court was required to
state the findings and conclusions that support its action. See Fed. R. Civ.
P. 52 (a)(2). This Court may set aside the fact findings if they are clearly
erroneous, giving due regard to the trial courts opportunity to judge the
witnesses credibility. Id. 52(a)(6). For the proper standard of review on the
preliminary injunction, the Harris County defendants otherwise adopt the
Argument in the County Judges briefing. Fed. R. App. P. 28(i).
II. NO COUNTY POLICYSO NO INJUNCTION AGAINST HARRIS COUNTY.
A. County liability under 1983 requires that the plaintiffs injury

arise from a county policy.
A local government such as Harris County may be sued under 1983
if execution of a governments policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the [plaintiffs] injury. . . . Monell v. N.Y.C. Dept of
22
Soc. Servs., 436 U.S. 658, 691 (1978). Relief under 1983 against a county
requires the plaintiff to show that (1) an official policy (2) promulgated by
the [county] policymaker (3) was the moving force behind the violation of a
constitutional right. Peterson v. City of Fort Worth, 588 F.3d 838, 847 (5th
Cir. 2009) (setting forth elements for showing municipal liability); Davis v.
Tarrant Cnty., Tex., 565 F.3d 214, 227 (5th Cir. 2009) (applying same
elements to county liability).
County liability can arise by acquiescence in a longstanding practice
or custom which constitutes the standard operating procedure of the
municipality. Jett v. Dall. ISD, 491 U.S. 701, 737 (1989). However, liability
attaches whereand only wherea deliberate choice to follow a course
of action is made from among various alternatives by the official or officials
responsible for establishing the final policy with respect to the subject
matter in question. Pembaur v. City of Cincinnati, 475 U.S. 469, 483 (1986).
The district court identified two policymakers: the Sheriff and the
County Judges. ROA.5559. For reasons stated below, neither actor, as it
relates to the Hearing Officers supposed illicit use of money bail is making
Harris County policy. Instead, both the County Judges and Sheriff are, for
the purposes of the function at issue, state actors.
23
B. The Sheriff is not acting as a county policymaker when he is

carrying out functions in the manner required by Texas law.
Whether the Sheriffs action or inaction is county policy as opposed
to state policy is a question of state law. See McMillian v. Monroe Cnty., Ala.,
520 U.S. 781, 785-86 (1997). This determination is not made on a categorical,
all or nothing basis, but instead, turns on the particular issue or
function. Id. In other words, a Sheriff may set and enforce both state
policies and county policies, depending on the function he is performing.
Thus, this Court must first determine the policy or function at issue.
The district court has ruled that the Sheriffs function at issue here was his
detention of misdemeanor defendants while knowing: (1) that the
misdemeanor defendants are detained because their indigence prevents
them from paying secured money bail to obtain release, and (2) that this
practice violates equal protection and due process principles. ROA.5723.
The issue therefore is whether the Sheriffs practice of not releasing these
defendants on his own is a county function or is instead a state function.
That issue turns on whether state law gives the Sheriff any discretion or
authority in the matter. Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.
1980) (holding that as county judges acts were confined to implementing
24
state statute, in contrast to discretion delegated to him by state statute, the
county judge was effectuating state, not county, policy). The Sheriff cannot
be setting county policy by simply following or enforcing state law. Id.
Because Texas law obligates the Sheriff to follow judicial orders, and
because no statute grants him any authority to pursue a different course of
action (e.g., to ignore judicial orders, alter the bond, or convert secured bail
to unsecured bail), the Sheriff is not acting as a county policymaker, but
instead is acting as an arm of the State.1
1. The Sheriff lacks statutory authority to choose an alternate procedure.
The district court reasoned that the Sheriff acquiesced in the Hearing
Officers practices by exercising his discretion and declining to release
arrestees without sureties or other security, i.e., on a personal bond, where
it appeared the arrestees were indigent and could not afford to post the
secured bail the Hearing Officers had imposed. ROA.5721-23. Texas law,
however, does not allow the Sheriff to release arrestees on personal bond.
1 Under Texas law, county officials such as the sheriff have only authority expressly
given by the state. See Tex. Const. art. V, 18; Griffin v. Birkman, 266 S.W.3d 189, 197
(Tex. App.Austin 2008, pet. denied) (noting that elected county officials have a
delegated sphere of authority conferred by the Texas constitution and state statutes).
City actors, on the other hand, have any and all authority that the legislature has not
specifically prohibited. See Tex. Loc. Govt Code 51.072; BCCA Appeal Group, Inc. v.
City of Houston, 496 S.W.3d 1, 7 (Tex. 2016) (home-rule cities possess the powers of self-
government and look to the legislature only for limitations on their authority).
25
Chapter 17 of the Code of Criminal Procedure allows only magistrates to

issue personal bonds.
The district courts conclusion that the Sheriff has the authority to
issue a personal bond is contrary to the text of Chapter 17 of the Code of
Criminal Procedure. Article 17.03defining personal bondsauthorizes
only magistrates to issue personal bonds. See also Tex. Code Crim. Proc.
art. 2.09 (defining magistrates).
Other provisions of Chapter 17 confirm that only magistrates may
issue personal bonds. Article 17.43 states that only magistrates may impose
conditions of release on a personal bonde.g., home curfew and electronic
monitoring. See Tex. Code Crim. Proc. art. 17.43; see also ROA.6342-45.
Article 17.031(a), concerning out-of-county arrests, provides that any
magistrate in this state may release a defendant eligible for release on
personal bond under Article 17.03. And article 17.032(b), relating to
mentally-ill defendants, provides that a magistrate shall release a
defendant on personal bond unless good cause is shown (emphasis
added). These statutes confirm that only a magistrate, not the Sheriff, has
the discretion to release arrestees on personal bond.
26
To put it in terms of the case law on 1983 liability, the Sheriff could
not decide to issue a personal bond in some cases, but not others, and so he
could not make a deliberate choice to follow a course of action . . . from
among various alternatives. Pembaur, 475 U.S. at 483. Under state law, the
Sheriff had no alternative from which to choose in this regard: he could not
change secured bail to unsecured bail. He could not lawfully adopt his own
policy to release arrestees on personal bond.
Article 17.20 relates only to secured bonds.
The district court incorrectly relied upon Texas Code of Criminal
Procedure article 17.20 as authority for a sheriff to issue a personal bond.
ROA.5737. But that statute allows a sheriff to take secured bail, not to set an
unsecured bond. In pertinent part, article 17.20 states:
In cases of a misdemeanor, the sheriff or other peace officer . . .

may, whether during the term of the court or in vacation,
where the officer has a defendant in custody, take of the
defendant a bail bond.
Tex. Code Crim. Proc. art. 17.20 (emphasis added). The statutory term bail
bond does not mean personal bond. These are defined terms in the
statute. Bail bond is specifically defined as a written undertaking
entered into by the defendant and the defendants sureties for the appearance
27
of the principal therein before a court or magistrate to answer a criminal
accusation. Id. art. 17.02 (emphasis added). A bail bond is thus a secured
bond; it requires the presence of a surety. Id. art. 17.08. By comparison, a
personal bond does not require a surety; its merely a sworn promise to
appear in court or pay a sum for failure to appear. See id. arts. 17.04, 17.05.
Under article 17.20, the Sheriff is authorized to accept a bail bond. He is not
authorized to issue a personal bond.
The Sheriffs authority to cite and release people for certain, limited
crimes does not equate to authority to issue personal bonds.
The district court reasoned that State v. Martin, 833 S.W.2d 129 (Tex.
Crim. App. 1992), demonstrates that law enforcement officers can release
misdemeanor defendants on unsecured bonds without a magistrates
order. ROA.5737. Martin does not go so far. It involved the validity of an
arrest warrant based on failure to comply with a cite and release citation.
Martin, 833 S.W.2d at 129-30. Considering that citation, the court in Martin
said that the citation issued by Officer Freis was for an offense within his
view, therefore appellees release was similar to a release on personal
recognizance. Id. at 132 & n.5. The court was referring to a law officers
authority to cite and release: for certain crimes (class C misdemeanors
28
and a few, specified class A and B misdemeanors), officers may issue a
citation and release the defendant at the scene. Tex. Code Crim. Proc. art.
14.06. State law does not authorize immediate release of all misdemeanor
arrestees in this way. Martin thus had nothing to do with a Sheriffs ability
to issue a personal bond or convert secured bail to unsecured bail.
The Sheriffs authority to fix the amount of bail does not equate to the
ability to issue a personal bond.
The district court also misconstrued Burkette v. City of El Paso, 513 F.
Supp. 2d 800 (W.D. Tex. 2007) and Attorney General Opinion H-856 (1976).
ROA.5737. These authorities stand for the proposition that under Texas
Code of Criminal Procedure article 17.15, the Sheriff can fix the amount of
bail to be required in any case. The operative words in 17.15 are amount
of bail. Article 17.15 does not authorize the Sheriff to issue a personal
bond; he is only authorized to set the amount of bail (and other statutes
allow him to take a bail bond for that amount).
Basic statutory construction demonstrates the courts order is erroneous.
The plain language used in article 17.15 is that the Sheriff may fix
the amount of bail. The Sheriffs authority is limited to setting a dollar
amount. Likewise, his authority in article 17.20 is limited to taking a bail
29
bond, which, as described above, is specifically defined as secured bail. And
the plain language of article 17.03 only empowers magistrates, not the
Sheriff, to issue a personal bond. This specific grant of authority only to
magistrates cannot be expanded through a tortured reading of other parts
of Chapter 17. Chapter 17 gives the Sheriff no discretion or authority to
issue an unsecured bond.
2. Under McMillian, the Sheriff is performing a state function when

holding arrestees pretrial.
The pertinent inquiry here is whether governmental officials are
final policymakers for the local government in a particular area, or on a
particular issue. See McMillian, 520 U.S. at 785. This inquiry turns on state
law. Id. ([T]he actual function of a governmental official, in a particular
area, will necessarily be dependent on the definition of the officials
functions under relevant state law.). In McMillian, the Court examined
state positive law, such as the Alabama constitution and various statutes,
considered the duties imposed on the sheriff, and ruled that the sheriff was
acting for the State of Alabama. Id. (holding that sheriff was a state actor for
the particular function, and rejecting argument that this conclusion will
create a lack of uniformity in Alabama as to enforcement of state law).
30
A review of Texas statutes reveals that, as to the function at issue
(e.g., holding indigent misdemeanor arrestees), the Sheriff is a state actor.
Texas law requires the Sheriff to keep secure custody of prisoners. Tex. Loc.
Gov't Code 351.041(a) (The sheriff of each county is the keeper of the
county jail. The sheriff shall safely keep all prisoners committed to the jail
by a lawful authority, subject to an order of the proper court.); Tex. Code
Crim. Proc. art. 2.18 (When a prisoner is committed to jail by warrant from
a magistrate or court, he shall be placed in jail by the sheriff. It is a violation
of duty on the part of any sheriff to permit a defendant so committed to
remain out of jail, except that he may . . . give the person arrested a
reasonable time to procure bail. . . .); see also Soto v. Ortiz, 526 F. Appx 370,
376 (5th Cir. 2013) (holding that even though there was a case of mistaken
identity the sheriff was not liable under Tex. Govt Code 351.041).2
Texas law also requires the Sheriff to follow judicial directives. Tex.
Code Crim. Proc. art. 2.16 (If any sheriff or other officer shall willfully
refuse or fail from neglect to execute any . . . legal process which it is made
2 See also Buenrostro v. Collazo, 777 F. Supp. 128, 135 (D.P.R. 1991) (holding that the
Sheriff is not obligated to verify or otherwise review the correctness of [a] judicially
issued order.); Francis v. Lyman, 216 F.2d 583, 585 (1st Cir. 1954) (finding that a parole
board had no function . . . to go behind the commitment order issued by Judge Crafts
and to inquire into the original lawfulness of the confinement).
31
his duty by law to execute, he shall be liable to a fine for contempt . . . .);
see also McBeath v. Campbell, 12 S.W.2d 118, 122 (Tex. Commn App. 1929,
holding approved) (holding the sheriff liable for false imprisonment for
detaining someone after a court order mandated release). Article 2.16
necessarily includes judicial directives on bail and release. ROA.1940.
As discussed above, the Sheriff has no authority to issue unsecured
bail or convert a judicial order requiring secured bail to unsecured bail.
Texas law therefore obligates the Sheriff to follow judicial orders, and
it provides no discretion to change or ignore those orders. The Sheriff thus
detains arrestees as a matter of state policy, not county policy. Cf. Turner v.
Upton Cnty., Tex., 915 F.2d 133, 136 (5th Cir. 1990) (holding that sheriff was
a final policymaker because he has been empowered by the state to
define objectives and choose the means of achieving them without county
supervision) (quoting Rhode v. Denson, 776 F.2d 107, 109 (5th Cir. 1985)).
3. Recent case law supports this interpretation.
Whether a sheriff was acting as a state or county policymaker in
effectuating supposedly illegal bail decisions was recently addressed in
Buffin v. City and Cnty. of San Francisco, No. 15-CV-04959, 2016 WL 6025486
(N.D. Cal. Oct. 14, 2016). Buffin involved a nearly identical challenge to a
32
practice of setting secured bail in misdemeanor cases. Id. at *1 (describing
the allegations as a challenge to the sheriffs practice of detaining people
too poor to pay money bail); ROA.3291-92 (describing Buffin as similar
and persuasive). The county moved to dismiss, arguing that the sheriff
was acting on behalf of the state in enforcing the bail policy. Id. at *3. The
plaintiffs (represented by the same counsel as here) argued that the Sheriff
is a county official in her official capacity as a jailor, including her pre-
arraignment release and detention decisions. Id.
In Buffin, the district courtworking from the McMillian framework
and focusing on the relevant California lawrejected plaintiffs arguments
that the sheriff was acting for the county and held that as to the function at
issue (e.g., detaining indigent arrestees) the sheriff was acting for the state.
Id. at *3-9. In California, state law required the judges to maintain a bail
schedule (much as the final order in Roberson v. Richardson, No. H-84-2974
(S.D. Tex. Nov. 25, 1987) requires the bail schedule here).3 Id. at *6 (citing
3The Roberson consent decree requires the County Judges to implement and maintain a
bond schedule for all misdemeanor offenses within their jurisdiction, states that
anyone accused of a Class A or B misdemeanor be promptly taken before a magistrate
for a probable cause hearing, setting of bail, and review of whether the accused could be
released on alternatives to prescheduled bail amounts, and requires that the
magistrates bail determination is to be governed by the factors codified in the Texas
Code of Criminal Procedure article 17.15. ROA.1536-1541.
33
Cal. Pen. Code 1269(b)(b) (The amount of bail shall be pursuant to the
uniform countywide schedule of bail for the county in which the defendant
is required to appear . . .)). The sheriff was also legally bound to keep a
detainee in county jail until legally discharged. Id. at *4 (citing Cal. Pen.
Code 4004). The court ruled that the Sheriff lacked any discretion to alter
the terms of release, and therefore California law require[d] the Sheriffs
conduct challenged by Plaintiffs. Id. at *8. Based on the state statutory
framework, the court held that the sheriff acts on behalf of the State when
she detains a person based on his or her inability to pay the bail amount
prescribed in the bail schedule as set by the Superior Court. Id. at *9 (As
to the County, however, the sole claim alleged fails. The State is the
relevant actor when the Sheriff detains a person who does not pay bail.).
Just as in Buffin, Texas law obligates the Sheriff to follow judicial
orders and provides no discretion to convert secured bail to unsecured bail.
Even the district court recognized that [t]he relevant Texas and California
statues are similar. ROA.3291. The court should therefore have ruled that,
just as in Buffin, the Sheriff acts on behalf of the State when [he] detains a
34
person based on his or her inability to pay the bail set by the Hearing
Officers or judges. Buffin, 2016 WL 6025486, at *9.
4. The district court cited inapplicable authority to support its ruling.
The trial court also relies on two district court decisions to rule that
the sheriffs acquiescence in unsound and legally insufficient procedures
effectively create[s] a county policy for which the county is liable under
1983. ROA.5721-22. But these cases do not support county liability here,
as they both involved a sheriffs use of statutorily authorized discretion.
Doe v. Angelina County, 733 F. Supp. 245 (E.D. Tex. 1990), involved a
practice of holding people in jail on fine-only offenses until they either paid
their fine or served time equaling the fine. One judge testified that it was
the normal practice . . . for the county to arrest someone for unpaid fines
and put them in jail without bringing him or her before a court. Id. at 251.
The court ruled that it is not disputed, that it was the practice of jail
officials immediately to incarcerate persons arrested on the authority of
capiases pro fines without a hearing, if they failed to raise the funds to pay
those fines by means of telephone calls from the county jail. Id. at 257.
In Angelina County, the sheriff, as jailer, had discretion as to whether
or not to deliver arrestees to a hearing; no statute required it or assigned
35
the task to another. Stated differently, Texas law provided him alternatives
from which to choose in operating the jail: either (a) bring people arrested
for capias pro fines to a hearing before a judge, or (b) incarcerate them
without delivering them for a hearing. The countys liability under 1983
resulted from the sheriffs choice (or his failure) to implement procedures
he had discretion to implement.
De Luna v. Hidalgo County, 853 F. Supp. 2d 623 (S.D. Tex. 2012),
similarly involved a sheriffs discretionary act. Upon arrest, the sheriff
asked whether the arrestee would request appointed counsel. Id. at 641. But
he did not ask whether the arrestee could afford to pay the fine. Id. The
arrestee was brought to a hearing, but if he did not tell the sheriff he could
not pay the fine, the judge assumed he could and made no further inquiry.
Id. The court found the county liable, in part, because the sheriff could
haveand actually should havemade this initial inquiry. Id. Unlike with
personal bonds in the present case, certainly nothing in Texas law prevented
the sheriff from pursuing the course of action and making inquiry; thus,
the sheriffs choice as to whether to do so represented his own policy
choice, not the states.
36
As discussed above, the Sheriff in the present case has no discretion
to alter or change the judges bail orders and has no authority to issue any
personal bond. The Sheriff here is not choosing between alternate courses
of action he has lawful authority to takeone of which would remedy the
constitutional violation and one of which would acquiesce in it. Here, the
Sheriff is legally bound by Texas law to follow judicial orders and may not
issue a personal bond or change secured bail to unsecured. Thus, the Sheriffs
acquiescence (if any) in the Hearing Officers alleged custom and practice
of issuing secured bail is not a county policy, but a state policy.
C. The County Judges failure to act was compelled by Texas law,

and it cannot constitute a county policy.
For similar reasons, Harris County has no 1983 liability for the
County Judges failure to act identified in the district courts opinion.
Their failure to issue rules or directives controlling how Hearing Officers
set bond is compelled by state law. Moreover, both the Hearing Officers
bail determinations and the County Judges rules regulating the outcome of
those bail determinations are judicial actssuch acts cannot form the basis
for a countys 1983 liability.
37
1. The County Judges could not lawfully issue local rules to control the
Hearing Officers statutory discretion in setting bail.
The district court erroneously ruled that the County Judges should
have issued local rules to correct the alleged custom and practice of
imposing secured bail on indigent misdemeanor arrestees. The courts
conclusion contradicts Texas law, which expressly grants magistrates
discretion to decide whether or not to set bail on an unsecured basis.
Specifically, the Texas Code of Criminal Procedure provides:
Except as provided by Subsection (b) of this article, a magistrate

may, in the magistrates discretion, release the defendant on his
personal bond without sureties or other security.
Tex. Code Crim. Proc. art. 17.03(a). Under the Texas Code Construction
Act, which governs construction of all the Texas codes, the term May
creates discretionary authority or grants permission or a power. Tex.
Govt Code 311.016(1). The Hearing Officers are magistrates. See Tex.
Code Crim. Proc. art. 2.09. Article 17.03, both expressly and by implication,
through use of the term may, grants the Hearing Officers discretion
whether to release arrestees on personal bond. See Combs v. State, 652
S.W.2d 804, 806 (Tex. App.Houston [1st Dist.] 1983, no pet.) (confirming
38
that the granting of a personal bond is a matter entirely within the
discretion of the court before whom the case is pending).
Because Article 17.03 and other parts of Chapter 17 grant discretion
to magistrates, that discretion cannot be abrogated administratively or
legislatively by the County Judges through local rules that compel a
specific result in particular cases. As the district court noted, the Texas
Government Code gives the County Judges authority to adopt rules
consistent with the Code of Criminal Procedure . . . for practice and procedure
in the courts. ROA.5605 (quoting Tex. Govt Code 75.403(f) (emphasis
added)). The rule that the district court concluded the County Judges
should adopt to avoid a constitutional violationone requiring unsecured
bail in certain (or all) cases of indigencyis inconsistent with the Texas
Code of Criminal Procedure. It would remove from the Hearing Officers
discretion, under article 17.03, whether to grant unsecured bail or a
personal bond, and it would instead compel them to grant unsecured bail
in those instances.
The County Judges refusal to adopt such a local rule thus is not a
county policy choice between alternate courses of action, each of which the
County Judges have lawful authority to take under Texas law. In short, the
39
district court erred when it concluded, in denying the motion to dismiss,
that State law does not require the policy choices the plaintiffs allege and
challenge here. ROA.3273. It may be true, as the court said, that State law
does not require the County Judges to use only secured money bail based
solely on the scheduled bail amounts, rather than unsecured or personal
bonds. ROA.3273. But thats beside the point. The issue is whether state
law allows a county policymaker to issue a policy compelling unsecured
bail in specific circumstances, eliminating any discretion by the magistrate
in the matter. The answer is no. The County Judges may not, legislatively
or administratively, alter article 17.03s grant of discretion to magistrates;
that would be contrary to state law, and such a rule would properly be set
aside as inconsistent with state law. The County Judges failure to adopt a
local rule to eliminate that discretion, compelled as it is by state law, thus is
not a county policy, but a state policy.
According to the court: The County Judges testified that they could
change these customs and practices legislatively in their Rules of Court, but
that they choose not to. Hearing Tr. 5:49-50, 150-51. ROA.5715. That is a
misreading of the record, and to the extent it is a fact finding, it is clearly
erroneous. One of the witnesses cited by the district courtformer Harris
40
County courts manager Bob Wesselswas an expert witness, not a county
judge.4 And though County Judge Paula Goodhart testified that judges
could issue rules that everyone thats low risk gets released on a personal
bond, she also testified, consistent with the Texas law discussed above,
that: We could change the bail schedule in the rules of court, but we
cantthe rules of court arent going to be instructions to the hearing
officers of what they have to do because they still maintain their discretion.
So if there is any discretion that they have regardless of the bail schedule,
they get to exercise that discretion and follow the law. ROA.8513.
Regardless whether disregarding that critical qualification was proper,
County Judge Goodhart did not confirm that such local rules would be
lawful. If she had, she would have been giving an improper legal opinion
about state lawnot competent testimony. See Fed. R. Evid. 701, 702(a),
704(a); U.S. v. Williams, 343 F.3d 423, 436 (5th Cir. 2003) (Rule 704(a) does
not allow a witness to give legal conclusions) (citing U.S. v. Izydore, 167
F.3d 213, 218 (5th Cir. 1999)); see Roundys Inc. v. NLRB, 674 F.3d 638, 648
4 Moreover, the district court elsewhere ruled that Wessels testimony about current
court practices had little weight because he had been retired for six years. ROA.5654.
41
(7th Cir. 2012) (Rules 702 and 704 prohibit experts from offering opinions
about legal issues that will determine the outcome of a case.).
In short, the court could not base its finding on that testimony (which
itself recognized the Hearing Officers judicial discretion under state law).
2. The alleged policies are judicial in nature and thus cannot form the basis
of county liability under 1983.
Promulgating a local rule compelling the Hearing Officers to set

unsecured bond in specific cases would be a judicial act.
[A] municipal judge acting in his or her judicial capacity to enforce
state law does not act as a municipal official or lawmaker for purposes of
1983 liability. Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); see Familias
Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980) (distinguishing a county
judges judicial duties from his executive, legislative and administrative
chores in the day-to-day governance of the county.); Eggar v. City of
Livingston, 40 F.3d 312, 315-16 (9th Cir. 1995) (A municipality cannot be
liable for judicial conduct it lacks the power to require, control, or remedy,
even if that conduct parallels or appears entangled with the desires of the
municipality.). In the present case, the district court ruled, contrary to this
Courts precedent, that the County Judges issuance of local rules to correct
the Hearing Officers practice and thus resolve the constitutional violation
42
would not have been action in a judicial capacity, but in a legislative and
administrative capacity. ROA.5715.
In Davis v. Tarrant County, 565 F.3d 214, the plaintiff complained that
the countys district judges had, in committee, denied his application to be
placed on a list of attorneys who could serve as appointed counsel in the
courts. Id. at 217-18. In determining liability, this Court first addressed the
issue of judicial immunity and started from the premise that the
appointment of counsel is a judicial act. The question then was whether the
selection of applicants for inclusion on a rotating list of appointed counsel
was inextricably intertwined with the judicial process that it was a
judicial act, or far enough removed from the core judicial process that it
was an administrative act that would constitute a county policy for which
the county could be liable under section 1983. Id. at 223-27. This Court held
that it was a judicial act, triggering judicial immunity:
[W]e believe that the act of selecting applicants for inclusion on

a rotating list of attorneys eligible for court appointments is
inextricably linked to and cannot be separated from the act of
appointing counsel in a particular case, which is clearly a
judicial act, and therefore that the judges acts at issue in this
suit must be considered to be protected by judicial
immunity . . . . Also, the nature of the decision of whether to
select an applicant for inclusion on the appointment wheel and
the decision of whether to appoint an attorney in a particular
43
case are essentially identical; in both situations, the judge must

assess an attorney's competence and ability to effectively
represent clients before the court.
Id. at 226-27. This Court then employed the same judicial act framework
to determine that Tarrant County had no 1983 liability. This apparently
administrative task, outside specific litigation and outside the courtroom,
met the standard for action taken in a judicial capacity, and could not give
rise to county liability under 1983. See Ballard v. Wall, 413 F.3d 510, 515
(5th Cir. 2005); Malina v. Gonzalez, 994 F.2d 1121, 1125 (5th Cir. 1993).
The action the County Judges allegedly failed to take in this case
promulgating a local rule to control Hearing Officer discretion in setting
bail for indigent arresteesis squarely within the Davis framework. With
respect to whether the bail was secured or unsecured, the local rule would
have predetermined the outcome in individual bail determinations
involving indigent arrestees. Just as the attorney appointment list in Davis
eliminated nearly all judicial discretion in making appointments in specific
cases (the list was a rotating list from which the judges could deviate only
for good cause), so the proposed local rule or directive here would
eliminate discretion in specific cases with regard to secured/unsecured
bail. The local rule would functionally determine the outcome of the bail
44
setting, and the nature of the decision would be no different than if the
Hearing Officers on a case-by-case basis determined to grant unsecured
bail in individual cases. Davis, 565 F.3d at 226. The policy the court faulted
the County Judges for not adopting was a judicial act, and so Harris
County cannot be liable for County Judges failure to pursue it.
Another recent case correctly interpreted this Courts precedent and

confirmed that local rules regulating bail are more judicial than non-
judicial in nature.
Consistent with this rationale, a recent decision has rejected a similar
challenge to the City of Austins local court rules regarding bail. Harris v.
City of Austin, No. A-15-CA-956, 2016 WL 1070863, at *6 (W.D. Tex. Mar. 16,
2016). In Harris, the plaintiff (again represented by the same counsel as the
plaintiffs here, and who did not appeal the trial courts dismissal) argued
that the courts local rules [led] to the unconstitutional practices at issue,
namely the failure of municipal judges to inquire into an arrestees ability
to pay before jailing that arrestee for non-payment of fines. Id. at *23. The
plaintiff argued that because the rules were adopted and implemented by
Austin municipal judges, and permitted the detention of arrestees for non-
payment, the rules represented a policy for which the City of Austin was
liable under 1983. Id. at *7.
45
The district court rejected the argument. First, the court reasoned that
promulgating rules for the orderly trial of cases was more judicial that
non-judicial in nature because those rules regulate only procedure and not
substantive rights. Id. Second, the rules contemplate[d] the exercise of
judicial discretion, as they do not mandate that municipal judges take any
particular action with respect to any defendant. Id. Instead, like the
attorney appointment list in Davis, the local rules ensured that the judge
hearing each individual caseand in so doing, acting in his judicial
capacitymakes the ultimate decisions about what will or will not happen
in a particular defendants case. Id.
The fact that local rules permitted the outcome did not indicate that
the policy was attributable to the City of Austinto the contrary, the rules
preserved judicial discretion, and permitted judges to make judicial
decisions in individual cases. Id. The policy the district court faulted the
County Judges for not adopting was likewise a judicial act, and Harris
County cannot be liable for the County Judges failure to pursue it.
46
Judicial acts in the aggregate do not lose their character as judicial acts.
The district court recognized that one judicial actsetting bail
represented a judicial act for which the county cannot be liable. ROA.3302.
But without explanation, the court then effectively found that a series of
judicial acts became non-judicial, constituting county policy. Davis rejected
any attempt to recast a series of judicial decisions as establishment and
implementation of [a] county policy for the appointment of counsel. Davis,
565 F.3d at 217; see Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir. 1985).
This Court applied those same principles in Johnson, 958 F.2d at 92.
There, the plaintiff alleged that his constitutional rights were violated
when a local judge sentenced him to jail numerous times . . . without
representation of counsel, claiming that these repeated convictions
evidenced a policy of sentencing indigent criminal defendants to jail
without benefit of counsel and without a knowing and intelligent waiver of
the right to counsel. Id. at 93 (quotation marks omitted). As in Davis, this
Court rejected the attempt to take a challenge to a series of individual judicial
determinations and to reconstitute it as a challenge to an unwritten policy
underlying those determinations. We have repeatedly held . . . that a
municipal judge acting in his or her judicial capacity to enforce state law
47
does not act as a municipal official or lawmaker, and the plaintiff had
failed to show that his constitutional rights were violated as a result of the
citys official policy, rather than a series of judicial decisions. Id. at 94.
Aggregating individual judicial actionssuch as the individual bail
determinationscannot give rise to a legislative or administrative policy or
practice subject to challenge under 1983. No precedent supports that.
3. No court has found that a judge enacts county policy when promulgating
bail policies.
While this Court has not addressed whether bail policies or practices
represent county or state policy, other circuit courts have, ruling that such
policies were state policies. In Woods v. City of Michigan City, Ind., 940 F.2d
275 (7th Cir. 1991), the Seventh Circuit rejected an argument that a bond
schedule represented county policy. The court framed the issue as whether
the judge that promulgated the schedule was a policymaker with final
policymaking authority for [Michigan City and LaPorte County] under
state law.5 Id. at 279. In finding that the judge did not make county policy,
the court reasoned that County courts in Indiana are exclusively units of
the judicial branch of the state constitutional system, and, as such, judges
5 Though Woods pre-dated McMillian, it applied the same test, examining the function at
issue and the framework of state law.
48
of Indianas circuit, superior and county courts are judicial officers of the
State judicial system: they are not county officials. Id. The court then
concluded that the bond schedule was not a county or city policy. Id. (No
municipal liability attaches in this case because the judge under Indiana
law is not [a final policymaker] vis a vis the city and county.).
Notably, Indiana state law (the law at issue in Woods) is substantially
similar to Texas law. Article VII, I of the India Constitution states: The
judicial power of the State shall be vested in one Supreme Court, on Court
of Appeals, Circuit Courts, and such other courts as the General Assembly
may establish. See Ind. Const. Art. VII, 1; see also Pruitt v. Kimbrough, 536
F. Supp. 764, 766 (N.D. Ind. 1982) (citing parts of the Indiana constitution
and determining that county courts are exclusively units of the judicial
branch of the States constitutional system). The Texas Constitution has a
nearly identical provision: The judicial power of this State shall be vested
in one Supreme Court, in one Court of Criminal Appeals, in Courts of
Appeals, in District Courts, in County Courts, in Commissioners Courts, in
Courts of Justices of the Peace, and in such other courts as may be provided
by law. Tex. Const. art. V 1.
49
Other Texas statutes confirm that the Harris County Criminal Courts
at Law are part of the Texas judicial system. County Criminal Courts at
Law are established by the Texas legislature, see Tex. Govt Code 25.0001
et seq., subject to supervision of the State Commission on Judicial Conduct,
see Tex. Const. Art. V. 1-a, may not be abolished by Harris County, and
Harris County may not enlarge the jurisdiction of the County Criminal
Courts at Law. Harris County maintains no judicial systemthe courts in
Harris County are courts of the state of Texas. As one scholar has noted,
judges of legislative courts are not precinct, county, or district officials.
David Brooks, 36 Texas Practice 22.4 (2d ed. 2002). Thus, under Texas law,
when promulgating or acquiescing in bail practices, the Harris County
Criminal Courts at Law Judges are state actors and part of the state judicial
systemthey are not county policymakers.6
6Likewise, in Buffin, and though the judges were not parties, the court explained that
although the San Francisco Superior Court is nominally designated as the County, it is
an arm of the State. 2016 WL 6025486, at *8.
The court went on to note that a superior courts geographical location within any
particular county cannot change the fact that the court derives its power from the State
and is ultimately regulated by the State. Id. (quoting Greater Los Angeles Cnty. on
Deafness, Inc. v. Zolin, 812 F.2d 1103, 1110 (9th Cir. 1987)).
50
D. There is no causal link between the County Judges policy of

verifying arrestee information and any constitutional violation.
Almost as an aside, the district court in passing took issue with the
County Judges practice of requiring that an arrestee who receives a
personal bond must have at least one verified reference before they can be
released. ROA.5609, 19, 5712-13. This practice cannot give rise to county
liability. First, this practice does not violate the constitution. Instead, this
practice is a completely legitimate, rational, and sensible requirement, and
the district court failed to explain otherwise.
Second, this practice is not the moving force behind the plaintiffs
alleged injuries, as Monell requires. The moving force element requires
that the policymakers acts be the direct cause of the violation. See Valle v.
City of Houston, 613 F.3d 536, 546 (5th Cir. 2010) (municipal liability under
1983 involves a heightened standard of causation, a direct causal link
that is more than a mere but for coupling between cause and effect).
The direct cause of the complained-of harm is the Hearing Officers
purported practice of issuing de facto orders of detention after failing to
consider an arrestees ability to pay. The verification requirement has no
effect on this practice, and it does not cause the Hearing Officers to set bail
51
without regard to the arrestees financial situation. To the contrary, and as
the Roberson consent decree requires, the verification requirement serves to
facilitate the Hearing Officers consideration of an arrestees information by
confirming the veracity of information from the Pretrial Services interview.
Moreover, the plaintiffs had no evidence that the verification requirement
causes the Hearing Officers practice. The district court acknowledged that
the number of persons, if any, who were detained due to the inability to
verify such information is unknown and perhaps unknowable. ROA.5619.
The link between the verification requirement and the constitutional
violation is too attenuated to constitute the moving force. See Snyder v.
Trepagnier, 142 F.3d 791, 799 (5th Cir. 1998) (citys failure to enact stress
management program not the moving force behind a 1983 claim brought
against officer). To the extent the verification requirement is a policy at all,
it fails to constitute the moving force element to impose Monell liability.
III. DISTRICT COURT COULD NOT PROPERLY ENJOIN JUDICIAL CONDUCT

INDIRECTLYBY ENJOINING THE SHERIFFS CONDUCT.
The injunction does not square with 1983s limitations on enjoining
judicial conduct. Congresss instruction that injunctive relief shall not be
granted against a judicial officer . . . in such officers judicial capacity, 42
52
U.S.C. 1983, would have no meaning if federal courts remained free to
order the executive officers who carry out state judicial orders to simply
ignore or rewrite them. The injunction hereordering the Sheriff to rewrite
the Hearing Officers bail determinations to permit bail on an unsecured,
rather than a secured, basis, ROA.5763is effectively indistinguishable
from an injunction that orders the Hearing Officers themselves to require
unsecured bail. The relief is improper under 1983.
That conclusion is supported by the case law interpreting the Anti-
Injunction Acts analogous bar on enjoining state judicial proceedings. Just
as 1983 forecloses a federal-court injunction against a judicial officer for
an act or omission taken in such officers judicial capacity, so the Anti-
Injunction Act provides that federal courts generally may not grant an
injunction to stay proceedings in a State court. 28 U.S.C. 2283. This
prohibition cannot be evaded by addressing the order to the parties or
prohibiting utilization of the results of a completed state proceeding. Atl.
Coast Line R.R. v. Brotherhood of Locomotive Engrs, 398 U.S. 281, 287 (1970).
Indeed, it has been settled for nearly a century that to prevent this type of
circumvention, the Anti-Injunction Acts bar, though facially reaching only
State-court proceedings, must be read as
53
Includ[ing] all steps taken or which may be taken in the state

court or by its officers from the institution to the close of the
final process. . . . It applies alike to action by the court and by its
ministerial officers; applies not only to an execution issued on a
judgment, but to any proceeding supplemental or ancillary
taken with a view to making the suit or judgment effective.
Hill v. Martin, 296 U.S. 393, 403 (1935) (footnotes omitted); see also United
States v. Billingsley, 615 F.3d 404, 409-10 & n.10 (5th Cir. 2010) (The Act
does not prohibit only injunctions directed at state courts themselves, but
also injunctions directed at private parties when the injunction would
prohibit using the results of a state court proceeding.). Section 1983s bar
on enjoining the judicial acts of state courts, no less than the Anti-
Injunction Acts bar on enjoining state-court proceedings, must be
understood as comprehensive in this way, Hill, 296 U.S. at 403, to avoid
clever attempts at evasion, just like the one at issue in this case.
Accordingly, the district courts injunction fails as a matter of law,
since its obvious design and effect is to reach judicial conduct in direct
contravention of 1983s restrictions against such injunctive relief.
IV. THIS COURT SHOULD VACATE THE INJUNCTION AND DISMISS HARRIS
COUNTY.
Because the plaintiffs did not prove a county policy to detain indigent
defendants by means of secured money bailrather, the County Judges
54
and the Sheriff were constrained by state law from interfering with any
such practices by the Hearing Officersplaintiffs did not prove that they
could obtain final injunctive relief against Harris County under 1983. As a
result, preliminary injunctive relief directed to Harris Countys department
of pretrial services was improper, because it is a Harris County agency.
As a result, the district court should have granted the Harris County
defendants motion to dismiss. ROA.3229-3306. That motion also asserted
the inability of the plaintiffs to obtain an injunction against Harris County
for the County Judges and Sheriffs acquiescence in the Hearing Officers
alleged custom and practice of imposing secured money bail on indigent
misdemeanor arrestees. ROA.3269. The allegations fail to state a claim for
injunctive relief against Harris County for the same reasons the hearing
evidence fails to establish a likelihood of success on that request for relief.
This court may reverse the district courts ruling in that regard and render
a judgment of dismissal. See, e.g., Cobb v. City of Harahan, 516 F. Appx at
33941 (reviewing denial of motion to dismiss 1983 claims, in conjunction
with appeal from denial of qualified immunity, and rendering judgment of
dismissal); In re Lease Oil Antitrust Litig., 200 F.3d at 31920, 321 (reviewing
55
denial of motion to dismiss, in conjunction with appeal from a preliminary
injunction, and affirming that ruling).
V. HARRIS COUNTY ADOPTS THE COUNTY JUDGES ARGUMENTS.
The Harris County defendants adopt the Argument and Conclusion
in the County Judges principal brief, to the extent that those arguments are
not inconsistent with the positions urged herein, and likewise urge reversal
on those grounds. Fed. R. App. P. 28(i).
56
Conclusion
This Court should vacate the preliminary injunction; rule that 1983
relief is unavailable against Harris County and the Hearing Officers; render
judgment granting these Harris County defendants motion to dismiss the
complaint, ROA.3229-306; and award costs.
Respectfully submitted,

Mike Stafford John Odam
Texas Bar No. 18996970 Texas Bar No. 15192000
mstafford@gardere.com john.odam@cao.hctx.net
Katharine D. David Melissa Spinks
Texas Bar No. 24045749 Texas Bar No. 24029431
kdavid@gardere.com melissa.spinks@cao.hctx.net
Stacy R. Obenhaus Office of the Harris County Atty
Texas Bar No. 15161570 1019 Congress, 15th Floor
sobenhaus@gardere.com Houston, Texas 77002
Philip J. Morgan Tel: 713.274.5101
Texas Bar No. 24069008 Fax: 713.755.8924
pmorgan@gardere.com
Texas Bar No. 24098472
bstephens@gardere.com Counsel for Appellants:
Gardere Wynne Sewell LLP Harris County, Texas; Harris
1000 Louisiana, Suite 2000 County, Texas; Eric Stewart
Houston, Texas 77002-5011 Hagstette; Joseph Licata III; Ronald
Tel: 713.276.5500 Nicholas; Blanca Estela Villagomez;
Fax: 713.276.5555 and Jill Wallace
57
Certificate of Service
I certify that copies of this document were served by delivering them
to counsel below on June 19, 2017, by filing through the CM/ECF system:
County Court at Law Judges 1-15: Plaintiffs:

Charles Justin Cooper Alec George Karakatsanis
ccooper@cooperkirk.com alec@civilrightscorps.org
Michael Kirk Civil Rights Corps
mkirk@cooperkirk.com 910 17th Street NW Suite 500
William C. Marra Washington DC 20006
wmarra@cooperkirk.com
Cooper & Kirk PLLC Neal Stuart Manne
1523 New Hampshire N.W. nmanne@susmangodfrey.com
Washington, DC 20036 Alexandra Giselle White
lwhite@susmangodfrey.com
John E. ONeill Susman Godfrey LLP
JONeill@winston.com 1000 Louisiana, Suite 5100
Sheryl A. Falk Houston, Texas 77002
SFalk@winston.com
Winston Strawn LLP Rebecca Bernhardt
1111 Louisiana, 25th Floor rbernhardt@fairdefense.org
Houston, Texas 77002 Susanne Ashley Pringle
springle@fairdefense.org
Sheriff Ed Gonzalez: 314 E. Highland Mall Blvd.
Murray Jules Fogler Austin, Texas 78752
mfogler@fbfog.com
Fogler Brar Ford ONeil & Gray LLP Seth Paul Waxman
711 Louisiana Street, Suite 500 seth.waxman@wilmerhale.com
Houston, Texas 77002 Arpit Kumar Garg
arpit.garg@wilmerhale.com
Wilmer Hale
1875 Pennsylvania Avenue NW
/s/ Stacy R. Obenhaus Washington DC 20006
58
Certificate of Compliance
This document contains 9,468 words, excluding those parts exempted
by Federal Rule of Appellate Procedure 32(f).
The brief complies with typeface requirements of Rule 32(a)(5) and
type style requirements of Rule 32(a)(6) because it has been prepared in a
proportionally-spaced Book Antiqua 14-point font typeface using Microsoft
Office Word 2010.

Stacy R. Obenhaus
59

2017-06-19 Appellants&#39; Brief (Harris County)

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2017-06-19 Appellants&#39; Brief (Harris County)

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Case: 17-20333 Document: 00514039445 Page: 1 Date Filed: 06/19/2017

In the United States Court of Appeals

MARANDA LYNN ODONNELL,

Appeal from U.S. District Court, S.D. Texas

[caption continued on following page]

Mike Stafford John Odam

Counsel for Appellants

Certificate of Interested Persons

ODonnell v. Harris County, Texas, No. 17-20333

The undersigned counsel of record certifies that the following listed

persons and entities as described in Rule 28.2.1 have an interest in the

judges of this court may evaluate possible disqualification or recusal.

Maranda Lynn ODonnell Alec George Karakatsanis

Neal Stuart Manne

Arpit Kumar Garg

Harris County, Texas John Odam

Paula Goodhart Charles Justin Cooper

Darrell Jordan Laura Beckman Hedge

Ed Gonzalez Murray Jules Fogler

/s/ Stacy R. Obenhaus

Statement Regarding Oral Argument

substantial, and it includes several studies and statistics whose significance

may not be readily apparent.

Certificate of Interested Persons ......................................................................... iii

Statement Regarding Oral Argument................................................................. v

Table of Contents .................................................................................................. vi

Table of Authorities ............................................................................................viii

Jurisdictional Statement .......................................................................................13

Statement of the Case ...........................................................................................16

I. Nature of the Case............................................................................16

II. Facts Relevant to the Issues ............................................................16

III. Procedural History/Rulings to Review ........................................17

Summary of Argument ........................................................................................19

I. Standard of Review. .........................................................................22

II. No County PolicySo No Injunction Against Harris

A. County liability under 1983 requires that the plaintiffs

B. The Sheriff is not acting as a county policymaker when he

1. The Sheriff lacks statutory authority to choose an

2. Under McMillian, the Sheriff is performing a state

3. Recent case law supports this interpretation. ........................32

4. The district court cited inapplicable authority to

C. The County Judges failure to act was compelled by

1. The County Judges could not lawfully issue local rules

2. The alleged policies are judicial in nature and cannot

3. No court has found that a judge enacts county policy

D. There is no causal link between the County Judges policy

III. District Court Could Not Properly Enjoin Judicial

IV. This Court Should Vacate the Injunction and Dismiss

V. Harris County Adopts the County Judges Arguments.............56

Certificate of Service .............................................................................................58

Certificate of Compliance ....................................................................................59

Atl. Coast Line R.R. v. Brotherhood of Locomotive Engrs,

BCCA Appeal Group, Inc. v. City of Houston,

Buffin v. City and Cnty. of San Francisco,

Burkette v. City of El Paso,

Cobb. v. City of Harahan,

Davis v. Tarrant Cnty., Tex.,

De Luna v. Hidalgo County,

Doe v. Angelina County,

Eggar v. City of Livingston,

Familias Unidas v. Briscoe,

Greater Los Angeles Cnty. on Deafness, Inc. v. Zolin,

Harris v. City of Austin,

Jett v. Dall. ISD,

2017-06-19 Appellants' Brief (Harris County)

2017-06-19 Appellants' Brief (Harris County)