Case: 18-11368 Document: 00516159071 Page: 1 Date Filed: 01/07/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
January 7, 2022
No. 18-11368 Lyle W. Cayce
Clerk
Shannon Daves; Shakena Walston; Erriyah Banks;
Destinee Tovar; Patroba Michieka; James Thompson, On
Behalf of Themselves and All Others Similarly Situated; Faith in Texas;
Texas Organizing Project Education Fund,
Plaintiffs—Appellants Cross-Appellees,
versus
Dallas County, Texas; Ernest White, 194th; Hector
Garza, 195th; Raquel Jones, 203rd; Tammy Kemp, 204th;
Jennifer Bennett, 265th; Amber Givens-Davis, 282nd;
Lela Mays, 283rd; Stephanie Mitchell, 291st; Brandon
Birmingham, 292nd; Tracy Holmes, 363rd; Tina Yoo
Clinton, Number 1; Nancy Kennedy, Number 2; Gracie
Lewis, Number 3; Dominique Collins, Number 4; Carter
Thompson, Number 5; Jeanine Howard, Number 6; Chika
Anyiam, Number 7 Judges of Dallas County, Criminal
District Courts,
Defendants—Appellees Cross-Appellants,
Marian Brown; Terrie Mcvea; Lisa Bronchetti; Steven
Autry; Anthony Randall; Janet Lusk; Hal Turley,
Dallas County Magistrates; Dan Patterson, Number 1;
Julia Hayes, Number 2; Doug Skemp, Number 3; Nancy
Mulder, Number 4; Lisa Green, Number 5; Angela King,
Number 6; Elizabeth Crowder, Number 7; Carmen White,
Number 8; Peggy Hoffman, Number 9; Roberto Canas, Jr.,
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Number 10; Shequitta Kelly, Number 11 Judges of Dallas
County, Criminal Courts at Law,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-154
Before Owen, Chief Judge, and Jones, Smith, Stewart, Dennis,
Elrod, Southwick, Haynes, Graves, Higginson, Costa,
Willett, Ho, Duncan, Engelhardt, and Wilson, Circuit
Judges. *
Leslie H. Southwick, Circuit Judge, joined by Owen, Chief Judge, †
and Jones, Smith, Elrod, Ho, Duncan, Engelhardt, and
Wilson, Circuit Judges:
This opinion partially resolves an interlocutory appeal of a preliminary
injunction. Not everything in this opinion is unfinished, though. Two rulings
now are to VACATE the preliminary injunction and REMAND for limited
purposes. Our final resolution of remaining issues will follow the remand.
The United States District Court, Northern District of Texas,
certified this suit as a class action challenging the bail system in Dallas
County, Texas. According to the Plaintiffs, indigent arrestees are subjected
to an unconstitutional “system of wealth-based detention.” The claimed
constitutional violation is that secured money bail is imposed without
procedural safeguards or substantive findings that less intrusive conditions of
release are inadequate to meet the state’s interests in pretrial detention.
*
Judge Oldham was recused and did not participate.
†
Chief Judge Owen joins all except Parts I.D. and II.C., which pretermit issues
regarding the Sheriff.
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Our decision today does not reach the merits. We are at an earlier and
required stage in the analysis applicable to litigation in federal court. Are
there appropriate parties in the case to allow the validity of bail practices in
Dallas County to be determined? Does a legal doctrine apply that instructs
federal courts not to intervene? Members of this court have different
understandings on how to resolve these threshold issues, but the importance
of the Plaintiffs’ claims is not among the disputes. Separate opinions can at
times seem to be talking past each other. All of us have sought to avoid that.
The district court issued a preliminary injunction that required
“notice, an opportunity to be heard and submit evidence within 48 hours of
arrest, and a reasoned decision by an impartial decision-maker.” Daves v.
Dallas Cnty., 341 F. Supp. 3d 688, 697 (N.D. Tex. 2018) (quoting ODonnell v.
Harris Cnty., 892 F.3d 147, 163 (5th Cir. 2018)). Almost all parties exercised
their right to bring interlocutory appeals or cross-appeals. See 28 U.S.C.
§ 1292(a)(1). A panel of this court affirmed most of the injunctive relief but
disagreed with certain terms of the injunction and with holdings regarding
which of the Defendants would be subject to the injunction. Daves v. Dallas
Cnty., 984 F.3d 381 (5th Cir. 2020). That opinion was withdrawn as a result
of the court’s voting to rehear the appeal en banc. Daves v. Dallas Cnty., 988
F.3d 834 (5th Cir. 2021).
The district court issued the injunction without first ruling on several
motions that presented significant threshold questions, including abstention,
judicial and legislative immunity, and standing. Pretermitting rulings on the
motions may have resulted from the district court’s understanding that our
ODonnell precedents had already rejected similar arguments.
Some of those preliminary questions need answers now. We have
authority to address them even when jurisdiction for the appeal is derived
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from a ruling on an injunction motion if the answers have significant bearing
on that ruling:
Appellate consideration of interlocutory injunction
appeals under § 1292(a)(1) ordinarily focuses on the injunction
decision itself, but the scope of appeal is not rigidly limited.
Even with respect to preliminary injunction decisions, other
matters may be inextricably bound up with the decision or may
be considered in the wise administration of appellate resources.
16 Charles Alan Wright et al., Federal Practice and
Procedure § 3921.1 (3d ed. Apr. 2021 update); see Association of Co-op.
Members, Inc. v. Farmland Indus., Inc., 684 F.2d 1134, 1138 (5th Cir. 1982).
We agree with a sister circuit that, on the appeal from a preliminary
injunction, issues relating to whether there is a proper suit at all can be
decided, such as the existence of subject-matter and personal jurisdiction and
questions regarding abstention. Iantosca v. Step Plan Servs., Inc., 604 F.3d 24,
31 (1st Cir. 2010). One of our precedents explained that point but in more
general terms: “Ordinarily the scope of appellate review under § 1292(a)(1)
is confined to the issues necessary to determine the propriety of the
interlocutory order itself.” Janvey v. Alguire, 647 F.3d 585, 603–04 (5th Cir.
2011) (quoting 16 Charles Alan Wright et al., Federal
Practice and Procedure § 3921.1 (2d ed. 2011)).
In summary, our appellate role is to review what the district court has
done, but on certain potentially determinative issues, the district court has
yet to rule. We conclude it is possible on this record and briefing to make
limited holdings now about whether any defendant was acting on behalf of
Dallas County and about standing. As to abstention, though, briefing exists
but is cursory. We order a limited remand for the district court to conduct
such proceedings as it finds appropriate and decide whether abstention is
required. Once that decision is made, we will complete our review.
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FACTUAL AND PROCEDURAL BACKGROUND
In January 2018, 6 indigent individuals arrested for misdemeanor or
felony offenses in Dallas County filed a class action under 42 U.S.C. § 1983
against Dallas County; 17 Dallas County District Court and Criminal District
Court Judges (“District Judges”), who handle felony cases; 11 Dallas County
Criminal Court at Law Judges (“County Judges”), who handle
misdemeanors; 6 of the Dallas County Magistrate Judges; 1 and the Sheriff of
Dallas County. 2 The Plaintiffs allege that indigent arrestees in Dallas County
are jailed without sufficient procedural safeguards and substantive findings
that would justify detention. The claimed necessary findings are that less
intrusive conditions of release are inadequate to meet the state’s interests in
pretrial detention. Based on those allegations, the Plaintiffs claim that the
Defendants violate the Plaintiffs’ Fourteenth Amendment rights to
procedural due process, equal protection, and substantive due process.
Along with the complaint, the Plaintiffs filed a motion for class
certification and one for a preliminary injunction. The requested preliminary
1
Although Texas law authorizes both District Judges and County Judges to appoint
Magistrate Judges, Tex. Gov’t Code § 54.301, the federal district court found that the
six defendant Magistrate Judges were appointed by the District Judges, report directly to
them, and are subject to their policies and guidance. Daves, 341 F. Supp. 3d at 691. The
court found that these Magistrate Judges do not report to the County Judges, but they do
routinely follow the guidance and policies the County Judges create. Id.
2
Along with so much else in this case, the details of the Plaintiffs’ claims against each
defendant are complicated. First, the Plaintiffs sued Dallas County as a municipal
corporation for declaratory and injunctive relief. Second, they sued the Sheriff in her
official capacity for declaratory and injunctive relief. Third, they sued the County Judges
in their individual and official capacities for injunctive and declaratory relief. Fourth, they
sued the District Judges in their individual and official capacities for injunctive and
declaratory relief. Fifth, they sued the Magistrate Judges “for declaratory relief only,” and
did not indicate whether they sued the Magistrate Judges in their individual capacities,
official capacities, or both.
5
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injunction would prohibit Dallas County “from enforcing its wealth-based
pretrial detention system” and require it “to provide the procedural
safeguards and substantive findings that the Constitution requires before
preventatively detaining any presumptively innocent individuals.”
Early in the suit, the Defendants filed motions to dismiss due to a lack
of jurisdiction, raising threshold defenses, and rejecting the case’s merits.
Among other points, Dallas County, the Sheriff, and the Magistrate Judges
argued that none of the Defendants is a county policymaker sufficient for
municipal liability. The District Judges argued that the Plaintiffs lack
standing. The County Judges argued for abstention under Younger v. Harris,
401 U.S. 37 (1971), an argument incorporated by the District Judges and
Magistrate Judges. No explicit ruling on the motions was made.
Central to this suit is that the District Judges in Dallas County
promulgated a bail schedule for felony arrestees, which took effect in
February 2017. In April 2017, the County Judges promulgated a bail schedule
for misdemeanor arrestees. The district court explained that “[t]hese
schedules operate like a menu, associating various ‘prices’ for release with
different types of crimes and arrestees.” Daves, 341 F. Supp. 3d at 692.
Although the District Judges and County Judges insist that these schedules
are non-binding recommendations, 3 the district court found that the
“Magistrate Judges routinely treat these schedules as binding when
determining bail” and that “[t]he schedules are the policy of Dallas
3
The felony bail schedule is labeled “Recommended Bond Schedule.” The felony bail
schedule also states: “These are recommended amounts. Bonds may be set higher or lower
than the amounts shown if justified by the facts of the case and the circumstances of the
defendant.” The misdemeanor bail schedule is labeled as “Dallas County Criminal Courts
Revised Misdemeanor Bond Guidelines.” It instructs Magistrate Judges that they “may
set a bond in proportion to the facts of the alleged offense after evaluating the special
circumstances concerning each offense.”
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County.” Id. The Dallas County Sheriff implements Magistrate Judges’
detention decisions at the facility where arrestees are detained. Id. at 691.
Soon after this suit was filed, this court issued opinions in an appeal
from a preliminary injunction in a nearly identical challenge to the system of
setting bail for misdemeanor arrestees in Harris County (in which Houston
is located). See ODonnell v. Harris Cnty., 882 F.3d 528 (5th Cir. 2018),
withdrawn and superseded on panel reh’g, 892 F.3d 147 (5th Cir. 2018)
(ODonnell I); see also ODonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018)
(ODonnell II). The analysis in those opinions largely controlled, necessarily
so, what the district court concluded in the present suit.
After the first opinion in ODonnell, the district court in this case had
a hearing on the Plaintiffs’ motion for a preliminary injunction. A month
later, the court issued a memorandum opinion and entered an injunction in a
separate order. The same day, the court also issued a memorandum opinion
and order granting the Plaintiffs’ motion for class certification, permitting
the Plaintiffs to proceed on behalf of themselves and “[a]ll arrestees who are
or will be detained in Dallas County custody because they are unable to pay a
secured financial condition of release.”
The district court held that this case was materially indistinguishable
from ODonnell I, thereby accepting the ODonnell I court’s legal conclusions
as controlling for this case. Daves, 341 F. Supp. 3d at 691. The only threshold
issue the court discussed was policymaking authority for municipal-liability
purposes. Id. at 693. It did not make any holdings as to whether the Plaintiffs
have standing, whether any Defendants were entitled to sovereign immunity,
or whether to abstain under Younger.
The district court found that the bail system in Dallas County results
in automatic detention for indigent arrestees that can last for months “solely
because an individual cannot afford the secured condition of release,” i.e.,
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money bail. Id. Consequently, the district court held that the Plaintiffs
demonstrated a likelihood of success on their procedural-due-process and
equal-protection claims. Id. at 694–95. It rejected the Plaintiffs’ claim that
substantive due process requires a finding that no less intrusive condition of
release would meet the state’s interests in pretrial detention. Id. at 695–96.
The court then issued an injunction. Understandably, it was nearly
identical to the ODonnell court’s injunction. The County Judges and District
Judges, along with Dallas County, were made subject to the injunction; the
injunction stated, though, that no relief against the judges was granted “in
their judicial or legislative capacities.” The injunction required Dallas
County to provide “an adequate process for ensuring there is individual
consideration for each arrestee of whether another amount or condition
provides sufficient sureties.” Without being enjoined, the Sheriff was
“authorized to decline to enforce orders requiring payment of prescheduled
bail amounts as a condition of release . . . if the orders are not accompanied
by a record showing that the required individual assessment was made and an
opportunity for formal review was provided.”
The Plaintiffs, Dallas County, and the District Judges, each filed
notices of appeal. 4 There was no appeal by the Magistrate Judges. Our panel
opinion made some revisions to the injunction, but, bound by the ODonnell
opinions, we affirmed in most part. See Daves v. Dallas Cnty., 984 F.3d 381
4
Dallas County, the County Judges, the Magistrate Judges, and the Sheriff were
represented by the same counsel in the district court. Counsel for those Defendants filed
a single notice of appeal indicating that “Defendant Dallas County, Texas,” was appealing
to this court. In appellate briefing, this counsel argued that Dallas County, the County
Judges, and the Sheriff had no liability, but there is no argument specifically relating to the
Magistrate Judges. The District Judges have been represented separately by the State of
Texas.
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(5th Cir. 2020), vacated on petition for reh’g en banc, 988 F.3d 834 (5th Cir.
2021). Of course, we are now considering the appeal en banc.
After the May 2021 en banc oral argument, legislation was enacted that
created new rules for the imposition of bail. See Act of August 31, 2021, 87th
Tex. Leg. 2d C.S., S.B. 6. We asked for supplemental letter briefs addressing
this legislation. The Plaintiffs responded that the procedures for imposing
bail on indigent pretrial arrestees remain constitutionally infirm, while
Defendants argued that the new law makes it even clearer that the standards
and procedures for imposition of pretrial bail are state-law matters. All we
decide at this point is that the new legislation does not eliminate the need for
us to analyze the threshold issues that follow. We will, though, also remand
to the district court the initial resolution of the effect of this Senate Bill 6.
DISCUSSION
The district court issued the preliminary injunction without making
explicit holdings about justiciability or Younger abstention. In fairness, the
district court might reasonably have assumed that our then-recent opinions
concerning Harris County bail practices had answered those questions. As
an en banc court, we see a need to analyze those issues afresh in this context
of suits regarding county bail practices.
Deciding if a case should be allowed to proceed in federal court at all
is an issue that should not be postponed indefinitely. A federal “court has a
continuing obligation to assure itself of its own jurisdiction, sua sponte if
necessary.” Green Valley Spec. Util. Dist. v. City of Schertz, 969 F.3d 460, 480
(5th Cir. 2020) (en banc). Our only question about analyzing these threshold
questions concerns timing. We have decided the time is now for considering
justiciability and abstention.
We must resolve jurisdictional questions before reaching the merits of
the case, but “there is no mandatory ‘sequencing of jurisdictional issues.’”
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Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)
(quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584 (1999)). Even
though not a jurisdictional issue, a court may “abstain under Younger v.
Harris, 401 U.S. 37 (1971), without deciding whether the parties present a
case or controversy.” Ruhrgas, 526 U.S. at 585. In addition, our sequencing
of issues is affected by the fact this opinion is preliminary to and is intended
to guide a limited remand. In other words, we do not resolve all jurisdictional
and abstention issues at this time. We also consider it appropriate to analyze
now whether any of the defendant officials were acting on behalf of Dallas
County on bail matters. If none of them were, then there is no subject-matter
jurisdiction under Section 1983 against the County, as it is only through the
actions of these defendant officials that the County itself could be liable to
the Plaintiffs.
We will proceed in this order: (1) Were any Defendants acting on
behalf of Dallas County? (2) Do the Plaintiffs have standing to seek relief
against any of the Defendants? (3) Do Younger abstention principles prohibit
federal judicial intervention in the Dallas County bail system?
I. Were any Defendants acting on behalf of Dallas County?
Section 1983, which is the current version of Section 1 of the Civil
Rights Act of 1871, allows suits against any “person” for violation of federal
rights. Municipalities, which include counties and certain other local
governmental bodies, are “persons” under Section 1983. Monell v.
Department of Soc. Servs., 436 U.S. 658, 690 & n.54 (1978). Suit may properly
be brought against “those officials or governmental bodies who speak with
final policymaking authority for the local governmental actor concerning the
action alleged to have caused the particular constitutional or statutory
violation at issue.” Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989).
States and their officials are not “persons” under Section 1983. Will v.
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Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Whether state
sovereign immunity as signified by the Eleventh Amendment applies to bar
suit and whether an official is acting for the state and thus exempt from suit
under Section 1983 involve different analyses. Id. at 66. Both of those
questions are asked in this case.
Between those two related questions, the one we should answer before
a remand is whether any of the officials are “persons” for purposes of Section
1983. That question is particularly relevant now because if all the Defendants
were acting for the State, there is no case or controversy with, and no Article
III jurisdiction over, Dallas County. Despite that we will not resolve any
Eleventh Amendment issues now, we will briefly contrast the analysis we
would use for those issues to that we will use in our Section 1983 inquiry.
For Eleventh Amendment immunity purposes, we apply these factors
when deciding if a governmental body acts for the state:
1. Whether the state statutes and case law view the agency as
an arm of the state; 2. The source of the entity’s funding; 3.
The entity’s degree of local autonomy; 4. Whether the entity
is concerned primarily with local as opposed to statewide
problems; 5. Whether the entity has the authority to sue and be
sued in its own name; and 6. Whether the entity has the right
to hold and use property.
Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999) (line breaks
removed). 5 We have stated that the source of funding is the most important
factor in the Eleventh-Amendment analysis. Id. at 686–87. That importance
5
Though the Hudson factors are not controlling on our issue, we mention that the state is
required to provide funding to counties for judicial salaries: “Beginning on the first day of
the state fiscal year, the state shall annually compensate each county in an amount equal to
60 percent of the state base salary paid to a district judge . . . for each statutory county court
judge” who meets certain requirements. Tex. Gov’t Code § 25.0015.
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followed inexorably from our earlier analysis that “[t]he Eleventh
Amendment was fashioned to protect against federal judgments requiring
payment of money that would interfere with the state’s fiscal autonomy and
thus its political sovereignty.” Jagnandan v. Giles, 538 F.2d 1166, 1176 (5th
Cir. 1976). Ten years later, we identified the six factors that would be
concisely restated in Hudson. See Clark v. Tarrant Cnty., 798 F.2d 736 744–
45 (5th Cir. 1986). We held that “an important goal of the Eleventh
Amendment is the protection of state treasuries.” Id. at 744. We cited
Jagnandan for its focus on the fiscal effects of a suit against the state. Id.
In contrast, Section 1983 litigation requires us to identify the level of
government for which an official was acting when establishing the policy that
is relevant to the claims. Jett, 491 U.S. at 737. For purposes of Section 1983
personhood, it is state law that determines whether an official with final
policymaking authority as to the specific function involved in the litigation is
acting for a local governmental unit or the state. McMillian v. Monroe Cnty.,
520 U.S. 781, 786 (1997). A determination “of the actual function of a
governmental official, in a particular area, will necessarily be dependent on
the definition of the official’s functions under relevant state law.” Id. Taking
advantage of the alliteration opportunity, we summarize that McMillian holds
we examine function, not funding, when deciding whether an official is acting
for the state or local government in a case brought pursuant to Section 1983.
It is true that we considered the six Hudson factors when deciding
whether the actions of a county board created liability for the county or the
state when suit was brought against that board under Section 1983. See
Flores v. Cameron Cnty., 92 F.3d 258, 264–65 (5th Cir. 1996). We find it clear
from the subsequent McMillian opinion, though, that reliance on those
factors can be misleading in Section 1983 analysis. McMillian, 520 U.S. at
786. The focus under Section 1983 must be on discerning what state law
provides as to the specific relevant function, i.e., the act that is being
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challenged in the litigation. If we instead prioritize identifying the source of
the overall funding or the primary concern of the entity or official, as Hudson
demands, we will be focusing on generalities and not on the specifics of the
relevant act. The critical evidence from state law under McMillian is that
relating to the specific conduct at issue in the lawsuit.
In McMillian, the parties agreed that an Alabama sheriff was a
policymaker for law enforcement but disagreed about whether the sheriff
made policy for the state or instead for the county. Id. at 785. The Court did
not rely on the county’s funding when determining the level of government
for which policy was made; indeed, the Court held that the county’s payment
of the sheriff’s salary and its providing “equipment (including cruisers),
supplies, lodging, and reimbursement for expenses,” were insignificant in
the absence of showing the payments “translate into control over” the
sheriff. Id. at 791. The Court referred for comparison to one of its decisions
about the Eleventh Amendment from earlier in the same term. Id. at 786
(citing Regents of Univ. of Cal. v. Doe, 519 U.S. 425 (1997)). The reference
followed the Court’s holding that for purposes of Section 1983, state law
would control as to the function of the official; it then cited the following
Regents footnote stating a different standard for the Eleventh Amendment:
“Ultimately, of course, the question whether a particular state agency has the
same kind of independent status as a county or is instead an arm of the State,
and therefore ‘one of the United States’ within the meaning of the Eleventh
Amendment, is a question of federal law.” Regents, 519 U.S. at 429 n.5 (cited
but not quoted in McMillian, 520 U.S. at 786). Even that federal issue,
though, “can be answered only after considering the provisions of state law
that define the agency’s character.” Id.
Before concluding, we return to our Hudson opinion on the Eleventh
Amendment. There we explained, similar to what the Supreme Court did in
McMillian, that there are two different tests: “McMillian did not concern the
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Eleventh Amendment. Instead, it dealt with the issue of county liability in
§ 1983 lawsuits.” Hudson, 174 F.3d at 681 n.1. We went on to hold that
though “we look at the function of the officer being sued in the latter context,
we do not in our Eleventh Amendment analysis.” Id.
Finally, importantly, and obviously, the Supreme Court in McMillian
stated how to determine in a Section 1983 suit whether an official was acting
for a state or a local government. Even if the Hudson opinion itself claimed it
had relevance to that determination, though we hold it did not, nothing there
can override a Supreme Court decision.
Our contrasting of analyses concluded, we now address the Section
1983 issues by examining the roles of the judges of the statutory county courts
and of the district courts, and of the Sheriff. Because the Magistrate Judges
are not parties to this interlocutory appeal, we discuss them only briefly.
A. County Judges
Deciding if judges act for Texas or Dallas County when establishing a
bail schedule for their court is a question of state law as applied to that specific
function. See McMillian, 520 U.S. at 786. We restate that principle because
the following reveals different results depending on context to the task of
classifying statutory county court judges as county or state officers.
Our analysis of the role of the defendant County Judges proceeds in
three steps. First, we examine sections of the Texas constitution that
designate county judges as “county officers” for certain purposes. We
explain that the judges named in the constitution are not the defendant
County Judges, then show the connection between the two. Second, we
explain that the state constitution and statutes compel a finding that
defendant County Judges act for the state at times. Finally, we determine
that creation of a bail schedule is one of those times.
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1. Relationship of constitutional and statutory county judges
The Texas constitution provides for one county court with one judge
in each county. Tex. Const. art. V, § 15 (1876). Another section of the
constitution lists those judges as among the “county officers” who are
subject to a specific removal procedure:
County Judges, county attorneys, clerks of the District and
County Courts, justices of the peace, constables, and other
county officers, may be removed by the Judges of the District
Courts for incompetency, official misconduct, habitual
drunkenness, or other causes defined by law, upon the cause
therefor being set forth in writing and the finding of its truth by
a jury.
Id. § 24. The county judges named there are not the County Judges sued
here. The Texas constitution’s county judges have such “judicial functions
as provided by law.” Id. § 16. The judge also presides over the county’s five-
member governing body. Id. § 18(b). Thus, that county judge “is not a
judicial officer only. . . . [T]here are various executive and ministerial
functions conferred” as well. Clark v. Finley, 54 S.W. 343, 347 (Tex. 1899).
In contrast, the 11 defendant County Judges 6 hold judicial, not hybrid,
statutory offices: “the Legislature has created statutory county courts at law
in more populous counties to aid the single county court in its judicial
functions.” 7 Indeed, “the judge of a statutory county court has no authority
over the county’s administrative business that is performed by the county
6
They are Dallas County Criminal Court judges. See Tex. Gov’t Code § 25.0591(b).
Categories of statutory county courts are listed in Tex. Gov’t Code § 21.009(2).
7
About Texas Courts, County Courts at Law, Texas Judicial Branch,
https://www.txcourts.gov/about-texas-courts/trial-courts/ (emphasis added).
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judge.” 8 Tex. Gov’t Code § 25.0004(d). The first statutory county
court in the state was created in 1907 because “the business of the County
Court of Dallas County is so large as to render it impossible for said court to
dispose thereof”; the constitutional county court’s jurisdiction over its court
cases except for probate matters was given to the new court. Act approved
April 3, 1907, 30th Leg., R.S., ch. 52, §§ 1-3 & 14, 1907 Tex. Gen. Laws
115–17; see Camacho v. Samaniego, 831 S.W. 2d 804, 810 (Tex. 1992) (stating
that this Act created the first statutory county court). In 2021, 91 of the
state’s 254 counties had statutory county courts with varied jurisdiction. 9
We must decide, then, whether statutory and constitutional county
judges are sufficiently similar to make Article V, Section 24’s label of
“county officers” apply to both. We start with the fact that statutory county
courts originated under legislative authority to create new courts and change
“the civil and criminal jurisdiction” of a constitutional county court. See
Johnson v. City of Dallas, 78 S.W. 2d 265, 268 (Tex. Civ. App.—Dallas 1934,
writ ref’d) (holding that “no special county court is given powers other than
were committed to [constitutional] county courts”). 10 It was said that
8
This statutory sentence begins: “Except as provided in Subsection (e)”; the proviso
allowed delegation of authority to a statutory county judge to hear applications for permits
under three sections of the Alcoholic Beverage Code. Tex. Gov’t Code § 25.0004(d)
& (e). Those three sections were repealed, making the exception vestigial. See Acts 2019,
86th Tex. Leg., R.S., ch. 1359, § 411(a), 2019 Tex. Gen. Laws 4992, 5120–21.
9
Court Structure of Texas, Texas Judicial Branch, (Sept. 2021),
https://www.txcourts.gov/media/1452712/court-structure-chart-september-2021.pdf.
Those 91 counties have 255 statutory county courts; three more counties share a single
such court. Id.; see Tex. Gov’t Code § 25.2702.
10
Citing Tex. Const. art. V, §§ 1 & 22 (as amended 1891). Section 22, allowing the
Legislature to “increase, diminish or change the civil and criminal jurisdiction of County
Courts,” was repealed when voters endorsed Tex. S.J. Res. 14, § 9, 69th Leg., R.S., 1985
Tex. Gen. Laws 3355, 3359, & C-20. See Tex. Gov. Proclamation No. 41-2057 (Dec.
13, 1985) (declaring that the constitutional amendment proposed by S.J. Res. 14 was
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statutory courts “are not courts ‘other’ than those named in the
Constitution, in the sense that they are of wholly differing functions, but
rather courts of the same kind, but with divided powers.” State ex rel.
Peden v. Valentine, 198 S.W. 1006, 1008 (Tex. Civ. App.—Fort Worth 1917,
writ ref’d). Statutory county courts “are essentially . . . county courts within
the meaning of the Constitution.” Id.; accord Johnson, 78 S.W. 2d at 267.
As those cases indicate, jurisdiction legislatively given to statutory
county courts “was for many years confined to a portion of that
constitutionally granted to constitutional county courts”; the legislature later
abandoned those limits. Camacho, 831 S.W. 2d at 810. However, even when
the legislature grants jurisdiction to a statutory county court that is beyond
that of a constitutional county court, its judge is still a county officer subject
to provisions such as those for removal and requiring residence in the county.
Jordan v. Crudgington, 231 S.W.2d 641, 645–46 (Tex. 1950).
We rely on Valentine, Johnson, and Jordan to conclude that the
defendant County Judges are “county officers” at least for purposes of
removal under the above-quoted Section 24 of the judicial article, either
because their judgeships are derivative of those for the “county judges”
named first in that section or because they are among the “other county
officers” named last.
2. County Judges can act for the State
The second step in our analysis is to determine if the defendant
County Judges can act for the state and, if so, when. The ODonnell court
relied solely on the state constitution’s section on removal of county officers
to conclude that “Texas law explicitly establishes that the [statutory County]
approved in the Nov. 5, 1985 election) (from records of Tex. Sec. of State, on file at Tex.
State Archives; located with assistance of Nicholas de la Garza, Texas Legislative Council).
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Judges are ‘county officers.’” ODonnell I, 892 F.3d at 155 (citing Tex.
Const. art. V, § 24). We agree that these statutory judges are county
officers under some of the Texas constitution’s organizing directives such as
being placed with local officials removable by a district judge. Removal of
certain other officials — including judges of the district and all higher-level
courts — requires legislative action. Tex. Const. art. XV, § 2. Our
question, though, is for whom statutory county judges act as to bail. The
answer is not found by grouping these judges in an “‘all or nothing’
manner.” McMillian, 520 U.S. at 785. Long ago, we rejected “all or
nothing” when we held that a single county judge under the constitution,
there grouped with “county officers,” acted for the state when using
authority delegated by state statute to compel disclosure of the names of
those who had organized a school boycott. Familias Unidas v. Briscoe, 619
F.2d 391, 404 (5th Cir. 1980). 11
A helpful foundation for our analysis is that local judges are part of a
state system: “in a general sense, and perhaps for special purposes, all the
[statutory county and district] courts named [in the opinion] are state courts,
and their presiding judges state officers.” Valentine, 198 S.W. at 1008. The
contested issue in that case, though, was whether the statute for filling
vacancies in state offices or the one for vacancies in county offices applied to
a specific statutory county court judgeship. Id. at 1007–08. The court held
that it was the statute for county offices. Id. at 1009.
11
No comparable ruling by the Supreme Court of Texas regarding county judges seems to
exist, but that court has held that even when the judicial article of the constitution classified
officials as “county officers,” they could be “in fact officers of the state” when exercising
some of their powers. See Clark, 54 S.W. at 347; see also Fears v. Nacogdoches Cnty., 9 S. W.
265, 266 (Tex. 1888) (holding that a justice of the peace when serving as an ex officio coroner
“acts for the state, and not for the county”). Similarly, a county treasurer is a state official
when exercising certain powers. Jernigan v. Finley, 38 S.W. 24, 25 (Tex. 1896).
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To determine whether the defendant statutory County Judges can act
for the State, we apply guidance from McMillian. There, the strong
connection between Alabama sheriffs and their counties was undeniable: the
county paid the sheriff’s salary and provided vehicles; the sheriff’s
jurisdiction was limited to the county; county voters elected the sheriff. 520
U.S. at 791. Here, the Plaintiffs identify strong, related connections between
the statutory County Judges and their county. The Supreme Court, though,
held that more important than such matters as funding and limits on
jurisdiction is that the Alabama constitution provided that county sheriffs
were part of the executive department of state government, meaning that
they acted for the state when exercising their law enforcement powers. Id. at
788 (citing Ala. Const. art. V, § 112 (1901)).
We find a similarly edifying structural plan in the Texas constitution,
applicable both to county and district judges when they exercise judicial
powers. Most relevant, and analogous to the Alabama provision for sheriffs,
is that Texas law divides state judicial power among the different courts:
Sec. 1. 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.
The Legislature may establish such other courts as it may deem
necessary and prescribe the jurisdiction and organization
thereof, and may conform the jurisdiction of the district and
other inferior courts thereto.
Tex. Const. art. V, § 1 (emphasis added).
Learned commentary — and learned colleagues in dissent — assert
that the list in the first paragraph of Section 1 of those who have judicial
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power is over-inclusive. 12 We agree, up to a point. The commissioners court,
which is a county’s chief administrative body, is not generally, if ever,
exercising judicial power. Even if there is another listed court not exercising
judicial power, we can see no distinction on this point among the appellate
courts, the District Courts, and the statutory County Courts. We explain.
We start with the fact that once again, the county courts named there
are those established by the constitution. However, statutory county courts
are also vested with state judicial power. That was clear when the first
statutory county court in the state was granted “jurisdiction in all matters . . .
over which, by the general laws of the State, the County Court of said county
would have jurisdiction,” with exceptions. 1907 Tex. Gen. Laws 115.
That was a grant of part of the constitutional court’s state judicial power.
More generally, when the legislature creates statutory county courts, defines
their jurisdiction, then “conform[s]” other courts’ jurisdiction to that of the
new courts, the state’s judicial power is being “vested . . . in such other courts
as may be provided by law.” See Tex. Const. art. V, § 1.
A few other statutes are also relevant in understanding the level of
government for which these courts act. First, though, a caveat — individual
statutory county courts are created by their own, separate legislation.
12
A book-length examination of every section of the 1876 Texas Constitution was prepared
by a legal consultant and a small group of law professors and attorneys to assist a state
constitutional convention held in 1974; the new constitution drafted by the convention was
not adopted, but the commentary was later published. See George D. Braden, et
al., The Constitution of the State of Texas: An Annotated and
Comparative Analysis v–viii (1977). The commentary viewed the list in the first
paragraph of Article V, section 1, as being both over- and under-inclusive. Id. at 365. Only
the commissioners court was identified as not being part of the “state judicial system.” Id.
The commentary then stated that the statutory county courts are among those not named
that do exercise “judicial power.” Id. at 365–66. The commentary did not spend time on
whether county courts exercise state judicial power, but neither did it question the accuracy
of the language of Article V, section 1 that state judicial power was assigned to the courts
that were correctly named or were later provided by law.
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Accordingly, a general section of the Government Code begins by stating that
the Code “applies to each statutory county court in this state. If a provision
of this subchapter conflicts with a specific provision for a particular court or
county, the specific provision controls.” Tex. Gov’t Code § 25.0001(a).
The only en banc brief to cite specific statutes for Dallas County was for the
District Judges, but it identifies no conflicts with the general statutes. Thus,
we consider general statutes with the exception that we begin by quoting the
specific statute that establishes the defendant County Judges’ jurisdiction.
“A county criminal court in Dallas County has the criminal
jurisdiction, original and appellate, provided by the constitution and law for
county courts.” Id. § 25.0593(a). The jurisdiction prescribed by law for the
constitutional county courts includes “exclusive original jurisdiction of
misdemeanors” with some exceptions. Id. § 26.045(a). Bolstering our
understanding that statutory county courts occupy an independent level of
the state judicial hierarchy is that appeals from their decisions in criminal
cases are taken to a state court of appeals. Tex. Code Crim. Proc.
art. 4.03. Thus, it is clear that the defendant County Judges have authority
over a category of criminal offenses established by state statutes.
Even the McMillian dissent supports this analysis. Though disputing
that Alabama sheriffs were state officials, Justice Ginsburg readily agreed to
the placement of the different levels of judges within the state judicial system:
Unlike judges who work within the State’s judicial hierarchy, or
prosecutors who belong to a prosecutorial corps superintended
by the State’s Attorney General, sheriffs are not part of a state
command and serve under no “State Sheriff General.”
McMillian, 520 U.S. at 796, 797 (Ginsburg, J., dissenting) (emphasis added).
We have expressed a similar understanding: “a municipal judge acting in his
or her judicial capacity to enforce state law does not act as a municipal official
or lawmaker.” Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992). This
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holding confirms the “general sense” that when judges are engaged in their
judicial functions, they are state actors. See Valentine, 198 S.W. at 1008.
3. Creation of bail schedule was a judicial act for the State
The final step in our analysis is to decide if creating this bail schedule
was a judicial act that applied state law. Adversary proceedings commence
when an arrestee appears before a judicial officer and “learns the charge
against him and [that] his liberty is subject to restriction.” Rothgery v.
Gillespie Cnty., 554 U.S. 191, 213 (2008). A judge’s setting an arrestee’s bail
at that time is part of the state adversary proceedings and a judicial function.
The question for us is whether creating a bail schedule for later application
to specific arrestees is also a judicial act that enforces state law.
The precedent that provides the most assistance on this issue involved
a county’s trial judges’ creation of a system for selecting attorneys for later
appointment to felony criminal cases. See Davis v. Tarrant Cnty., 565 F.3d
214, 218–19 (5th Cir. 2009). In determining whether the judges had engaged
in a judicial act as opposed to an administrative or other category of action,
we considered “the particular act’s relation to a general function normally
performed by a judge.” Id. at 221–22 (quoting Mireles v. Waco, 502 U.S. 9,
13 (1991)). We then mentioned four factors the circuit has used “for
determining whether a judge’s actions were judicial in nature”: was a
“normal judicial function” involved; did the relevant act occur in or adjacent
to a court room; did the “controversy” involve a pending case in some
manner; and did the act arise “directly out of a visit to the judge in his official
capacity.” Id. at 222. The factors were taken from a precedent analyzing
whether a judge was entitled to absolute judicial immunity for her actions. Id.
at 222–23 (citing Ballard v. Wall, 413 F.2d 510, 515 (5th Cir. 2005)).
Though identifying four factors, we used only the first one and held
that the “appointment of counsel for indigent defendants in criminal cases is
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a normal judicial function.” Id. at 223. We acknowledged that the challenged
act in the case was not a single appointment of an attorney in a single case.
Id. Nonetheless, “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.” Id. at 226.
The Davis opinion was correct in its approach. Implicitly, it
concluded that there are factual situations in which it makes sense not to
consider multiple factors 13 but just to focus on an overarching point: when
judges decide on a procedure for taking what indisputably will be judicial acts
in the future, that decision is so intertwined with what will follow as to be a
judicial act as well. That form of analysis applies equally here. The creation
of bail schedules was no more or less divorced from setting bail in a specific
case than establishing a method for selecting counsel was divorced from
appointment of counsel in a specific case. We do acknowledge one
difference: in Davis, the judges establishing the procedure were also the ones
appointing counsel. Here, the bail schedules were created by judges other
than those who would later set bail for individual arrestees. A difference, but
we see no distinction. The unbroken linkage conceptually remains between
the two. Thus, the act of creating guidance for setting bail is “inextricably
linked” to the subsequent setting of bail and is a judicial act. Id.
We also conclude that it was the judicial power of the state that was
being used: the Texas constitution provides that judges exercise state judicial
13
We trace the origin of the factors to another judicial immunity case, which prefaced the
enumeration by saying “we discern in this case four factors that, when taken together,
compel the conclusion” that the judge was acting in a judicial capacity. McAlester v. Brown,
469 F.2d 1280, 1282 (5th Cir. 1972). Originally, then, these four factors were case-specific
and not a generic test. As the Davis court seemingly recognized, the test will not always
apply beyond evaluating a judge’s actions in one case or in other limited circumstances.
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power generally, Tex. Const. art. V, § 1; bail is a right granted by the state
constitution, id. art. I, § 11; and the process for determining bail is controlled
by state statutes, see, e.g., Tex. Code Crim. Proc. art. 17.01–17.49
(detailing rights and procedures regarding bail).
In summary, if the issue were the removal, replacement, or required
residence of statutory county judges, the laws about county officers would
control. Instead, we are concerned with decisions made in a judicial capacity
by judges “within the State’s judicial hierarchy” to develop a bail schedule
applicable at the “start of adversary judicial proceedings.” See Rothgery, 554
U.S. at 213. It does not matter that the schedule applies only to one county.
The geographic limit of their action does not define the level of government
for which the judges acted. See McMillian, 520 U.S. at 791 (holding that even
though “the sheriff’s jurisdiction is limited to the borders of his county,” the
sheriff was a state official). We hold that, under the Texas constitution, the
judges were exercising state judicial power and thus acting for the state.
We reverse the district court’s holding that these 11 defendant County
Judges were acting for Dallas County when addressing issues of bail. We also
overrule the ODonnell opinions on this issue.
B. District Judges
Much of the foregoing analysis concerning County Judges applies to
the District Judges as well. There is, though, a different constitutional
section to consider. It makes clear that district courts are part of a statewide
system: “The State shall be divided into judicial districts, with each district
having one or more Judges as may be provided by law or by this
Constitution.” Tex. Const. art. V, § 7.
Additional relevant analysis was in the panel opinion in this case.
Daves, 984 F.3d at 397, vacated, 988 F.3d 834. We do not see error in the
panel’s discussion. We summarize some of it here. It is evident that the
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state district courts are one level of the state judicial system, with appeals in
most cases to a state court of appeals and possible review by Texas’s Supreme
Court or Court of Criminal Appeals. For an understanding of district courts,
we quote the official Texas Judicial Branch website, which states:
The district courts are the trial courts of general jurisdiction of
Texas. The geographical area served by each court is
established by the Legislature, but each county must be served
by at least one district court. In sparsely populated areas of the
State, several counties may be served by a single district court,
while an urban county may be served by many district courts.
About Texas Courts, District Courts, supra note 7. Ten of the seventeen
defendant District Judges are identified in the pleadings as judges of District
Courts and seven as judges of Criminal District Courts.
Also relevant is our earlier holding that for purposes of appointing
counsel for indigent criminal defendants, the state district court judges act
for the State. See Clanton v. Harris Cnty., 893 F.2d 757, 758 (5th Cir. 1990).
We relied on a precedent which held that Texas district judges “are
undeniably elected state officials.” Id. (quoting Clark v. Tarrant Cnty., 798
F.2d 736, 744 (5th Cir. 1986)).
We conclude that when these district judges made a bail schedule,
they acted as officers of the state judicial system. The federal district court,
though, held that these judges were county officers. The court relied on our
earlier rulings about statutory county judges in Harris County and found no
need to reason further about this additional category of judges. See
ODonnell I, 892 F.3d at 155–56. We have already explained our disagreement
with the ODonnell holding, and we reject applying similar reasoning to
District Judges. Because these District Judges acted for the State when
addressing bail, we reverse the lower court’s contrary holding.
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C. Magistrate Judges
The federal district court found that the six defendant Magistrate
Judges are hired, and can be fired, by the state District Judges. Daves, 341 F.
Supp. 3d at 691. That court also found that these six Magistrate Judges
routinely follow the guidance and policies the District Judges distribute. Id.
These six Magistrate Judges were not made subject to the preliminary
injunction. That could be the reason those judges did not join in the current
interlocutory appeal. Regardless, the Magistrate Judges are not parties to this
appeal, and we do not determine whether they are state or county officials.
D. Dallas County Sheriff
The current version of the Texas constitutional provision providing
for the position of sheriff is this:
There shall be elected by the qualified voters of each county a
Sheriff, who shall hold his office for the term of four years,
whose duties, qualifications, perquisites, and fees of office,
shall be prescribed by the Legislature, and vacancies in whose
office shall be filled by the Commissioners Court until the next
general election.
Tex. Const. art. V, § 23. We have found no provision in Texas law
comparable to what the McMillian Court used in explaining that Alabama
sheriffs were part of the state executive department.
We examine the appellate briefing to see if any party analyzed how to
classify the Sheriff. The section of Defendants’ panel brief discussing the
Sheriff does not analyze how to determine if she is a state or county official.
It does remark that one of the ODonnell opinions had held that “the Sheriff
was not a municipal policymaker, a point which the Plaintiffs do not contest.”
The brief also argues that the Sheriff does not make bail policy. That is an
argument about causation and redressability, which are components of
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standing. The closest to an argument that the Sheriff is a state actor is that
Dallas County’s en banc brief responds to the panel’s consideration of Ex
parte Young, which is inapplicable except to suits against those acting on
behalf of the State. In summary, the primary argument is that inclusion of
the Sheriff in the suit is unnecessary for injunctive relief.
Plaintiffs do not provide any analysis about the Sheriff in their en banc
briefing. To the panel, Plaintiffs’ briefing contains only two pages about the
Sheriff, saying (without arguing the contrary) that even if the Sheriff is not a
county policymaker as to bail, she can be enjoined under Section 1983 “from
enforcing constitutional violations.” In the absence of any helpful briefing
on whether the Dallas Sheriff for the purposes of the issues in this suit should
be considered a state or county official, we leave the issue for later.
II. Are there proper defendants for declaratory or injunctive relief?
The subject-matter jurisdiction of federal courts is limited to “Cases”
and “Controversies.” U.S. Const. art. III, § 2. “[A]n essential and
unchanging part of the case-or-controversy requirement of Article III” is the
requirement that the plaintiff establish standing. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). To establish standing, the plaintiff must
show “(1) that he or she suffered an injury in fact that is concrete,
particularized, and actual or imminent, (2) that the injury was caused by the
defendant, and (3) that the injury would likely be redressed by the requested
judicial relief.” Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1618 (2020). Stated
differently, the plaintiff must demonstrate “personal injury fairly traceable
to the defendant’s allegedly unlawful conduct and likely to be redressed by
the requested relief.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342
(2006) (quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
A plaintiff “bears the burden of establishing these elements.” Lujan,
504 U.S. at 561. At the preliminary-injunction stage, “the plaintiffs must
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make a ‘clear showing’ that they have standing to maintain the preliminary
injunction.” Barber v. Bryant, 860 F.3d 345, 352 (5th Cir. 2017). Further,
standing is not determined “in gross.” Davis v. Federal Elec. Comm’n, 554
U.S. 724, 734 (2008) (quoting Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996)).
To the contrary, “a plaintiff must demonstrate standing for each claim he
seeks to press and for each form of relief that is sought.” Id. (quotation marks
and citation omitted). In this class action, for each named defendant, at least
one named plaintiff must have standing to sue. See Calzone v. Hawley, 866
F.3d 866, 869 (8th Cir. 2017); NECA–IBEW Health & Welfare Fund v.
Goldman Sachs & Co., 693 F.3d 145, 159 (2d Cir. 2012). Standing to sue one
defendant does not, on its own, confer standing to sue a different defendant.
The Plaintiffs sued District Judges, County Judges, Magistrate
Judges, the Sheriff, and Dallas County. Determining whether the Plaintiffs
have standing to sue any of them is the task of this section. Of course, we
have just held that the District and County Judges acted for the State when
they created bail schedules and thus cannot create liability for Dallas County
for those actions. We did not, though, then consider whether, to the extent
of their acting for the State, the District and County Judges could be enjoined
or become the subjects of declaratory relief under Ex parte Young, 209 U.S.
123 (1908). Consequently, standing to sue those two groups of judges
remains relevant, as is standing to sue the other Defendants.
A. Standing to sue the District Judges and County Judges
We start with determining standing as to the claims against the
District Judges and the County Judges. Of particular importance in our
analysis is whether any plaintiff has claimed an injury that is “fairly
traceable” to the unconstitutional conduct of one of these two groups of
judges. DaimlerChrysler Corp., 547 U.S. at 342. The Plaintiffs allege that: (1)
the “Defendants” violate equal protection and substantive due process by
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“jailing a person because of her inability to make a monetary payment”; and
(2) the “Defendants” violate procedural due process by “depriving anyone
of the fundamental right to pretrial liberty without” robust procedural
safeguards. The injury that each named plaintiff claims is pretrial
incarceration due solely to the inability to pay the automatically imposed
amount of secured money bail.
We look at what the District and County Judges did, then decide
whether the claimed injury is traceable to their actions. The claim is that bail
schedules, made by these judges, were applied by the Magistrate Judges in a
manner that causes constitutional injury. There is nothing unconstitutional
about the mere promulgation and use of bail schedules. See Pugh v.
Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en banc). As the district court
found, these bail schedules offer only “recommended” amounts. The bail
schedules are not the source of the Plaintiffs’ injuries. Rather, as the district
court also found, the claimed injury derives from the Magistrate Judges’
“policy of routinely relying on the schedules.”
Standing “is ordinarily ‘substantially more difficult’ to establish”
when “a causal relation between injury and challenged action depends upon
the decision of an independent third party.” California v. Texas, 141 S. Ct.
2104, 2117 (2021) (quoting Lujan, 504 U.S. at 562). The Supreme Court is
“reluctan[t] to endorse standing theories that rest on speculation about the
decisions of independent actors.” Clapper v. Amnesty Int’l USA, 568 U.S.
398, 414 (2013). In such circumstances, the plaintiff must show “that third
parties will likely react in predictable ways.” California, 141 S. Ct. at 2117
(quoting Department of Com. v. New York, 139 S. Ct. 2551, 2566 (2019)).
Here, the district court found that Magistrate Judges “treat” the bail
schedules as binding, despite that the schedules offer only recommendations.
Yes, Magistrate Judges are surrogates; they assist the district judges; many
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of their decisions are tentative until reviewed. Those are not reasons that the
Magistrate Judges could have been expected, after receiving bail schedules
that were to be applied with discretion once the circumstances of the offense
were considered, to feel free to apply them without discretion. The fact that
a schedule could simplify the setting of bail when applied rigidly did not make
such rigidity likely and therefore predictable. A reasonable prediction would
have been just the opposite: if the District and County Judges told the
Magistrate Judges to exercise discretion, they likely would react by doing so.
Support for the latter prediction is that state law required, among other
things, that any judge setting bail evaluate a detainee’s “ability to make bail.”
Tex. Code Crim. Pro. art. 17.15. On this record, then, we cannot agree
that it was predictable that the discretion urged by the schedules themselves
and required by state law would not be exercised.
The Plaintiffs also rely on two Supreme Court opinions. The first case
involved the Fish and Wildlife Service, which issued a “Biological Opinion
explaining how the proposed action will affect the species or its habitat.”
Bennett v. Spear, 520 U.S. 154, 158 (1997) (parenthesis omitted). The
Opinion had a “virtually determinative effect” on the actions of the third
party to whom it was issued. Id. at 170. The Opinion informed the third party
that “[t]he measures described [in the Opinion] are nondiscretionary.” Id.
(first alteration in original). Deviation from those terms subjected the third
party “to substantial civil and criminal penalties, including imprisonment.”
Id. Here, the bail schedules lack those coercive enforcement mechanisms,
making Bennett quite relevant but only for its contrast to our facts.
The second precedent concerned a citizenship inquiry on the 2020
census questionnaire; some states and other plaintiffs claimed they would be
injured because the inclusion of the citizenship question would suppress
participation and reporting. Department of Com., 139 S. Ct. at 2562–65. The
Department argued there was no causation because the plaintiffs’ injuries
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were traceable only to the actions of the people who chose not to respond to
the census. Id. at 2565. The Court disagreed and held that the plaintiffs “met
their burden of showing that third parties will likely react in predictable ways
to the citizenship question” by providing studies showing a statistical
likelihood of under-participation due to the citizenship question. Id. at 2566.
As a result, the plaintiffs’ theory of standing did “not rest on mere
speculation about the decisions of third parties” but “on the predictable
effect of Government action on the decisions of third parties.” Id. The
Plaintiffs discern similar predictive effects here based on the District Judges’
power to remove these Magistrate Judges, causing the latter to feel pressure
to apply the schedules rigidly. We earlier observed that any implicit pressure
on the Magistrate Judges from those who could remove them would
reasonably have been to comply with guidance to use discretion as to bail.
In summary, the Plaintiffs offer no evidence or law that the District
and County Judges should have predicted that the Magistrate Judges would
have treated the bail schedules as binding. The Plaintiffs’ theory of causation
applicable to the District Judges and the County Judges is too speculative to
support standing. See California, 141 S. Ct. at 2117. Justiciability, if it exists,
must be based on claims against another defendant.
In light of our rejection of the Plaintiffs’ standing regarding these two
categories of judges, we now address the preliminary injunction. The only
parties enjoined were the District Judges, the County Judges, and Dallas
County, as well as their “respective officers, agents, attorneys, and
employees, and all those acting in active concert with them.” An injunction
must be vacated when the plaintiffs lack standing to sue any defendant against
whom injunctive relief can be given. See Barber, 860 F.3d at 358 (reversing
grant of preliminary injunction because the plaintiffs lacked standing).
Because the Plaintiffs in this case lack standing to sue the District and
County Judges, there can be no liability for Dallas County arising from their
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actions. We therefore need not consider, had they as state actors been
properly joined, how to apply Ex parte Young, 209 U.S. 123. The dissent
addresses the recent Supreme Court opinion that sheds further light on
Young. See Whole Women’s Health v. Jackson, 142 S. Ct. 522 (2021). Due to
the limits of what we resolve, we need not discuss that case.
The current injunction cannot stand against the only officials subject
to it. Accordingly, the district court’s preliminary injunction is vacated.
B. Standing to sue the Magistrate Judges
The Plaintiffs sued the Magistrate Judges only for declaratory relief.
The only declaratory relief sought as to the Magistrate Judges is the same
declaration sought against all Defendants, namely:
Defendants violate the Named Plaintiffs’ and class members’
constitutional rights by operating a system of wealth-based
detention that keeps them in jail because they cannot afford to
pay a secured financial condition of release required without an
inquiry into or findings concerning ability to pay, without
consideration of nonfinancial alternatives, and without findings
that a particular release condition — or pretrial detention — is
necessary to meet a compelling government interest.
The district court declined to determine whether the Magistrate
Judges were proper defendants. Further, the Magistrate Judges were not
made subject to the injunction. Instead, the district court concluded in its
opinion issued the same day as the injunction that because those judges were
acting on behalf of the county, any injunctive relief “against the County
would reach the Magistrate Judges.” Daves, 341 F. Supp. 3d at 693. We
express no opinion on whether that conclusion was correct.
Our analysis so far suggests that causation for the claimed injuries
might be traced to the Magistrate Judges. No party, though, has briefed on
appeal whether federal jurisdiction exists over the claims against the
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Magistrate Judges. In district court, the Magistrate Judges filed their own
motion to dismiss. There they argued that the “Plaintiffs fail to identify the
capacity in which the Magistrate Judges are sued,” and asserted they were
not policymakers as to bail and just followed the direction of the District and
County Judges. They also adopted by reference the arguments in the County
Judges’ motion to dismiss. Among other arguments, the County Judges
sought abstention under Younger, 401 U.S. 37; by adoption, the Magistrate
Judges did too. The district court, of course, has not yet resolved the issue
of Younger abstention.
We close this section with an observation. Available relief against any
defendant judge is limited by a 1996 amendment to Section 1983 “that in any
action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable.” 42
U.S.C. § 1983 (amended by Pub. L. No. 104–317, tit. III, § 309(c), 110 Stat.
3847, 3853 (Oct. 19, 1996)). How, if at all, that limitation affects the analysis
of abstention can be considered on remand.
C. Standing to sue the Sheriff and Dallas County
As to the Sheriff, the Plaintiffs sought injunctive relief and the same
declaration that we earlier quoted. The district court held that the Sheriff
was not a proper defendant. Daves, 341 F. Supp. 3d at 694. The panel
opinion, now withdrawn, held she was a proper defendant. Daves, 984 F.3d
at 405. Whether the sheriff should be party will primarily turn on whether
injury is traceable to the Sheriff and can be redressed. Regarding Dallas
County, if there is no defendant county official who acts as a policymaker as
to the function at issue, then the County must be dismissed as a party. See
McMillian, 520 U.S. at 783. There is no need now to resolve whether there
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is standing to sue the Sheriff or to make the County a party. We will analyze
that issue after the case returns to us following our remand on abstention.
III. Younger abstention
A. Waiver of abstention
Our final discussion concerns abstention. We start with whether that
issue is even before us. One result of the principle that abstention under
Younger is not jurisdictional is that application of the doctrine can be waived.
See Texas Ass’n of Bus. v. Earle, 388 F.3d 515, 519 (5th Cir. 2004). When a
“[s]tate voluntarily chooses to submit to a federal forum, principles of comity
do not demand that the federal court force the case back into the State’s own
system.” Ohio Bureau of Emp. Servs. v. Hodory, 431 U.S. 471, 480 (1977).
“Voluntarily” would also be the correct concept for when a state argument
about abstention in district court is inconsequential.
Certainly, Younger has been barely mentioned in most of the briefing.
Working backward temporally, none of the parties’ en banc briefing cited
Younger, though the brief for the Defendants cited a Fifth Circuit opinion that
analyzed abstention by discussing a post-Younger opinion. See Tarter v. Hury,
646 F.2d 1010, 1013–14 (5th Cir. Unit A June 1981) (citing O’Shea v. Littleton,
414 U.S. 488 (1974)). In light of the apparent lack of anticipation of the issue,
we notified counsel before oral argument to be prepared to discuss Younger.
In the briefing before the panel, Dallas County argued that comity bars
the Plaintiffs’ requested relief and attempted to distinguish ODonnell I. The
District Judges argued, in a footnote of their brief, that Plaintiffs’ requested
relief “runs headlong into Younger abstention.” The Plaintiffs responded
that abstention was improper and foreclosed by ODonnell I, because the
Magistrate Judges’ bail determinations are not properly reviewable in the
state criminal proceedings.
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The earliest briefing was in district court. Only the County Judges
meaningfully briefed Younger as a threshold defense. Perhaps the relative
silence as to abstention can be explained by the fact that our court’s first
ODonnell opinion, which rejected Younger abstention in the similar context
of bail practices in Harris County, was handed down on February 14, 2018, a
month after this suit was brought but before motions to dismiss were filed.
See ODonnell, 882 F.3d at 538–39, withdrawn and superseded on panel reh’g,
ODonnell I, 892 F.3d 147. We rejected abstention because we found arrestees
did not have an adequate opportunity to make constitutional challenges in the
state criminal proceedings. ODonnell, 882 F.3d at 539. The Defendants’
motions to dismiss in this case were filed six weeks later on April 2, 2018.
The County Judges made Younger a significant part of their motion to
dismiss. They sought to distinguish ODonnell by arguing that, because this
case involves felony arrestees and ODonnell dealt only with misdemeanants,
the lengthier time those accused of felonies would be in jail would give them
“ample opportunity to avail [themselves] of habeas corpus.”
The District Judges filed three motions to dismiss. The first two were
filed on the same day as the County Judges’ motion but made no similar
argument about Younger. The third, an “amended motion to dismiss,”
adopted and incorporated by reference the County Judges’ arguments in
favor of dismissal. All the motions made the same two indirect arguments
about abstention. First, each motion stated that “[f]ederal courts have long
recognized that state courts are just as capable of adjudicating federal
constitutional issues as are federal courts,” citing Middlesex County Ethics
Committee v. Garden State Bar Association, 457 U.S. 423 (1982). Second, each
motion insisted that “[s]tate judges are not presumed to be incapable of
understanding or applying the federal constitution,” citing Middlesex and in
a long string cite with brief parentheticals referring to cases such as Moore v.
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Sims, 442 U.S. 415 (1979). Explicit analysis of Younger abstention was absent.
The district court has not ruled on any of the motions to dismiss.
In deciding whether Younger is properly before us, we start with this
court’s rejection of any bright-line rule for when waiver blocks an issue and
when waiver has been evaded. First United Fin. Corp. v. Specialty Oil Co., 5
F.3d 944, 948 n.9 (5th Cir. 1993). We determine, first, whether the issue was
presented to the district court in a manner sufficient to give that court an
opportunity to rule on it. Rosedale Missionary Baptist Church v. New Orleans
City, 641 F.3d 86, 89 (5th Cir. 2011). The issue must then be “press[ed]” on
appeal. Texas Democratic Party v. Abbott, 978 F.3d 168, 177 (5th Cir. 2020).
In summary, one group of Defendants in this case argued in district
court a distinction from ODonnell’s holding about Younger. Other
Defendants’ motions buried the abstention argument but did cite caselaw of
secondary importance. The district court’s rejection of any argument under
Younger would reasonably have appeared preordained, making pursuing an
early ruling on abstention in district court seemingly futile.
Further, before us now are only those matters related to an
interlocutory appeal from the grant of a preliminary injunction, when no
ruling on abstention has yet been made. It was necessary to raise the issue in
district court even if foreclosed, but on these facts, we do not see that any
party needed to do more to have preserved the issue.
As to briefing for the interlocutory appeal, it was potentially unclear
whether Younger would concern the panel, bound as it was by ODonnell.
Even so, Younger was discussed in the initial briefing. Finally, though en banc
is the quintessentially appropriate time to challenge a precedential Fifth
Circuit opinion’s holding about any relevant issue, our order granting
rehearing in this appeal stated that the briefing schedule is “for the filing of
supplemental briefs.” Whatever else that might mean, it supports that
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arguments do not need to be restated if they have been sufficiently pressed in
the briefing to the panel. Minimal arguments were in the panel briefing.
We conclude that the Younger issue has not been waived.
B. Remand for consideration of abstention.
A few observations about abstention need to be made. “Jurisdiction
existing,” the Supreme Court has explained, “a federal court’s ‘obligation’
to hear and decide a case is ‘virtually unflagging.’” Sprint Commc’ns, Inc. v.
Jacobs, 571 U.S. 69, 77 (2013) (quoting Colorado River Water Conservation
Dist. v. United States, 424 U.S. 800, 817 (1976)). The abstention doctrine
identified in Younger is an “exception to this general rule.” Id.
In Younger, a defendant in a pending state criminal prosecution filed a
federal lawsuit challenging the facial constitutionality of the statute under
which he was being prosecuted and moved to enjoin the prosecution. 401
U.S. at 38–39. The Supreme Court held that principles of equity and comity
prohibited federal judicial interference with an ongoing state-court
prosecution. Id. at 43–44, 53–54. On equity, the Court adhered to “the basic
doctrine of equity jurisprudence that courts of equity should not act, and
particularly should not act to restrain a criminal prosecution, when the
moving party has an adequate remedy at law and will not suffer irreparable
injury if denied equitable relief.” Id. at 43–44. On comity, “an even more
vital consideration,” the Court emphasized “proper respect for state
functions” and avoiding interference “with the legitimate activities of the
States.” Id. at 44.
Our remand is to allow the district court to consider the applicability
of what we have identified here as Younger abstention. Potentially relevant is
whether subsequent Supreme Court opinions have expanded the Younger
doctrine and are doctrinally distinct in some respects. Among the subsequent
key decisions is one that applied abstention to future criminal prosecutions.
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See O’Shea, 414 U.S. 488. This court later held that the concerns for comity
discussed in O’Shea “defeat the claims based on the imposition of excessive
bail.” Tarter, 646 F.2d at 1013. A year after O’Shea, the Supreme Court did
not abstain in a case brought by pre-trial detainees to require a judicial
determination of probable cause for their detention. Gerstein v. Pugh, 420
U.S. 103, 108 n.9 (1975). Much more recently, the Court has made general
pronouncements about Younger abstention. See Sprint, 571 U.S. at 78. Other
authorities will be valuable as well.
After the remand, the en banc court will take a fresh look at Younger,
at which time we will have authority to re-evaluate our own precedent. The
issue received little attention in the case by the district court or by counsel.
We have already held, on the unusual facts of this court’s rejection of
abstention in the related Harris County case just as this Dallas County case
was getting underway, that the issue is not waived. Yet, like the Supreme
Court, we are “a court of review, not of first view.” Cutter v. Wilkinson, 544
U.S. 709, 718 n.7 (2005). Though we have considered some foundational
issues that the district court pretermitted, we conclude that the abstention
issue is one which will particularly benefit from a first view in district court.
The only judges left as potentially proper parties are the Magistrate
Judges. We also have not yet made a ruling about the inclusion of the Sheriff
as a defendant. Our limited remand will give the district court the
opportunity, through such proceedings as it directs, to have abstention fully
explored, both factually and legally. The ODonnell court’s Younger analysis
is not binding on this remand. When the case returns, none of our precedent
will be binding on us. Thus, in light of the district court’s consideration of
the issue after the en banc court has received the case, we give the district
court authority on remand to reach the result it considers appropriate even if
it is inconsistent with any of this court’s precedent. What we have actually
held in this opinion to be the law, though, must be applied as precedent.
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* * *
We VACATE the preliminary injunction. We REMAND to the
district court for the limited purpose of conducting such proceedings as it
considers appropriate and making detailed findings and conclusions
concerning abstention under Younger v. Harris, 401 U.S. 37 (1971), and
related caselaw, and on the effect of Senate Bill 6 on the issues in this case.
Once the district court has entered findings and conclusions on those issues,
the case will return to this court. No other issues in this case are part of the
remand. We retain jurisdiction over both the appeal and the cross-appeal
during the remand to district court. Further instructions will be given to the
parties after the district court has concluded its work.
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Stephen A. Higginson, Circuit Judge, with whom Dennis and
Willett, Circuit Judges, join, concurring only in judgment to remand:
Permitting the district court to address Younger abstention in the first
instance 1 is warranted because, when Younger’s three conditions 2 are met,
absent extraordinary circumstances, a district court is required to abstain.
Hicks v. Miranda, 422 U.S. 332, 350 (1975).
This court previously addressed a similar but distinct challenge to bail
proceedings in Harris County. ODonnell v. Harris Cty., 892 F.3d 147 (5th
Cir. 2018) (ODonnell I). In concluding that Younger did not bar federal court
review in the Harris County case, our court held only that Younger’s third
prong—whether the plaintiff has an “adequate opportunity in the state
proceedings to raise constitutional challenges,” Bice v. La. Pub. Def. Bd., 677
F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cnty. Ethics Comm. v. Garden
State Bar Ass’n, 457 U.S. 423, 432 (1982))—had not been met. ODonnell I,
892 F.3d 147. Even that holding was tentative because our court explicitly
chose not to reach whether pretrial habeas in Texas provides such
opportunity. ODonnell I, 892 F.3d at 156-157 & n.3. But cf. Ex Parte Keller,
595 S.W.2d 531, 532–33 (Tex. Crim. App. 1980); Ex parte Anderson, No. 01-
20-00572-CR, 2021 WL 499080 (Tex. App. Feb. 11, 2021).
1
See Joseph A. ex rel. Wolfe v. Ingram, 275 F.3d 1253, 1272–73 (10th Cir. 2002); see also
Dandar v. Church of Scientology Flag Serv. Org., Inc., 551 F. Appx. 965, 966–67 (11th Cir.
2013) (per curiam).
2
Under abstention doctrine, as instructed in Younger v. Harris to “restrain[] courts of
equity from interfering with [state] criminal prosecutions.” 401 U.S. 37, 44 (1971). Federal
courts generally decline to exercise jurisdiction when three criteria are met: “(1) the federal
proceeding would interfere with an ‘ongoing state judicial proceeding’; (2) the state has an
important interest in regulating the subject matter of the claim; and (3) the plaintiff has ‘an
adequate opportunity in the state proceedings to raise constitutional challenges.’” Bice v.
La. Pub. Def. Bd., 677 F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cnty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 432 (1982)).
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Significantly, the parties in the instant case dispute whether the
plaintiffs could have challenged, or in fact did challenge, the bail deficiencies
they allege here. Oral Argument at 2:41—6:26 (plaintiffs’ argument),
Daves v. Dallas Cnty., Texas, No. 18-11368 (5th Cir. 2021); 3 id. at 50:56—
59:26 (Texas’s argument) (Texas’ counsel: “There surely was an adequate,
effective way to raise these kinds of questions in state court.”); id. at
1:08:05—1:12:05 and 1:13:30—1:17:36 (plaintiffs’ rebuttal); id. at 1:15:14—
1:15:22 (Plaintiffs’ counsel: “I submit, if you’re considering making a ruling
about adequacy of opportunity, you remand to the district court, so that the
district court can make these findings.”).
Because ODonnell I did not resolve Younger’s prong three analysis, we
would leave for the district court to determine whether and to what extent
plaintiffs have an adequate opportunity to challenge the bail proceedings at
issue here. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 14 (1987) (“[T]he
burden on this point rests on the federal plaintiff to show ‘that state
procedural law barred presentation of [its] claims’” (quoting Moore v. Sims,
442 U.S. 415, 432 (1979))) (alteration in original); see also Wallace v. Kern,
520 F.2d 400, 407-408 & nn. 14—16 (2nd Cir. 1975).
In turn, the district court then would have opportunity to apply, also
for the first time, fact-specific Younger prong one caselaw. That is particularly
important here since Texas has revised its criminal procedure code
specifically as to bail procedure, timely bail hearings, and assessment of
arrestees’ financial circumstances. See Damon Allen Act, 2021 Tex. Sess.
Law Serv. 2nd Called Sess. Ch. 11 (S.B. 6). In the bail context, Supreme
Court caselaw delineates that federal courts should abstain where granting
3
Available at https://www.ca5.uscourts.gov/OralArgRecordings/18/18-11368_5-26-
2021.mp3.
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equitable relief requires an “ongoing federal audit of state criminal
proceedings” or “when the normal course of criminal proceedings in the
state courts would otherwise be disrupted,” O’Shea v. Littleton, 414 U.S.
488, 500 (1974); see also Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. Unit A
1981) (“An injunction against excessive bail, no matter how carefully limited,
would require a federal court to reevaluate de novo each challenged bail
decision.”); Gardner v. Luckey, 500 F.2d 712, 715 (5th Cir. 1974) (same).
However, federal courts need not abstain where such relief merely
contemplates procedural safeguards that are not “directed at the state
prosecutions as such” and “could not be raised in defense of the criminal
prosecution,” Gerstein v. Pugh, 420 U.S. 103, 108 n.9 (1975); see also Tarter,
646 F.2d at 1013 (“The O’Shea rubric does not apply, however, to the refusal
to docket and hear pro se motions. . . . [A]n injunction requiring that all pro
se motions be docketed and considered by the court . . . would add a simple,
nondiscretionary procedural safeguard to the criminal justice system.”). 4
In summary, this case vitally implicates state criminal bail proceedings
and the constitutional rights of pretrial detainees, yet everyone agrees there
has been no analysis of circumstances which may be determinative of Younger
abstention. Obtaining threshold Younger analysis from a district court in the
first instance is more than prudent inquiry into Supreme Court abstention
doctrine. Getting that analysis, threshold to reaching other difficult and
outcome-determinative issues, is crucial to proper adjudication of those same
issues, above all to avoid foreclosing avenues for vindicating the
4
Consistently, our sister circuits have reached legally reconcilable, but necessarily fact-
developed, conclusions as to whether federal court intrusion into state bail proceedings is
permissible. See, e.g., Walker v. City of Calhoun, 901 F.3d 1245, 1255 (11th Cir. 2018), cert.
denied, 139 S. Ct. 1446 (2019); Arevalo v. Hennessy, 882 F.3d 763, 765–67 (9th Cir. 2018);
Kaufman v. Kaye, 466 F.3d 83, 87 (2d Cir. 2006); Wallace v. Kern, 520 F.2d 400, 404–08
(2d Cir. 1975).
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constitutional rights of pretrial detainees. By contrast, not remanding for
threshold, first-time abstention inquiry hardens premature resolution of far-
reaching issues the majority and dissent would reach, in this instance
contracting constitutional guarantees federal courts should vindicate.
Having clarified that our court’s minimal discussion in ODonnell I of
Younger gives no conclusive answer to abstention in this case—either prong
one or prong three—we would do no more than remand for further
proceedings to address Younger, permitting the district court to develop the
factual record and determine whether this case should be resolved in federal
or state courts. This judicial restraint—a limited remand for application of
Younger—is especially compelling in light of Texas’s intervening passage of
Senate Bill 6, revisiting the very bail procedures and guarantees challenged
in this litigation, see Gerstein, 420 U.S. at 109 (intervening amendments to
pretrial procedures warranted remand before resolution), as well as because
the Supreme Court, since our Court’s en banc argument, has highlighted the
difficult matter of federal courts enjoining state judges. See Whole Women’s
Health v. Jackson, 595 U.S. __ (2021) (No. 21-463).
Although we offer no view on whether abstention or dismissal of the
action is appropriate at this juncture, should the district court decide that it
is, it would enter an appropriate order. Similarly, if the district court were to
resolve Younger in favor of federal court adjudication, it would be within the
scope of this limited remand to entertain any appropriate motion, notably
related to SB6, which would warrant revisiting the scope and basis for
injunctive relief.
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Haynes, Circuit Judge, joined by Stewart, Graves, and Costa
Circuit Judges, dissenting:
Lost in the shuffle of the majority opinion is this case’s bottom-line
issue: in many circumstances, only those with money can get out of jail before
trial. So, if you can pay for your crime of arrest, you’re free. If you can’t,
you’re not. That is the core of the problem presented here. 1
Plaintiffs—a class of arrestees who can’t pay—claim the bail system
violates their due process and equal protection rights. Their arguments are
supported by guarantees of individually determined bail enshrined in the
Texas Constitution and by landmark Supreme Court opinions putting
beyond all doubt that wealth-based detention is unconstitutional. But the
majority opinion reframes the merits as jurisdictional issues and goes on to
dismiss them. Then, without any party asking the en banc court to do so, the
majority opinion remands on the question of abstention.
The majority opinion errs in its treatment of these issues and reaches
holdings inconsistent with binding decisions from the Supreme Court, with
undisputed fact-finding from the district court, and with basic logic. In the
process, it overrules our precedents—precedents designed to protect people
from being locked up just because they’re poor. I respectfully dissent.
1
As noted by the majority opinion, after the oral argument before the en banc court, the
Texas Legislature passed a bill, signed into law by the Governor, which has commonly been
called Senate Bill 6. See Act of August 31, 2021, 87th Tex. Leg. 2d C.S., S.B. 6. At the
request of our court, the parties filed letter briefing about the statute, which goes into effect,
for the most part, in January 2022. The parties do not agree on its interplay with the issues
here, so I agree with the majority opinion that any impact of this bill on this case should, in
the first instance, be assessed by the district court.
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I. Background
A. ODonnell
To understand the situation presented in this case, we need to look at
how we got here. Although this case is captioned as Daves, the majority
opinion uses it to overrule much of the ODonnell cases, a series of decisions
in which we addressed the constitutionality of Harris County’s bail system
and found it lacking.
In ODonnell I, we concluded that indigent misdemeanor arrestees are
denied procedural due process and equal protection of the laws by automatic
application of bond schedules without an individualized consideration of
their ability to pay. ODonnell v. Harris Cnty., 892 F.3d 147, 157, 161, 163 (5th
Cir. 2018) (“ODonnell I”).
We first concluded:
• that there was no need to abstain under Younger v. Harris, 401
U.S. 37 (1971), because the pending criminal proceedings did
not provide an adequate opportunity for arrestees to raise their
constitutional claims, ODonnell I, 892 F.3d at 156–57;
• that the County Judges were acting as county policymakers in
promulgating the bond schedule such that they and the county
for which they worked could be sued under 42 U.S.C. § 1983,
see id. at 155–56; and
• that the county sheriff could not create county liability under
§ 1983 because the sheriff did not set policy (the sheriff was
simply “legally obliged” to follow the judges’ orders and war-
rants), id. at 156.
We then addressed the merits of the procedural due process and equal
protection claims. As to procedural due process, we concluded that the
plaintiffs had a state-created liberty interest in bail upon sufficient sureties—
that is, in having bail considered in relation to a number of factors, ability to
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pay being only one. See id. at 157–58 (citing Tex. Const. art. 1, § 11 (“All
prisoners shall be bailable by sufficient sureties.”)). We reasoned that,
because the bond schedules were imposed “almost automatically” without
consideration of other factors, the county’s procedures violated the
plaintiffs’ due process rights. Id. at 158–61.
We reached a similar conclusion on the equal protection issue. We
determined that the district court did not err in applying intermediate
scrutiny, id. at 161–62 (citing Tate v. Short, 401 U.S. 395, 397–99 (1971), and
Williams v. Illinois, 399 U.S. 235, 241–42 (1970)), and that, although counties
have a compelling interest in setting conditions under which arrestees will
show up for court dates, the procedures then in effect in Harris County were
not narrowly tailored to achieve that interest, id. at 162. The bottom-line, we
reasoned, was that a system that treats two otherwise identical arrestees
differently “simply because [one] has less money” (as mechanical
application of the bond schedule did) violated the Equal Protection Clause of
the Fourteenth Amendment. Id. at 163.
Consequently, we held, procedural reforms were necessary to ensure
that arrestees have a hearing shortly after arrest to determine their financial
status and to offer them an opportunity for non-cash bail, as the district court
in that case had similarly concluded. Id. at 164–66. To help ensure that
arrestees’ rights were protected, we provided a model injunction that would
require the defendants to abandon their automatic application of the bond
schedule and to conduct an individualized review of each arrestee’s ability to
pay before setting a bail amount. Id.
ODonnell came back to our court two more times to address
implementation questions concerning that model injunction. In ODonnell II,
we clarified that ODonnell I did not allow for automatic release of indigent
arrestees that were unable to post cash bail, and we stayed the district court’s
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injunction to the extent it did so. ODonnell v. Goodhart, 900 F.3d 220, 225–
26, 228 (5th Cir. 2018) (“ODonnell II”). In ODonnell III, we declined to
vacate that stay following the voluntary dismissal of the appeal. 2 ODonnell v.
Salgado, 913 F.3d 479, 482 (5th Cir. 2019) (per curiam) (“ODonnell III”).
But ODonnell I’s key holdings remained—automatic application of the bond
schedule was unconstitutional, and plaintiffs were well within their rights to
sue the judges who wrote the schedule to stop it.
B. Dallas County’s Bail System
Dallas County’s bail system is much like Harris County’s. Per the
district court’s exhaustive (and unchallenged) fact-finding, the post-arrest
system in Dallas County chiefly involves four entities:
• Criminal District Court Judges (the “District Judges”);
• Dallas County Criminal Court at Law Judges (the “County
Judges”);
• Magistrate Judges; and
• the Dallas County Sheriff.
The Magistrate Judges routinely follow policies set by both the District
Judges (who can fire the Magistrate Judges) and the County Judges (who
cannot). See Tex. Gov’t Code Ann. §§ 54.301, 305 (appointment and
termination authority).
The Magistrate Judges are responsible for determining the conditions
of release for arrestees in Dallas County, including the setting of bail. In
2
The original defendants–appellants in ODonnell were voted out of office in 2018, and the
newly elected judges moved to voluntarily dismiss the appeal. The new Harris County
judges have since entered into a consent decree that contains materially similar
requirements to the model injunction we provided in ODonnell I, among other provisions.
See Consent Decree, ODonnell v. Harris Cnty., No. 4:16-CV-1414 (S.D. Tex. Nov. 21, 2019)
(Dkt. No. 708). That consent decree is obviously not at issue here.
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exercising that responsibility, however, the Magistrate Judges rigidly follow
preset secured bond schedules promulgated by the District Judges and the
County Judges; in effect, the Magistrate Judges treat those schedules as
binding. Per the district court, those schedules work “like a menu,” with
specified “prices” for release associated with “different types of crimes.”
The Magistrate Judges’ bail determinations are, in turn, enforced by the
Sheriff, who transports arrestees to and from the county jail and the judges’
courtrooms. Daves v. Dallas Cnty., 341 F. Supp. 3d 688, 692 (N.D. Tex.
2018).
Prior to February 2018, the Magistrate Judges did not consider an
arrestee’s ability to actually pay the applicable price on the menu at all when
setting bail. In February 2018 (after this lawsuit was filed), the Magistrate
Judges were instructed to start considering financial affidavits containing
information on how much the arrestee could afford to pay. But that direction
has not made a difference; the district court found as a question of fact that
the Magistrate Judges “still routinely treat the schedules as binding” even if
they now also receive affidavits. Moreover, the Magistrate Judges apply the
bond schedules at rote arraignment hearings where they merely: (1) call an
arrestee by name; (2) tell the arrestee the crime he or she has been charged
with; (3) state what price on the bail menu is associated with the arrestee’s
crime; and (4) ask the arrestee if he or she is an American citizen. That’s
it—most arraignments last under 30 seconds.
Unsurprisingly, the mechanical application of prescheduled prices
affects rich arrestees differently than poor arrestees. Arrestees who can pay
the scheduled bail amount can do so and be released. But those who cannot
are kept confined until their first appearance before a judge—generally four
to ten days after arrest for misdemeanor arrestees and several weeks or
months after arrest for felony arrestees. Even at that first appearance, judges
do not consider alternative conditions of pretrial release on their own accord;
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the arrestee must instead file a written motion and wait another week or more
for a hearing to be scheduled on his or her continued detention. In short, the
automatic application of the bond schedules keeps poor arrestees in jail—
often for weeks or months—simply because they are poor, not because they
present a greater risk to the public than rich arrestees.
As a result, poor arrestees are put in the position of having to plead
guilty to misdemeanors and low-level felonies simply because doing so lets
them walk free on time-served sentences. For those who do not plead out,
however, it is an undisputed fact that they experience a range of other
consequences solely because they cannot pay—by virtue of their detention,
they face “loss of employment, loss of education, loss of housing and shelter,
deprivation of medical treatment, inability to care for children and
dependents, and exposure to violent conditions and infectious diseases in
overcrowded jails.” Those who can pay can avoid most (if not all) of those
consequences.
C. This Lawsuit
Turning to this lawsuit, Plaintiffs filed suit challenging Dallas
County’s bail system in January 2018 accompanied by motions for class
certification and for a preliminary injunction. The district court conducted a
hearing on the preliminary injunction motion, where it received live
testimony from Defendants and various expert witnesses, reviewed video
recordings of bail hearings, and considered thousands of pages of submitted
declarations, academic studies, and records. Following the hearing, the
district court certified Plaintiffs as a class, which the district court defined as
“[a]ll arrestees who are or will be detained in Dallas County custody because
they are unable to pay a secured financial condition of release.”
The district court then issued a preliminary injunction, concluding
that Plaintiffs were likely to succeed on their procedural due process and
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equal protection claims (but not on their substantive due process claim)
because they were being detained solely on the basis of their indigency; that
is, they could not pay the bail set by the mechanically applied bond schedules.
See ODonnell I, 892 F.3d at 164–66 (outlining a materially similar model
injunction). To redress those issues, the district court’s injunction required
various procedural reforms to the Dallas County bail system, including: that
the judges not impose prescheduled bail amounts without considering
individual arrestees’ ability to pay; that the judges consider the arrestees’
ability to pay within 48 hours of arrest; that the District Judges and County
Judges review bail decisions by the Magistrate Judges; and that the Sheriff
not enforce detention orders made in violation of these conditions. The
district court did not order that anyone conduct (or review) any substantive
necessity findings prior to detention, nor that any pending or future state
court prosecutions be stopped or altered on the merits. The case is now up
on interlocutory appeal of the district court’s injunction.
II. Discussion
Having just reviewed the undisputed facts of this case, two features of
this litigation are obvious.
The first: nothing about the district court’s injunction prevents the
State from prosecuting Plaintiffs in any way. It merely orders a meaningful
consideration of ability to pay as part of the pretrial detention process,
something that Plaintiffs pointedly do not receive from the judges in Dallas
County. Plaintiffs can still be charged, tried, convicted, and sentenced as
before; all that the district court has ordered is that an arrestee’s lack of assets
not be the determining factor in whether they sit in jail throughout that
process. Nothing affects the prosecutor’s bottom line.
The second: the County Judges and the District Judges set the price
that Plaintiffs must pay to gain release, making the Magistrate Judges feel
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compelled to charge that price in virtually every case—which the Sheriff
must then enforce by keeping Plaintiffs in jail. All four actors work in tandem,
the effect of which is the detainment of arrestees based solely on their wealth.
The majority opinion ignores these obvious features in its conclusions
on municipal liability, state sovereign immunity, standing, and abstention—
decisions that divest a number of parties from the case. But wrongly so. All
Defendants in this case can—and should—be included in the injunction.
The County Judges and the District Judges set policies that are, in practice,
the alpha and the omega of bail decisions in Dallas County—and the Sheriff
is the backstop that keeps Plaintiffs in jail under those policies. They are all,
therefore, proper parties in a case seeking to stop the routine practice of
keeping poor arrestees in jail simply because they are poor.
A. Municipal Liability and State Sovereign Immunity
1. County Judges
The majority opinion concludes that the County Judges can assert
state sovereign immunity. But they cannot. The County Judges are plainly
county officials, incapable of asserting state sovereign immunity. Moreover,
their conduct in promulgating the misdemeanor bond schedule is
policymaking of the sort that can make Dallas County itself also liable.
i. County Officials
We must first determine whether the County Judges are county
officials. The majority opinion concedes that sometimes they are county
officials but puts them in the state-official bucket for this case. Interestingly,
the County Judges’ co-defendants—the District Judges—just come out and
say it (with emphasis, no less): “The eleven [County] Judges . . . are elected
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county officials.” I agree. They are county officials for both sovereign
immunity purposes and for county liability purposes.
I recognize, of course, that state sovereign immunity under the
Eleventh Amendment presents a different issue than county liability under
§ 1983—the first concerns whether an individual is an arm of the state
generally for constitutional purposes, while the second concerns whether an
individual is a local policymaker “in a particular area, or on a particular
issue” for statutory purposes. See McMillian v. Monroe Cty., Ala., 520 U.S.
781, 785 (1997).
But the two matters are undeniably intertwined. Consider McMillian.
“While McMillan arose in the context of whether a sheriff’s decisions
establish local policy for purposes of § 1983 and the Court did not discuss the
Eleventh Amendment, the obvious implication is that the Eleventh
Amendment applies once the sheriff is deemed a state officer.” ERWIN
CHEMERINSKY, FEDERAL JURISDICTION 457 (7th ed. 2016) (emphasis
added). Just as § 1983 decisions may invariably implicate the Eleventh
Amendment, the inverse is also true—decisions regarding the Eleventh
Amendment may invariably implicate § 1983. After all, both the Eleventh
Amendment and § 1983 concern the categorization of individuals as state or
local parties, and both require an assessment of state law in making that
categorization.
Yet, the majority opinion concludes that our decision in Hudson v. City
of New Orleans, 174 F.3d 677 (5th Cir. 1999), which set various factors for
determining how to delineate state and local officials, has no bearing on this
case because it arose in the context of the Eleventh Amendment. Majority
Op. at 11–14 & n.5. In so concluding, the majority opinion misconstrues a
statement from a footnote in Hudson—“While we look at the function of the
officer being sued in the latter context, we do not in our Eleventh
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Amendment analysis.” 174 F.3d at 682 n.1. This, of course, does not mean
that the Eleventh Amendment analysis has no bearing on § 1983. Rather,
because state official designation under the Eleventh Amendment confers
immunity for all purposes, whereas the state official designation under § 1983
confers immunity for only some purposes (like for the county sheriffs acting
in their law enforcement capacity in McMillian), function only matters for
§ 1983. Hudson says nothing different and is certainly applicable to this case.
Our own court has previously considered these same arm-of-the-state
factors for § 1983 county liability purposes. See Flores v. Cameron Cnty., 92
F.3d 258, 264–69 (5th Cir. 1996). Yet, according to the majority opinion,
Flores was superseded by McMillian, which was decided a year after Flores
and made “clear . . . that reliance on those factors can be misleading” when
deciding for whom an official is acting. Majority Op. at 12. Never mind that
at least one of our sister courts recently considered these factors for § 1983
county liability purposes, see Couser v. Gay, 959 F.3d 1018, 1023, 1025–31
(10th Cir. 2020), and that McMillian did no such thing. Here’s what
McMillian says on considering how state law defines an actor (i.e., the first
Hudson factor):
This is not to say that state law can answer the question for us
by, for example, simply labeling as a state official an official who
clearly makes county policy. But our understanding of the
actual function of a governmental official, in a particular area,
will necessarily be dependent on the definition of the official's
functions under relevant state law.
McMillian, 520 U.S. at 786. This certainly doesn’t suggest that “the Hudson
factors are not controlling on our issue.” Majority Op. at 11 n.5. Instead,
McMillian is entirely consistent with Hudson—the Hudson analysis does not
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stop at how state law treats the official but considers three other factors along
the way. 3
So, let’s consider the Hudson factors: (1) whether state law treats the
official as primarily local or as an arm of the state; (2) whether the official is
paid from the local governmental unit; (3) whether the official has local
autonomy—including whether it can hold property and sue and be sued in its
own name; 4 and (4) whether the official is primarily concerned with local
affairs. 174 F.3d at 681. Of those factors, it is “well established” that the
second (source of funding) is “the most important.” Id. at 682.
That funding question weighs heavily in favor of the County Judges
being county officials here: unlike the District Judges (who are paid by the
state), the County Judges are paid by the county. Tex. Gov’t Code Ann.
§ 25.0593(c); cf. id. § 659.012(a)(1). The money also flows in the other
direction, too; the fees they collect go straight into the county coffers. Id.
§ 25.0008. That squarely puts them on the county official side of the line.
Hudson, 174 F.3d at 682.
All the other factors also weigh in favor of them being county officials.
Beyond the pay and fine aspects, state law treats the County Judges as local
3
Of course, the en banc court is free to revise our previous decisions, but nothing in
McMillian requires the court to do so. Nor would doing so be consistent with the
intertwined nature of analyzing state sovereign immunity under the Eleventh Amendment
and county liability under § 1983.
4
We have sometimes described the ability to hold property and the ability to sue as separate
factors, but those considerations more often than not crop up as manifestations of local
autonomy. 13 Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 3524.2 (3d ed. 2018 & Update 2021) (acknowledging that
courts sometimes discuss capacity to hold property and to sue as additional factors but
noting that the “central factor[]” common to those considerations is “the degree of
autonomy”). We have all but acknowledged as much by noting that they are typically
analyzed “in a fairly brief fashion.” Hudson, 174 F.3d at 681.
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officials in a number of other ways. Unlike District Judges whose inter-term
vacancies are filled by the Governor of Texas, vacancies of County Judges are
filled by the County Commissioners Court. 5 Id. § 25.0009; cf. Tex.
Const. art. 5, § 28(a). Indeed, Peden (cited in the majority opinion), which
held that the Governor’s appointment was without authority, makes clear
that this difference is “because of the distinct separation of county judges
from judges of our other courts, state and district.” State ex rel. Peden v.
Valentine, 198 S.W. 1006, 1009 (Tex. App.—Fort Worth 1917, writ ref’d)
(addressing a Tarrant County civil county court). The County Judges’
statutorily close ties to the county do not end there; to take just a handful of
examples, the County Commissioners Court can increase their salary, is in
charge of providing their facilities and personnel, and can give them longer
terms on the bench. See Tex. Gov’t Code Ann. §§ 25.0005, .0010, .0016. If
all that were not enough, Texas courts themselves also recognize that
statutory county judges (like the County Judges here) are generally county
officers. See Peden, 198 S.W. at 1008 (concluding that a statutory county
judge is “a county officer as contradistinguished from a district judge or a
state officer”); see also Jordan v. Crudgington, 231 S.W.2d 641, 646 (Tex.
1950) (concluding that judges of a court created for a single county—like the
County Judges here—are county officers). In short, state law definitively
treats the County Judges as county-level officials.
The County Judges likewise have significant local autonomy in Dallas
County. One need look no further than the facts of this case to reach that
conclusion: exercising their local rulemaking powers under Texas
5
As is true in many states, judges in Texas are generally elected. But when a vacancy occurs
during a judge’s term, it has to be filled until the next election. The Governor does that for
the District Judges; the Dallas County Commissioners Court does that for the County
Judges.
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Government Code § 74.093, the County Judges created a bond schedule that
is, in practice, the final say on how much misdemeanor arrestees must pay to
make bail in Dallas County.
The County Judges’ primary area of concern is also local: their
jurisdiction covers all misdemeanor offenses, but only within Dallas County.
Tex. Gov’t Code Ann. §§ 25.0593, 26.045. Obviously, state entities have to
draw lines somewhere. But when those lines mirror county lines exactly, 6
one has to conclude that county-level affairs are the primary target.
The majority opinion focuses on Article V, section 1 of the Texas
Constitution as providing that county courts are “established by the
constitution,” which somehow makes them state actors. Of course, this
citation overlooks the fact that the exact same paragraph also mentions
Commissioners Courts, which are the Texas equivalent of a city council over
the county. It is difficult to envision how anyone could term the Dallas
County Commissioners as “state actors” when they run Dallas county.
Wichita Cnty. v. Bonnin, 182 S.W.3d 415, 419 (Tex. App.—Fort Worth 2005,
pet. denied) (“The Texas Constitution provides that the commissioners
court ‘shall exercise such powers and jurisdiction over all county
business . . . .’” (quoting Tex. Const. art. V, § 18)). The same could be
6
There are a few statutory county judges who serve more than one county due to
size, but the vast bulk are “county by county,” and that is the limit of their authority. In
any event, it does not matter that some other Texas judges serve multiple counties. The
suggestion that the responsibilities of other judges inform whether these judges acted as
county policymakers is at odds with McMillian’s admonition that the general
responsibilities of a job are largely irrelevant to the policymaker inquiry. See 520 U.S. at
785. It is also irrelevant to the County Judges themselves, who serve only Dallas County—
making it not at all strange to call them county policymakers insofar as they determine the
amount of bail arrestees must pay in this county. Moreover, even if they served more than
one county, there is no reason to think that a multi-county judge could not be a policymaker
in whatever county or counties in which the judge sets a generally applicable bond schedule
(or, for that matter, any other policy).
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questioned about “justices of the peace” who are also mentioned in that
same paragraph. Indeed, the Texas Constitution separates the discussion of
county courts and county judges from district court and district judges.
Given that all these factors point in one direction, the answer is
obvious: the County Judges are county officials. 7 They cannot assert state
sovereign immunity and, as discussed below, can be appropriate officials for
attaching municipal liability. See Hudson, 174 F.3d at 683.
ii. County Policymakers
The next question is just as important, at least insofar as its answer
determines whether Dallas County itself should remain in the case: are the
County Judges acting as county policymakers with respect to the bond
schedule such that county liability can attach? Yes, they are.
7
The conclusion that parts of a state judicial system might include county-level officials is
not revolutionary. We have, for instance, previously concluded that certain county-focused
judicial structures cannot assert state sovereign immunity. Skelton v. Camp, 234 F.3d 292,
296–97 (5th Cir. 2000). So have other circuits. See Chisolm v. McManimon, 275 F.3d 315,
323–24 (3d Cir. 2001) (concluding that a set of county-level judges were not arms of the
state); Hyland v. Wonder, 117 F.3d 405, 413–14 (9th Cir. 1997) (same); see also Alkire v.
Irving, 330 F.3d 802, 812–13 (6th Cir. 2003) (indicating that a county court could not assert
state sovereign immunity if its funding came from the county). Likewise, we and other
circuits have also concluded that related entities intimately connected to courts cannot
assert state sovereign immunity, including when the claims at hand arise in a carceral
context. See Flores, 92 F.3d at 264–69 (holding that a juvenile probation board was a county
agency for the purposes of county liability); Crane v. Texas, 766 F.2d 193, 194–95 (5th Cir.
1985) (per curiam) (holding that a Texas sheriff was a county official); Carter v. City of
Philadelphia, 181 F.3d 339, 347–55 (3d Cir. 1999) (holding that a DA’s office was not an arm
of the state for the purposes of claims arising from administrative and policymaking
functions); Kitchen v. Upshaw, 286 F.3d 179, 184–85 (4th Cir. 2002) (holding that the
Virginia Regional Jail Authority was a county agency for the purposes of a due process
claim); Streit v. Cnty. of Los Angeles, 236 F.3d 552, 566–67 (9th Cir. 2001) (holding that the
Los Angeles Sheriff’s Department was not an arm of the state for the purposes of municipal
liability).
There is, in other words, no “courts exception” to the arm of the state analysis.
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As a preliminary point, the question of whether they are acting for the
county here is resolved by the conclusion that they are county officials, but
our analysis goes deeper. Cf. Flores v. Cameron Cnty., 92 F.3d 258, 264–69
(5th Cir. 1996) (analyzing the county official state sovereign immunity factors
in assessing whether an entity acted for the county for § 1983 county liability
purposes). The majority opinion argues that we must determine whether the
County Judges act for the county in this particular context, as local officials can
sometimes act on behalf of the state if they are following some state law duty.
See McMillian v. Monroe Cnty., 520 U.S. 781, 784–85 (1997); see, e.g., Esteves
v. Brock, 106 F.3d 674, 677–78 (5th Cir. 1997).
The majority opinion then suggests that the County Judges are acting
on behalf of the state. However, its apparent conclusion on that point rests
on a flawed assumption about the nature of the challenged conduct: that the
County Judges are merely setting bail per state law. See Tex. Code Crim. P.
arts. 15.17, 17.15, 17.031(a). But that’s not what the County Judges are
doing—they’re issuing generally applicable bond schedules, not holding bail
hearings. Look high and low in the statutes cited by the majority opinion,
there is no state directive on that.
So where does the County Judges’ ability to issue bond schedules
come from? They tell us that they’re promulgating a local rule about how
much bail all misdemeanor arrestees have to pay in their jurisdiction. See
Tex. Gov’t Code Ann. § 74.093 (allowing them to promulgate local rules).
But that is not a state-imposed duty; Texas law lets them issue local rules, it
does not require them to do so—and it certainly does not require them to issue
local rules that set the bail applicable to every misdemeanor case that comes
in the door. 8 Tex. Gov’t Code Ann. § 74.093. So, when they promulgate
8
I do not comment on whether a bond schedule is in fact a permissible local rule as a matter
of state law. Nor do I comment on whether local rules generally constitute county policies.
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local rules regarding bail for misdemeanor arrestees, they act on their own
initiative. Since they are county officials while doing so, they cannot be
reasonably described as acting on behalf of the state.
So, they are county officials acting on behalf of the county—but are
they also engaged in policymaking? Yes. To be sure, most of the time and in
most contexts, they are not; their primary job is to decide cases and
controversies, a classic judicial function. See Johnson v. Moore, 958 F.2d 92,
93–94 (5th Cir. 1992); see also, e.g., Adams v. Governor of Del., 922 F.3d 166,
178–79 (3d Cir. 2019), rev’d on other grounds and vacated sub nom. Carney v.
Adams, 141 S. Ct. 493 (2020). But the question here is conduct-specific. The
operative inquiry focuses on whether, as a practical matter, the judges act as
policymakers in this particular context—not whether the judges act as
policymakers for Dallas County “in some categorical, ‘all or nothing’
manner.” McMillian, 520 U.S. at 785. The question is simply whether they
set policy “in a particular area, or on a particular issue.” Id. Thus, we need
not “make a characterization . . . that will hold true for every type of official
action the [judges] engage in”—we must simply determine whether the
County Judges are county policymakers with respect to the specific conduct
at issue in this case. Id.
With that framing, the specific conduct at issue here—setting a bond
schedule for others to apply and then acquiescing in its rigid application—is
policy-setting conduct that is not undertaken in the County Judges’ judicial
capacity. Judges typically act beyond their judicial capacities (and thereby
can both act as policymakers and be directly enjoined under § 1983)
whenever their conduct is untethered from any particular “controversy
I merely conclude that the County Judges have created county policy by purporting to issue
a local rule that governs the bail set by other judges.
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which must be adjudicated.” Sup. Ct. of Va. v. Consumers Union of the U.S.,
Inc., 446 U.S. 719, 731 (1980) (internal quotation marks and citation omitted);
cf. Davis v. Tarrant Cnty., 565 F.3d 214, 227 (5th Cir. 2009) (noting that acts
taken in a judicial capacity do not create county liability). Consistent with
these principles, in Davis, we identified a four-factor test for determining
whether conduct is judicial in nature, looking to whether the conduct at issue:
(1) is “a normal judicial function”; (2) “occurred in the courtroom or
appropriate adjunct spaces”; (3) “centered around a case pending before the
court”; and (4) “arose directly out of a visit to the judge[s] in [their] official
capacity.” 9 565 F.3d at 222. We have likewise identified that issuing general
orders regarding how to process stages of litigation does not qualify as a
judicial act. Id. at 222 & n.3 (citing for that proposition Morrison v. Lipscomb,
877 F.2d 463, 465–66 (6th Cir. 1989)). 10
Balancing the Davis factors, the County Judges were not engaged in
judicial conduct here because they were merely directing other judges in a
manner divorced from any given case. First, it is indisputable that setting bail
in a particular case is a normal judicial function in the abstract. See Garza v.
Morales, 923 S.W.2d 800, 803 (Tex. App.—Corpus Christi, 1996, no writ).
But it is not a normal judicial function for the County Judges to set generic bail
for the Magistrate Judges, who are the ones who generally set conditions of
9
Texas state courts apply essentially the same test. James v. Underwood, 438 S.W.3d 704,
710 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (per curiam).
10
The majority opinion notes that only the first factor is relevant because there are some
“factual situations in which it makes sense not to consider multiple factors but just to focus
on an overarching point.” Majority Op. at 23 (footnote omitted). I disagree. Suggesting
that factors can be ignored in some factual situations is an unworkable standard. Of course,
as in any test where factors are weighed, some factors may weigh more heavily in a
particular situation; but that doesn’t mean that some factors should not even be considered.
In my view, courts should apply all the factors and then reach a decision, as we have done
previously. See, e.g., Ballard v. Wall, 413 F.3d 510, 515–16 (5th Cir. 2005).
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release in Dallas County’s bail system. See Ex parte Clear, 573 S.W.2d 224,
229 (Tex. Crim. App. 1978) (en banc) (noting that Magistrate Judges can
have “[s]ole jurisdiction” over bail determinations in some circumstances).
Second, nothing indicates that the bond schedules were prepared by the
County Judges in the Magistrate Judges’ chambers or any other “adjunct”
spaces to the Magistrate Judges’ courtrooms. Davis, 565 F.3d at 222.
Perhaps most significant are the third and fourth factors: setting a generally
applicable bond schedule is definitively not “centered around” any
individual case and does not, as a consequence, result “directly out of a visit”
to the County Judges in any sort of judicial capacity. Id. Considering these
factors, the County Judges are not acting in a judicial function in this context;
they are setting policy on how others should process cases. Id.; see Consumers
Union, 446 U.S. at 731; Morrison, 877 F.2d at 465–66 (concluding that a
presiding judge was acting in an administrative capacity when issuing a
general moratorium on writs of restitution because doing so was a “general
order, not connected to any particular litigation”).
That conclusion flows naturally from how the County Judges actually
act with respect to the Magistrate Judges. The district court found as a
factual matter (which has not been challenged) that the County Judges issue
the schedules that the Magistrate Judges “routinely treat . . . as binding.”
The majority opinion overlooks that this is a factual finding and makes
its own factual finding that the County Judges are somehow removed from
the Magistrate Judges’ work. That is not what the district court found. That
is, the schedules are applied as a matter of course across every applicable case
in Dallas County. There is no indication that the bond schedules were issued
to resolve any particular matter or, indeed, that they even appear on any
specific criminal dockets. Because the Magistrate Judges mechanically
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follow their generally applicable bond schedules, 11 they are acting, in practice,
as “the final authority” and “ultimate repository of county power” when it
comes to the bail amounts misdemeanor arrestees must pay in Dallas County.
Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980). That makes
them county policymakers.
The County Judges attempt to analogize this case to Davis itself. In
doing so, they correctly note Davis’s conclusion that certain conduct
“inextricably linked” to specific cases falls on the judicial side of the judicial–
policymaking line. 565 F.3d at 226. But Davis does not support their position
that all “general guidelines for processing criminal cases” are judicial in
nature. Davis merely concluded that selecting attorneys for an appointed
counsel list was a judicial act and, even then, only because those decisions
“functionally determine which attorney actually will be appointed in a
particular case.” Id. at 225–26. No such link exists between the bond
schedules and individual cases here—there is, for instance, no evidence that
the judges issued the schedules because they wanted specific defendants to pay
a particular bail amount in the same way that the Davis judges wanted specific
attorneys to appear in their courtrooms. Rather, the bond schedules were
generally promulgated policies—policies which, as the majority opinion
acknowledges, were set by judges other than the judges that actually executed
the policies. See Majority Op. at 23 (“[I]n Davis, the judges establishing the
procedure were also the ones appointing counsel. Here, the bail schedules
11
The majority opinion again engages in its own fact-finding here, taking issue with the
district court’s findings and issuing its own “reasonable prediction” regarding the
treatment of bail schedules. Majority Op. at 29–30. The district court considered the
proffered facts and made a different factual finding to which we should defer. Deciding
what people are thinking is quintessential district court-level fact-finding not speculation
for appellate courts to decide.
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were created by judges other than those who would later set bail for individual
arrestees.”).
The bottom line is that we have county officials, who are paid by the
county, creating local rules that only apply to the county in which they sit.
They are not acting under a state law duty or in a judicial capacity. They are
county policymakers. See ODonnell I, 892 F.3d at 155–56. Accordingly, they
can be enjoined with respect to their bond schedules, and for the same
reasons, Dallas County is liable for their conduct.
2. District Judges
The District Judges are subject to a different analysis, given some
differences in state law applicable to them. I agree that they are state officials
rather than county policymakers, but they are nonetheless subject to the same
ultimate conclusion: they can be prospectively enjoined in this case.
I, therefore, do not disagree with the majority opinion on the point
that the District Judges are arms of the state, generally capable of asserting
state sovereign immunity. Indeed, our case law suggests the same. See Davis,
565 F.3d at 228 (suggesting that state district judges like the District Judges
are arms of the state); Warnock v. Pecos Cnty., 88 F.3d 341, 343 (5th Cir. 1996)
(same).
However, the fact that they are state officials does not exempt them
from this case. That is because state sovereign immunity does not block the
sort of injunctive relief sought here; the District Judges can be prospectively
enjoined for their violations of federal law under the doctrine laid out in Ex
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parte Young, 209 U.S. 123, 157 (1908). See Air Evac EMS, Inc. v. Tex., Dep’t
of Ins., Div. of Workers’ Comp., 851 F.3d 507, 515–16 (5th Cir. 2017). 12
The requirements are straightforward: for Ex parte Young to permit a
suit against otherwise immune state officials, a plaintiff must sue them in
their official capacities, allege an ongoing violation of federal law, and seek
relief that properly can be characterized as prospective. Verizon Md., Inc. v.
Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002). Any official who has
“some connection” to enforcement of the alleged violation of federal law is
12
The Supreme Court recently issued a decision in Whole Woman’s Health v. Jackson, No.
21-463, 2021 WL 5855551 (U.S. Dec. 10, 2021), which concerned a pre-enforcement
challenge to a Texas law (S.B. 8) wherein the plaintiffs sought to enjoin state court judges
and their clerks from hearing or docketing cases seeking to enforce S.B. 8. The Court
explained that state court judges “normally” may not be enjoined under Ex parte Young
because they typically “do not enforce state laws as executive officials might.” Id. at *5.
Instead, when “a state court errs in its rulings” in a particular case, “the traditional
remedy” is to appeal that decision. Id.
Whole Woman’s Health concerns a wholly different part of Ex parte Young and does not alter
that analysis, here. In Whole Woman’s Health, the state court judges had no relation to S.B.
8—they neither created nor enforced it. The bond schedules at issue in this case, however,
were promulgated by judges, not the legislature, and they are enforced by judges, not
private citizens or executive officials. Moreover, because the promulgation of the bond
schedule is unlinked to any particular case (and is enforced by judges that didn’t even create
it), the “traditional remedy” of an appeal is unavailable and the traditional role of judges is
not in play.
This case is more in line with Shelley v. Kraemer, 334 U.S. 1 (1948), which recognized that
when state courts enforce rules “formulated by those courts” and such rules violate
constitutional rights, those courts may be stopped from continued enforcement. Id. at 17,
20. The Whole Woman’s Health Court did not overrule Shelley v. Kraemer; it instead
explained that that case was different because it did not involve a pre-enforcement action
and constitutionality was used as a defense. Whole Woman’s Health, 2021 WL 5855551, at
*7. In other words, S.B. 8 presented a different context because the violators of the law had
not yet been sued and had therefore not faced conduct to which they could raise
constitutionality as a defense. This case is different. The Plaintiffs here were actually (and
unconstitutionally) detained for wealth-based reasons. The unconstitutional practice was
promulgated by judges and is enforced by judges. Consistent with Shelley v. Kraemer, state
court judges may be enjoined for their independently unconstitutional acts. Whole
Woman’s Health presents no issue.
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amenable to suit. Ex parte Young, 209 U.S. at 157. To have such a connection,
we have said that plaintiffs need only demonstrate that, in exercising official
duties, the official “constrain[s]” the plaintiffs’ rights in some way. 13 Air
Evac, 851 F.3d at 519; see also K.P. v. LeBlanc, 729 F.3d 427, 439 (5th Cir.
2013). That requirement is plainly satisfied.
Specifically, this case is akin to our court’s decision in Air Evac, in
which we concluded that a set of state officials had constrained a plaintiff’s
13
This is getting old to say, but our circuit’s case law on what constitutes “some
connection” to enforcement for Ex parte Young purposes is hardly a paragon of clarity. See,
e.g., Tex. Democratic Party v. Abbott, 978 F.3d 168, 179 (5th Cir. 2020) (“This circuit has
not spoken with conviction about all relevant details of the ‘connection’ requirement.”),
cert. denied, 141 S. Ct. 1124 (2021) (mem.); Tex. Democratic Party v. Abbott, 961 F.3d 389,
400 (5th Cir. 2020) (“The precise scope of the ‘some connection’ requirement is still
unsettled . . . .”); City of Austin v. Paxton, 943 F.3d 993, 999 (5th Cir. 2019) (“What
constitutes a sufficient ‘connection to . . . enforcement’ is not clear from our
jurisprudence.” (quoting Ex parte Young, 209 U.S. at 157)), cert. denied, 141 S. Ct. 1047
(2021) (mem.).
As a general matter, I am skeptical that our various probing—and jurisdictional—“some
connection” tests are consistent with the Supreme Court’s articulation of Ex parte Young
as a “straightforward inquiry” that is satisfied so long as the complaint “alleges an ongoing
violation of federal law and seeks relief properly characterized as prospective.” Verizon
Md., 535 U.S. at 645 (quotation omitted). In particular, our heavy use of redressability
related questions in the state sovereign immunity inquiry strikes me as both redundant to
our well-established approach to standing and, more to the point, irrelevant to whether the
case is in substance a suit against a sovereign entity. Cf. Jacobson v. Fla. Sec’y of State, 974
F.3d 1236, 1256 (11th Cir. 2020) (noting that the “some connection” test is less demanding
than the standing inquiry). It seems to me that the better approach would be to leave much
of that analysis to a causation question on the merits—as applicable here, whether the
named defendant “subject[ed], or cause[d] to be subjected” the plaintiffs to a violation of
their rights under federal law—rather than frontload it all into an attempt to discern
whether the state’s sovereign interests are impacted by the litigation. 42 U.S.C. § 1983; see
Verizon Md., 535 U.S. at 646 (emphasizing that merits analyses are not appropriate in the
state sovereign immunity inquiry).
Even so, we need not clarify our “some connection” approach in this case; it is plain that
the District Judges have a sufficient connection to the enforcement of their own, binding
bond schedule to be amenable to suit under our precedents. See Air Evac, 851 F.3d at 515–
16.
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rights by setting a particular reimbursement rule applicable to the plaintiff
that the officials could, in turn, police through a pseudo-appeal process. 851
F.3d at 519. That is, although the officials did not “direct[ly] enforce[]” their
rule, they could be prospectively sued simply because they were practically
able to “effectively ensure the . . . scheme is enforced from start to finish.”
Id.
The same analysis applies here. The District Judges have used their
local rule setting authority, Tex. Gov’t Code Ann. § 74.093(c), to issue a
bond schedule that in practice controls their subordinates. It is clear from
both Plaintiffs’ complaint and from the district court’s fact-finding that the
District Judges effectively ensure that their schedule is applied. The
schedule is, per the complaint, the “exclusive means” for determining
pretrial release and is, per the district court, “binding” on the Magistrate
Judges. Setting a binding schedule that the relevant decisionmakers do not
deviate from is enough to constrain the rights of indigent arrestees like
Plaintiffs for Ex parte Young purposes. That a different group—the
Magistrate Judges—directly enforce the bond schedule is not determinative.
Air Evac, 851 F.3d at 519. Notably, we are not talking about enjoining the
District Judges from hearing cases or telling them how to determine a
particular case, so those types of situations are not in play here.
If the actual alleged (and proven) facts of this case were not enough,
the District Judges’ ability to effectively ensure that their bond schedule is
applied is also obvious from the control they exercise over the Magistrate
Judges under state law. As a general matter, the Magistrate Judges follow the
District Judges’ lead across the board: the Magistrate Judges are “surrogate
court officer[s]” whose role is “to assist the district judge.” Madrid v. State,
751 S.W.2d 226, 229 (Tex. App.—El Paso 1988, pet. ref’d). The Magistrate
Judges’ decisions depend on “active or tacit finalization” by the District
Judges. Id. at 228. Even when explicitly referred a matter, the Magistrate
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Judges “have no power of their own” and their orders are only “legally
binding” if “adopted by the referring court.” Kelley v. State, 676 S.W.2d
104, 107 (Tex. Crim. App. 1984); accord Omura v. State, 730 S.W.2d 766, 767
(Tex. App.—Dallas 1987, writ ref’d) (“[A] magistrate acts only as the agent
of the district court, under proper supervision by the court.”); see generally
Tex. Gov’t Code Ann. § 54.308. Further, although the District Judges are
correct that the Texas Court of Criminal Appeals has given more significant
discretion to Magistrate Judges on bail issues (at least until another judge
assumes jurisdiction over a case), it is plain that, notwithstanding that
authority, the Magistrate Judges here follow the District Judges’ marching
orders on the subject.
The District Judges thus have both the power to “effectively ensure”
that their bond schedule is enforced and have, as a matter of undisputed fact,
actually ensured that the specific prices they have set are enforced. Air Evac,
851 F.3d at 519. That makes them proper Ex parte Young defendants.
The District Judges try to distance themselves from that conclusion
by asserting that they don’t control every step the Magistrate Judges take.
After all, they note, the schedule is technically called a guideline and, what’s
more, the Magistrate Judges continue to simply follow the schedule even
after the District Judges told them to also evaluate financial affidavits. But
those arguments are put firmly to rest by the Plaintiffs’ allegations (and, for
that matter, the district court’s fact-finding): whatever label the District
Judges put on the schedule—and even though they have added the affidavits
as an additional step in the process—the specific prices on the schedule are
plainly binding in practice.
Yet, the majority opinion buys the District Judges’ argument,
essentially concluding that state officials can duck responsibility simply by
calling their actually binding policies mere recommendations. The majority
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opinion questions “how the District Judges’ and County Judges’
promulgations of the non-binding bail schedules would predictably cause the
Magistrate judges to treat the schedules as binding.” As if something called
a recommendation could never be intended and treated as a requirement.
Indeed, the majority opinion flatly disregards Plaintiffs’ allegations (not to
mention, the district court’s fact-finding) that the District Judges’
“recommended” schedule was nothing of the sort. Cf. Verizon Md., 535 U.S.
at 646 (emphasizing that an allegation of an ongoing violation of federal law
is sufficient; no “analysis of the merits of the claim” is necessary). But the
majority opinion’s conclusion also poses a deeper problem by injecting a
perplexing formalism into the equation: per the majority opinion, state
officials can now wash their hands of their actual connection to enforcement
just by calling their directives advisory—even when plaintiffs allege (and a
federal district court finds as a matter of fact) that the directive actually
governs how others act. That cannot be the law and, in fact, is not the law.
So long as plaintiffs plausibly allege that the state officials “constrain” their
rights in the exercise of their official duties, it does not matter what label the
officials slap on their stationery. Air Evac, 851 F.3d at 519.
All this squares up: whether or not the District Judges can assert state
sovereign immunity, they can be prospectively enjoined under Ex parte
Young. That does not necessarily answer, however, whether the specific
injunctive relief sought here is appropriate, a subject on which the District
Judges launch a bevy of arguments. But, like their general complaints, these
also fail. In particular, the District Judges assert that the district court cannot
require them to review bail decisions (which they contend would violate state
law); change the bond schedule (which they contend is an inappropriate
order to affirmatively regulate); or instruct the Magistrate Judges to assess
arrestees’ ability to pay (which they contend is an improper directive to
comply with state law). The District Judges are wrong on all three points.
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On the first point (reviewing bail decisions), it is true that, under
Texas law, bail decisions are sometimes left to the “sole jurisdiction” of the
Magistrate Judges—such as when those judges hear the matter in the first
instance. See Ex parte Clear, 573 S.W.2d at 229. It is likewise true that
directing the District Judges to review challenged Magistrate Judge bail
decisions (as the district court did) would appear to require them to assume
some jurisdiction over the bail process, at least in part. But, as the District
Judges elsewhere acknowledge, that’s something the District Judges can
already do; as they put it, they are already empowered to “consider a motion
to reduce [Plaintiffs’] bail.” See, e.g., Ex parte Williams, 467 S.W.2d 433, 434
(Tex. Crim. App. 1971). So, directing them to do so here does not require
any violation of state law—it merely requires them to exercise authority they
already have. Indeed, to the extent there are any lingering Younger concerns,
that direction is also minimally intrusive; the District Judges’ review need
not even result in a written decision. The district court’s direction is
therefore permissible under Ex parte Young. See Cnty. of Riverside v.
McLaughlin, 500 U.S. 44, 55–56, 58 (1991).
On the second point (altering the bond schedule), the District Judges
make much of the general principle that the federal government lacks the
ability to require affirmative state regulation on a topic. But the cases they
cite for that proposition are about commandeering state enforcement
authorities to create policies in the service of accomplishing some statutory
goal, not about federal court involvement in rectifying self-evident
constitutional violations. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.
519, 577–78 (2012); Murphy v. NCAA, 138 S. Ct. 1461, 1477 (2018); Mi
Familia Vota v. Abbott, 977 F.3d 461, 469 (5th Cir. 2020). That distinction
dooms the District Judges’ argument; contrary to the District Judges’
intimations otherwise, injunctions requiring affirmative steps to safeguard
constitutional rights fall squarely within the equitable powers of the federal
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courts. 14 As this court has previously explained, correcting Fourteenth
Amendment violations in particular often requires state officials to change
their policies, and so a court is empowered to “exert its equitable power to
prevent repetition of the violation . . . by commanding measures that
safeguard against recurrence.” Ruiz v. Estelle, 679 F.2d 1115, 1156 (Former
5th Cir. 1982), modified on other grounds, 688 F.2d 266 (Former 5th Cir. 1982).
The district court’s order is plainly permissible under that framing. Indeed,
the order does not even direct any defendant to create any new affirmative
policies, it just requires defendants to alter their existing policies—including,
specifically, an existing bond schedule the District Judges have already
issued—to conform them to the requirements of federal law. That is the sort
of prospective relief available under Ex parte Young. See Verizon Md., 535
U.S. at 645.
14
See, e.g., M. D. by Stukenberg v Abbott, 907 F.3d 237, 276–79, 282–83 (5th Cir. 2018)
(concluding that a federal court could require a state foster care system to implement
training, investigative, reporting, and computer systems policies); Ruiz v. Estelle, 679 F.2d
1115, 1155–56 (Former 5th Cir. 1982) (concluding that a federal court could require a state
prison system to record all disciplinary hearings, preserve those recordings, and make them
available to inmates), modified on other grounds, 688 F.2d 266 (Former 5th Cir. 1982);
Ciudadanos Unidos de San Juan v. Hidalgo Cnty. Grand Jury Comm’rs, 622 F.2d 807, 828–
30 (5th Cir. 1980) (concluding that a federal court could require local jury commissioners
to formulate policies to ensure that indigent individuals, among other groups, were
adequately represented in grand jury pool); Swann v. Charlotte-Mecklenburg Bd. of Educ.,
402 U.S. 1, 15–20 (1971) (requiring a state public school district to implement a busing
policy to rectify an equal protection violation and noting that a federal court’s power to
enter such injunctive relief “does not differ fundamentally from other cases involving the
framing of equitable remedies to repair the denial of a constitutional right”); Jones v. Tex.
Dep’t of Crim. Just., 880 F.3d 756, 759–60 (5th Cir. 2018) (per curiam) (concluding that a
federal court could require a prison to provide an inmate with less sugary meals); Gates v.
Cooke, 376 F.3d 323, 339–40 (5th Cir. 2004) (concluding that a federal court could require
a prison to adopt a policy providing fans, ice water, and daily showers to inmates under
certain conditions); Miller v. Carson, 563 F.2d 741, 751 (5th Cir. 1977) (concluding that a
federal court could require a prison to adopt a policy allowing inmates to exercise outdoors).
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Same with the third point (directing the Magistrate Judges to consider
ability to pay). The District Judges assert that such relief is inappropriate
because state law already requires the Magistrate Judges to take into
consideration an arrestee’s ability to make bail. See Tex. Code Crim. P. art.
17.15(4). It is true that federal courts cannot prospectively enjoin state
officials to comply with state law under Ex parte Young. See Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984). But that’s not what
Plaintiffs are asking for; they want the District Judges to direct the Magistrate
Judges to consider their ability to pay because the Fourteenth Amendment
requires it. That the same relief could also be available under state law is
immaterial. Frew ex rel. Frew v. Hawkins, 540 U.S. 431, 439 (2004); see also
Tex. Democratic Party, 961 F.3d at 401 (emphasizing that an attempt to
prevent conduct that “violate[s] the Constitution” is not an attempt to
enforce state law).
In short, even if the District Judges are state officials, they can be
prospectively enjoined under Ex parte Young in connection with their
promulgation of the bond schedule and their acquiescence to its mechanical
application on the part of the Magistrate Judges. 15
B. Standing
Plaintiffs have satisfied the concrete injury, traceability, and
redressability requirements to establish standing against all Defendants. See
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
The analysis is simple. Plaintiffs as a class are continuously injured by
being detained solely based on their inability to pay. So, the concrete injury
requirement is met. McLaughlin, 500 U.S. at 50–51. It is an unchallenged
15
Because the majority opinion reaches no conclusion on the Sheriff, see Majority Op. at
27, I will not address her “classification” here either.
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fact that the bond schedules the County Judges and District Judges issue—
which the Magistrate Judges and the Sheriff in turn enforce—are the but-for
reason that Plaintiffs receive that treatment. So, traceability is met. Dep’t of
Commerce v. New York, 139 S. Ct. 2551, 2566 (2019). Enjoining the
Defendants to change how the schedules are enforced would stop this
systemic injury. So, redressability is met. McLaughlin, 500 U.S. at 51.
Importantly, the County Judges’ and District Judges’ schedules are
not just given “virtually determinative effect”—they are given actually
determinative effect by the Sheriff and the Magistrate Judges. Bennett v.
Spear, 520 U.S. 154, 170 (1997). Plaintiffs therefore have standing against all
of them.
C. Abstention
We’ve arrived at the final issue—Younger abstention—which the
majority opinion relies upon heavily even though no party had briefed it to
the en banc court. 16 That simple fact should end the discussion: a party
abandons an argument by failing to present it in en banc briefing, regardless
of whether the party had previously raised it at some other stage of litigation.
Coke v. Gen. Adjustment Bureau, Inc., 640 F.2d 584, 586 n.2 (5th Cir. Mar.
1981) (en banc) (“[The party] has not renewed this argument in his briefs to
the en banc court, and we therefore consider the argument to have been
abandoned.”); see also Brown v. Hotel & Rest. Emps. & Bartenders Int’l Union,
468 U.S. 491, 500 n.9 (1984) (reasoning that, when a state party fails to
“press [a] Younger abstention claim” on appeal and submits to the court’s
16
Because the majority opinion remands on Younger and subtracts a number of defendants,
it does not reach the merits of the preliminary injunction. I will not, therefore, spend much
time on the merits other than to say that I continue to conclude that ODonnell I was
correctly decided and would affirm the district court’s injunction for the reasons set forth
in the district court’s opinion.
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jurisdiction, it effectively “agree[s] to . . . adjudication of the controversy”
such that comity concerns “are not implicated”); Tex. Ass’n of Bus. v. Earle,
388 F.3d 515, 519 (5th Cir. 2004) (noting that Younger arguments can be
waived even if the doctrine would otherwise apply). It should go without
saying that resuscitating an abandoned argument, as the majority opinion
does, is directly contrary to “our adversarial system of adjudication” and
“the principle of party presentation.” 17 United States v. Sineneng-Smith, 140
S. Ct. 1575, 1579 (2020); see also Rollins v. Home Depot USA, 8 F.4th 393, 398
(5th Cir. 2021) (“Courts should not selectively address forfeited arguments
just because they have sympathy for a particular litigant.”). That should end
the matter.
The majority opinion nonetheless “sall[ies] forth” on its own
initiative. 18 Sineneng-Smith, 140 S. Ct. at 1579 (quotation omitted). But even
17
Of course, we are required to address subject matter jurisdiction because it
cannot be waived. But our precedents firmly establish that Younger abstention is non-
jurisdictional. Weekly v. Morrow, 204 F.3d 613, 615 (5th Cir. 2000). The majority opinion
does not claim to be overruling our holdings on that score, so I am at a loss as to why we
would raise this abstention issue sua sponte, even if it is theoretically in our power to do so.
Cf. Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976) (noting merely that some abstention
doctrines “may” be raised sua sponte (emphasis added)). But see E. Martin Estrada,
Pushing Doctrinal Limits: The Trend Toward Applying Younger Abstention to Claims For
Monetary Damages and Raising Younger Abstention Sua Sponte on Appeal, 81 N.D. L. Rev.
475, 476 (2005) (describing “[s]ua sponte application of Younger abstention” as
“suspect,” noting that “the Supreme Court has not directly addressed the issue of whether
Younger abstention can be raised sua sponte on appeal,” and emphasizing that such a step
“rests on shaky ground—obiter dictum in [Bellotti] that is not at all concerned with Younger
abstention”).
That’s especially so because the principle the majority opinion surely attempts to
vindicate—respect for the state courts—has been abandoned in this case by the very parties
most acutely connected to that interest: state court judges. See Brown, 468 U.S. at 500 n.9.
Since they no longer brief the claim that Younger is implicated here, why should we?
18
The majority opinion proceeds on its own initiative, even though the offices of
Defendants’ counsel are “chock-full of excellent attorneys.” Lucio v. Lumpkin, 987 F.3d
451, 506 (5th Cir. 2021) (en banc) (Haynes, J., dissenting), cert. denied, No. 21-5095, 2021
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if we consider the merits of this argument, it fails. Our—and more
importantly, the Supreme Court’s—precedents make it plain that Younger
abstention is entirely inappropriate here. Abstention is only appropriate if
the case requires (1) interference with an “ongoing state judicial proceeding”
(2) that “implicate[s] important state interests” and (3) that offers an
“adequate opportunity” to “raise constitutional challenges.” Middlesex
Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); see
Younger, 401 U.S. at 43–49. Specifically, the first and third conditions for
triggering Younger are plainly not met in this case.
As to the first, general-purpose procedural safeguards (like those
ordered by the district court) do not directly interfere with any particular
criminal proceeding. Pugh v. Rainwater, 483 F.2d 778, 782 (5th Cir. 1973)
(concluding that a challenge to “pre-trial procedural rights” did not interfere
with “any state prosecution as such”), rev’d on other grounds sub nom. Gerstein
v. Pugh, 420 U.S. 103, 108 n.9 (1975) (reversing on the merits but likewise
concluding that abstention was not required because the requested
injunction’s procedural reforms requiring probable cause hearings were “not
directed at the state prosecutions as such”); see ODonnell I, 892 F.3d at 156–
57; see also Tarter v. Hury, 646 F.2d 1010, 1013–14 (5th Cir. Unit A June 1981)
(concluding that “nondiscretionary procedural safeguard[s]” did not
interfere with a criminal proceeding).
As to the third, the Supreme Court has told us that state criminal
proceedings (like the ones Plaintiffs face) generally do not offer adequate
opportunities to raise concerns about the constitutionality of pretrial
detention processes. As the Supreme Court explained in Gerstein, “the
WL 4822723 (U.S. Oct. 18, 2021) (mem.). Although we liberally construe pro se briefs, we
do not make arguments for those litigants, so we really do not need to make arguments here
on behalf of well-represented parties.
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legality of pretrial detention without a judicial hearing” almost universally
cannot “be raised in defense of the criminal prosecution.” 420 U.S. at 108
n.9. There can be no serious debate that the same point holds true here;
plainly, unconstitutional pretrial detention is not a defense to, say, a theft
charge. See generally Tex. Penal Code Ann. § 31.03. Under the Supreme
Court’s reasoning in Gerstein, then, Plaintiffs lack an adequate opportunity
to raise their detention challenges in the proceedings they are facing. See 420
U.S. at 108 n.9.
These authorities—especially the Supreme Court’s Gerstein
opinion—put beyond doubt that Younger abstention is completely
unwarranted. The cases relied upon in the majority opinion are not to the
contrary because the Supreme Court’s decision in O’Shea and our decision
in Tarter, are both distinguishable.
O’Shea v. Littleton, 414 U.S. 488 (1974), involved more than just bail
setting, it also involved issues at other stages of the proceedings, including
allegedly discriminatory sentencing and jury fee practices (some by a county
attorney’s office), all of which the district court would have to review on the
merits. See id. at 491–92; Littleton v. Berbling, 468 F.2d 389, 392–93 (7th Cir.
1972) (underlying case summarizing the challenged conduct). Moreover,
O’Shea suggested that the plaintiffs in the case had an adequate opportunity
to present their claims in the proceedings themselves through, for example,
appealing any racially discriminatory sentences. 414 U.S. at 502. Certainly,
O’Shea stands for the proposition that beginning-to-end federal supervision
of the state courts is inappropriate. But it is clear that more limited
procedural challenges to a pretrial detention regime (as in this case) can
proceed in federal court; after all, Gerstein—decided the year after O’Shea—
specifically held that requests for probable cause hearings do not require
abstention. Gerstein, 420 U.S. at 108 n.9.
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Indeed, our decision in Tarter elucidates that line. To be sure, Tarter
concluded that a federal district court should abstain from reviewing the
merits of excessive bail claims while an arrestee is being detained (a holding
the majority opinion emphasizes)—but Tarter also concluded that a federal
court is well within its rights to consider requests for “nondiscretionary
procedural safeguard[s]” (a holding the majority opinion ignores). 646 F.2d
at 1013–14. Nothing about the district court’s injunction in this case requires
the district court to review the merits of any bail determination—at most, it
requires Defendants to take certain nondiscretionary procedural steps
(providing affidavits for arrestees to fill out, giving them hearings, and
considering their ability to pay) and then provide the district court with a list
of arrestees who have not received those safeguards. All of those
requirements are consistent with Tarter.
The majority opinion’s determination to ignore Gerstein and apply
inapposite authority is, of course, problematic in its own right. But the
majority opinion’s Younger holding also breaks with the First, Third, Ninth,
Eleventh, and D.C. Circuits, all of which have correctly held that abstention
is inappropriate in the pretrial detention context in light of Gerstein.
Fernandez v. Trias Monge, 586 F.2d 848, 851–54 (1st Cir. 1978); Stewart v.
Abraham, 275 F.3d 220, 225–26 (3d Cir. 2001); Arevalo v. Hennessy, 882 F.3d
763, 766 (9th Cir. 2018); Walker v. City of Calhoun, 901 F.3d 1245, 1254–55
(11th Cir. 2018); Campbell v. McGruder, 580 F.2d 521, 525–26 & n.6 (D.C.
Cir. 1978).
In short, as many of our sister circuits have wisely recognized, Younger
abstention is foreclosed by precedent here. 19 In any event, it would be a
19
Tellingly on this point, the highest judicial officers of our state courts, with the Chief
Justice of Texas as their president, have filed an amicus brief in this case, asking us to resolve
the merits of Plaintiffs’ claims and decide what procedures the Constitution requires. They
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significant stretch to say that the procedures of Dallas County’s pretrial
detention scheme could be meaningfully challenged in Plaintiffs’ state court
prosecutions. In fact, the absence of meaningful review lies at the very core
of Plaintiffs’ claims. Per Plaintiffs, the pretrial bail system improperly
continues to keep them detained without conducting adequate hearings to
determine whether they can pay bail. Those allegations were born out by the
district court’s fact-finding in this case: Plaintiffs are detained for days,
weeks, and sometimes months all on the basis of half-minute arraignment
hearings that are about as nuanced as ordering from a drive-thru window at a
burger joint. They have their name called, and they are told how much they
have to pay. There is no opportunity to challenge the process, let alone to
make constitutional arguments like those raised in this case. Abstention is
plainly inappropriate, so remand is unnecessary.
III. Conclusion
The bail system at issue in this case blatantly violates arrestees’
constitutional rights. Freedom should not depend entirely on the financial
resources at one’s disposal—and yet, in Dallas County, it does. That the
majority opinion attempts to find a way to remove our obligation to address
these critical issues is problematic. Because there are no jurisdictional issues
and Younger is not before us, we should have reached the merits of the
preliminary injunction and affirmed. Given the majority opinion’s different
pathway, I respectfully dissent.
tell us that our “intervention is necessary” and specifically “request[] that [we]
comprehensively articulate and analyze the fundamental constitutional principles.” In
doing so, our state court compatriots apparently see what the majority opinion does not;
that federal involvement in these matters does not threaten the health of the state courts,
it fortifies it.
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