Article- "The Plaintiffs Suffer Rug Burns: Daves v. Dallas County"

 

Published January 27, 2022- Attorney at Law Magazine
by Ken W. Good

The case of Daves v. Dallas County in the United State Court of Appeals for the Fifth Circuit took an unexpected turn on January 7 when the court essentially pulled the rug out from under the plaintiffs’ attorneys arguments on behalf of bail reform. In doing so, it reversed a primary ruling in the key case of ODonnell v. Harris County, which, in an earlier appeal, held that county court judges could be sued when they either adopted a bail schedule or set bail. The county eventually settled and the trial court entered a consent decree as a result of the ruling.

Over the past few years, bail litigation has been launched by activist attorneys throughout Texas. It began in Houston when 16 misdemeanor court judges were sued under 42 USC §1983, with the assertion that the use of a bail schedule in Harris County violated procedural due process. Judge Lee Rosenthal of the U.S. District Court in Houston agreed with the claim and issued a preliminary injunction which held, in part, that county court judges are not state actors when they adopt a bail schedule or when they set bail; but instead, are county policy makers. Under the statute, state actors are specifically exempt from 1983 suits. Based on this ruling, the plaintiffs’ attorneys initiated additional litigation across Texas, in an effort to use it as a weapon against the state’s counties.

In Dallas, a federal suit entitled Daves v. Dallas County was initiated against the county, along with county court and district court judges, as a means of expanding the ODonnell holding to felony judges. Similarly, a suit was filed in Houston in the case of Russell v. Harris County, seeking to accomplish the same thing. In Galveston, still another suit, entitled Booth v. Galveston County, sought to go even further by arguing that the constitution required the county to provide attorney representation for defendants at bail hearings. The ACLU also got into the act by sending letters throughout Texas, demanding that counties adopt their guidelines for setting bail – or face the consequences of costly litigation.

On December 28, 2020, the Fifth Circuit issued the initial panel opinion in the Daves case. It held that the previous ODonnell opinion, which determined that county court judges were county policy makers, could not be applied to district court judges arguing that felony judges were state actors. The opinion also stated that the panel may have come to a different conclusion regarding county court judges, but would follow the ODonnell opinion.

Shortly thereafter, a motion for rehearing en banc was granted to argue the case in front of 16 judges from the Fifth Circuit. Thus the scene was set, with the stakes sky-high. A decision allowing district court judges to be sued in these types of cases would confirm the reality of the threats to counties by the ACLU. Likewise, a decision to reconsider and change the previous decision in ODonnell would have a profound impact on this litigation and potentially set up a basis for jurisdiction before the U.S. Supreme Couurt.

On January 7, the Fifth Circuit issued its en banc opinion. Nine of the judges supported the majority opinion, while a concurring opinion agreeing with remand was supported by three. Four judges dissented. The majority opinion addressed three important concepts. First was the status of the judges. The court noted that Judge Rosenthal had relied heavily on the removal process for county court judges to support her conclusion that they should be considered county policy makers. The en banc opinion concluded that her analysis on this issue did not go far enough and that she did not conduct a sufficient analysis of Texas law. After citing various state statutes, the court concluded that in adopting a bail schedule or setting bail, a judge is acting on behalf of the state. Therefore, both county court and district court judges are state actors and not county actors or policy makers when they are setting bail or adopting a bail schedule. The en banc opinion specifically reversed the previous opinion issued by Rosenthal in ODonnell and which had been affirmed by a three-judge panel of the Fifth Circuit regarding county court judges.

The second issue . . .

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