Case: Booth v. Galveston County

On April 8, 2018, a prisoner in Galveston County Jail filed this class action in U.S. District Court for the Southern District of Texas. The case was assigned to Judge George C. Hanks, Jr. Represented by the ACLU of Texas and private counsel, the plaintiffs sued Galveston County and various Galveston County officials under 42 U.S.C. § 1983. The plaintiff alleged that Galveston County’s bail policies—especially the practice of setting a high minimum bail and failing to appoint defense counsel for arrestees’ bail hearings—favored wealthy arrestees over poorer arrestees and violated poor arrestees’ rights under the Sixth and Fourteenth Amendments to the United States Constitution. The plaintiff sought declaratory and injunctive relief.

On the same day the initial complaint was filed, the plaintiff filed for class certification. The putative class would encompass all people who are or would be detained in Galveston County Jail because they were unable to pay secured bail set at magistration.

The plaintiffs filed an amended complaint on May 4, 2018, to join a second incarcerated person as a named plaintiff. The same day, the plaintiffs also filed an amended motion for class certification to reflect the added plaintiff.

On June 8, 2018, the defendant parties filed separate motions to dismiss. First, Galveston County moved the court to dismiss for failure to state a claim, arguing that the County did not make policy to detain individuals without inquiring into their ability to pay and that the County did not set a bail schedule. Second, the District Court Judges also filed a motion to dismiss for failure to state a claim and lack of subject-matter jurisdiction. They argued that plaintiffs lacked standing and that the claims against them in their individual capacities should be dismissed due to their inability to administer relief. Third, the Magistrate Judges filed a motion to dismiss for failure to state a claim, alleging that they did not create the policy; that § 1983 was not the proper vehicle for challenging state court detention release procedures under Fifth Circuit precedent; and that the plaintiffs had no viable Sixth or Fourteenth Amendment claims. Fourth, the District Attorney filed a motion to dismiss for failure to state a claim under immunity grounds. He alleged that he did not set bail or make bail recommendations in misdemeanor cases, and that one of the named plaintiffs lacked standing because he received bond.

On September 9, the District Judges filed a second motion to dismiss for lack of subject-matter jurisdiction. They alleged that one of the named plaintiff’s claims were moot because his criminal case concluded. Further, they argued that the Eleventh Amendment barred the plaintiff’s claims and that he could not file under Ex Parte Young. Regarding relief, the District Judges reasoned that they did not possess jurisdiction to alter or control bail determinations until after the indictment stage.

In September, the parties began discovery.

On December 10, 2018, Magistrate Judge Andrew Edison entered recommendations regarding the motions to dismiss. On January 10, 2019, Judge George Hanks approved and adopted the Magistrate’s recommendations. The court denied the County’s motion to dismiss for subject-matter jurisdiction, the District Attorneys’ motion to dismiss, and the District Judges’ motion to dismiss for subject-matter jurisdiction. It granted the District Judges’ motion to dismiss regarding the claims against them in their individual capacities. It denied in part and granted in part the defendant magistrates’ motion to dismiss, allowing the magistrates to remain in the case in their personal capacities and only for purposes of declaratory relief. In this order, the court held that the plaintiff’s release from jail did not moot the claim. Second, the County alleged that its changes in policies mooted the case, but Galveston County did not offer evidence to show that new processes were followed uniformly or consistently applied. The court also held that Younger abstention did not apply in light of Fifth Circuit precedent, O’Donnell v. Harris County. It rejected the argument that a writ of habeaus corpus offered the sole federal remedy. While the District Attorney contended that sovereign, prosecutorial, and qualified immunity protected him from the claims, the court applied Ex Parte Young, rejecting this argument because the claims were for prospective relief, not damages. Finally, the plaintiffs sufficiently alleged the § 1983 claim establishing the District Court Judges’ liability and the District Attorney’s policymaker role in setting the bail practices. 352 F. Supp. 3d 718.

On January 17, 2019, the plaintiffs filed requests for a preliminary injunction. The first request included propositions that the County must amend its bail setting procedures. The second required the County to provide defense counsel for any person arrested for a felony unable to retain counsel, who would represent arrestee at any hearing concerning pretrial release. On August 7, the Magistrate recommended that the court deny the first and grant the second motion, which Judge Hanks adopted and approved on September 11, 2019. 2019 WL 4305457. The court denied the first because the County had begun reforms to its bail system to bring it into compliance with O’Donnell. The County modeled its new bail policy on the suggested preliminary injunction in that case. With the changes, the magistrate would possess financial information about the individual. Also, for those unable to afford bail review, the court would schedule an individualized bail review hearing within 48 hours after the initial appearance.

The second motion for preliminary injunction sought an order requiring the County to provide counsel at initial bail hearings for indigent arrestees charged with felonies. The court held that this initial bail hearing constituted a “critical stage” of the criminal proceedings, thus affording the arrestees a Sixth Amendment right to counsel. The injunction required that Galveston County provide any indigent felony arrestee with counsel to represent the arrestee at the initial hearing concerning conditions of pretrial release. 2019 WL 3714455. Subsequent to the preliminary injunction order, the District Court Judges, the District Attorney and the County appealed to the Fifth Circuit (USCA No. 19−40785).

On February 15, 2019, the plaintiffs and the District Court Judge defendants filed motions for respective proposed findings of fact and conclusions of law.

On March 12, 2019, the Magistrate recommended that the court grant class certification. Two weeks later, on March 28, Judge Hanks adopted the Magistrate Judge’s memorandum and recommendations granting the motion for class certification under Rule 23(b)(2) for injunctive relief. The class included “all people who are or will be detained in Galveston County Jail on felony and state-jail felony charges because they are unable to pay secured bail set at magistration.” 2019 WL 1129492. As a result, the District Court Judges, the District Attorney, the County, and the Magistrates each filed a notice of appeal to the Fifth Circuit Court of Appeals (USCA No. 19−40395) at the end of April and the beginning of May. Further, on April 12 and April 23, 2019, the parties filed second proposed findings of fact and conclusions on the preliminary injunction.

On July 16, 2019, the court granted a motion to suspend deadlines until the Fifth Circuit addressed the appeals. Two months later, the case was reassigned to Judge Jeffrey Brown.

On December 3, 2019, the court granted a motion to stay all deadlines and discovery until the Fifth Circuit ruled on the appeal of class certification, and denied the plaintiff's motion to amend their complaint. 

Fifth Circuit Developments

The Fifth Circuit has docketed two appeals on this case. The appeal on the class certification issue was docketed on April 26, 2019 (USCA No. 19−40395), and briefing was completed on October 3, 2019. 

The preliminary injunction appeal was docketed on September 18, 2019 (USCA No. 19−40785). The parties and amici, several criminal justice organizations and progressive district attorneys, completed briefing in March 2020. Oral argument was heard on August 4, 2020 before Circuit Judges Carl E. Stewart, Edith Brown Clement, and Gregg Costa. 

The Fifth Circuit has not issued an opinion on either appeal. The case is ongoing as of March 13, 2022.