En Banc Decision in Daves v. Dallas County- How Many Times Has Judge Rosental Been Reversed Now?


This is big.  The Fifth Circuit has issued an en banc opinion in the Dallas Federal litigation.  The case is Cause No. 18-11368; Daves v. Dallas County; In the United States Court of Appeals for the Fifth Circuit (January 7, 2022).  This opinion addresses the following issues:

A.    Whether judges can be sued based upon a 1983 claim for setting bail.  The Daves case attempted to build off of the O'donnell case in Houston.  In O'donnell, the plaintiffs only sued the midemeanor judges.  In Daves, the plaintiffs sued the district court judges and the misdemeanor judges.  The trial court issued essentially the same injunction issued in O'donnell and applied it to the district court judges as well.  The trial court also held that substantively bail was constitutional.  All parties appealed.  On appeal, a panel of three judges issued a decision last year that held that it was improper to expand O'donnell to the district court judges.  The panel also said that they might have come to a different conclusion than O'donnell regarding the county court judges.   A motion was made asking for an en banc review by the entire 5th circuit.  The motion was granted and the opinion issued on January 7, 2022 was the opinion en banc.  The opinon concludes that when a judge is creating a bail schedule (whether they are a district court judge or a county court judge), the judge is a state actor under Texas law and not subject to a 1983 claim.  The opinion also specifically reversed O'donnell on this issue.

B.    Whether the plaintiffs have standing to sue.  As to the district court judges, the county court judges and the county itself, the opinion held that there was no standing.  The opinion did not express an opinion on the magistrate judges since they were not parties on appeal and the opinion did not express an opinion on the county sheriff.

C.    Whether the federal court should have abstained from hearing the case.  The opinion held that the issue of abstention was not addressed by the trial court.  The opinion held that since the issue was not waived, the court said remand was proper to the trial court to consider it.  Therefore, the opinion issued a limited remand for the trial court to rule on  whether the court should abstain against the only remaining parties- the Sheriff and the magistrate judges.  After these findings are made, the case is to be sent back to the 5th Circuit en banc for final disposition.

This is a very strong opinion.  It looks like the 5th Circuit is getting out of bail litigation.  How many times has the Honorable Judge Rosenthal been reversed by the 5th Circuit now?  Is this 3, 4 or 5.  Let us review all the decisions that Judge Rosenthal made, which have now been reversed:

1.  O'donnell case- 1st Preliminary Injunction reversed by 5th Circuit; 

2.  O'donnell case- appeal of 2nd Preliminary Injunction to the 5th Circuit where the court issued a stay of judge Rosethal's order (the appeal was later dismissed when new judges were elected and they promised to settle the appeal by giving the plaintiffs whatever they wanted in the underlying case); 

3.  Russell case- Judge Rosenthal ruled the district court judges could be sued, but then after the 5th Circuit ruled that they could not in the Daves panel decision a year ago, Rosenthal agreed to dismiss the district court judges if they would drop their appeal; 

4. Daves case- 5th Circuit specifically reverses O'donnell regarding Rosenthals's ruling that county court judges are county actors; and 

5.  Daves case- 5th Circuit remands to trial court for findings on the issue of abstention and directs the court to NOT consider O'donnell as authority on the issue.

How many times can one judge be wrong on an area of the law?  Is it time for Judge Rosenthal to recuse herself on these matters?  Is she even the right judge to straighten out the mess that she created?

Also, what will Harris County do now?  The county has spent over $100 million dollars to supposedly comply with a settlement and a consent decree that was because of a ruling by Judge Rosenthal that the county court judges could be sued in federal court and now that ruling has been reversed by the United States Court of Appeals for the Fifth Circuit.  Is the consent decree now VOID?  If a court does not have jurisdiction over a case, it has the power to declare a prior order void.  Will the county ask it to vacate the consent decree?

Do the plaintiffs in the Daves case have any other option than applying for a writ of cert. before the United States Supreme Court?  

Stay tuned . . .

To see the opinon CLICK HERE.

Other Stories:

KERA- U.S. 5th Circuit Court of Appeals ruling a setback for pre-trial bail bond reform in Dallas County- CLICK HERE.

The Bail Post Podcast Episode No. 4- Did the 5th Circuit Just End Federal Bail Litigation?CLICK HERE.

The Texan- Fifth Circuit Court Ruling in Dallas Case Strikes Blow to Harris County Bail Settlement

A status conference with Judge Rosenthal for the Russell case on felony bail in Harris County was held on January 10 at 10:30 a.m.  During the status conference, Rosenthal acknowledged that there were new issues to consider in light of the Fifth Circuit’s ruling. "We are not Dallas but we are [a] lot like Dallas, and the circuit was very broad in the en banc opinion on its reading of the governing provisions." Rosenthal said she wanted to give the parties time to consider the Daves ruling and she set the next hearing for January 31.

To see more  CLICK HERE.

KERA- Dallas County bail bond reform lawsuit could end up before the U.S. Supreme Court  CLICK HERE.

Senatore Bettencourt- New 5th Circuit Ruling Wipes Out O'Donnell v. Harris County CLICK HERE.


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