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 APPROVING THE PROPOSED CONSENT
DECREE AND SETTLEMENT AGREEMENT AND GRANTING THE MOTION TO
AUTHORIZE COMPENSATION OF CLASS COUNSEL
Rosenthal Chief United States District Judge
Maranda Lynn ODonnell, am a 22-year-old woman. I was arrested
yesterday . . . for a misdemeanor offense. . . . I was never
asked if I could afford my bail. . . . I have one 4-year-old
daughter. . . . I live paycheck to paycheck[.] I'm
worried about whether my job will still be there when I get
out. I cannot afford to buy my release from jail.
Lynn ODonnell, Declaration Attached to Complaint,
May 19, 2016. (Docket Entry No. 3-2).
Twenty years ago, not quite one-third of [Texas's] jail
population was awaiting trial. Now the number is
three-fourths. Liberty is precious to Americans, and any
deprivation must be scrutinized. To protect public safety and
ensure that those accused of a crime will appear at trial,
persons charged with breaking the law may be detained before
their guilt or innocence can be adjudicated, but that
detention must not extend beyond its justifications. Many who
are arrested cannot afford a bail bond and remain in jail
awaiting a hearing. Though presumed innocent, they lose their
jobs and families, and are more likely to re-offend. And if
all this weren't bad enough, taxpayers must shoulder the
cost-a staggering $1 billion per year.
Honorable Nathan L. Hecht, Chief Justice of the Texas Supreme
Court, Remarks Delivered to the 85th Texas
Legislature, Feb. 1, 2017.
more than three years, the parties have litigated
constitutional challenges to Harris County's policies and
practices of requiring indigent defendants accused of
misdemeanors to post secured money bail pending trial.
Maranda Lynn ODonnell's account is from a handwritten
statement filed at the beginning of this case. Chief Justice
Hecht of the Texas Supreme Court described the state of money
bail in Texas during the first year of the lawsuit. Their
words have helped inspire reform, not just in Texas, but all
over the country.
Justice Hecht's description does not apply to the Harris
County bail system as well today as it did in 2017, thanks to
Amended Local Rule 9. Going forward, his message remains
vital. No. bail system can avoid all the risks. No. system
can guarantee that all those accused of misdemeanors who are
released on personal bonds-rich or poor-will appear for
hearings or trial, or that they will commit no crimes on
release. No. system can guarantee that all those accused of
misdemeanors who are detained pending trial-rich or
poor-should have been detained. But Harris County-which
operates the third-largest jail system in the country-can
stop systematically depriving indigent misdemeanor defendants
of their constitutionally-protected rights by detaining them
simply because they cannot afford to post money bail. The
class settlement and consent decree the parties ask this
court to approve and enter continue the work toward a
constitutional, effective pretrial bail system for all
defendants charged with petty offenses. The court grants the
parties' motion to enter the consent decree and approve
the class settlement. The court also grants the
plaintiffs' unopposed motion to authorize compensation of
court reached its decision based on careful consideration of
the motions, the objections, amicus briefs, and responses;
the terms of the proposed consent decree and settlement
agreement; the voluminous record; the testimony and nonparty
statements at the final fairness hearing; and the applicable
law. The public safety and public resource concerns raised by
amicus briefs, objectors, and nonparty speakers at the final
fairness hearing are important and have been fully aired and
the court thoroughly examined the record before issuing its
Opinion giving preliminary approval, and because those
objecting raised few new arguments at the final fairness
hearing, this Opinion includes much of the earlier Opinion.
The court has, however, considered all the arguments with
fresh eyes, in light of all the filings and the record.
reasons for the 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 [were] 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 defendants
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 ruled
that the April 2017 preliminary injunction order was
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.
Because 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, the parties jointly submitted Amended Local Rule
9 of the Harris County Criminal Courts at Law. (Docket Entry
No. 557). Amended Rule 9 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. 701-2 at 18).
February 1, the court reviewed and approved the
implementation of the amended rule, which went into effect on
February 16. (Docket Entry No. 567 at 6-7; Docket Entry No.
617 at 9). 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 for
preliminary approval on August 1. (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 included 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
objections, the court extended the deadlines for class notice
and objections and reset the final fairness hearing. (Docket
Entry No. 644).
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
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, Aug. 30, 2019,
September 5, the court preliminarily approved the proposed
settlement agreement, consent decree, and class notice.
(Docket Entry No. 651). The parties moved for final approval
on September 27, submitting a revised consent decree that
clarified provisions identified in amicus briefs as
potentially conflicting with provisions of state law. (Docket
Entry No. 657). The revisions made clear that the consent
decree must be applied consistent with Texas law.
(Id. at 2).
October 28, the court held a final fairness hearing, inviting
both parties and nonparties to attend and present their views
on the proposed consent decree and settlement. (Docket Entry
Nos. 662, 700). The parties called Harris County Sheriff Ed
Gonzalez and Harris County Criminal Court at Law Judges
Darrell William Jordan and Franklin Bynum to testify in favor
of their joint motion for final approval. Nonparty speakers
included: Mr. Andy Kahan, for Crime Stoppers of Houston; Ms.
Dianna Williams, for the Texas Advocates for Justice; Kevin
Pennell, Esq., for the Professional Bondsmen of Harris
County; Mr. Kaleb J. Taylor, a private citizen; Mary Nan
Huffman, Esq., for the Houston Police Officers' Union;
Ms. Koretta Brown, for The Young and the Politics; Mr. Doug
Smith, a private citizen; Mr. Carl Davis, for the Houston
Society for Change and the Social Action Commission General
Board of the African Methodist Episcopal Church; Harris
County Commissioner Steve Radack; and Special Litigation
Counsel Adam Biggs, for the Office of the Attorney General of
Texas. District Attorney Kim Ogg, who had received approval
to speak, elected to file written remarks instead, though she
attended the hearing in case the court had questions for her.
(Docket Entry No. 696; see also Docket Entry No. 665
(statement of intent to appear and supplemental amicus
brief)). Judges Bynum and Jordan filed written responses to
District Attorney Ogg's concerns before the hearing.
(Docket Entry Nos. 674-75).
parties' responses to the objections are amply supported
by the extensive record evidence and governing law. As
explained below, the amici and nonparty objectors do not
identify an adequate basis to deny final 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
non-financial 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;
. or individuals arrested while on any type
of community supervision for a Class A or B misdemeanor or a
Entry No. 701-2 at 17-18) (citing sections of the Texas Penal
misdemeanor “arrestee who is not promptly released on a
personal bond . . . must receive a bail hearing . . .
[within] 48 hours after arrest.” (Id. 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 misdemeanor 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).
proposed consent decree includes other policies and
procedures designed to reduce failures to appear. The decree
includes the following provisions:
. 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, “subject to the other
provisions in [the] Consent Decree.”
. 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
. A warrant may issue only if a Harris
County Criminal Court at Law Judge finds that there was no
good cause for failing to appear, “consistent with
Texas state law.”
. 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
. Any misdemeanor arrestee 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 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 38-43). Harris County must generate, and
publish online, a report every 60 days on the proposed
consent decree's implementation. (Id. at 41-43).
Harris County must also make available online 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
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.
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 (though Civil Rights Corps,
after exercising billing discretion after the settlement
agreement was signed, requests only $3, 716, 531.00 (Docket
Entry No. 618 at 1; Docket Entry No. 657 at 3));
. $2, 161, 262.00 in fees (to be forgone)
and $30, 214.86 in costs to Susman Godfrey L.L.P.;
. $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.
Entry No. 617-2 at 1; see also Docket Entry No. 618
at 1-2 (unopposed Rule 54(d)(2) motion to authorize
compensation of class counsel)). Harris County also agrees
that it will preserve “all filings and evidence