Castillo v. Cameron County, TX

Revised February 7, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-41217
_____________________

JOSE RAUL CASTILLO; FRANCISCO LOPEZ; E ELOY SANCHEZ; JON
ALAN ASHCRAFT; GUSTAVO ALMAGUER

Plaintiffs - Appellees

v.

CAMERON COUNTY, TEXAS

Defendant - Third Party Plaintiff - Appellee

v.

STATE OF TEXAS; GEORGE W BUSH, Governor of Texas; ALLAN B
POLUNSKY, Member of the Board Texas Department of Criminal
Justice; CAROLE S YOUNG, Member of the Board Texas
Department of Criminal Justice; JOHN DAVID FRANZ, Member of
the Board Texas Department of Criminal Justice; PATRICIA A
DAY, Member of the Board Texas Department of Criminal
Justice; WILLIAM “HANK” MOODY, Member of the Board Texas
Department of Criminal Justice; ALFRED C MORAN, Member of
the Board Texas Department of Criminal Justice; NANCY
PATTON, Member of the Board Texas Department of Criminal
Justice; A M “MAC” STRINGFELLOW, Member of the Board Texas
Department of Criminal Justice; CAROL S VANCE, Member of the
Board Texas Department of Criminal Justice

Defendants - Third Party Defendants - Appellants

_________________________________________________________________

Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
January 5, 2001
Before KING, Chief Judge, PARKER, Circuit Judge, and FURGESON,
District Judge.*

KING, Chief Judge:

Appellants, the State of Texas, et al., appeal from the

district court’s order continuing injunctive relief in favor of

Appellees Jose Raul Castillo, et al. For the following reasons,

we VACATE the district court’s July 20, 1999 order and REMAND

this case to the district court for further proceedings

consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

This appeal arises from a 42 U.S.C. § 1983 action brought in

1993 by Plaintiffs-Appellees (the “plaintiffs”), a certified

class1 of detainees in the Cameron County, Texas jail (the

“Jail”) against Cameron County (the “County”) and the State of

*
District Judge of the Western District of Texas,
sitting by designation.
1
The suit was originally filed by Jose Raul Castillo,
Francisco Lopez, and Eloy Sanchez. Their motion for class
certification for the class consisting of “All prisoners of the
Cameron County Jail as of 1/3/94” was granted on January 5, 1994.
That class includes both pretrial detainees and convicted
inmates. However, we note that if all prisoners as of January 3,
1994 have since left the jail, that would mean there is no class
member who is entitled to seek injunctive relief. On remand, the
district court should look into the matter of whether, because of
this fact, this case is moot, see Davis v. Ball Mem’l Hosp.
Ass’n., Inc., 753 F.2d 1410, 1416 (7th Cir. 1985) (“When the
claims of all the class members are moot, the action is moot.”).
See generally CHARLES ALAN WRIGHT ET AL., 13A FEDERAL PRACTICE AND
PROCEDURE § 3533.9, at 401 (2d ed. 1984) (“[I]f the claim of the
entire class is moot, the case is finished.”).

2
Texas, the governor of Texas, and various members of the Board of

the Texas Department of Criminal Justice (the “State”).2 The

plaintiffs alleged that overcrowding at the Jail produced

conditions that constituted cruel and unusual punishment in

violation of the Eighth and Fourteenth Amendments of the U.S.

Constitution.

The plaintiffs originally filed suit against only the

County. The County brought a third-party complaint seeking

injunctive relief against the State, alleging that the State

failed to expeditiously transfer nearly 300 “paper ready”

inmates3 to state correctional facilities and, therefore, was

responsible for the constitutional violations. On January 21,

1994, the plaintiffs filed an amended complaint, adding the State

as a defendant, and on May 20, 1994, they filed an application

for a preliminary injunction, in an attempt to remedy the

overcrowding by enjoining the County and the State from

incarcerating more prisoners in the Jail than allowed by the

Texas Jail Standards.

On August 15, 1994, the district court entered a temporary

injunction in favor of the plaintiffs to reduce the jail

2
The State was not brought in to the suit until January
1994.
3
“Paper ready” inmates are those that are certified for
transfer to the institutional division of the Texas Department of
Criminal Justice, but who have yet to be transferred.

3
population (the “August 1994 injunction”).4 Then, on September

14, 1994, the district court entered a memorandum decision and

order, which included a preliminary injunction against the State

and the County (the “September 1994 injunction”).

In its September 1994 injunction, the court made a number of

findings, based on testimony presented at the preliminary

injunction hearing, the documents admitted into evidence, and the

court’s tour of the detention facilities. The court found that

the Jail was overcrowded and that 289 of the detainees were

convicted felons awaiting transfer to state prisons operated by

the Texas Department of Criminal Justice (“TDCJ”). The court

also found that, at that point in time, TDCJ had a scheduled

admissions policy that had caused a backlog of convicted inmates

to accumulate in the Jail.5 As a result of this significant

overcrowding, over thirty percent of the detainees slept on

mattresses on the floor each night. Additionally, fighting

4
The August 1994 injunction was amended on October 2,
1997, and it is that amended version that is at issue in this
proceeding.
5
The Jail, at the time of the issuance of the September
1994 injunction, was designed to hold 546 people. However, under
jail standards and management practices, counties typically limit
occupancy to 85% of design capacity, which, the court stated, in
this case, would have been 467 detainees, significantly less than
the 862 detainees housed in the Jail at the time.
We note that an additional facility designed to hold 192
detainees was within weeks of completion at the time of the
hearing on the September 1994 injunction, and, during oral
argument on this appeal, the County announced that construction
had begun on a new facility designed to hold an additional 641
people.

4
requiring medical attention increased. The court also found the

medical care received by the inmates to be “alarming” as the

County based its medical-care budget on a 500-person average

occupancy, rather than the actual occupancy.6 Furthermore,

overcrowding limited the attempts by county officials to classify

detainees according to dangerousness and to adequately segregate

mentally ill detainees, witnesses, and pretrial detainees.

The classification that has been possible has lead
[sic] to severe overcrowding in some cells. For
example, 30 detainees have been forced into a cell
designed for 10 and held there three months, where the
cell did not have water, a toilet, or a shower. Six
detainees have been forced into a holding cell designed
for two, leaving at least two of these people with no
choice but to stand all day.7

6
The court found that, since medicine was unavailable,
diabetics were treated with diet, other necessary drugs were also
unavailable, and no funds for medical screening for HIV-positive
people were allocated. One expert testified that there existed a
substantial risk of a tuberculosis epidemic at the time of the
hearing.
7
These findings established to the district court’s
satisfaction the substantial likelihood that the plaintiffs could
prove a constitutional violation. The court also found
sufficient evidence to show a substantial likelihood that the
plaintiffs could prove the required “deliberate indifference” on
the part of the State and the County. The court found that
overall, these elements established a substantial likelihood that
the plaintiffs would succeed on the merits of their claim.
The court also found that the three other elements necessary
to grant a preliminary injunction had been satisfied, namely a
substantial threat that the movant will suffer irreparable
injury, that the threatened injury outweighs any damage the
injunction may cause the opponent, and that the injunction will
not disserve the public interest. See United Offshore Co. v. S.
Deepwater Pipeline Co., 899 F.2d 405, 407-08 (5th Cir. 1990).

5
 Under the terms of the September 1994 injunction, the State

was required to “remove the number of state-ready felons from the

custody of Cameron County officials” necessary to bring the

Jail’s population within design capacity or prove that

constitutional conditions would be preserved if the Jail

contained more prisoners than it was designed to hold.8 The

September 1994 injunction also required the County to adopt an

operation plan describing how the County would provide for the

Jail’s needs six months in the future and two years in the

future, to evaluate and revise those plans on an annual basis,

and to submit them to the district court.

On October 2, 1997, the district court amended the August

1994 injunction (“1997 injunction”). The 1997 injunction lists,

inter alia, a number of actions intended to reduce the jail

population9 and a number of Population Reduction Provisions that

the Cameron County sheriff can make to keep the prison population

8
The court also indicated its willingness to modify the
injunction should the State present evidence that the Jail might
hold more than its design capacity of detainees under
constitutional conditions or should the plaintiffs present
evidence that a population cap of design capacity still subjected
them to unconstitutional conditions.
9
For example, the injunction prohibits the Jail from
accepting individuals charged with misdemeanors from other
nonfederal agencies, unless, for warrantless arrests, the
detainee’s commitment papers include an order in a specified form
finding probable cause or, for warrant arrests, the detainee’s
commitment papers include a copy of the executed arrest warrant.
The injunction also covers treatment of persons accused of
felonies from other nonfederal agencies and persons arrested by
the sheriff’s office.

6
from surpassing ninety percent of its design capacity.

Specifically, the injunction dictates that “if at any time the

population of the Cameron County Jail exceeds ninety per cent of

the design capacity . . . for such jail, the Sheriff of Cameron

County is ORDERED to, and shall, in addition to any other actions

he may deem appropriate, take such of the following [Population

Reduction Provisions] he may see fit in order to reduce jail

population . . . .” For example, one of the Population Reduction

Provisions permits the sheriff to “refuse to receive for pre-

hearing confinement from state pardon and parole officers any

‘blue warrant’ person charged with a parole violation.”10

Similarly, “the Sheriff may notify the Department of Pardons and

Parole that the ‘blue warrant’ inmates will be released after

they have been held for forty-five days unless a [‘]white

warrant’ has issued.”11 Although the 1997 injunction was issued

while the State was still a party to the proceedings, it did not

require the State to take any particular action, only the County.

Pursuant to the 1997 injunction, the Cameron County sheriff

10
A “blue warrant” person “means a person arrested for a
parole violation who is to be detained pending administrative
process and revocation hearing.” Other Population Reduction
Provisions include arrangements for alternative housing or for
“scheduled reporting,” refusal to take from any law enforcement
officers any person charged with a non-violent misdemeanor or
felony, release of misdemeanor detainees on bond, and release of
non-violent pretrial detainees upon application to a judge of a
court of competent jurisdiction.
11
A “white warrant” person means a person detained after
revocation of parole.

7
refused to incarcerate a number of “blue warrant” parole

violators.12

On April 26, 1996, the Prison Litigation Reform Act (the

“PLRA”), which “establishes standards for the entry and

termination of prospective relief in civil actions challenging

prison conditions,” went into effect. See Miller v. French, 120

S. Ct. 2246, 2250 (2000); see also Pub. L. No. 104-134, 110 Stat.

1321-66 (1996). On May 3, 1999, pursuant to the PLRA, the State

filed a motion to terminate the September 1994 injunction. The

State argued that immediate termination of the preliminary

injunction was warranted because the PLRA requires termination of

prospective relief entered without making certain specific

findings, which the district court had not made when it issued

the September 1994 injunction. See 18 U.S.C. § 3626(b)(2).

Alternatively, the State asserted that the September 1994

injunction must be terminated because the PLRA mandates

termination of prospective relief upon the motion of any party or

intervener two years after the date the court granted or approved

the prospective relief or two years after the enactment date of

the PLRA. See id. § 3626(b)(1).

On May 21, 1999, the district court held a status

conference. The parties agreed that the September 1994

injunction against the State was no longer necessary, as the

12
The parties stipulated that by July 27, 1999, there
were at least 289 individuals who had outstanding blue warrants.

8
State had transferred the “paper ready” prisoners to state

facilities. Because the State had complied with the September

1994 injunction, the parties also discussed dismissing the State

as a party. Moreover, the district court indicated that it was

inclined to turn the 1997 temporary injunction against the County

into a permanent injunction. The County proposed an order so

doing, to which the State objected. Specifically, the State

objected to a provision in the order that permitted the Cameron

County sheriff to continue to refuse to incarcerate alleged

parole violators in order to limit the number of prisoners in the

Jail. The State contended that this provision violated the PLRA,

which prohibits federal courts from ordering prospective relief

that violates state law.

On May 27, 1999, the district court entered an order

extending the September 1994 injunction for another sixty days so

that the plaintiffs and the County could finalize a consent

decree. During those sixty days, on June 28, 1999, the State

filed an “advisory,” reiterating its objection to continuing the

temporary injunctive relief embodied in the 1997 injunction as

violative of the PLRA. The State argued, inter alia, that the

1997 injunction constituted a prisoner release order, which,

under the PLRA, can only be entered by a three-judge panel that

is required to make specific findings, see id. § 3626(a)(3), and

that order authorized the Cameron County sheriff to violate state

law, action which is also governed by the PLRA. See id.

9
§ 3626(a)(1)(B).

On July 27, 1999, the district court held another status

conference (“July 27 hearing”) that addressed the September 1994

injunction, the 1997 injunction, and the dismissal of the State

as a party to the proceedings. The State argued that the

district court should terminate the September 1994 injunction

because it did not contain the findings required by the PLRA for

the granting of prospective relief, a requirement that was to be

applied retroactively. The County agreed that the September 1994

injunction should be terminated, but the plaintiffs argued that

the injunction should be continued to prevent the State from

again overcrowding the Jail.

In regard to the 1997 injunction, the State objected that it

also violated the PLRA, in that the court had not made the proper

findings when granting the relief and, also, that it constituted

a prisoner release order, which, under the PLRA, may only be

issued by a three-judge panel. See 18 U.S.C. § 3626(a)(3)(B).

The County and the plaintiffs contended that the 1997 injunction

should be continued and that the court had made the requisite

findings.

Finally, all three parties agreed that the State should be

dismissed as a party. However, the State wanted a proviso that

it was still concerned about the sheriff’s ability to refuse to

incarcerate blue warrant violators.

10
 The district court entered a minute order on July 27, 1999,

dismissing the State from the lawsuit. On July 30, 1999, the

district court entered an order (the “1999 order”) denying the

State’s motion to terminate and continuing both the September

1994 injunction and “all other preliminary injunctive relief

granted by this Court.” In making its determination, the court

considered all of the arguments made at the July 27 hearing, the

stipulation made by all parties that there were at least 289 blue

warrants in the County and that the Jail would be well over 100%

capacity if those 289 persons were incarcerated, an affidavit

filed by Captain Luis Esparza,13 and the stipulation filed by the

County and the plaintiffs on July 29, 1999.14 Additionally, the

district court took judicial notice “of all evidence previously

presented in this case.”

13
In his affidavit, Esparza, who has been the Captain of
the Jail since April 15, 1999, states the following facts: (1)the
capacity of the Jail is 738 inmates; (2) as of July 28, 1999 the
population of the Jail was 662 inmates, which included 17 blue
warrants and 8 white warrants; (3) the 662 inmates includes 515
state inmates and 147 federal inmates; (4) the [October 1997
injunction] has been necessary to keep jail population from
overcrowding; and (5) the Jail has been at or about 90% of
capacity for the past couple of years and that “[w]ithout the
ability to refuse new non violent [sic] inmates when we are
approaching or at 90% of capacity we would exceed capacity within
one week and would have over one thousand inmates within one
month.”
14
The plaintiffs and the County stipulated to the facts
in the affidavit of Luis Esparza. We note that the State did not
so stipulate.

11
 At the time the district court issued the 1999 order, it

also purported to make the findings required by the PLRA to limit

the termination of relief otherwise subject to termination. The

order provided:

In making this decision, the Court specifically finds
that, without the continuation of the temporary
injunction, the Cameron County Jail population would
almost immediately exceed 100% and thereby created
[sic] Constitutionally prohibited jail conditions. The
Court specifically finds that prospective relief,
including the continuation of the temporary injunction,
remains necessary to correct and prevent a current and
ongoing violation of the Class Plaintiffs’ Federal
Constitutional rights, that the temporary injunction
extends no further than necessary to correct the
violation of the Class Plaintiffs’ Constitutional
rights, and that the temporary injunction is narrowly
drawn and is the least intrusive means to correct the
violation.

The State timely appeals the 1999 order.15

II. STANDARD OF REVIEW

Standing is reviewed under a de novo standard. See Tex.

Office of Pub. Util. Counsel v. FCC, 183 F.3d 393, 419 n.34 (5th

Cir. 1999) (citing 5 U.S.C. § 706). Although the district

court’s decision to continue the injunctions is to be reviewed

for an abuse of discretion, see Alcatel USA, Inc. v. DGI Techs.,

Inc., 166 F.3d 772, 790 (5th Cir. 1999), because the district

court’s decision to terminate or continue the injunctions turns

on the application of § 3626(b) of the PLRA, that interpretation

15
The County does not appeal the 1999 order.

12
is reviewed de novo. See Woodfield v. Bowman, 193 F.3d 354, 358

(5th Cir. 1999).

The application of the relevant sections of the PLRA

requires the district court to make a finding of an ongoing

constitutional violation, which is a mixed question of law and

fact. See Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649,

661 (1st Cir. 1997), cert. denied, 524 U.S. 951 (1998). We

review mixed questions of law and fact de novo. See Cargill,

Inc. v. United States, 173 F.3d 323, 333 n.13 (5th Cir. 1999).

III. STANDING

As a threshold matter, we must determine whether the State

has standing to pursue this appeal. The plaintiffs argue that

the State lacks standing to appeal the 1999 order because it is

no longer a party to the action and, therefore, is no longer

bound by or required to take any action in regard to the

injunctions. Recognizing that, in some cases, a nonparty has

standing to appeal an injunction that affects it, the plaintiffs

contend that the injunction did not require the State to take any

particular action or cause the State to suffer any injury, and,

therefore, did not affect the State. Alternatively, the

plaintiffs argue that, even if the State is bound by the

injunction, the State has no standing to appeal to set aside the

injunctive provisions against the County, a co-party that did not

appeal.

13
 The State argues that it has standing because the PLRA

expressly gives it standing to challenge this type of prospective

relief. Additionally, it contends that, even as a nonparty, it

has standing to appeal an injunction that adversely affects it.

We agree.

A. Standing Under the PLRA

The PLRA expressly provides for standing for certain

officials and units of government. As § 3626 (a)(3)(F) of the

PLRA provides:

Any State or local official including a legislator or
unit of government whose jurisdiction or function
includes the appropriation of funds for the
construction, operation, or maintenance of prison
facilities, or the prosecution or custody of persons
who may be released from, or not admitted to, a prison
as a result of a prisoner release order shall have
standing to oppose the imposition or continuation in
effect of such relief and to seek termination of such
relief, and shall have the right to intervene in any
proceeding relating to such relief.

18 U.S.C. § 3626(a)(3)(F) (2000) (emphasis added). The PLRA then

defines a “prisoner release order” to “include[] any order,

including a temporary restraining order or preliminary injunctive

relief, that has the purpose or effect of reducing or limiting

the prison population, or that directs the release from or

nonadmission of prisoners to a prison.” Id. § 3626(g)(4).

Therefore, if the 1999 order (which, as noted above, expressly

continues the September 1994 injunction and “all other temporary

injunctive relief currently in effect”) fits within the

14
definition of a prisoner release order, the statute gives the

State both standing and the right to seek its termination or

oppose its continuation.

The first question we must answer, then, is whether the

injunctions contained or continued in the 1999 order are prisoner

release orders. We find that they are. The September 1994

injunction requires the State to “adopt and implement the

policies necessary to remove the number of state-ready felons

from the custody of Cameron County officials that is necessary to

ensure that Cameron County’s detention facilities are not

populated above design capacity.” Similarly, the October 1997

injunction orders the Sheriff of Cameron County, “if at any time

the population of Cameron County Jail exceeds ninety per cent of

the design capacity,” to “take such of the following actions he

may see fit in order to reduce jail population.” Both of these

injunctions cap the prison population at a particular number of

detainees, which has the “purpose or effect of reducing or

limiting the prison population.”

These types of “population caps” have consistently been

found to meet the definition of a prisoner release order. See

Ruiz v. Estelle, 161 F.3d 814, 825-27 (5th Cir. 1998) (finding

final judgment that set specific population limits on number of

prisoners allowed to be housed in various prisons to be a

prisoner release order), cert. denied, 526 U.S. 1158 (1999); see

also Tyler v. Murphy, 135 F.3d 594, 596 (8th Cir. 1998) (holding

15
that twenty-person cap on probation detainees in a particular

prison was a prisoner release order). In fact, a review of the

legislative history of the PLRA reveals that it was precisely

these types of caps that the statute was created to address.

See 141 CONG. REC. S14413-14414 (daily ed. Sept. 27, 1995)

(statement of Sen. Dole)(“Perhaps the most pernicious form of

judicial micromanagement is the so-called prison population

cap.”).

The September 1994 injunction requires the State to adopt

policies that will keep the population of the Jail at design

capacity. The October 1997 injunction requires the sheriff to

keep the prison at or below ninety-percent capacity. We

therefore find that these injunctions are prisoner release orders

as defined by the PLRA, and therefore, under the PLRA, the State

has the right “to oppose the imposition or continuation in effect

of such relief and to seek termination of such relief.” 18

U.S.C. § 3626(a)(3)(F).

B. Nonparty Standing to Appeal

In addition to this express statutory grant of standing, we

also find that the State possesses sufficient interest in the

litigation to qualify for nonparty standing to appeal. The

plaintiffs argue that the State, as a nonparty, lacks standing to

appeal the 1999 order because the State is no longer a party to

the lawsuit and because the State was not bound or otherwise

16
injured by the injunctions continued in the 1999 order. The

State contends that, even as a nonparty, it has standing to

appeal the order because it adversely affects its interests. We

agree.

Plaintiffs correctly assert the general rule that nonparties

cannot appeal the court’s judgment. See Marino v. Ortiz, 484

U.S. 301, 304 (1988) (“The rule that only parties to a lawsuit,

or those that properly become parties, may appeal an adverse

judgment, is well-settled.”). However, that rule has not been

rigidly adhered to; a nonparty may be allowed to appeal if the

decree affects his interests. As we stated in United States v.

Chagra:

“[I]f the decree affects [a third party’s] interests,
he is often allowed to appeal.” . . . Thus, a non-party
may appeal orders for discovery if he has no other
effective means of obtaining review. Similarly non-
parties have been allowed to appeal orders granting or
denying further disclosure of documents already in the
possession of a court or grand jury. Non-party
creditors who assert rights in receivership proceedings
may appeal orders affecting their legitimate interests.
If an injunction extends to non-parties, they may
appeal from it.

701 F.2d 354, 358-59 (5th Cir. 1983) (alterations in original)

(footnotes and citation omitted); see also United States v.

Kirschenbaum, 156 F.3d 784, 794 (7th Cir. 1998) (“[N]on-parties

who are bound by a court’s equitable decrees have a right to move

to have the order dissolved, . . . and other circuits have held

that where a non-party is purportedly bound by an injunction, the

non-party may bring an appeal rather than face the possibility of

17
a contempt proceeding.”); In re Estate of Ferdinand Marcos Human

Rights Litig., 94 F.3d 539, 544 (9th Cir. 1996) (finding standing

for nonparty where injunction confronted nonparty “with the

choice of either conforming its conduct to the dictates of the

injunction or ignoring the injunction and risking contempt

proceedings”); In re Piper Funds, Inc., Institutional Gov’t

Income Portfolio Litig., 71 F.3d 298, 301 (8th Cir. 1995) (“A

nonparty normally has standing to appeal when it is adversely

affected by an injunction.”). However, allowing nonparties to

appeal a court’s judgment is still a rare exception to the

general rule.

In order to determine if a nonparty may properly appeal,

this court has adopted a three-part test,16 analyzing “whether

16
This test addresses the prudential concerns relevant to
a standing analysis, as opposed to the constitutional
considerations of Article III. See United States v. McVeigh, 106
F.3d 325, 334 n.7 (10th Cir. 1997) (“Article III authority is a
prerequisite to judicial review, however sought. In contrast, a
prudential concern, such as nonparty status, counseling uniquely
or primarily against the propriety of appeal, need not bar a
petition for mandamus review.”). It is unclear if the plaintiffs
have argued that the State lacks Article III standing; however
objections to standing may be raised by an appellate court sua
sponte. See Lang v. French, 154 F.3d 217, 222 n.28 (5th Cir.
1998). “To have standing a plaintiff must establish three
elements: ‘[T]he plaintiff must show that it has suffered an
injury in fact, the plaintiff must establish causation[, and]
there must be redressability.’” Pederson v. La. State Univ., 213
F.3d 858, 869 (5th Cir. 2000). We find the injury in fact
requirement to be satisfied in this instance by the same facts
that demonstrate the State has a “personal stake in the outcome,”
analyzed below. Additionally, we find the causation and
redressability requirements to be satisfied because the
injunctions precipitated the violations and their termination
will end them.

18
‘the non-parties actually participated in the proceedings below,

the equities weigh in favor of hearing the appeal, and the non-

parties have a personal stake in the outcome.’” Searcy v.

Philips Elecs. N. Am. Corp., 117 F.3d 154, 157 (5th Cir. 1997);

EEOC v. La. Office of Cmty. Servs., 47 F.3d 1438, 1442-43 (5th

Cir. 1995); see also Commodity Futures Trading Comm’n v. Topworth

Int’l, Ltd., 205 F.3d 1107, 1113 (9th Cir. 1999) (stating that a

nonparty to the litigation on the merits will have standing to

appeal the decision when the party participated in the

proceedings and the equities favor hearing the appeal); Davis v.

Scott, 176 F.3d 805, 807 (4th Cir. 1999); Krebs Chrysler-

Plymouth, Inc. v. Valley Motors, Inc., 141 F.3d 490, 496 (3d Cir.

1998); Binker v. Commonwealth of Pa., 977 F.2d 738, 745 (3d Cir.

1992).

We find that under this standard, the State is permitted to

appeal the continuance of the injunctions. First, there can be

no question in this instance that the State has been an active

participant in the proceedings. From the time the plaintiffs

first amended their complaint to just two days before the

continuance of the injunctions, the State was a named party to

the proceedings. In fact, the State brought the very motion that

was denied in the order that is being appealed.

Second, the equities weigh in favor of allowing the State to

appeal. Given that the PLRA itself gives the State the right to

seek the termination of injunctive relief, it seems unjust to

19
deny them standing to appeal the denial of that termination.17

Similarly, as the State filed the original motion to terminate

the injunctions, and maintained that position at the July 30

hearing, we find it unfair to continue the injunctions without

permitting the State to appeal the continuation. Therefore, we

conclude that the equities of the situation weigh in favor of

allowing the State to appeal.

Under the third prong, the State must show it has a personal

stake in the outcome.18 We find that it does. First, the

State’s economic interests are implicated. Although the State

had been dismissed as a party, prior to the 1999 order continuing

the injunctions, no changes were made to the September 1994

injunction itself, which requires the State to remove paper-ready

prisoners within forty-five days. In Loyd v. Alabama Department

of Corrections, 176 F.3d 1336, 1341 (11th Cir.), cert. denied,

120 S. Ct. 613 (1999), the Eleventh Circuit held that requiring

17
This is similar to a result we reached in Searcy. In
Searcy, the court found that because Congress granted the
government the right to withhold consent to voluntary
settlements, “it would be odd to preclude appellate remedies
based on the government’s failure to intervene.” Searcy, 117
F.3d at 157.
18
As an example, in Searcy, this court found this prong
satisfied by a settlement stretching to “‘all claims and
counterclaims asserted in any pleading or other filing in this
action . . . arising out of the transactions and occurrences that
are the subject matter of this action.’” Searcy, 117 F.3d at
157. The court determined that the order could arguably be
interpreted to include the government for claim preclusion
purposes, which gave the government a stake in the outcome. Id.
at 158.

20
the state to transfer prisoners from county to state jails within

a specified period of time impacts the economic interests of the

state because it must have facilities available for the transfer.

We agree. Second, should the State violate the September 1994

injunction it risks being found in civil contempt. “‘A party

commits contempt when he violates a definite and specific order

of the court requiring him to perform or refrain from performing

a particular act or acts with knowledge of the court’s order.’”

Travelhost, Inc. v. Blandford, 68 F.3d 958, 961 (5th Cir. 1995)

(citing SEC v. First Fin. Group of Tex., Inc., 659 F.2d 660, 669

(5th Cir. 1981). As the State was a party to the proceedings

when the September 1994 injunction was originally issued, it

could reasonably believe itself at risk of civil contempt if it

violated the injunction, regardless of whether it has since been

dismissed as a party. Therefore, the State has a sufficient

personal stake in the outcome to challenge the continuation of

the September 1994 injunction.

In regard to the October 1997 injunction, even though the

State is not required to perform or refrain from performing any

particular acts by the its terms, we find the State’s sovereign

and quasi-sovereign interests to be implicated. First, the

October 1997 injunction allows the sheriff, in violation of state

law, to refuse to incarcerate state parole violators for whom

blue warrants have been issued. The State has a sovereign

interest in enforcing its laws. See Alfred L. Snapp & Son, Inc.

21
v. Puerto Rico, 458 U.S. 592, 601-02 (1982) (“Two sovereign

interests are easily identified: First, the exercise of sovereign

power over individuals and entities within the relevant

jurisdiction——this involves the power to create and enforce a

legal code, both civil and criminal.”); Tex. Office of Pub. Util.

Counsel v. FCC, 183 F.3d 393, 449 (5th Cir. 1999) (“[S]tates have

a sovereign interest in ‘the power to create and enforce a legal

code.’”) (citing Snapp, 458 U.S. at 601). Because the State has

a sovereign interest in enforcing its laws, it has a personal

stake in appealing the October 1997 injunction that gives the

County discretion to violate those laws.

Second, all of the parties stipulated that there were 289

blue warrant violators who, but for the injunction, would be

required under state law to be housed in the Jail. This

implicates the State’s quasi-sovereign interest in protecting its

citizens from criminal activity. See Snapp, 458 U.S. at 602

(“Quasi-sovereign interests stand apart from [sovereign

interests, proprietary interests, or private interests pursued by

the State as a nominal party] . . . . They consist of a set of

interests that the State has in the well-being of its

populace.”). While we recognize that the concept of quasi-

sovereign standing “risks being too vague to survive the standing

requirements of Article III,” id. at 602, we find the State’s

interest at issue here falls within the category of “a quasi-

sovereign interest in the health and well-being——both physical

22
and economic——of its residents in general.” Id. at 607. As a

result of this injunction, parole violators who should be

incarcerated remain free, potentially increasing the level of

criminal activity. The State has a legitimate interest in

“protect[ing] its citizens from criminal elements.” Nat’l

People’s Action v. Village of Wilmette, 914 F.2d 1008, 1011 (7th

Cir. 1990) (citing Hynes v. Mayor & Council of Borough of

Oradell, 425 U.S. 610, 618 (1976)). This quasi-sovereign

interest also gives the State a personal stake in the outcome of

the appeal.

For the reasons stated above, we find the State satisfies

the three-part standard set out in Searcy and, therefore, has

standing to appeal the 1999 order.

IV. TERMINATION OF RELIEF UNDER § 3626(b)

The PLRA “establishes standards for the entry and

termination of prospective relief in civil actions challenging

prison conditions.” Miller v. French, 120 S. Ct. 2246, 2250

(2000). The PLRA both “narrowly limits the relief a court may

order in prisoner suits,” Ruiz v. Estelle, 161 F.3d 814, 817

(1998), cert. denied, 526 U.S. 1158 (1999), and “authorizes the

termination of existing prospective relief that does not comply

with these limits.” Id.

23
 Regarding termination of prospective relief,19 the PLRA

distinguishes between immediately terminable relief and relief

that is terminable after a specified period of time has passed.

The requirements for the former are set out in § 3626(b)(2):

In any civil action with respect to prison conditions,
a defendant or intervener shall be entitled to the
immediate termination of any prospective relief if the
relief was approved or granted in the absence of a
finding by the court that the relief is narrowly drawn,
extends no further than necessary to correct the
violation of the Federal right, and is the least
intrusive means necessary to correct the violation of
the Federal right.

Id. § 3626(b)(2). The requirements for the latter are set out in

§ 3626(b)(1):

(A) In any civil action with respect to prison
conditions in which prospective relief is ordered, such
relief shall be terminable upon the motion of any party
or intervener——
(i) 2 years after the date the court granted or
approved the prospective relief;
(ii) 1 year after the date the court has entered
an order denying termination of prospective relief
under this paragraph; or
(iii) in the case of an order issued on or before
the date of enactment of the Prison Litigation
Reform Act, 2 years after such date of enactment.

Id. § 3626(b)(1). However, both of these termination provisions

are subject to the limitation of § 3626(b)(3), which provides

that

Prospective relief shall not terminate if the court
makes written findings based on the record that

19
The PLRA defines “prospective relief” as “all relief
other than compensatory monetary damages.” 18 U.S.C.
§ 3626(g)(7). The relief contained in the injunctions is,
therefore, considered prospective relief.

24
 prospective relief remains necessary to correct a
current and ongoing violation of the Federal right,
extends no further than necessary to correct the
violation of the Federal right, and that the
prospective relief is narrowly drawn and the least
intrusive means to correct the violation.

18 U.S.C. § 3626(b)(3).

To determine whether the district court erred in its

decision to continue the September 1994 injunction and the 1997

injunction, we must first ascertain if the injunctions were

terminable under either § 3626(b)(1) or § 3626(b)(2) and, if so,

decide whether the requirements to continue the relief mandated

by § 3626(b)(3) were met.

A. The Injunctions Are Terminable Under § 3626(b)(1)

The State contends that both the September 1994 injunction

and the 1997 injunction were entered without the findings

required by § 3626(b)(2) and that, therefore, it is entitled to

immediate termination of the prospective relief. Additionally,

it argues that it is entitled to termination under § 3626(b)(1),

because more than two years have elapsed since the district court

granted the prospective relief. Therefore, the State asserts

that the district court erred in refusing to terminate the

injunctions because it was required to do so, unless the court

made the written findings based on the record required by

§ 3626(b)(3), which it did not do. Specifically, the State

claims that the record does not support the court’s finding that

25
the injunctions (1) were necessary to remedy a “current and

ongoing” violation of a federal right, (2) were narrowly drawn,

and (3) were the least intrusive means necessary to correct the

violation of the federal right (the “§ 3626(b)(3) findings”).

The plaintiffs assert that not only were the § 3626(b)(2)

findings made when the district court granted the September 1994

injunction and the 1997 injunction, but that, even if they were

not, the district court, in its 1999 order, made the § 3626(b)(3)

findings that allow the court to continue the relief.

We need not determine whether it was necessary for the

district court to expressly make the § 3626(b)(2) findings or if

the findings may be implied from the court’s judgment because we

find that both the September 1994 injunction and the 1997

injunction fall squarely within the termination provision of

§ 3626(b)(1)(iii) as more than two years have passed since the

enactment of the PLRA. Even though the injunctions at issue were

granted prior to the enactment of the PLRA, the termination

provisions of § 3626(b)(1) still apply. When enacting the PLRA,

Congress specifically provided that “‘[Section 3626] shall apply

with respect to all prospective relief whether such relief was

originally granted or approved before, on, or after the date of

the enactment of this title.’” Martin v. Hadix, 527 U.S. 343,

355 (1999) (alteration in original) (quoting § 802(b)(1), note

following 18 U.S.C. § 3626 (1994 ed., Supp. III)). Additionally,

the provision itself provides that “in the case of an order

26
issued on or before the date of enactment of the Prison

Litigation Reform Act, [such relief shall be terminable upon the

motion of any party or intervener] 2 years after such date of

enactment.” 18 U.S.C. § 3626(b)(1)(iii). The PLRA was enacted

on April 26, 1996, and the State, at the time a party to the

proceeding, filed its motion for termination on May 3, 1999, more

than three years later. Therefore, the relief is terminable

unless the findings set out in § 3626(b)(3) are made.

B. The Record Inadequately Supports the District Court’s Need-

Narrowness Findings

Section 3626(b)(3) provides that prospective relief will not

terminate if the court “makes written findings based on the

record” that (1) “prospective relief remains necessary to correct

a current and ongoing violation of the Federal right,” (2)

“extends no further than necessary to correct the violation of

the Federal right,” and (3) “that the prospective relief is

narrowly drawn and the least intrusive means to correct the

violation.” 18 U.S.C. § 3626(b)(3).

We first note that a “current and ongoing” violation is one

that “exists at the time the district court conducts the

§ 3626(b)(3) inquiry.” Cason v. Seckinger, 231 F.3d 777, 784

(11th Cir. 2000); see also Hadix v. Johnson, 228 F.3d 662 (6th

Cir. 2000)(stating that “the PLRA directs a district court to

look to current conditions”); Benjamin v. Jacobson, 172 F.3d 144,

27
166 (2d Cir. 1999) (“Evidence presented at a prior time, however,

could not show a violation that is ‘current and ongoing.’ Hence,

the ‘record’ referred to cannot mean the prior record but must

mean a record reflecting conditions at the time termination is

sought.”); Imprisoned Citizens Union v. Ridge, 169 F.3d 178, 190

(3d Cir. 1999) (“Mere speculation that Defendants might refuse to

honor alleged contractual obligations is insufficient to support

a finding of ‘current and ongoing violations of [a] Federal

right.’” (alteration in original)).20

20
Although the Eleventh Circuit in Parrish v. Alabama
Department of Corrections, 156 F.3d 1128, 1129 (11th Cir. 1998)
questioned whether an interpretation that “because no
constitutional violations exist at the jail right now, no
‘current and ongoing’ violation can exist” was incorrect because
“it could blind courts to violations of federal rights that a
court might reasonably expect to recur soon if the injunction is
dissolved,” it too recently concluded that “current and ongoing”
means “a presently existing violation, not a potential, or even
likely, future violation.” Cason v. Seckinger, 231 F.3d 777, 784
(11th Cir. 2000). The Eleventh Circuit found determinative, as
we do, the legislative history of the enactment. The phrase
“current and ongoing” was originally enacted as “current or
ongoing”; it was amended in 1997. As the conference report
explaining the significance of the change states:

These dual requirements [of a current and an ongoing
violation] are necessary to ensure that court orders do
not remain in place on the basis of a claim that a
current condition that does not violate prisoners’
Federal rights nevertheless requires a court decree to
address it, because the condition is somehow traceable
to a prior policy that did violate Federal rights, or
that government officials are “poised” to resume a
prior violation of Federal rights. If an unlawful
practice resumes or if a prisoner is in imminent danger
of a constitutional violation, the prisoner has prompt
and complete remedies through a new action filed in
State or Federal court and preliminary injunctive
relief.

28
 Therefore, in order to make the required finding of a

current and ongoing violation of a Federal right required by

§ 3626(b)(3) a court must look at the conditions in the jail at

the time termination is sought, not at conditions that existed in

the past or at conditions that may possibly occur in the future,

to determine if there is a violation of a federal right.

Additionally, the court must also, based on the record, make the

other findings required by § 3626(b)(3). “The court must make

new findings about whether the relief currently complies with the

need-narrowness-intrusiveness requirements, given the nature of

the current violations. It is not enough under § 3626(b)(3) that

the orders, when entered, were sufficiently narrow considering

the violations that existed at that time.” Cason, 231 F.3d at

784-85. This

requir[es] particularized findings, on a provision-by-
provision basis, that each requirement imposed by the
consent decrees satisfies the need-narrowness-
intrusiveness criteria, given the nature of the current
and ongoing violation. It is not enough to simply
state in conclusory fashion that the requirements of
the consent decrees satisfy those criteria.
Particularized findings, analysis, and explanations
should be made as to the application of each criteria
to each requirement imposed by the consent decrees.

Id. We agree with this analysis.

In its 1999 order continuing relief, the district court

found

H.R. CONF. REP. NO. 105-405, at § 123 (1997), 1997 WL 712946 (Leg.
Hist.), at *301.

29
 that prospective relief . . . remains necessary to
correct and prevent a current and ongoing violation of
the Class Plaintiffs’ Federal Constitutional Rights,
that the temporary injunction extends no further than
necessary to correct the violation of the Class
Plaintiffs’ Federal Constitutional Rights, and that the
temporary injunction is narrowly drawn and is the least
intrusive means to correct the violation.

As a basis for these findings, the court

considered the arguments made by all counsel at the
hearing on July 27, 1999, the stipulation made by all
parties, including the [sic] Daniel Maeso who
represents the State of Texas, that there [sic] at
least 289 Blue Warrant persons in Cameron County and
that the Cameron County Jail would be well over 100%
capacity of [sic] these 289 Blue Warrant persons were
incarcerated in that jail, the stipulation filed by
Cameron County and Plaintiffs on July 29, 1999 and the
Affidavit of Captain Luis Esparza. The Court also
takes judicial notice of all evidence previously
presented in this case.

Although the language in the 1999 order tracks the requirements

of § 3626(b)(3), it does not reach the needed level of

particularized findings based on the conditions in the jail at

the time termination was requested that is required by

§ 3626(b)(3). Additionally, there is simply not enough evidence

in the record to support the requisite findings.

The only evidence in the record relevant to whether a

“current and ongoing” violation of a federal right exists, is

that there are 289 Blue Warrant persons outstanding who would put

the Jail over design capacity if they were arrested. There are

two reasons that this is insufficient to support the finding of a

“current and ongoing” constitutional violation. First, although

overcrowding may give rise to unconstitutional conditions,

30
overcrowding itself is not per se unconstitutional. See Rhodes

v. Chapman, 452 U.S. 337, 347-50 (1981). Second, this threat of

overcrowding was based on a prediction of future activity. See,

e.g., Watson v. Ray, 192 F.3d 1153, 1158 (8th Cir. 1999)

(“[A]ppellant could only point to ‘the looming threat of

potential overcrowding’ but did not produce any evidence to

support a finding that this threat constitutes a ‘current and

ongoing violation’ under the PLRA.”).

Moreover, there was no evidence in the 1999 order or in the

record of any analysis or explanation as to the other findings

required by 18 U.S.C. § 3626(b)(3). For example, we would expect

the court to consider other alternatives before reaching the

conclusion that these injunctions “extend[] no further than

necessary to correct the violation of the Federal right,” 18

U.S.C. § 3626(b)(3), and are “narrowly drawn and the least

intrusive means to correct the violation.” Id.

However, as we note that the record before us contains

almost no evidence regarding current conditions in the Jail and

that all parties offered to present additional evidence on these

issues at the July 27 hearing, we conclude that the best course

of action is to remand this case to the district court to hold an

evidentiary hearing on whether the relief meets the requirements

of § 3626(b)(3).

31
 V. ENTRY OF PROSPECTIVE RELIEF UNDER § 3626(a)

In addition to arguing that the injunctions should be

terminated pursuant to the §§ 3626(b)(1) and (b)(2) termination

provisions of the PLRA, the State also argues that the September

1994 injunction, the 1997 injunction, and the 1999 order should

be terminated because they violate the requirements of

§ 3626(a)(3), which sets out the criteria for the entry of

prisoner release orders (including the requirement for a three-

judge court), and § 3626(a)(1)(B), which sets out the conditions

under which a court can enter prospective relief that allows a

government official to violate state law.21

In regard to the entry of prisoner release orders, the

relevant provisions of § 3626(a)(3) provide:

(A) In any civil action with respect to prison
conditions, no court shall enter a prisoner release
order unless–
(i) a court has previously entered an order for less
intrusive relief that has failed to remedy the
deprivation of the Federal right sought to be remedied
through the prisoner release order; and
(ii) the defendant has had a reasonable amount of time
to comply with the previous court orders.

21
The plaintiffs contend that because these arguments
were not made in the State’s initial motion to terminate the
September 1994 injunction, consideration of the issues is
precluded. We disagree. “No ‘bright-line rule’ exists for
determining whether a matter was raised below.” N.Y. Life Ins.
Co. v. Brown, 84 F.3d 137, 142 n.14 (5th Cir. 1996). The State
made these arguments in its “Advisory to the Court” filed on June
28, 1999, and these issues were debated at the July 27 hearing,
without objection by any party. Therefore, we hold that these
issues were adequately raised in the district court and we may
consider them on appeal.

32
 (B) In any civil action in Federal court with respect
to prison conditions, a prisoner release order shall be
entered only by a three-judge court in accordance with
section 2284 of title 28, if the requirements of
subparagraph (E) have been met.

18 U.S.C. § 3626(a)(3)(A), (B) (emphasis added). As discussed

above, we have already found the September 1994 injunction and

the 1997 injunction to fit within the PLRA’s definition of

prisoner release orders. Therefore, we must determine how this

provision of the PLRA affects the September 1994 injunction, the

1997 injunction, and the 1999 order.

The State also argues that the September 1994 injunction,

the 1997 injunction, and the 1999 order should be terminated

because they permit the sheriff of Cameron County to refuse to

accept parole violators, in violation of § 3626(a)(1)(B).

Section 3626(a)(1)(B) provides:

The court shall not order any prospective relief that
requires or permits a government official to exceed his
or her authority under State or local law or otherwise
violates State or local law, unless–
(i) Federal law requires such relief to be ordered in
violation of State or local law;
(ii) the relief is necessary to correct the violation
of a Federal right; and
(iii) no other relief will correct the violation of a
federal right.

Id. § 3626(a)(1)(B) (emphasis added). The parties do not dispute

that permitting the Cameron County sheriff to decline to accept

“blue warrant” parole violators into the jail constitutes a

violation of state law. Therefore, we must determine how this

33
provision of the PLRA impacts the existing injunctions and the

1999 order.

While we agree that the PLRA was intended to apply to

injunctions existing at the time the PLRA was enacted, we do not

agree that the PLRA requires termination of pre-PLRA injunctions

that did not meet the requirements of §§ 3626(a)(1)(B) and

(a)(3). As discussed above, when enacting the PLRA, Congress

specifically provided that “‘[Section 3626] shall apply with

respect to all prospective relief whether such relief was

originally granted or approved before, on, or after the date of

the enactment of this title.’” Martin v. Hadix, 527 U.S. 343,

355 (1999) (alteration in original) (quoting § 802(b)(1), note

following 18 U.S.C. § 3626 (1994 ed., Supp. III)).

“‘In interpreting a statute, our objective is to give effect

to the intent of Congress. As always, we begin with the language

of the statute itself.’” Ruiz v. Estelle, 161 F.3d 814, 819 (5th

Cir. 1998) (quoting Stiles v. GTE Southwest Inc., 128 F.3d 904,

907 (5th Cir. 1997)). Here, the language of the provisions at

issue indicates that they apply only when the court is entering

relief. Section 3626(a)(1)(B) begins: “The court shall not order

any prospective relief.” 18 U.S.C. § 3626(a)(1)(B). Similarly,

the language in § 3626(a)(3) provides: “No court shall enter a

prisoner release order unless. . . .” Id. (a)(3). Relying on

the language of the statutes, we conclude that they do not apply

when relief was entered prior to the enactment of the PLRA. The

34
Court of Appeals for the Seventh Circuit agrees. See Berwanger

v. Cottey, 178 F.3d 834, 836 (7th Cir. 1999) (“To the extent this

request was based on 18 U.S.C. § 3626(a)(3), which establishes

special requirements for prisoner release orders, it was

unfounded. The orders in question long predate § 3626 . . . .

The district court did not ‘enter’ any order in violation of the

PLRA.”).

In sum, although the PLRA applies to injunctions existing at

the time of its enactment, §§ 3626 (a)(1)(B) and (a)(3) apply

when relief is entered, whether that occurs by entering new

relief or by modifying existing relief. Therefore, the September

1994 injunction and the 1997 injunction cannot be terminated for

failure to comply with §§ 3626(a)(1)(B) and (a)(3) because they

predated the PLRA and do not constitute the entering of relief.

Similarly, the district court, in entering the 1999 order, did

not enter new relief, but simply denied the State’s motion to

terminate the existing relief. Although the court did expressly

state that it was continuing the relief, that language is a mere

truism – it did no more than state what would happen by operation

of law once the motion to terminate the relief was denied. No

changes or modifications to the injunctions in place were made.

Additionally, we note that “[i]t is generally presumed that

Congress acts intentionally and purposely when it includes

particular language in one section of a statute but omits it in

another.” BFP v. Resolution Trust Corp., 511 U.S. 531, 537

35
(1994) (brackets, internal quotation marks, and citation

omitted). Congress did not explicitly state that failure to

comply with these particular provisions is a ground for

termination of relief. In contrast, in § 3626(b), Congress did

provide that failure comply with other provisions of the PLRA

would be grounds for termination of relief. See 18 U.S.C.

§ 3626(b)(2). In fact, § 3626(b)(2), which provides for

immediate termination of relief if particular findings were not

made when the prospective relief at issue was entered, contains

almost the exact same findings criteria as § 3626(a)(1), which

sets out the requirements for the granting of prospective relief.

If Congress had intended that injunctions issued before the

enactment of the PLRA were to be terminated for failure to comply

with the requirements of §§ 3626(a)(1)(B) and (a)(3), it would

have so provided. Therefore, we find that the September 1994

injunction, the 1997 injunction, and the 1999 order are not

terminable for failure to comply with those sections.

VI. CONCLUSION

On remand the district court must first determine if a

continuing and ongoing constitutional violation exists, and, if

so, whether the remaining requirements of § 3626(b)(3) are met.

However, we note that any modification of the existing relief

that constituted the entry of new relief would need to meet the

requirements set out in § 3626(a). Additionally, should the

36
existing relief be terminated for failure to meet the

requirements of § 3626(b)(3), the plaintiffs are entitled to seek

new prospective relief, but that relief must also meet the

standards set forth in § 3626(a). The district court should

conduct the required hearing and rule on termination as promptly

as possible.

Therefore, we VACATE the 1999 order and REMAND the case for

further proceedings consistent with this opinion.

37