United States District Court, S.D. Texas, Houston Division
MARANDA LYNN ODONNELL, et al., on behalf of themselves and all others similarly situated, Plaintiffs,
HARRIS COUNTY, TEXAS, et al., Defendants.
MEMORANDUM AND OPINION PRELIMINARILY APPROVING THE
PROPOSED CONSENT DECREE AND SETTLEMENT AGREEMENT AND
APPROVING AND DIRECTING ISSUANCE OF CLASS NOTICE
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE.
last three years, the parties have litigated constitutional
challenges to Harris County's policies and practices of
requiring indigent misdemeanor defendants to post secured
money bail. In July 2019, the parties notified the court that
they had reached a comprehensive resolution. On July 30, the
Harris County Commissioners Court approved the proposed
consent decree and settlement agreement the parties now
present to the court. The parties jointly ask the court to
preliminarily approve the proposed consent decree and
settlement agreement and to approve the form and manner of
on a careful review of the motion, the objections, amicus
briefs, and responses; the terms of the proposed consent
decree, the settlement agreement, and the class notice; the
voluminous record; and the applicable law, the court: (1)
grants the parties' joint motion; (2) preliminarily
approves the proposed consent decree and settlement
agreement; (3) approves the proposed notice (with minor
changes) and the proposed methods to distribute it; and (4)
directs the parties to issue the notice using those methods,
by September 9, 2019. The
court finds and concludes that the proposed consent decree
securely meets the requirements for preliminary approval. It
is designed to address the constitutional violations that
were alleged and proven, and to implement the relief sought
by requiring policies and practices designed to protect the
safety of the community, reduce failures to appear at
hearings and trials, and protect the rights of indigent
misdemeanor defendants. The public safety and public resource
concerns raised by the recent filings are important; the
proposed consent decree and settlement agreement are
preliminarily approved because these concerns are fully
recognized and addressed. A final fairness hearing on the
proposed consent decree and settlement agreement is set for
October 21, 2019, at
9:00 a.m., in Courtroom 11-B.
reasons for these rulings are explained in detail below.
The Litigation and Proposed Class Settlement
2016, Maranda Lynn ODonnell filed a class-action complaint
against Harris County, the Harris County Sheriff, and five
Harris County Hearing Officers. (Docket Entry No. 3). Seeking
injunctive and declaratory relief under 42 U.S.C. §
1983, ODonnell alleged that Harris County's postarrest
incarceration policies and practices imposed a
“wealth-based detention system” of keeping
misdemeanor defendants in jail only because they could not
pay secured money bail, while those who could pay were
promptly released, in violation of the Fourteenth
Amendment's Equal Protection and Due Process Clauses.
(Id. at ¶¶ 75, 121).
September 2016, ODonnell amended her complaint, consolidating
the case with the lawsuits of Robert Ryan Ford and Loetha
McGruder and adding 16 Harris County Criminal Court at Law
Judges as defendants. (Docket Entry No. 54). The defendants
moved to dismiss for failure to state a claim and under the
Younger abstention doctrine. (Docket Entry Nos. 61,
80, 83, 84, 85). In December 2016, the court granted and
denied in part the defendants' motions to dismiss.
ODonnell v. Harris Cty., 227 F.Supp.3d 706, 715
(S.D. Tex. 2016). The court dismissed the personal-capacity
claims against the Sheriff and County Judges and the
official-capacity claim against the Hearing Officers.
Id. The court denied the motions to dismiss the
claim against Harris County and the official-capacity claims
against the Sheriff and Judges. Id. The Hearing
Officers did not move to dismiss the personal-capacity claims
against them, and those claims proceeded. Id.
January 2017, the plaintiffs filed amended motions for class
certification and preliminary injunctive relief. (Docket
Entry Nos. 143, 146). In March 2017, the court held an
eight-day evidentiary hearing, at which many witnesses
testified and the parties submitted extensive exhibits.
(Docket Entry Nos. 222, 223, 228-230, 246, 247, 251). In
April 2017, the court granted the plaintiffs' motions for
class certification and injunctive relief. (Docket Entry Nos.
302, 303). The court certified a class under Federal Rule of
Civil Procedure 23(b)(2) of:
[a]ll Class A and Class B misdemeanor arrestees who are
detained by Harris County from the date of this order through
the final resolution of this case, for whom a secured
financial condition of release has been set and who cannot
pay the amount necessary for release on the secured money
bail because of indigence.
ODonnell v. Harris Cty., No. H-16-1414, 2017 WL
1542457, at *1 (S.D. Tex. Apr. 28, 2017); (Docket Entry No.
303 at 1).
court's April 28, 2017 Memorandum and Opinion made
extensive findings of fact and conclusions of law, including
. Harris County has a consistent and
systematic policy and practice of imposing secured money bail
as de facto orders of pretrial detention in misdemeanor
. These de facto detention orders
effectively operate only against the indigent, who would be
released if they could pay at least a bondsman's premium,
but who cannot. Those who can pay are released, even if they
present similar risks of nonappearance or of new arrests.
. Harris County has an inadequate basis to
conclude that releasing misdemeanor defendants on secured
financial conditions is more effective to assure a
defendant's appearance or law-abiding behavior before
trial than release on unsecured or nonfinancial conditions,
or that secured financial conditions of release are
reasonably necessary to assure a defendant's appearance
or to deter new criminal activity before trial.
. Harris County's policy and practice
violates the Equal Protection and Due Process Clauses of the
United States Constitution.
ODonnell v. Harris Cty., 251 F.Supp.3d 1052, 1059-60
(S.D. Tex. 2017); (Docket Entry No. 302 at 7). The court
found that “40 percent of all Harris County misdemeanor
arrestees every year are detained until case
disposition” because, among other reasons, hearing
officers mechanically applied a bail schedule that failed to
consider an arrestee's ability to pay. ODonnell,
251 F.Supp.3d at 1095, 1130-31 (from January 2015 to January
2017, Harris County hearing officers “adhered to the
prescheduled bail amount stated on the charging documents in
88.9 percent of all misdemeanor cases”). The court
entered a preliminary injunction order against the defendants
and denied their motion to stay. ODonnell v. Harris
Cty., No. H-16-1414, 2017 WL 1735453, at *1- 3 (S.D.
Tex. Apr. 28, 2017); (Docket Entry Nos. 304, 305). The
Fifth Circuit affirmed in part and vacated in part.
ODonnell v. Harris Cty., 882 F.3d 528, 549 (5th Cir.
2018), opinion withdrawn and superseded on reh'g sub
nom. ODonnell v. Harris Cty., 892 F.3d 147 (5th
Cir. 2018). The Fifth Circuit upheld this court's factual
findings and affirmed the legal “conclusion that
ODonnell established a likelihood of success on the merits of
[her] claims that [Harris] County's policies violate
procedural due process and equal protection.”
ODonnell, 892 F.3d at 152. The Fifth Circuit found
the April 2017 preliminary injunction order overbroad as to
one aspect and instructed this court to more narrowly tailor
the relief. Id. at 163-64.
remand, after hearing oral argument and receiving proposals
from the parties, this court issued a memorandum and opinion
and an amended preliminary injunction order in June 2018.
ODonnell v. Harris Cty., 321 F.Supp.3d 763 (S.D.
Tex. 2018). In July 2018, 14 of the 16 County Judges appealed
the amended preliminary injunction order.
County Judges moved to stay four sections of the amended
preliminary injunction order. A divided Fifth Circuit motions
panel granted the motion and stayed the challenged provisions
pending the appeal. ODonnell v. Goodhart, 900 F.3d
220, 223 (5th Cir. 2018).
and July 2018, the parties conducted extensive discovery,
filed cross-motions for summary judgment, and prepared for
trial on a permanent injunction, while briefing the merits of
the appeal from the court's amended preliminary
injunction order. (Docket Entry Nos. 400, 429, 432).
November 6, 2018, 15 of the 16 County Judges named as
defendants lost their reelection bids. Voters also elected
two new members of the Harris County Commissioners Court. On
November 13, 2018, this court granted the defendants'
motion to stay the case until February 1, 2019. (Docket Entry
Nos. 529, 532).
the plaintiffs had sued the County Judges in their official
capacities, the newly elected judges were substituted as
parties on January 1, 2019. (Docket Entry No. 548). On
January 7, all the County Judges voluntarily dismissed the
appeal of the amended preliminary injunction. That same day,
the Fifth Circuit Clerk “entered an order, issued as
the mandate, stating that . . . the appeal is dismissed . . .
pursuant to appellants' motion.” ODonnell v.
Salgado, 913 F.3d 479, 481 (5th Cir. 2019) (per curiam).
January 25, 2019, the parties jointly submitted Amended Local
Rule 9.1 of the Harris County Criminal Courts at Law. (Docket
Entry No. 557). Amended Rule 9.1 rescinded Harris
County's “secured money bail schedule and instead
require[s] that the initial, post-arrest release-or-detention
decision be made on the basis of the charged offense.”
(Docket Entry No. 557-2 at 1). The amended rule also requires
“the prompt release of all misdemeanor arrestees on a
personal bond except for five categories of arrestees.”
(Id. (quotation omitted)). If a misdemeanor arrestee
is not released promptly on a personal bond, then that person
“must receive a bail hearing . . . [within] 48 hours
after arrest.” (Docket Entry No. 617-1 at 18).
February 1, 2019, the court reviewed and approved the
implementation of the amended rule, which went into effect on
February 16. (Docket Entry No. 557 at 2; Docket Entry No.
563). At the February 1 hearing, the parties informed the
court that they were actively pursuing settlement
negotiations. (Docket Entry No. 563). On April 8, the court
granted the parties' joint motion to dismiss the Hearing
Officers as defendants in the case. (Docket Entry No. 587).
25, the parties reported that they had reached a resolution
and had submitted a proposed consent decree and settlement
agreement to the Harris County Commissioners Court for
approval. (Docket Entry No. 615). On July 30, a majority of
the Commissioners approved the proposed consent decree and
settlement agreement. The parties jointly moved this court
for preliminary approval the next day. (Docket Entry No.
617). The parties also moved for approval of a proposed class
notice, permission to issue the notice, and attorneys'
fees. (Id.; Docket Entry No. 618).
August, several individuals and organizations filed amicus
briefs or letters opposing all or parts of the proposed
consent decree. The objectors include the Harris County
Deputies' Organization (Fraternal Order of Police Lodge
#39); the Professional Bondsmen of Harris County; Harris
County Commissioner Steve Radack; Equal Justice Now; Crime
Stoppers of Houston, Inc.; Pasadena, Texas Police Chief Josh
Bruegger; Harris County Commissioner R. Jack Cagle; the
Harris County Domestic Violence Coordinating Council; Harris
County District Attorney Kim Ogg; the Houston Area Police
Chiefs Association; and the Texas School District Police
Chiefs' Association. (Docket Entry Nos. 629, 631-2,
634-1, 635-1, 636-39, 641-1, 646-1). To allow the parties to
respond, and to enable the court to fully consider the
objectors' arguments, the court extended the deadlines
for class notice and objections and reset the final fairness
August 30, the parties filed their responses to the amici and
objectors. (Docket Entry Nos. 647-49). The responses were
filed shortly after 11 current and former Harris County
District Judges were reprimanded for requiring indigent
misdemeanor defendants to post money bail in disregard of the
rules and law governing personal pretrial bonds in
misdemeanor cases. Associated Press, Commission: 11 Texas
Judges Broke Law by Denying Free Bail, N.Y. Times (Aug.
parties' arguments are amply supported by the extensive
record evidence and governing law. As explained below, the
amicus briefs and objections do not identify an adequate
basis to deny preliminary approval of the proposed settlement
and consent decree.
The Proposed Class Settlement
The Proposed Consent Decree
proposed consent decree requires Harris County to carry out a
broad range of bail reforms. Harris County must implement,
comply with, enforce, and train certain officials on Amended
Local Rule 9, which provides that “[a]ll misdemeanor
arrestees must be released on a personal bond or on
nonfinancial conditions as soon as practicable after arrest,
except” individuals arrested:
. and charged with domestic violence,
violating a protective order in a domestic violence case, or
making a terroristic threat against a family or household
. and charged with assault;
. and charged with a second or subsequent
. and charged with a new offense while on
. on a warrant issued after a bond
revocation or bond forfeiture; and
. while on any type of community supervision
for a Class A or B misdemeanor or a felony.
(Docket Entry No. 617 at 25; Docket Entry No. 617-1 at
misdemeanor “arrestee who is not promptly released on a
personal bond . . . must receive a bail hearing . . .
[within] 48 hours after arrest.” (Docket Entry No.
617-1 at 18). An arrestee subject to a bail hearing must be
represented by counsel-either a private attorney or a Harris
County Public Defender. (Id. at 19). The hearing
officer must give the arrestee adequate notice and “an
opportunity to be heard concerning any factors relevant to
release, detention, and the availability of alternative
conditions.” (Id. at 20-21). The arrestee must
also have “an opportunity at the hearing to present
evidence and make argument[s] concerning those issues.”
(Id. at 21). If secured money bail is imposed as a
release condition, the hearing officer must find on the
record, by clear and convincing evidence, that: (1)
“the arrestee has the ability at the time of the
hearing to pay the amount required”; or (2) “no
less-restrictive condition or combination of conditions could
reasonably assure” community safety or prevent flight
from prosecution. (Id. at 21-22). The arrestee may
seek review of a hearing officer's decision in the Harris
County Criminal Court at Law. ( Id. . at 22-23).
officers may not require indigent arrestees to pay “any
fee associated with a personal bond or an unsecured bond, or
the cost of a non-financial condition of release, including .
. . a supervision fee.” (Id. at 22). And the
Harris County Sheriff “must not enforce any order
requiring secured money bail that was imposed [before] an
individualized hearing.” (Id. at 23).
with Amended Local Rule 9, Harris County must “provide
the funding and staffing necessary” for the Public
Defender's Office to adequately represent all misdemeanor
arrestees at bail hearings. (Id. at 25). Harris
County must also “provide defense counsel access to
early and effective support staff to assist “in
gathering and presenting information relevant to the bail
decision.” (Id.). The consent decree requires
Harris County to provide access to, fund, and disclose the
names of qualified support staff to assist court-appointed
counsel. (Id.). In addition, the consent decree
requires Harris County to retain an indigent-defense expert
“to evaluate the County's current misdemeanor
indigent defense systems and determine the County's need
for essential support staff . . . to promote . . . effective
indigent defense.” (Id. at 26).
reduce failures to appear after pretrial release, the
defendants must give eligible misdemeanor arrestees
“written notice of the date, time, and location of
their scheduled court appearance.” (Id. at
27). The defendants must “update any form [used] to
provide written notice of scheduled court dates to
incorporate evidence-based design practices for effectively
reducing nonappearance.” (Id.). The defendants
must also: (1) “develop and maintain a website where
misdemeanor arrestees can access their court dates, times,
location, [and] attorney information”; and (2)
“adopt text-message-based and telephone-based”
services to remind misdemeanor arrestees about scheduled
court appearances. (Id. at 29, 33).
and procedures designed to reduce failures to appear are also
addressed. The consent decree includes the following
. A misdemeanor arrestee is not required to
appear in court within 72 hours of release for proceedings in
the case for which they were arrested.
. The Harris County Criminal Court at Law
Judges must hold “Open Hours Court” at least one
day each week, and a misdemeanor arrestee who missed a
scheduled court appearance may attend “Open Hours
Court” to reschedule the missed appearance.
. A misdemeanor arrestee may waive
appearance at any regular setting before or during the
setting, and an arrestee who has not waived appearance may
reschedule any appearance at least twice before the hearing.
. If a misdemeanor arrestee fails to appear,
a warrant will not issue if the arrestee appears in the
assigned Harris County Criminal Court or in “Open Hours
Court” to reschedule the appearance before “close
of business on the day of Open Hours Court of the week
following the missed setting.” . A
warrant may issue only if a Harris County Criminal Court at
Law Judge finds that the misdemeanor arrestee had actual
notice of the hearing and that there was no good cause for
failing to appear.
. A misdemeanor arrestee subject to a
warrant for failing to appear may appear in “Open Hours
Court” to reschedule the hearing. “In the absence
of other bases for the misdemeanor arrestee's arrest,
” and if the hearing was a regular or first setting,
the Harris County Criminal Court at Law Judge must recall the
warrant. If the hearing was a required appearance, the
arrestee may not be taken into custody unless the Harris
County Criminal Court at Law Judge finds that the arrestee
had actual notice of the hearing and that there was no good
cause for failing to appear.
. Any person subject to a warrant for
failing to appear that was issued before January 1, 2019, may
appear at “Open Hours Court” or in the assigned
Harris County Criminal Court to have the warrant recalled and
to schedule a new hearing date.
(Id. at 34-36). In addition, Harris County must
“study and seek to mitigate the primary wealth-based
causes of nonappearance among misdemeanor arrestees”
and “allocate $250, 000 annually, beginning in Fiscal
Year 2020-21, toward assisting . . . indigent misdemeanor
arrestees in making court appearances ” (Id.
consent decree requires Harris County to collect, study, and
make publicly available on a website other data about:
. Harris County's compliance with the
. pretrial release and detention decisions
relating to misdemeanor arrestees;
. Amended Local Rule 9's effect on
misdemeanor arrestees' appearance rates;
. demographic and socioeconomic information
as to each misdemeanor arrestee; and
. Harris County's misdemeanor bail
system from 2009 to the present.
(Id. at 38-40). Harris County must generate, and
publish online, a report every 60 days on the proposed
consent decree's implementation. (Id. at 41-42).
Harris County must also launch and maintain a website for
information related to this lawsuit and to the implementation
of the consent decree, including the policies and procedures
adopted under the consent decree. (Id. at 43-44).
independent monitor the parties jointly select will oversee
Harris County's compliance with the consent decree for
seven years. (Id. at 44, 46). The monitor will
conduct audits, reviews, and assessments “to determine
whether the Consent Decree has been implemented as
required.” (Id. at 45). Harris County must
make the monitor's reports publicly available.
(Id. at 47-48).
Harris County must hold at least two public meetings each
year to “report on [the] implementation of the Consent
Decree, ” and to give community members an opportunity
to comment and ask questions about Harris County's
misdemeanor criminal justice system. (Id. at 43-44).
The monitor and representatives of Harris County, the
Sheriff, and the Criminal Court Judges must attend the
meetings. (Id. at 43).
court raises some questions about the proposed consent decree
below. To be clear, the court is not rewriting
and will not rewrite any of the terms; it is up to the
parties, not the court, to write, and explain, the proposed
The Proposed Settlement Agreement
proposed settlement agreement states that the parties
“agree to file a joint motion seeking approval of the
Consent Decree to resolve all of [the] Plaintiffs'
claims.” (Docket Entry No. 617-2 at 1). The terms are
summarized above. The agreement also addresses fees and
County agrees to pay the following attorneys' fees and
. $3, 725, 231.00 in fees and $114, 832.54
in costs to Civil Rights Corps;
. $2, 161, 262.00 in fees (to be forgone)
and $30, 214.86 in costs to Susman Godfrey LLP.;
. $632, 453.00 in fees to Wilmer Cutler
Pickering Hale and Dorr LLP; and
. $182, 715.90 in fees and $5, 378.00 in
costs to the Texas Fair Defense Project.
(Id.). Harris County also agrees that it will
preserve “all filings and evidence submitted in”
this litigation. (Id. at 2).
Godfrey agrees to forgo all of its fee “in
consideration of [Harris] County's agreement to allocate
[that amount of money] to its own efforts to meet the needs
of class members, as described in the Consent Decree.”
(Id. at 1). The parties agree that Harris County
will not pay any attorneys' fees or costs incurred in
implementing or monitoring the consent decree, but class
counsel do “reserve the right to seek fees . . . for
work performed in connection with contempt proceedings if
there is a finding of contempt.” (Id.).
terms are examined under the legal standard and the record.
The Legal Standard for Preliminarily Approving a Class
Rule of Civil Procedure 23(e) governs court review of
proposed class-action settlements. Because the court has
certified the class, the class certification issues at this
settlement stage are “whether the proposed settlement
calls for any change in the class certified, or of the
claims, defenses, or issues regarding which certification was
granted.” Fed.R.Civ.P. 23(e)(1) Committee Notes to 2018
amendments. No. new certification is required at settlement
for a previously certified class.
23(e)(1)(B) requires the court to “direct notice in a
reasonable manner to all class members who would be bound by
the proposal.” Fed.R.Civ.P. 23(e)(1)(B). The court must
consider whether “giving notice is justified by the
parties' showing that the court will likely be able to
[finally] approve the proposal under Rule 23(e)(2).”
Id. 23(e)(1)(B)(i). The 2018 Committee Notes to Rule
23(e)(1) clarify that the “decision to give notice of a
proposed [class] settlement . . . should be based on a solid
record supporting the conclusion that the proposed settlement
will likely earn final approval after notice and an
opportunity to object.” Fed.R.Civ.P. 23(e)(1) Committee
Notes to 2018 amendments.
proposed settlement “will be preliminarily approved
unless there are obvious defects in the notice or other
technical flaws, or the settlement is outside the range of
reasonableness or appears to be the product of collusion,
rather than arms-length negotiation.” 2 McLaughlin on
Class Actions § 6:7 (15th ed. 2018). A lower degree of
scrutiny applies if, as here, “class certification took
place long before any settlement was reached or
negotiated.” In re PaineWebber Ltd. P'ships
Litig., 171 F.R.D. 104, 122 (S.D.N.Y. 1997) (citing
Manual for Complex Litigation § 30.44 (3d ed. 1995)).
proposed settlement must be “fair, reasonable, and
adequate.” Fed.R.Civ.P. 23(e)(2); United States v.
City of New Orleans, 731 F.3d 434, 438-39 (5th Cir.
2013) (a court must find that a consent decree is fair,
reasonable, and adequate before entering it as a judgment).
Under the 2018 amendments to Rule 23(e)(2), courts look to
(A) the class representatives and class counsel have
adequately represented the class;
(B) the proposal was negotiated at arm's length;
(C) the relief provided for the class is adequate, taking