# Petition for Writ of Certiorari — Dallas County v. Crane > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0895%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 474 U.S. 1020 ## Text Supreme Court, U. = ' t In The Hem. Supreme Court of the United States October Term, 1985 re’ Vv HENRY WADE, Petitioner, v. STEPHEN C. CRANE, on behalf of himself and others similarly situated, Respondents. re’ ws PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ray - Henry WabDE District Attorney Dallas County, Texas Sue LaGarpe Chief Felony Prosecutor Dallas County, Texas Peter L. Harian Assistant District Attorney Dallas County Courthouse 600 Commerce Street Dallas, TX 75202 (214) 749-8134 Attorneys for Petitioner COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333 QUESTIONS PRESENTED 1. Whether a Texas District Attorney is immune from a civil claim for damages arising from the performance of his official duties to initiate or present the state’s case in a criminal prosecution? 2. Whether a Texas District Attorney is a state officer whose official acts constitute state action and is accord- ingly immune from a civil claim for damages under the Eleventh Amendment to the United States Constitution? ii LISTING OF PARTIES PETITIONER: Henry Wade Criminal District Attorney Dallas County, Texas ATTORNEYS FOR PETITIONER: Sue Lagarde Chief Felony Prosecutor Dallas County, Texas Peter L. Harlan Assistant District Attorney Dallas County, Texas RESPONDENTS: Stephen C. Crane, on behalf of himself and others similarly situated ATTORNEYS FOR RESPONDENTS: Johnston Larson & Trantham Douglas Larson Hicks Gillespie James & Lesser, P.C. Peter Lesser INTERESTED PARTIES: State of Texas Earl Bullock, Dallas County Clerk L. E. Murdoch, Former Dallas County Clerk Dallas County, Texas Ben Ellis, Judge, Dallas County Criminal Court No. 1 John Orvis, Judge, Dallas County Criminal Court No. 2 Mike Schwille, Judge, Dallas County Criminal Court No. 3 Berlaind Brashear, Judge, Dallas County Criminal Court No. 6 John McCall, Judge, Dallas County Criminal Court No. 7 iil ATTORNEYS FOR INTERESTED PARTIES: Jim Mattox—Attorney General of Texas Larry King—Assistant Attorney General Henry Wade—Dallas County Criminal District Attorney Sue Lagarde—Dallas Couaty Assistant District Attorney Peter Harlan—Dallas County Assistant District Attorney Earl Luna—Law Offices of Earl Luna, P.C. Robert E. Luna—Law Offices of Earl Luna, P.C. Mary Milford—Law Offices of Earl Luna, P.C. iv TABLE OF CONTENTS Page I rn i I I iO re ot il ieee SR A A She RMN, CONOR MMS iv RE ENE ee ee ee OER eS SRE Rea ee 1 ee en er ae 2 Constitutional and Statutory Provisions Involved ....... 3 SOI I IE iii cinicsicsosintacaiossncrmanbin eats 4 Rensous Ter Grantiiy Writ 9 There is a Conflict Among the Cireuits 00... 10 The Power of Supervision Should be Exercised ..... 11 The Questions are Substantial 0000 12 IE ei acs ee ee 13 PIE Miaditistiititihasnncnindnbnenaieicdmadiammmpmmmae nat A-1 Appendix cis ccsiaieigieincgs Wetland B-1 r EES EEN ER 9 OO iano’ C-1 gta OLE Re ENCE Ee ee D-1 EE A Sasso ONE Me! SYS K-1 alr EER RRs Se AMA ce SN OE Rn eae ee F-1 I cise snphcsescaeskcalasgaliaeitscaade Lace aie une a G-1 Appendix H .. csieoasiin tated cic iis iigslnagt tise cam H-1 (RESEND RAMC Sere ate OP een SPER ST I-1 Appendix J ilekacihceadcnebsigalieimiaatene J-1 Appendix K K-1 ME FR kainate ens aa L-1 tbs BORIS mn Vv TABLE OF AUTHORITIES Page CasEs: Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977) ............. 10, 11 Baker v. Wade, 769 F.2d 289 (Sth Cir. 1985) ow. 12 Henzel v. Gerstein, 608 F.2d 654 (Sth Cir. 1978) ............... 12 Imbler v. Pachtman, 424 U.S. 409, 47 L.Ed.2d 128, 96 S.Ct. 984 (1976) . 9 Macko v. Byron, 641 F.2d 447 (6th Cir. 1981) ................... 10 Prince v. Wallace, 568 F.2d 1176 (5th Cir. 1976) —W... 11 Smart v. Jones, 530 F.2d 64 (5th Cir. 1976), cert. denied, 42 U.S. 1125 8 Taylor v. Kavanagh, 640 F.2d 450 (2nd Cir. 1981) ........... 9, 10 Ybarra v. Reno Thunderbird Mobile Home Vil- lage, 723 F'.23a 676 (3th Cir. 1966) 10 ConsTITUTIONS, STATUTES AND OTHER AUTHORITIES : 28 U.S.C. § 1254(1) ............ 2 re ALE __ RARRASRAMREE Iie ctaeimen eur moercewtinr caperSOOSRT saa 2s SH 6,9 42 U.S.C. § 1985 cocencoon peice iat Geist 6 42 U.S.C. § 1988 ns Tex. Atty. Gen. Op. No. H-656 (1975) a nnneeneeenenenennenn 8 TEX. CODE CRIM. PROC. art. 15.17 —.... mre TEX. CODE CRIM. PROC. art. 16.01 6 TEX. CRIM. PROC. CODE ANN. art. 23.01 .. ........... 3 TEX. CRIM. PROC. CODE ANN. art. 23.02 —W.. Pee TEX. CRIM. PROC. CODE ANN. art. 23.04 ... Mees United States Constitution, Amendment IV 3 United States Constitution, Amendment XT... 3,9, 12 wai. ee ee ER a In The Supreme Court of the United States October Term, 1985 —— * a RENRY WADE, Petitioner, v. STEPHEN C. CRANE, on behalf of himself and others similarly situated, Respondents. —_ ~~‘ ww PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT — -~—\-—_ Your Petitioner respectfully prays that a writ of cer- itorari issue to review the judgment of the United States Court of Appeals for the Fifth Circuit, entered in this pro- ceeding on May 2, 1985, rehearing en banc and panel re- hearing denied July 22, 1985. —_,* “ OPINIONS BELOW The opinion of the United States Court of Appeals for the Fifth Circuit filed May 2, 1985, reported at 759 F.2d 4i2 is reprinted in Appendix A. 1 2 The opinion of the United States Court of Appeals for the Fifth Circuit, filed July 22, 1985, denying Petition for Rehearing and Suggestion for Rehearing En Bane, re- ported at 766 F.2d 193, is reprinted in Appendix B. The Memorandum Opinion of the United States Dis- trict Court for the Northern District of Texas, Dallas Divi- sion, filed March 11, 1982, reported ... 534 F.Supp. 1237, is reprinted in Appendix C. The Judgment, filed August 16, 1983, is reprinted in Appendix D. The Judgment declar- ing the rights and liabilities of the parties to be those ex- pressed in the District Court’s Memorandum Order of No- vember 30, 1981, is reprinted in Appendix E, and its Order of February 4, 1982 denying injunctive relief, is reprinted in Appendix F. The Judgment assessing attorneys’ fees against the State of Texas pursuant to the District Court’s Memorandum Order of September 8, 1982, is reprinted in Appendix G, and its unpublished Memorandum Opinion of July 26, 1983, is reprinted in Appendix H. ray Vw GROUNDS FOR JURISDICTION The opinion of the United States Court of Appeals for the Fifth Circuit, filed May 2, 1985, reported at 759 F.2d 412, is reprinted in Appendix A. The opinion of the United States Court of Appeals for the Fifth Circuit denying Petition for Rehearing and Sug- gestion for Rehearing En Bane was entered on July 22, 1985, and this Petition for a Writ of Certiorari was filed within ninety (90) days of that date. This Court’s jurisdiction is invoked under 28 U.S.C, § 1254(1). 3 Constitutional and Statutory Provisions Involved United States Constitution, Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, sup ported by oath or affirmation, and particularly de- scribing the place to be searched, and the persons or things to be seized. United States Constitution Amendment XI The Judicial power of the United States shall not be construed to extend to any suit in law or equity, com- menced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Sub- jects of any Foreign State. TEX. CRIM. PROC. CODE ANN. art. 23.01 (Vernon 1966) A “capias’’ is a writ issued by the court or clerk and directed ‘‘To any peace officer of the State of Texas’’, commanding him to arrest a person accused of an of- fense and bring him before that court immediately, or on a day or at a term stated in the writ. TEX. CRIM. PROC. CODE ANN. art. 23.02 (Vernon 1966) A capias shall be held sufficient if it have the follow- ing requisites : 1. That it run in the name of ‘‘The State of Texas’’; 29 That it name the person whose arrest is ordered, or if unknown, describe him; 3. That it specify the offense of which the defendant is accused, and it appear thereby that he is accused of some offense against the penal laws of the State ; 4. That it name the court to which and the time when it is returnable; and 5. That it be dated and attested officially by the au- thority issuing the same. + TEX. CRIM. PROC. CODE ANN. art. 23.04 (Vernon 1966) In misdemeanor cases the capias or summons shall is- sue from a court having jurisdiction of the case. The summons shall be issued only upon request of the at- torney repesenting the State and shall follow the same form and procedure as in a felony case. ray Vv STATEMENT OF THE CASE L. L. Huckaby, a member of the City of Dallas Police Department, made an Affidavit of Complaint and swore to the same before Lem Brotherton, Assistant District At- torney of Dallas County, Texas, which was as follows: FILING AGENCY DPD DATE FILED 4-16-80 COURT CC COMPLAINANT A. PEREZ MA80023927 AFFIDAVIT In the Name and by the Authority of the State of Texas. PERSONALLY APPEARED before me the un- dersigned authority this affiant, who after being by me duly sworn, deposes and says your Affiant has good reason to believe and does believe that one STEPHEN CLARKSON CRANE hereinafter styled Defendant, heretofore, on or about the 3rd of April A.D. 1980, in the County of Dallas and State of Texas, did unlawfully then and there knowingly promote, to- wit: exhibit, obscene material, to-wit: one untitled 8mm film, to A. Perez, knowing the character and content of said obscene material, to-wit: depictions of sexual in- tercourse and deviate sexual intercourse between hu- man beings, Against the peace and dignity of the state. /s/ lL. L. Huckaby wall Va x 0) a REINS he IR RING td A Sworn to and subscribed before me this the 16th day of April, A.D. 1980, /s/ Lem Brotherton, Assistant Criminal District Attorney of Dallas County, Texas This Affidavit was entered into evidence as Plaintiff’s Exhibit 1. The complaint on Crane was one of 800 to 1,000 received each week by the District Attorney’s office from the Dallas Police Department alone. (R. Vol. XIT at 496). Based on the Affidavit of Complaint, the Dallas Coun- ty District Attorney’s office prepared an Information and filed said Information and Affidavit with the County Clerk of Dallas County, Texas.! After receiving the Affidavit and Information, the County Clerk issued a capias writ which commanded an: Sheriff or any Constable in the State of Texas to bring Crane, instanter, before the Coun- ty Criminal Court of Dallas County, Texas. The capias is included in Appendix J. Crane was arrested by the City of Dallas Police. (R. Vol. XIII at 707). Crane advised the officers that it was not necessary to read him his rights because he was a lawyer and already knew his rights. (R. Vol. XIII at. 716- 717). Crane, therefore, opted to be released on a habeas corpus bond rather than having a hearing where the magis- 1 The Information is included in Appendix I. 6 trate would examine the accusations against him.2 Crane knew that the practice of the Dallas Police Department was to take an arrested person to a magistrate shortly follow- ing his arrest uuless the suspect wished to opt for release on bond and waive the hearing. (R., Vol. VI at 107). The criminal charges against Crane were dismissed on April 28, 1980, at the request of the District Attorney. (R. Vol. VI at 49-50). Approximately three months thereafter, Crane filed this civil action against the State of Texas, the Judges of the County Criminal Courts of Dallas Coun- ty, Texas, the Clerk cf the County Court of Dallas County, Texas, the District Attorney of Dallas County, Texas, the City of Dallas, Texas, and three of its police officers pur- suant to 42 U.S.C. §§ 1983, 1985, 1988 and the common law of Texas. Crane sought declaratory and injunctive relief as well as monetary damages. 2 Art. 15.17 of the Texas Code of Criminal Procedure pro- vides, in part, as follows: (a) In each case enumerated in this Code, the person making the arrest shall without unnecessary delay take the person arrested or have him taken before some mag- istrate of the county where the accused was arrested. The magistrate shall inform in clear language the person ar- rested of the accusation against him and of any affidavit filed therewith . . . (Emphasis added). Art. 16.01 of the Texas Code of Criminal Procedure pro- vides, in part, as follows: When the accused has been brought before a magis- trate for an examining trial, that officer shall proceed to examine into the truth of the accusation made, encase the accused, however, sufficient time to procure counsel. In a proper case, the magistrate may appoint counsel to represent an accused in such examining trial only to be compensated as otherwise provided in this Code. (Em- phasis added). Art 15.17 and Art. 16.01 are included in Appendix K. a aR Salih ate dine ath oR aK ae Sal in an order entered November 30, 1981, the District Court concluded that the challenged capias procedure vio- lated Texas law for the reason that a determination of probable cause was not made by a neutral and detached magistrate prior to the issuance of the capias. See order below, Appendix E. In accordance with the District Court’s suggestion in its order to submit a new plan for issuing capias, the Dis- trict Attorney changed the system by which a misdemean- or capias was issued. This plan was approved by the Dis- trict Court and, accordingly, the Respondent’s request for injunctive relief was denied on February 4, 1982. See order below, Appendix F. At the conclusion of the subsequent trial on the issue of damages, the jury awarded Respondent Crane $40,000 in damages. The District Court in its Memorandum Opin- ion dated March 11, 1982, held that all Defendants were im- mune from damages and accordingly entered a judgment notwithstanding the jury verdict in this respect. See Dis- trict Court opinion, Appendix C; 534 F.Supp. 1237-1247. Thereafter, in a Memorandum Order dated September 8, 1982, the District Court ruled that Crane was a ‘‘pre- vailing plaintiff’? under 42 U.S.C. § 1988, and was, there- fore, entitied to attorneys’ fees. See District Court order, Appendix G. The order also held that the District Attor- ney and the County Clerk were acting as state officials during the relevant times involved in this suit and accord- ingly assessed the attorneys’ fees against the State of Texas. See District Court order, Appendix G. The Fifth Cireuit subsequently held that the Dallas County system of issuing misdemeanor capias violated 8 both the Texas statutory law and the United States Con- stitution. See Panel opinion below, Appendix A; 759 F.2d at 426, 432. The panel reversed the trial court’s finding that Dal- las County and the District Attorney were immune from liability for money damages. The panel, therefore, rein- stated the jury’s award of money damages against the Dis- trict Attorney in his official capacity. See opinion below, Appendix A; 759 F.2d at 432. The panel, in holding the District Attorney liable in his official capacity, also held that he was a county official and not a state official, and therefore, was not entitled to Eleventh Amendment im- munity. Although it was claimed and argued by Defend- ants that the District Attorney also had prosecutorial im- munity in this suit, the Fifth Circuit ignored that defense and its own holding in prior cases finding that a state prosecutor had immunity from damage claims on this basis.2 See opinion below, Appendix A; 759 F.2d at 432. [A Texas district attorney is a state officer. See Tex. Atty. Gen. Op. No. H-656 (1975), Appendix L.] In addi- tion, the panel held the County liable for the reason that the District Attorney purportedly was responsible for the defective capias procedure, and therefore reasoned that his decision ‘‘must be considered official policy attributable to the County.’’ See opinion below, Appendix A; 759 F.2d at 430. Accordingly the panel also reversed the assessment of the attorneys’ fees against the State of Texas and rend- ered the same against the County. See opinion below, Ap- pendix A; 759 F.2d at 432. 3 Smart v. Jones, 530 F.2d 64 (5th Cir. 1976), cert. denied, 42 U.S. 1125. ie Pai 9 REASONS FOR GRANTING WRIT A writ of certiorari should be granted to resolve the questions presented in this Petition for the following rea- sons, to-wit: The United States Court of Appeals for the Fifth Cir- cuit has effectively abolished the well-established doctrine of prosecutorial immunity by its decision herein. As a result, the court has unreasonably exposed state prosecu- tors in this circuit and others to civil liability for damages arising from their official acts taken to initiate or present the state’s case in a criminal prosecution. Moreover, the court has ignored the overwhelming weight of authority in Texas which has held that a Texas District Attorney is a state officer and therefore entitled to immunity from damage claims under the Eleventh Amendment to the United States Constitution. The panel decision of the Fifth Circuit in this pro- ceeding is in direct conflict with the opinion of this Court in Imbler v. Pachtman, 424 U.S. 409, 47 L.Ed.2d 128, 96 S.Ct. 984 (1976), which established the well-reasoned doc- trine of prosecutorial immunity. In reaching its decision in the case above, this Court stated as follows: [Liability under 42 U.S.C. § 1983 would] prevent the vigorous and fearless performance of a prosecutor’s duty which is essential to the proper functioning of the criminal justice system. In the host of cases which have followed the land- mark decision of the United States Supreme Court in the Imbler case, the doctrine of prosecutorial immunity has been consistently upheld and expanded by the lower courts in other circuits. Taylor v. Kavanagh, 640 F.2d 450 (2nd 10 Cir. 1981); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 ‘9th Cir. 1984); Macko v. Byron, 641 F.2d 447 (6th Cir. 1981); Atkins v. Lanning, 556 F.2d 485 (10th Cir. 1977). The Fifth Circuit, in the instant case, has completely stripped state prosecutors of their im- munity from damage claims for the performance of their prosecutorial duties. Undoubtedly this decision will have a chilling effect upon future criminal prosecutions in this circuit and others which may substantially undermine the effectiveness of our criminal justice system. There Is A Conflict Among The Circuits There is a direct conflict between the Fifth Circuit and the Second, Sixth, Ninth and Tenth Circuits regarding the nature and scope of the prosecutorial immunity doc- trine. In Taylor v. Kavanagh the Court of Appeals for the Second Cireuit held that a state prosecutor was absolutely immune for alleged misconduct which involved intentional misrepresentation and failure to comply with the terms of a plea bargain agreement under the doctrine of prosecu- torial immunity even though the alleged improprieties of the prosecutor were illegal and could not be condoned by the court. The Ninth Cireuit recently held in Ybarra v. Reno Thunderbird Mobile Home Village, supra, that a state prosecutor was entitled to absolute prosecutorial immunity even though he was accused of destroying exculpatory evi- dence in connection with a state criminal prosecution and thereby caused the plaintiff’s wrongful conviction and sub- sequent incarceration. 11 The Tenth Circuit has also upheld the doctrine of pro- secutorial immunity in a fact situation which is substan- tially similar to the case at bar. In Atkins v. Lanning, supra, the court held that a state prosecutor was entitled to absolute immunity where the plaintiff was improperly arrested under a facially valid warrant for the reason that the prosecutor was merely engaged in ‘‘preparing and presenting the state’s case’’ and did not personally partici- pate in the plaintiff’s arrest. It is clear, therefore, that a sharp conflict has arisen between the circuits regarding the nature and scope of the prosecutorial immunity doctrine. Accordingly, a writ of certiorari should issue to review the panel decision of the Fifth Circuit to resolve this conflict with all deliberate speed. The Power Of Supervision Should Be Exercised As set out above. the panel decision of the Fifth Cir- cuit in the instant case has created a sharp conflict among the circuits regarding the nature and scope of the prosecu- torial immunity doctrine. In addition, the court has de- parted from the customary application of this doctrine by other panels of the Court of Appeals for the Fifth Cireuit. In prior decisions other panels of the Fifth Circuit have held that, even where a prosecutor knowingly used perjured testimony and deliberately withheld exculpatory evidence in a criminal prosecution, his immunity from damages remained intact. Prince v. Wallace, 568 F.2d 1176 (5th Cir. 1976). Moreover, the court has held that the filing of a criminal information without investigation, fil- ing charges without jurisdiction and instituting arrest and search proceedings without probable cause were a neces- 12 sary and integral part of the prosecutors role which were protected under the cloak of the immunity doctrine. Hen- zel v. Gerstein, 608 F.2d 654 (5th Cir. 1978). In addition to the departure from prior decisions of the Fifth Circuit regarding the doctrine of prosecutorial immunity, the panel decision in the instant case has com- pletely ignored the well-settled state law in Texas which has held that a District Attorney is a state officer and therefore insulated from a claim for damages under the Eleventh Amendment to the United States Constitution. Indeed, one month following the final determination of the instant case, the Fifth Circuit, en bane, held that a District Attorney from Potter County, Texas, was a state official empowered under Texas law to enforce the state criminal laws and as such was ‘‘... a state officer seeking to inter- vene [and] a proper party to do so.’’ Baker v. Wade, 769 F.2d 289, 292 (Sth Cir. 1985). It is apparent, therefore, that the power of supervision should be exercised by this Court to correct the inconsis- tencies created by the panel of the Fifth Circuit in the case at bar. The Questions Are Substantial The doctrine of prosecutorial immunity is absolutely essential to the proper functioning of our criminal justice system. It was not created by this Court for the protec- tion of malicious, corrupt or incompetent prosecutors but rather, for the protection of the general public whose inter- est it is that prosecutors should be at liberty to exercise consequences and make decisions without fear of being hounded with civil litigation by dissatisfied or embittered criminal defendants charging malice or wrongdoing. 13 The departure of the Fifth Circuit from the customary application of the prosecutorial immunity doctrine in the instant case may cause the erosion of a state prosecutor’s immunity in this and other cireuits. As a direct result of this decision the effectiveness of our criminal justice sys- tem may be substantially impaired because state prosecu- tors might be unwilling to file criminal charges against a criminal suspect for fear of potential civil liability or the attendant inconveniences of defending a federal lawsuit. Thus, it is clear that the questions presented herein are substantial and, accordingly, this Court should grant certiorari to correct the panel decision of the Court of Ap- peals for the Fifth Circuit in the case at bar. ra’ Vv CONCLUSION For each and all of the foregoing reasons, a writ of certiorari should issue to review the judgment and opinion of the Court of Appeals for the Fifth Circuit in the case at bar. Respectfully submitted, Henry WabeE Criminal District Attorney Dallas County, Texas Sue LaGarpE Chief Felony Prosecutor Dallas County, Texas Peter L. Haruan Assistant District Attorney Federal Section Dallas County Courthouse 600 Commerce Street Dallas, TX 75202 (214) 749-8134 Attorneys for Petitioner APPENDIX A-l APPENDIX A Stephen C. CRANE, on Behalf of himself and others similarly situated, Plaintiff-Appellee-Cross Appellant, Vv. STATE OF TEXAS, Defendant-Appellant, V. COUNTY OF DALLAS, Ben Ellis, John Orvis, Mike Schwille, Berlaind Brashear and Chuck Miller, Defendants-Appellants-Cross Appellees, Vv. Henry WADE and L. E. Murdoch, Defendants-A ppellees. No. 83-1650 United States Court of Appeals, Fifth Cireuit. May 2, 1985. Rehearing and Rehearing En Bane Denied July 22, 1985. Plaintiff brought action challenging county’s practice of issuing misdemeanor capias withovt a finding of prob- able cause. The United States District Court for the Northern District of Texas, Patrick E. Higginbotham, J., denied plaintiff’s request for injunctive relief, but held that both county and district attorney were immune from liability for damages, awarding plaintiff only attorney fees. On appeal, the Court of Appeals, Gee, Circuit Judge, A-2 held that: (1) county was not immune under the Eleventh Amendment; (2) Texas law requires issuance of a valid capias to be preceded by neutral magistrate’s determina- tion of probable cause; (3) county’s practice of issuing misdemeanor capias without a finding of probable cause by a neutral and detached magistrate was unconstitu- tional under the Fourth Amendment; (4) neither county nor district attorney was immune from liability for money damages; and (5) award of attorney fees ran against the county, not the state. Affirmed in part; reversed in part. Amended in part, July 22, 1985. 1. Federal Courts — 265 Eleventh Amendment acts as a jurisdictional bar, and therefore an assertion of Eleventh Amendment immunity cannot be ignored, for a meritorious claim ‘o that im- munity deprives court of subject-matter jurisdiction of the action. U.S.C.A. Const.Amend. 11. 2. Federal Courts — 270 Claim in civil rights action by county that it was im- mune under the Eleventh Amendment as an arm or agent of the state put in question trial court’s jurisdiction over subject matter of plaintiff’s action against county, and thus it was incumbent upon trial court to settle the ques- tion before proceeding further. U.S.C.A. Const.Amend. 11. 3. Federal Courts — 270 Eleventh Amendment immunity does not, as a general rule, extend to counties. U.S.C.A. Const.Amend. 11. 4. Federal Courts — 270 Any award against county in civil rights suit chal- lenging county’s practice of issuing misdemeanor capias without a finding of probable cause would not be de- rived from state treasury; therefore, exception allowing county to enjoy Eleventh Amendment immunity for those cases in which relief granted would run directly against the state did not apply, and county was not entitled to Eleventh Amendment protection on that basis. U.S.C.A. Const.Amend. 11. 5. Federal Courts — 270 Texas counties are not excepted as unique from gen- eral rule denying Eleventh Amendment immunity to cou- ties. U.S.C.A. Const.Amend. 11. 6. Criminal Law — 217 Texas law requires issuance of a valid misdemeanor capias to be preceded by neutral magistrate’s determina- tion of probable cause. 7. Federal Courts — 411 Civil rights suit challenging county’s practice of is- suing misdemeanor capias without probable cause was brought against county officials and relief sought ran only against county; therefore, district court properly grounded its holding exclusively on state lav’ after de- clining to reach federal constitutional issue. 8. Criminal Law — 217 Practice by which county issued misdemeanor capias without a finding or probable cause as determined by a A-4 neutral and detached magistrate was unconstitutional un- der the Fourth Amendment. U.S.C.A. Const.Amend. 4. 9. Federal Courts — 269 State officials partake of the Eleventh Amendment immunity of states they serve. U.S.C.A. Const.Amend. 11. 10. Federal Courts — 269 Claim that state officials violated state law in carry- ing out their official responsibilities is a claim against the state that is protected by the Eleventh Amendment, even as to a state law claim brought into federal court un- der pendent jurisdiction. U.S.C.A. Const.Amend. 11. 11. Cwil Rights — 13.7 Where ultimate authority for determining county ca- pias procedures reposed in the district attorney, an elected county official, his decisions in that regard constituted official policy attributable to the county; therefore, coun- ty was not immune from liability for money damages in civil rights suit challenging capias practice on basis that accused practices were neither done for the county nor subject to its control. 12. Civil Rights — 13.8(6) Texas statute providing that a district attorney, upon request, will give an opinion or advice in writing to any county or precinct officer of the district or county, touch- ing their official duties, did not render district attorney immune from liaiblity for money damages in civil rights suit challenging county’s practice of issuing misdemeanor capias without a finding of probable cause, where district attorney himself established procedures to be followed by A-5 county in issuing misdemeanor capias, and his duty to establish procedures in accordance with United States Constitution and laws of Texas was one entirely inde- pendent of any duty to render legal advice to others. Ver- non’s Ann.Texas Civ.St. art. 334. 13. Civil Rights — 13.17(11) Under the Civil Rights Attorney’s Fees Awards Act, attorney fees are properly assessed against the state when its officials are sued in their official capacities, and when their conduct may fairly be said to represent its official policies. 42 U.S.C.A. § 1988. 14. Ciwil Rights — 13.17(11) Where plaintiff challenging county’s practice of is- suing misdemeanor capias without a finding of probable cause did not sue the individual defendants for actions taken on behalf of the state, but sued them because of roles they played in establishing and implementing county system of issuing misdemeanor capias, and where de- fendants created that system and controlled it for the county, not for the state, attorney fees under the Civil Rights Attorney’s Fees Awards Act ran, not against the state, but against the county, 42 U.S.C.A. § 1988. ———— — Earl Luna, Dallas, Tex., for Ellis et al. and Dallas County. Jim Mattox, Atty. Gen., Mary F. Keller, Lawrence J. King, Asst. Attys. Gen., Austin, Tex., for the State of Texas. | A-6 Peter Lesser, Johnston & Larson, Douglas R. Larson, Dallas, Tex., for Crane. Sue L. Lagarde, Asst. Dist. Atty., Dallas, Tex., for Henry Wade & Larry Murdoch. Appeals from the United States District Court for the Northern District of Texas. Before GEE, WILLIAMS and JOLLY, Circuit Judges. GEE, Cireuit Judge: On behalf of himself and others similarly situated, Stephen Crane brought an action pursuant to 42 U.S.C. §§ 1983, 1988, and the common law of Texas, against the State of Texas, Dallas County, the judges of the Dallas County Criminal Courts, the Dallas County Clerk, the Dallas County Criminal District Attorney, the City of Dallas, and Civers Dallas police officers. The gravamen of his complaint was that Dallas County regularly issued misdemeanor capias without a finding of probable cause by a neutral and detached magistrate in violation of the Fourth, Fifth, and Fourteenth Amendments of the United States Constitution and Article 23.04, Tex.Code Crim.Proce. Ann. (Vernon). Alternatively, he alleged that articles 23.01 and 23.04 of the Tex.Code Crim.P. were unconstitu- tional if they allowed a clerk to issue a capias on nothing more than a District Attorney’s information and affida- vit. Crane sought declaratory and injunctive relief as well as monetary damages. In an Order filed April 30, 1981, the trial court cer- tified maintenance of the ease as a class action and granted the motion to dismiss of the State of Texas on A-7 the ground of the State’s Eleventh Amendment immunity from suit in the federal courts. The trial court also de- nied the judges’ motions to dismiss on the ground that their common law judicial immunity did not extend to § 1983 suits seeking equitable relief. The legality of the challenged practices was consid- ered separately from Crane’s entitlement to damages. In an order filed November 30, 1981, the trial court con- cluded that under Texas law a determination of probable cause by a neutral magistrate must precede the issuance of a valid misdemeanor capias; the Dallas practice there- fore violated Texas law. Defendants were invited to sub- mit proposals for reform of the Dalias County misde- meanor capias system. By February 4, 1982, defendants had done more than submit proposals; they had changed the County system to ensure that misdemeanor capias is- sued only after the requisite finding of probable cause by a properly neutral magistvate. The trial court therefore denied Crane’s request for injunctive relief. The remaining issues of damages and attorney’s fees were tried to a jury. The jury awarded Crane $40,000 in compensatory damages to be paid by th County and the District Attorney. It found that District Attorney Wade, as legal advisor to the County, knew or should have known that the County capias system infringed Crane’s estab- lished constitutional rights, but that the police, the City of Dallas, and Murdoch, the County Clerk, had acted in good faith and without knowledge of the constitutional infringe- ment. The court held, in a memorandum opinion filed March 11, 1982, that the County was immune from liability for A-8 damages because the illegal practices were not a ‘‘county policy or custom.” The District Attorney was immune from liability for damages because he was primarily re- sponsible to the State and breached no duty he owed to the County. Crane thus took nothing. He was, however, awarded attorneys’ fees as a “‘prevailing party” under 42 U.S.C. § 1988. The award was made against the State of Texas becanse defendants were ‘‘wearing their state hats” when they performed the acts complained of. The trial court modified its original order of September 8, 1982; and, in a memorandum opinion filed July 26, 1983, reduced the fees to be awarded Crane. The reduction was based on Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). All parties appeal from those aspects of the trial court’s holdings adverse to themselves. Facts The facts underlying this action are simple and undis- puted. lawyer with whom Crane shared office space listed Crane, without Crane’s knowledge or consent, as an initial director of Crystal Theater, Inec., in the corpora- tion’s Articles of Incorporation. The Crystal Theater showed dirty movies in Dallas. Dallas police visited the theater and determined its movies to be obscene. Pro- ceeding solely on the basis of the Articles of Incorpora- tion, and without further investigation, the Dallas police prepared a case report charging Crane with distribution of commercial obscenity, a misdemeanor. The police sent the report to the Dallas County Criminal District Attor- ney’s office. The District Attorney’s office decided to prosecute Crane and prepared an information and accom- panying affidavit charging him with the misdemeanor of- A-9 fense. The information and affidavit were filed with the Dallas County Clerk’s office. The Clerk’s office typed Crane’s name on a writ of capias form, thereby authoriz- ing Crane’s arrest, and gave the form to the police, who duly arrested Crane. He spent about four hours in the Dallas County jail before being released on bail. The charges against him were later dismissed for insufficient evidence at the request of the District Attorney’s office, which had belatedly discovered Crane’s lack of connection with the theater. This suit followed. Eleventh Amendment Immunity [1,2] Dallas County contended at trial and contends on appeal that its status as a state agency entitled it to Eleventh Amendment! immunity from federal suit, and therefore to dismissal for lack of jurisdiction. The trial eourt found it unnecessary to decide this question, and declined to do so. This was error. Because the Eleventh Amendment acts as a jurisdictional bar, Edelman v. Jor- dan, 415 U.S. 651, 678, 94 S.Ct. 1347, 1363, 39 L.Ed.2d 662 (1974); Laje v. R. E. Thomason General Hospital, 665 F.2d 724, 726 n. 2 (5th Cir.1982), an assertion of Eleventh Amendment immunity cannot be ignored, for a meritorious claim to that immunity deprives the court of subject mat- ter jurisdiction of the action. Dallas County’s claim of 1V.S. Const. amend, XI provides as follows: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The Eleventh Amendment has been held since 1890 to bar as well federal suits by citizens against their own states. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). A-10 Eleventh Amendment immunity as an arm or agent of the State of Texas, Chiz’s Motel v. Mississippi State Tax Com’n, 750 F.2d 1305, 1307 (5th Cir.1985); United Caro- lina Bank v. Board of Regents, 665 F.2d 553, 557 (5th Cir. 1982), thus put in question the trial court’s jurisdiction over the subject macter of Crane’s action against the County; it was incumbent upon the trial court to settle the question before proceeding further. The error was harmless, however, in view of our conclusion that the im- munity to federal suit granted by the Eleventh Amend- ment to the State of Texas does not extend to Dallas County. The Supreme Court has “held that the Eleventh Amendment does not apply to ‘counties and similar mu- nicipal corporations.’” Pennhurst State School & Hospi- tal v. Halderman, 465 U.S. 89, — n, 34, 104 S.Ct. 900, 920 n. 34, 79 L.Ed.2d 67, 93 n. 34 (1984), quoting Mt. Healthy City School District v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977). In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979), the Supreme Court stated that it ‘“‘has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a ‘slice of state power.’” 440 US. at 401, 99 S.Ct. at 1177, citing in support Mt. Healthy; Moor v. County of Alameda, 411 U.S. 693, 717-721, 93 S.Ct. 1785, 1799-1802, 36 L.Ed.2d 596 (1973), and Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct. 363, 33 L.Ed. 766 (1890). The Lincoln Court explicitly rejected a county’s assertion of Eleventh Amendment immunity: [I]t may be observed that the records of this court for the last thirty years are full of suits against Pee ee ee mT ee ee eee eee ee ee ee eee ee ee oe ee A-11 counties, and it would seem as though by general con- sent the jurisdiction of the federal courts in such suits had become established. But irrespective of this gen- eral acquiescence, the jurisdiction of the circuit courts is beyond question. The Eleventh Amendment limits the jurisdiction only as to suits against a State. 133 U.S. at 530, 10 S.Ct. at 363. Although the Lincoln Court acknowledged the Eleventh Amendment as a bar to suits “in which the State is a real, if not a nominal, defendant.” it did not place suits against counties in this eategory : [W Jhile the county is territorially a part of the State, yet politically it is also a corporation created by and with such powers as are given to it by the State. In respect it is a part of the State only in that remote sense in which any city, town or other municipal cor- poration may be said to be a part of the State. Id, see also Mercer County v. Cowles, 74 U.S. (7 Wall) 118, 122, 19 L.Ed. 86 (1868). Given such unambiguous pronouncements by the Supreme Court, repeated over so long ‘a period of time, it is scarcely surprising that other courts have considered as settled the Eleventh Amend- ment’s lack of applicability to counties.2 See, e.g., Tuveson ». Florida Governor’s Council on Indian Affairs, Inc., 734 F.2d 730, 732 (11th Cir.1984) (“Eleventh Amendment im- munity does not extend to independent political entities, such as counties”); Hall v. Medical College of Ohio, 742 F.2d 299, 301 (6th Cir.1984) (“Municipalities, counties and 2Commentators consider it settled as well. Professor Wright, for example, flatly states that “[t}he Eleventh Amendment does not provide immunity for counties and similar municipal coun- ties.” Wright, Federal Courts § 46, at 274 (1983); see also 1 J. Moore, J. Lucas, H. Fink, D. Weckstein & J. Wicker, Moore’s Federal Practice § 0.60 [2 2] (2d ed. 1984). A-12 other political subdivisions (e.g., public school districts) do not partake of the state’s Eleventh Amendment im- munity”); Fouche v. Jekyll Island-State Park Authority, 713 F.2d 1518, 1520 (11th Cir.1983) (‘‘Eleventh Amend- ment immunity to suit in federal court applies to states and state officials but not to municipal corporations, counties, or other political subdivisions of the state.’’); Morris v. Washington Metropolitan Area Transtt Author- ity, 583 F.Supp. 1522, 1524 (D.D.C.1984) (political subdi- visions such as municipalities and counties not entitled to invoke Eleventh Amendment immunity); Kenny v. Board of Trustees, 563 F.Supp. 95, 98 (D.Montana 1983) (‘‘im- munity provided the states by the Eleventh Amendment does not extend to counties”); Calkins v. Blum, 511 F.Supp. 1073, 1099 (N.D.N.Y.1981), aff'd, 675, F.2d 44 (2d Cir.1982) (Eleventh Amendment no bar to suit for damages against county commissioners) ; Woods v. Homes and Structures of Pittsburg, Kansas, Inc. 489 F.Supp. 1270, 1295-96 (D.Kansas 1980) (“bar of the Eleventh Amendment does not extend to counties”); High‘teld Wa- ter Co. v. Public Service Commission, 488 F.Supp. 1176, 1194 (D.Md.1980) (same); Patterson v. Ramsey, 413 F.Supp. 523, 529 (D.Md.1976), aff'd, 552 F.2d 117 (4th Cir.1977) (same). There is a similar abundance of authority holding the Eleventh Amendment inapplicable to counties of particu- lar states. See, e.g., Heiar v. Crawford County, 746 F.2d 1190, 1194 (7th Cir.1984) (Wisconsin county); Scott v. Greenville County, 716 F.2d 1409, 1422 (4th Cir.1983) (South Carolina county); Holley v. Lavine, 605 F.2d 638, 642-45 (2d Cir.1979), cert. denied, 446 U.S. 913, 100 S.Ct. 1843, 64 L.Ed.2d 266 (1980) (New York county); Lenoir eer A-13 ». Porters Creek Watershed District, 586 F.2d 1081, 1088- 89 (6th Cir.1978) (Tennessee and Mississippi counties) ; Mackey v. Stanton, 586 F.2d 1126, 1130-31 (7th Cir.1978), cert. denied, 444 U.S. 882, 100 S.Ct. 172, 62 L.Ed.2d 112 (1979) (Indiana county); Brown v. Marshall County, 394 F.2d 498, 500 (6th Cir.1968) (Kentucky county); Federal Land Bank v. County Commissioners, 582 F.Supp. 1507, 1512 (D.Colorado 1984) (Colorado county) ; Allsup v. Knox, 508 F.Supp. 57, 61 (E.D.Ky,1980) (Kentucky county); Jones v. Houser, 489 F.Supp. 795, 798 (E.D.Mis- souri 1980) (Missouri county); Obenshain v. Halliday, 504 F.Supp. 916, 952 (E.D.Va.1980) (Virginia county) ; Knight v. Car.son, 478 F.Supp. 55, 56-97 (E.D.Cal.1979) (California counties) ; Rafferty v. Prince George's County, 423 F.Supp. 1045, 1058 n. 9 (D.Md.1976) (Maryland coun- ty). Acceptance of the general rule excluding counties from Eleventh Amendment immunity is implicit in a num- ber of other decisions. See e.g., Campbell v. Pierce Coun- ty, 741 F.2d 1342 (11th Cir.1984) ; Travelers Indemnity Co. v. School Board of Dade County, 666 F.2d 505, 509 (ilth Cir.), cert. dented, 459 U.S. 834, 103 S.Ct. 77, 74 L.Bd.2d 74 (1982); Logen v. Shealy, 660 F.2d 1007, 1015 (4th Cir.1981), cert. denied, 445 U.S. 942, 102 S.Ct. 1435, 71 L.Ed.2d 653 (1982) ; Ledford v. Delancey, 612 F.2d 883, 887 (4th Cir.1980). We have recognized this general rule ina recent ease. Called upon to determine whether the Eleventh Amendment barred a suit against the Mental Health and Mental Retardation Authority of Harris County, Texas, we held that it did not, because ‘‘the record before us indicates MHMRA is more like a county or city thar. an arm of the state.” Wheeler v. Mental Health and A-14 Mental Retardation Authority, 752 F.2d 1063, 1072-73 (5th Cir. 1985).° District courts in our Circuit have applied the general rule to Texas counties. £.e, e.g., Johnston v. Shaw, 556 F.Supp 406, 409 (N.D.Tex.i982)} (citing, among other cases, Mt. Healthy, Lincoln, and Griffin v. County School Board of Prince Edward County, 377 U.S. 218, 233, 84 8.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964)) ; Wells v. Hutch- ison, 499 F.Supp. 174, 204 n. 40 (E.D.Tex.1980) ; Adams v. Harris County, 316 F.Supp. 938, 944 (S.D.Tex.1970), rev’d on other grounds, 452 F.2d 994 (Sth Cir.1971), cert. denied, 406 U.S. 968, 92 S.Ct. 2414, 32 L.Ed.2d 667 (1972) (citing, among other authorities, Lincoln and Wright, supra n. 2). [3] We think the authorities cited above establish without question that Eleventh Amendment immunity does not, as a general rule, extend to counties. We are further persuaded that no exception should be made to this rule without convincing evidence distinguishing the county in 3Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir.1980), is consistent with the general rule we state here. In that case, we held the Hondo Independent School District liable and Medina County not liable for damages under § 1983 because the policy at issue could be attributed to the former but not to the latter. We then continued, Though logic would seem, then, to impel a finding of liability against the State—since the statute obviously represents the official policy of the State—the State enjoys immunities not shared by its two political subdivisions. ~ In addition to a state’s traditional sovereign immunity, the Eleventh Amendment and its judicial gloss also prohibit private actions for damages against state in federal court. 619 F.2d at 404 (emphasis added) (footnotes omitted). The clear import of this language is that the State’s Eleventh Amendment ee extends neither to the School District nor to the ounty. A-15 question from counties generally. Dallas County has pro- duced no such evidence.* [4] The Supreme Court has recognized an exception to the general rule denying Eleventh Amendment immunity to counties for those cases in which the relief granted would run directly against the state. Pennhurst, 465 U.S. at — n. 34, 104 S.Ct. at 920 n. 34, 79 L.Ed.2d at 93 n. 34; compare Lake County Estates, 440 U.S. at 401, 99 S.Ct. at 1177 (exception applies to state agencies, not to counties) ; see also Wheeler, 752 F.2d at 1073 (agency would be im mune “if payment of the judgment were to be made direct- ly from the state treasury”) (emphasis added). We there- fore agree with Dallas County that the most crucial factor to be considered in determining the County status is ‘‘whether the funds to defray any award would be de- rived from the state treasury.” Laje, 665 F.2d at 727. The County argues that it falls within this exception to the 4The County’s reliance on Doe v. Sullivan, 472 F.Supp. 975 (W.D.Tex.1979), is misplaced. The Doe court held El Paso County immune under the Eleventh Amendment on the sole basis of Texas state cases, the most recent decided in 1937, describing Texas counties as arms of the state. This was error. Although a federal court dealing with a federal right is not re- quired to ignore state law; “(m)unicipal defenses—including an assertion of sovereign immunity—to a federal right of action are, of course, controlled by federal law.” Owen v. City of Independence, 455 U.S. 622, 647 n. 30, 100 S.Ct. 1398, 1413 n. 30, 63 L.Ed.2d 673 (1980), citing Fitzpatrick v. Bitzer, 427 U.S. 455, 455-56, 96 S.Ct. 2666, 2671-72, 49 L.Ed.2d 614 (1976); see also Monell v. New York City Department of Social Serv- ices, 436 U.S. 658, 695 n. 59, 98 S.Ct. 2018, 2038 n. 59, 56 L.Ed. 2d 611 (1978) (it has never been the law that state law im: munities override § 1983 causes of action). Because Doe failed utterly to include in its analysis the applicable federal cases, most conspicuously, for reasons discussed above, Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), and Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), we explicitly overrule it. A-16 rule because Texas law ‘‘declares all property in the hands of counties to belong to the state itself, Robbins v. Lime- stone County, 114 Tex. 345, 268 S.W. 915 (1925), and Baker v. Dunning, 77 Tex. 28, 13 S.W. 617, 618 (1890) (‘‘counties ... hold their property, as they hold their ex- istence, at the will of the state... and... it is subject to be resumed by the state at its pleasure”). We are not persuaded. First, the County has not shown that a different re- lationship obtains between other states and their counties. Second, the County’s proposition is unsupported by either Texas statutes or the Texas Constitution; the cases cited support the proposition only insofar as the county holds the property at issue as an agent of the state. It is clear, from Dallas County’s own authorities, that not all county property is so held. The Texas Supreme Court stated in Baker that ‘‘[{i]Jn Milam Co. v. Bateman, 54 Tex. 153, it was held that the state eould not take from the counties the lands which had been donated to them for educational] purposes. We are of the opinion that that decision should be adhered to.” 13 S.W. at 618. There is language in Robbins to similar effect: ‘‘If the title and ownership of the public roads reposes in the counties under the Consti- tution, and if they are property of the counties, then they would have the right to control them, and certainly the state, or any other power, would have no right to take them in any manner, except and unless compensation should be made therefor.” 268S.W. at 918. Nothing in either of these cases, or in any of the other authorities cited by the County, suggests that the State may seize at will funds raised by the County through properly authorized taxation, bond is- sues, or sale of property. EEE EEO EOE eee A-17 Third, the position taken by Dallas County here is patently inconsistent with its position in Barrett v. Thomas, 649 F.2d 1193 (5th Cir.1981), cert. denied, 456 U.S. 925, 102 8.Ct. 1969, 72 L.Ed.2d 440 (1982). The County moved to intervene in Barrett’ on the ground that ‘‘an adjudica- tion of Thomas’s liability in its absence would impair its interest in protecting the County treasury against the plaintiffs’ claims.” 649 F.2d at 1197. The County now sug- gests that its treasury belongs to the state, and effectively disavows any interest in it. We find this abrupt volte- face unconvincing; it is unlikely in the extreme that the County made the significant expenditures of time and money required by its multiple appeals in Barrett in order to protect the state’s property.® Dallas County’s conten- tion is further refuted by our conclusion in Barrett that “t]he district court has ample authority to bind Dallas County by its order to require payment from County funds.” 649 F.2d at 1206 (emphasis added). Our belief sWhen the trial court denied the motion, the County con- sidered the matter sufficiently important to pursue an inter- locutory appeal to this Court, which affirmed the denial, and then to petition the Supreme Court for a writ of certiorari, which the Court denied. Weber v. Barrett, 450 U.S. 1022, 101 S.Ct. 1729, 68 L.Ed.2d 218 (1981). The County did not, appar- ently, believe that the Eleventh Amendment presented a bar to its participation in Barrett as a party defendant. 6City of Waco v. Bridges, 710 F.2d 220 (Sth Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1414, 79 L.Ed.2d 741 (1984), is also persuasive authority against the County’s position. In that case, McLennan County intervened to assert a claim to money found by two boys. The IRS and the State of Texas also claimed the money. The trial court first rejected the IRS claim, and then held that “as between the State and the County, the money was peyable to the County,” 710 F.2d at 224; we affirmed the trial court’s holding. Waco makes no sense whatsoever if Texas counties can have no property of tneir own distinct from that of the State. A-18 in the character of such funds is unshaken by the argu- ments made here by the County. We therefore find that an award against Dallas County is not an impermissible award against the state, and that the funds to defray such an award would not be derived from the state treasury.’ Dallas County’s attempt to bring itself within the ‘‘state treasury” exception to the general rule against extending Eleventh Amendment protection to counties must there- fore fail. [5] Dallas County also asserts entitlement to Eleventh Amendment immunity on another ground. The County claims that Texas counties are unique and ought therefore to be excepted from the general rule denying Eleventh Amendment immunity to counties. In support of this as- sertion, the County offers a number of quotations from Texas state cases of decidedly antique vintage,’ of which this language from Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761 (1920), is typical : [Counties] are essentially instrumentalities of the State. They are the means whereby the powers of the 7We note that our finding accords with the position taken in this litigation by the State of Texas which, while not conclu- sive, is certainly entitled to some weight. See Moor, 411 U.S. at 720-21, 93 S.Ct. at 1801-02. The State maintained that Texas counties are fiscally autonomous, noting that under the Texas Constitution and Texas statute counties “raise revenues through the issuance of bonds, the purchase and sale of property, fees for services, the collection of taxes and fines levied,’ keep such revenues in the county treasury, and disperse them at the di- rection of the county commissioners court. 8Including, among others, Childress County v. State, 127 Tex. 343, 92 $.W.2d 1011 (1936); Heigel v. Wichita County, 84 Tex. 392, 19 S.W. 562 (1892); City of Galveston v. Posnainsky, 62 Tex. 118 (1886); and Chambers v. Gilbert, 17 Tex.Civ.App. 106, 42 S.W. 630 (Tex.Civ.App.—1897, writ ref’d). A-19 State are exerted through a form and agency of local government for the performance of those obligations which the State owes the people at large. They are created by the sovereign will without any special re- gard to the will of those who reside within their lim- its. Their chief purpose is to make effective the civil administration of the State government. The policy which they execute is the general policy of the State. Through them the powers of government operate upon the people and are controlled by the people. They are made use of by the State for the collection of taxes, for the diffusion of education, for the construction and maintenance of public highways, and for the care of the poor. All of these things are matters of state, as distinguished from municipal, concern. They intimate- ly affect all the people. The counties are availed of as efficient and convenient means for the discharge of the State’s duty in their regard to all the people. 220 S.W. at 762. As evidence of the uniqueness of Texas counties, Bexar is singularly unconvincing. There is nothing in the passage quoted above, or in any of the authorities cited by Dallas County, to distinguish Texas counties from counties gener- ally, which were described by the Supreme Court in Rey- nolds v. Sims 377 U.S. 533, 84 S.Ct. 1862, 12 L.Ed.2d 506 (1964), as follows: Political subdivisions of States — counties, cities, or whatever — never were and never have been con- sidered as sovereign entities. Rather, they have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions. As stated by the Court in Hunter v. City of Pittsburgh, 207 U.S. 161, 178, 52 L.Ed. 151, 159, 28 S.Ct. 40 [46], these governmental units are ‘‘created as convenient agencies for exercising such of the governmental pow- ers of the State as may be entrusted to them,” and A-20 the ‘‘number, nature and duration of the powers con- ferred upon [them] ... and the territory over which they shall be exercised rests in the absolute discre- tion of the State.” The relationship of the States to the Federal Government could hardly be less ana- logous. 377 U.S. at 575, 84 S.Ct. at 1388. Moreover, in vacating the judgment of the Texas Supreme Court in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), the Supreme Court implicitly rejected the claim of unique- ness made here by Dallas County: The Texas commissioners courts are assigned some tasks: which would normally be thought of as ‘‘legisla- tive,” others typically assigned to ‘‘executive” or “ad- ministrative” departments, and still others which are ‘*judicial.” In this regard Midland County’s Commis- stoners Court is representative of most of the general governing bodies of American cities, counties, towns, and villages. One knowledgeable commentator has written of ‘‘the states’ varied, pragmatic approach in establishing governments.” R. Wood, in Politics and Government in the United States 891-892 (A. Westin ed. 1965). That approach has produced a staggering number of governmental units — the preliminary cal- culation by the Bureau of the Census for 1967 is that there are 81,304 ‘‘units of government” in the United States—and an even more staggering diversity. None- theless, while special-purpose organizations abound and in many States the allocation of functions among units results in instances of overlap and vacuum, vir- tually every American lives within what he and his neighbors regard as a unit of local government with general responsibility and power for local affairs. In many cases citizens reside within and are subject to two such governments, a city and a county. The Midland County Commissioners Court is such a unit. aN A-21 390 U.S. at 482-83, 88 S.Ct. at 1119-20 (emphasis added) (footnotes omitted). Further, the attributes of Texas coun- ties, as enumerated in Avery, 390 U.S. at 483-84, 88 S.Ct. at 1119-20, and as provided by Texas law, are virtually in- distinguishable from those of California counties, as de- scribed in Moors Most notably, under California law a county is given ‘‘corporate powers” and is designated a “body corporate and politic.” In this capacity, a county may sue and be sued, and, significantly for purposes of suit, it is deemed to be a ‘‘local public entity” in con- trast to the State and state agencies. In addition, the county, and from all that appears the county alone, is liable for all judgments against it and is authorized to levy taxes to pay such judgments. A California county may also sell, hold, or otherwise deal in prop- erty, and it may contract for the construction and re- pairs of structures. The counties also are authorized to provide a variety of public services such as water service, flood control, rubbish disposal, and harbor and airport facilities. Financially, the counties ave empowered to issue general obligation bonds payable from county taxes. 411 U.S. at 719-20, 93 S.Ct. at 1800-01 (footnotes omitted). It does not appear that Texas counties lack even one of these attributes.? Thus, because Texas counties are not °Texas counties are bodies corporate and public. Tex.Rev. Civ.Stat.Ann. art. 1572 (Vernon 1962). They may sue and be sued, arts. 1573, 1579; O’Quinn v. McVicker, 428 S.W.2d 111, 112 (Tex.Civ.App.—Beaumont 1968, no writ). Texas counties agencies, Tex.Const. art. XI, §§ 1, 3; Tex.Rev.Civ.Stat.Ann. arts. are considered units of local government rather than state 4413 (32b); 6252-18a(b)(2); 6252-19, § 2(1). They are liable for judgments against them and may levy taxes to pay such judg- ments, arts. 1575, 6252-19, § 11; County of Brazoria v. Radtke, (Continued on following page) es A-22 unique, but instead share all the characteristics of Cali- fornia counties and, under Reynolds, of counties generally, we conclude, as did the Supreme Court in Moor, that Texas counties are not mere arms or agents of the state; they are independent units of local government to which the immu- nity granted by the Eleventh Amendment does not apply. We therefore reject the claim of Dallas County to such immunity and hold it subject to suit in federal court.'° This holding necessarily disposes of Dallas County’s contention that it is not a ‘‘person” within the meaning of 42 U.S.C. § 1983; under Monell v. New York City Depart- (Continued from previous page) 566 S.W.2d 326, 328 (Civ.App.—Beaumont 1978, writ ref’d n.r.e.). Texas counties may buy, sell, hold, or otherwise deal in property, arts. 1576, 1577, and may enter into contracts, art. 1578, including contracts for the construction and repair of structures, art. 2307b; County Commissioners Court v. Williams, 638 S.W.2d 218, 222-23 (Tex.App.—tastland 1982), writ ref’d n.r.e. per curiam, 655 S.W.2d 206 (Tex.1983). They may issue bonds, arts. 1644c-1, 1666a(c); Avery, 390 U.S. at 483, 88 S.Ct. at 1119, and provide a variety of public services, including air- ports, art. 1581d; flood control, art. 1581e; libraries, art. 1696b; and parks, art. 6081; see Avery, 390 U.S. at 484, 88 S.Ct. at 1120. 10Our holding is not inconsistent with Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir.1981) (en banc). In that case, we pretermitted the issue of Texas county entitlement to Eleventh Amendment immunity. On remand, the district court deter- mined that the Eleventh Amendment did not confer immunity on Harris County, 584 F.Supp. 897, 898 (S.D.Tex.1984). It reached this determination by applying to the County the prin- ciples established by this Court in Laje, 665 F.2d at 727. We are persuaded by our review of the relevant case law and au- thorities that the general rule denying Eleventh Amendment immunity to counties and other municipal corporations is suf- ficiently well established to render application of the Laje criteria unnecessary with regard to such units of local govern- ment, absent convincing evidence indicating that the entity in question is indeed atypical, or that the “state treasury” ex- ception to the general rule may apply. ae A-23 ment of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), a unit of local government not pro- tected by the Eleventh Amendment is such a person. 436 U.S. at 690 and n. 54, 98 S.Ct. at 2035 and n. 54." The Dallas County System [6] Dallas County and its judges also assign as error the trial court’s holding, in its Memorandum Order of No- vember 30, 1981, that Texas law requires issuance of a valid capias to be preceded by a neutral magistrate’s de- termination of probable cause. Because Texas courts have the final authority to interpret Texas legislation, Brown v. Ohto, 432 U.S. 161, 167, 97 S.Ct. 2221, 2226, 53 L.Ed.2d "The defendant judges of the Dallas County Criminal Courts joined with Dallas County in claiming entitlement to Eleventh Amendment immunity. Insofar as they sought to de- rive such immunity from the County, their claim must plainly fail with that of the County. Monell, 436 U.S. at 690 n. 55, 98 S.Ct. at 2035 n. 55. The judges also contend that they are not “persons’”’ under § 1983. The Supreme Court’s recent decision in Pulliam v. Allen, — U.S. —, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), settles this question. In Pulliam, an action brought un- der § 1983, the Court held that judicial immunity bars neither prospective injunctive relief nor the award of attorneys’ fees under § 1988. That state judges are “persons” for § 1982 pur- poses is clearly implicit in this holding. Further, our own cases establish that state court judges are not immune from federal suits seeking equitable or declaratory relief. Ciudauwanos Uni- dos de San Juan v. Midalgo County Grand Jury Commissioners, 622 F.2d 807, 813 n. 16 (5th Cir.1980), cert. denied, 450 U.S. 964, 101 S.Ct. 1479, 67 L.Ed.2d 613 (1981) (§ 1983 action against state judges); Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976, 980-81 (5th Cir. 1979) (en banc), aff’d sub nom Dennis v. Sparks, 449 U.S. 24, 101 S.Ct. 183, 66 L.Ed.2d 185 (1980). In any event, the ground of the judges’ appeal is by no means clear. They have been assessed neither with damages nor with attorneys’ fees; no declaratory or injunctive relief has been granted against them. We are thus at a loss as to what the judges are appealing from. A-24 187 (1977); Birmingham Fire Insurance Co. v. Winegard- ner and Hammons, Inc., 714 F.2d 548, 550 (5th Cir.1983), we must look to the decisions of Texas courts in our re- view of this holding; ‘‘the latest and most authoritative expression of state law applicable to the facts of the case is controlling.” Brumley Estate v. Iowa Beef Processors, Inc., 715 F.2d 996, 997 (5th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 1288, 79 L.Ed.2d 690 (1984). There is little difficulty in applying these principles here, for in Sharp v. State, 677 S.W.2d 513 (Tex.Crim.App.1984), the Texas Court of Criminal Appeals, sitting en bane, explicitly ap- proved the trial court’s interpretation of the Texas statu- tory scheme for issuing capias. In its opinion, the Texas court quoted extensively from the Crane court’s Novem- ber Order: In Crane, Judge Higginbotham addressed the require- ment for a probable cause determination prior to the issuance of a misdemeanor capias under Texas, read in its proper matrix of common law and constitutional standards. Although recognizing that the Texas statutory scheme authorizing capias does not by its express terms require a probable cause determination : ‘*Article 23.04 of the Texas Criminal Code provides that ‘[i]n misdemeanor cases the capias or summons shall issue from a court having jurisdiction of the ease.’ At the same time, Article 23.03 provides that ‘A capias shall be immediately issued by the district clerk upon each indictment for felony presented. .. .’ (em- phasis supplied). As will be seen, this difference be- tween 23.03 and 23.04 makes sense when read against the common law rules, and the Texas rules, of arrests for misdemeanors and felonies and explains Article 23.01 which defines capias . . . ‘as a writ issued by the A-25 court or clerk, and directed to any peace officer of the State of Texas, commanding him to arrest a person accused of an offense and bring him before that court immediately. ...’ The explanation is that the scheme presupposes an awareness that valid capias can issue only upon properly determined probable cause. In the case of a felony that determination is made by the grand jury in its decision to indict and it may be issued by the court clerk. With a misdemeanor capias issues not from a County Clerk but from a court with jurisdiction over the case. I conclude then that Texas law requires that to be valid a misdemeanor capias must be issued from a court with jurisdiction over the case after a determination by a neutral magistrate of probable cause.” Jd. at page 5. Judge Higginbotham’s conclusion is inescapably cor- rect, and we adopt it as our own. To do otherwise would render the statutory scheme unconstitutional. 677 S.W.2d at 517-18 (emphasis in original). This language is clearly dispositive of the County’s contention; the trial court did not err in its reading of Texas law. [7] The County and its judges next argue that the capias procedures used in Dallas County to arrest people were not unconstitutional. It is not clear that this poini is properly before this Court. In accordance with the gen- eral rule, established in Siler v. Louisville € Nashville Rail- road Co., 213 U.S. 175, 192-93, 29 S.Ct. 451, 455-56, 53 L.Ed. 753 (1909), that ‘‘a federal court should decide a case on state-law grounds where possible to avoid a federal con- stitutional question,” Pennhurst, 465 U.S. at —, n. 28, 104 S.Ct. at 918 n. 28, 79 L.Ed.2d at 90 n. 28, the trial court declined to reach the constitutional issue in this case and grounded its holding exclusively on state law. This was not necessarily error under Pennhurst. That case explicit- sii A-26 ly affirmed ‘‘the desirability of applying the Siler principle in cases where the federal court has jurisdiction to decide the state-law issues.” Id. Pennhurst deprives a federal court of such jurisdiction, and displaces the Siler rule, in only those instances where the claim is against state of- ficials to whom the Exparte You~g"™ exception to Eleventh Amendment immunity would otherwise apply, and in which the relief granted would run against the state: [A] federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when ~~ as here — the relief sought and ordered has an im- pact directly on the State itself. Pennhurst, 465 U.S. at —, 104 S.Ct. at 917, 79 L.Ed.2d at 89. Crane’s action is not governed by Pennhurst because, as discussed below, it was brought against County officials, and because the relief sought ran only against the County. The manner in which the Supreme Court dealt with the defendant county officials in Pennhurst supports this con- clusion.’ Relief was denied against these defendants not because they were protected by the Eleventh Amendment,” but rather because ‘‘any relief granted against the county officials on the basis of the state statute would be partial and incomplete at best.” 465 U.S. at —, 104 S.Ct. at 921, 79 L.Ed.2d at 94. The relief sought in Crane presented no such problems. We therefore hold that Pennhurst did not divest the trial court of jurisdiction to determine whether 12209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). 133A fair reading of the Court's discussion of this point, and one consistent with Mt. Healthy and Lake Tahoe, suggests that the county defendants would have been entitled to Eleventh Amendment immunity only if such immunity were required to protect the state treasury. Pennhurst, 465 U.S. at — n. 34, 104 S.Ct. at 920-921 n. 34, 79 L.Ed.2d at 93-94 n. 34. A-27 the challenged Dallas County procedures violated Texas law, and affirm the trial court’s conclusion that they did so. This holding does not, however, allow us to ignore the constitutional question presented. Although the matter is far from clear, it appears that the damages awarded Crane by the jury were $1983 damages, rather than damages stemming from Crane’s pendant state law claims. We infer this from the trial court’s statement that ‘‘[o]n March 11, 1982, the Court held that Dallas County was not liable for § 1983 damages because the accused practices were imple- mented by officers wearing their state badges and thus did not constitute official County policy under Monell v. Department of Social Services, 436 U.S. [658] 568 [98 S.Ct. 2018, 56 L.Ed.2d 611] (1978).” Memorandum Order of July 26, 1983 at 2. Inasmuch as Monell has no conceiv- able application to state law causes of action, and thus could not constitute a bar to recovery of damages arising under state law, it must follow that the injury for which the jury awarded Crane damages was one cognizable under § 1983. It is axiomatic that § 1983 damages can derive only from deprivations of rights secured by the Constitution or laws of the United States. A finding that the Dallas County pro- cedures deprived Crane of such rights was therefore a pre- requisite to an award to him of damages under § 1983. Although the trial court made no such finding explicit- ly, the required finding may be implicit in the trial court’s Order of November 30, 1981: The Fourth Amendment provides that “no war- rant shall issue except on probable cause.” As part of this guarantee a warrant for arrest is to be issued only after a detached and neutral magistrate, Coolidge v. New Hampshire, 403 U.S. 443, 444-53 [91 S.Ct. 2022, A-28 2026-31, 29 L.Ed.2d 564] (1971), determines that there is probable cause to issue it. Aquilar v. Texas, 378 U.S. 108 [84 S.Ct. 1509, 12 L.Ed.2d 723] (1964) ; Gtordenello v. U.S., 357 U.S. 480 [78 S.Ct. 1245, 2 L.Ed.2d 1503] (1958). The procedure which Dallas County has followed in issuing misdemeanor capias would not meet this requirement if the state statutes were read as per- mitting a capias to iscue without determining prob- able cause. Specifically, this requirement of probable cause is not met when, as is the case in Dallas County, an assistant clerk in the Criminal Processing Section of the County Clerk’s office transfers (types) the in- formation from an affidavit provided by the District Attorney to a document (capias) authorizing an ar- rest and signs that document in her name or the name of another clerk. Memorandum Order of November 30, 1981 at 6 (footnote omitted). That the trial court found the Dallas County practices to deprive Crane of federally guaranteed rights seems also to be implicit in the special interrogatories submitted to the jury. Two of these interrogatories asked the jury to de- termine whether the County Clerk and the County Criminal District Attorney, in their respective official capacities, ‘*knew, or should have known, that the procedure followed in the issuing of capias infringed a clearly established con- stitutional right of Stephen Crane.” These questions, and the award of § 1983 damages to Crane, plainly pre-suppose a finding by the trial court that the challenged practices were in fact unconstitutional. De- spite the absence of an explicit finding to that effect, we are persuaded that one may be inferred from the trial court’s Memorandum Order of November 30, 1981; given A-29 the trial court’s admirable analysis of the constitutional issue in that Order, no remand is necessary. See Gulf Tow- ing Company, Inc. v. Steam Tanker, Amoco New York, 648 F.2d 242, 245 (Sth Cir.1981) (remand not required if complete understanding of issues is possible and there is sufficient basis for appelate court’s consideration of mer- its). We will therefore consider the County’s contention that the Dallas County procedures passed constitutional muster. This contention is grounded on Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). The County construes Gerstein to permit arrests without prior judicial determinations of probable cause, so long as such determi- nations are made before extended restraints of liberty after arrest. Because the Dallas County procedures provided, at least in theory, for post-arrest judicial determinations of probable cause, the County argues that they satisfied the constitutional requirements established in Gerstein. We disagree. The petitioners in Gerstein were arrested with- out warrants on felony charges. Gerstein, 420 U.S. at 116- 17 and n. 18, 95 S.Ct. at 864-65 and n. 18. Thus, as the trial court correctly noted, ‘‘[i]mplicit in the Court’s analysis in Gerstein is the premise that review by a neutral magis- trate of any probable cause to arrest for a felony com- mitted outside an arresting officer’s presence need not precede the arrest. Gerstein thus accepts the validity of a warrantless arrest upon probable cause for a felony and addresses the adequacy of its post-arrest review.” Memo- randum Order of November 30, 1981, at 12. In so doing, the Gerstein Court was scarcely breaking new ground; it has been established for centuries that felony arrests may be made without warrants upon probable cause. It is equal. A-30 ly well established that the rule is otherwise for misdemea- nor arrests. The Supreme Court explained the distinction in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925): The usual rule is a police officer may arrest without warrant one believed by the officer, upon reasonable cause, to have been guilty of a felony, and that he may only arrest without a warrant one guilty of a misde- meanor if committed in his presence. Kurtz v. Mof- fitt, 115 U.S. 487, 29 L.Ed. 458, 6 Sup.Ct. Rep. 148; Bad Elk v. United States, 177 U.S. 529, 44 L.Ed. 874, 20 Sup. Ct. Rep. 729. The rule is sometimes expressed as follows: ‘*In cases of misdemeanor, a peace officer, like a private person, has at common law no power of arrest- ing without a warrant except when a breach of the reasonable ground for supposing that a breach of peace is about to be committed or renewed in his pres- ence.” 9 Laws of England (Halsbury), part ITI.612. The reason for arrest for misdemeanors without warrant at common law was promptly to suppress breaches of the peace (1 Stephen, History of Crimi- nal Law, 193), while the reason for arrest without warrant on a reliable report of a felony was because the public safety and the due apprehension of crimi- nais charged with heinous offenses required that such arrests should be made at once without warrant. Ro- han v. Sawin, 5 Cush. [Mass]. 281. 267 U.S. at 156-57, 45 S.Ct. at 286-87. The law has not clianged since Carroll; its statement of the “usual rule” was quoted with approval by the Supreme Court in Umited States v. Watson, 423 U.S. 411, 417, 96 S.Ct. 820, 824, 46 L.Ed.2d 598 (1976). The context in which this quotation appeared is relevant here. It was preceded by the state- ment that “there is nothing in the Court’s prior cases A-31 indicating that under the Fourth Amendment a warrant is required to make a valid arrest for a felony.” 423 U.S. at 416-17, 96 S.Ct. at 824-95 (emphasis added), Tt was followed by a review of the Court’s decisions involving warrantless felony arrests, including Gerstein, 423 U.S. at 417-18, 96 S.Ct. at 825-26. The Watson Court then enun- ciated the principle governing these decisions: The cases construing the Fourth Amendment thus re- flect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a mis- demeanor or felony committed in his presenee as well as for a felony not committed in his presence if there was reasonable grounds for making the arrest. 10 Halsbury’s Laws of England 344-345 (3d ed 1955) ; 4 W. Blackstone, Commentaries * 292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883) ; 2M. Hale, Plea of the Crown "72-74; Wilgus, Arrest Without a Warrant, 22 Mich L Rev, 547-550, 686-688 (1924); Samuel v. Payne, 1 Doug] 359, 99 Kng Rep 230 (KB 1780); Beckwith v. Philby, 6 Barn & Cress 30, 108 Eng Rep 585 (KB 1827). This has also been the prevailing rule under state constitutions and sta- tutes. ‘‘The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals.” Kurtz v. Moffitt, 115 US 487, 504, 29 Ed 458, 6 SCt 149 [154] (1885). 423 U.S. at 418-19, 96 S.Ct. at 825-26. After a review of state cases following the same principal, the Court con- eluded, The balance struck by the common law in general- ly authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears in almost all of the States in the form of express statutory authorization. In 1963, the Ameri- A-32 can Law Institute undertook the task of formulating a model statute governing police powers and practice in criminal law enforcement and related aspects of pretrial procedure. In 1975, after years of discussion, A Model Code of Prearraignment Procedure was pro- posed. Among its provisions was § 120.1 which auth- orizes an officer to take a person into custody if the officer has reasonable cause to believe that the person to be arrested has committed a felony, or has com- mitted a misdemeanor or petty misdemeanor in his presence. The commentary to this section said: ‘“The Code thus adopts the traditional and almost universal standard for arrest without a warrant.” This is the rule Congress has long directed its principal law enforcement officers to follow. 423 U.S. at 421-23, 96 S.Ct. at 826-28 (footnotes omitted). Watson thus places Gerstem squarely amongst cases decided on the basis of the general rule permitting war- rantless felony arrests upon probable cause. Given the validity of such arrests, it follows inescapably that judi- cial determinations of probable cause may follow, rather than precede, them. Nothing compels a similar conclu- sion as to misdemeanor arrests. The general rule re- quires that they be made upon warrants, unless the of- ficer has witnessed the offense; the warrant requirement is meaningless absent a judicial determination of probable cause. The Supreme Court has recognized this truth on iuany oecasions. In Mclonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948), the Court stated, We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has inter- posed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done Se a ee ae. Se A-33 so that an objective mind might weigh the need to in- vade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime an“ the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitu- tion requires a magistrate to pass on the desires of the police before they violate the privacy of the home. 335 US. at 455-56, 69 S.Ct. at 193-94 (emphasis added). Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed. 2d 576 (1967), is to similar 2ftect: “Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adher- ence to judicial processes.” United States v. Jeffers, 342 U.S. 48, 51, 96 L.Ed. 59, 64, 72 S.Ct. 93 [95], and that searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment— subject only to a few specifically established and well- delineated exceptions. 389 U.S. at 357, 88 S.Ct. at 514 (footnote omitted). The same point is clearly stated in Shadwick v. City of Tampa, 407 U.S. 345, 92'S.Ct. 2119, 32 L.Ed.2d 783 (1972): The warrant traditiona’ has represented an inde- pendent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime. 407 U.S. at 350, 92 S.Ct. at 2122. United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed. 2d 752 (1972), is particularly relevant here, for in that case the Court rejected the government’s argument that after-the-fact judicial review could be substituted for prior judicial determination of probable cause. Because of its A-34 relevance, the Court’s discussion merits quotation at some length: The warrant clause of the Fourth Amendment is not dead language. Rather, it has been “a valued part of our constitutional law for decades, and it has de- termined the result in scores and scores of cases in courts all over this country. It is not an inconveni- ence to be somehow ‘weighed’ against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, oper- ating as a matter of course to check the ‘well-inten- tioned but mistakenly overzealous executive officers’ who are a part of any system of law enforcement.” Coolidge v. New Hampshire, 403 U.S. at 481 [91 S.Ct. at 2046], 29 L.Ed.2d at 592. Over two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that or- dered the arrest of unnamed individuals whom the officer might conclude were guilty of seditious libel. ‘*It is not fit,” said Mansfield, “that the receiving or judging of the information should be left to the dis- cretion of the officer. The magistrate ought to judge: and should give certain directions to the officer.” Leach v. Three of the King’s Messengers, 19 How St Tr 1001, 1027 (1765). Lord Mansfield’s formulation touches the very heart of the Fourth Amendment directive. . . . Inher- ent in the concept of a warrant is its issuance by a “neutral and detached magistrate.” Coolidge v. New Hampshire, supra, at 453 [91 S.Ct. at 2031], 29 L.Ed. 2d at 575. The further requirement of “probable cause” instructs the magistrate that baseless searches shall not proceed. The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords - Die ews ania ated A-35 with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the dif- ferent branches and levels of Government. John M. Harlan, Thoughts at a Dedication: Keeping the Judi- cial Function in Balance, 49 ABAJ 943-944. (1963). The independent check upon executive discretion is not satisfied, as the Government argues, by ‘‘extremely limited” post-surveillance judicial review. 407 U.S. at 316-18, 92 S.Ct. at 2136-37 (footnotes and cita- tions omitted). See also Chimel v. California, 395 U.S. 752, 761, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969) (quoting McDonald). [8] These passages are clear and unequivocal: the Fourth Amendment requires that no warrant issue but up- on probable cause, as determined by a neutral and de- tached magistrate. It is undisputed that the Dallas County procedures challenged here did not meet this requirement. The trial court therefore held them unconstitutional; we affirm its holding." Although the County grounded its argument primarily on Gerstein, it relied also on one paragraph of Smart v. Jones, 530 F.2d 64 (5th Cir.), cert. denied, 429 U.S. 887, 97 S.Ct. 240, 50 L.Ed.2d 168 (1976). In that paragraph, we stated. There is no merit to the issues which imply that Deputy Grandstaff initiated this entire altercation by attempting to serve invalid civil process on the plaintiff. The Capias, Texas’ equivalent to an arrest warrant which is “issued by the court or clerk and directed ‘To any peace officer of the State of Texas’” Art. 23.01, Tex.C.Crim.P., was neither improperly executed, nor violative of due process. 530 F.2d at 66. This language falls far short of affirming the constitutionality of the practises at issue here; the County’s re- liance on Smart is misplaced. A-36 Inability for Money Damages The jury awarded Crane money damages and assessed them against the County and the District Attorney. The trial court held the County immune from liability for dam- ages because ‘‘the accused practices were implemented by state officers, not county officers. The acts were neither done for the county nor subject to its control. The ac- cused practices can then hardly be said to be a county cus- tom or practice.” Crane v. Texas, 534 F.Supp. 1237, 1246 (N.D.Tex. 1982). The trial court held the District Attor- ney immune from liability for money damages because there was no evidence that he breached a duty to the County. Jd. Crane contends that the trial court erred in ISThis holding, although unaccompanied by supporting ci- tation, appears premised on a line of cases beginning with Roberts v. Williams, 456 F.2d 819 (5th Cir.), cert. denied sub nom. Roberts v. Smith, 404 U.S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110 (1971), extending through Sims v. Adams, 537 F.2d 829 (5th Cir.1976), and Howard v. Fortenberry, 723 F.2d 1206 (5th Cir.), vacated in part, 728 F.2d 712 (1984), to, most recently, Craine v. Alexander, 756 F.2d 1070 (5th Cir. 1985), in which this Court has stated that breach of a duty imposed by state law must be shown by a plaintiff seeking to impose liability under § 1983. This showing is not required, however, of a plaintiff alleging that defendants were directly responsible for the offending conduct. The distinction is clearly set forth in Sims: The language of § 1983 requires a degree of causation as an element of individual liability, but it does not specifical- ly require “personal participation.” The proper question is therefore whether the complaint adequately alleges the requisite causal connection between the supervisory de- fendants’ actions and a deprivation of plaintiff's consti- tutional rights. “Personal participation” is only one of several theories which can be used to establish causation. (Continued on following page) A-37 holding all defendants immune from liability for money damages. We agree, although for reasons different from those offered by Crane. [9,10] The trial court’s rationale for County immu- nity appears premised on a finding that the District Attor- ney was an officer of the state. This finding presents prob- lems. State officials partake of the Eleventh Amendment immunity of the states they serve. Edelman, 415 U.S. at 663, 94 S.Ct. at 1355; Familias Unidas, 619 F.2d at 404-05. “(T jhe Supreme Court has flatly stated that neither the statutory language nor legislative history of section 1983 evinces a sufficient, express congressional intention to override the traditional immunities of the states to allow private damage actions against the states and their offi- cals pursuant to that statute.” Familias Unidas, 619 F. 2d at 405 (emphasis added), citing Quern v. Jordan, 440 U.S. 332, 339, 99 S.Ct. 1139, 1144, 59 L.Ed.2d 358 (1979). The Eleventh Amendment thus bars a private suit for dam- ages brought under § 1983 against a state official; the exception to Eleventh Amendment immunity provided by (Continued from previous page) Another theory which includes the requisite causation is that a supervisory defendant is subject to § 1983 liabil- ity when he breaches a duty imposed by state or local law, and this breach causes plaintiff’s constitutional injury. 537 F.2d at 831 (emphasis added) (citations and footnote omitted); see Howard, 723 F.2d at 1209 (showing of breach of state-law duty would be required where no defendant was di- rectly responsible for violation). These cases thus provide alternative theories for imposi- tion of § 1983 liability; either direct responsibility or breach of a state-law duty. Given the district attorney’s direct respon- sibility for the Dallas County system, it was unnecessary for Crane to prove that he breached a duty imposed by State law. A-38 Ex parte Young does not extend to such actions. Penn- hurst, 465 U.S. at —, 104 S.Ct. at 908-909, 79 L.Ed.2d at 79-80. Further, the Supreme Court held in Pennhurst that the Ex parte Young exception does not extend to vio- lations of state law; thus, “a claim that state officials vio- lated state law in carrying out their official responsibili- ties is a claim against the state that is protected by the Eleventh Amendment,” and ‘‘this principle applies as well to state law claims brought into federal court under pend- ent jurisdiction.” 465 U.S. at —, 104 S.Ct. at 919, 79 L.Ed.2d at 92." The import of these principles is clear. As a state official, the District Attorney was immune from more than liability for damages; the jurisdictional bar of the Eleventh Amendment rendered him immune from an action for damages. The trial court was thus required to dismiss Crane’s aciion for damages against the District Attorney if it found him to be a state official.’ By permitting the 16A finding that the County District Attorney, the County Judges, and the County Clerk were state officials would there- fore, under Pennhurst, deprive the trial court of jurisdiction to render its declaratory judgment that their practices violated state law. Because we conclude that defendants here were of- ficers of the County, not of the State, we need not disturb the trial court’s judgment, to which Pennhurst does not apply. 17This analysis, which applies as well to the County Judges and the County Clerk, pertains only to suits against the officials in their official capacities. Tle Eleventh Amendment is obvious- ly no bar to actions for damages against officials sued in their individual capacities; see Wells v. Hutchinson, 499 F.Supp. 174, 204 n. 40 (E.D.Tex.1980); in such actions, defendants must plead and prove the affirmative defense of qualified or “good faith” immunity. See Familias Unidas, 619 F.2d at 403 and n. 12; see also Harlow v. Fitzgerald, 457 U.S. 800, 815-18 and n. 30, 102 S.Ct. 2727, 2738-39 and n. 30, 73 L.Ed.2d 396 (1982). (continued on following page) A-39 action to proceed, however, the trial court implicitly found the District Attorney to be something other than a state officer, to wit, an official of a local unit of government it- self unprotected by the Eleventh Amendment. This con- clusion is buttressed by-the trial court’s reason for holding the District Attorney immune from liability for damages. If the District Attorney were a state officer, the Eleventh Amendment alone would render him immune from such liability; in this cireumstance, whether he breached a duty owed to the County would be perfectly irrelevant. [11] It is apparent from the foregoing that the trial court’s reasoning in this regard cannot be made internally consistent. We therefore turn to the second premise on which the trial court grounded the County’s immunity from damages: that the accused practices “were neither (lone for the county nor subject to its control.” 534 F. Supp. at 1246. In Monell, the Supreme Court held that local governments ‘‘can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where ... the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or deci- sion officially adopted and promulgated by that body’s offi- cers.” 436 U.S. at 690, 98 S.Ct. at 2573. This Court, en bane, has construed Monell to permit the imposition of (Continued from previous page) Although the matter is not free from doubt, we assume here that defendants were sued in their official capacities. This assumption is grounded both on defendants’ assertion of Elev- enth Amendment immunity and on the trial court’s award of attorneys’ fees against the state, pursuant to the Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988. Under that Act, fee awards are ‘payable by the states when their of- ficials are sued in their official capacities.” Hutto v. Finney, 437 U.S. 678, 694, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522 (1978). A-40 municipal liability when the alleged deprivation of feder- ally guaranteed rights is inflicted pursuant to official pol- icy, official policy being defined as 1. A policy statement, ordinance, regulation, or deci- sion that is officially adopted and promulgated by the municipality’s lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority ; or 2. A persistent, widespread practice of city officials or employees, which, although not authorized by offi- cially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be sttributable to the governing body of the municipality or to an official to whom that body had delegated policy-making au- thority. Actions of officers or employees of a munici- pality do not render the municipality liable under § 1983 unless they execute official policy as above de- fined. Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en bane), quoting Bennett v. City of Slidell, 735 F.2d 861, 862 (Sth Cir.1984) (en banc). Although the trial court did not have the benefit of this formulation, it did consider whether the challenged practices constituted County policy under Monell, and concluded that they did not because the practices were not subject to County con- trol. 534 F.Supp. at 1237. The trial court’s conclusion is flatly contradicted by the course of events of this litiga- tion and cannot be reconciled therewith. In its Memorandum Order of November 30, 1981, the trial court asked the defendants for ‘‘concrete proposals” for a new Dallas County system of issuing capias. /d. at 13. The judges and the District Attorney submitted such A-41 proposals; they were filed with the court on December 9 and 11, 1981, respectively. The District Attorney had be- gun to make changes in the system even before this, how- ever. A letter from the District Attorney to the Chief of Police of the City of Dallas, dated July 20, 1981, announces “I plan certain changes in the procedure for the filing of criminal cases with the Dallas County District Attorney’s Office.” A memorandum from the District Attorney to “All Police Departments and Agencies Filing Cases with the Dallas County District Attorney’s Office,” dated Sep- tember 17, 1981, states ‘‘Certain changes in the procedure for the filing of criminal cases with the Dallas County Dis- trict Attorney’s Office are presently (sic) being imple- mented.” A letter from the District Attorney to Judge Ellis of the Dallas County Criminal Court dated December 7, 1981, begins, ‘‘As a result of the recent decision by Judge Higginbotham in Cause No. CA 3-80-0978-6, styled Stephen C. Crane versus State of Texas, et al, the follow- ing is the form of action this office would like to take— with your cooperation.” In none of these communications is there the slightest indication that the District Attorney acted other than independently; there is no hint of any perceived necessity by the District Attorney to consult with or invite the participation of any state official, for example, a member of the State Attorney General’s Office. To the contrary, the record plainly shows that the District Attorney was alone responsible for the County system and could change it at will. This fact is implicit in the trial court’s order of February 4, 1982, denying injunctive relief because [B]eginning as early as June 1981, some five months before this court’s Memorandum Order of November 30, 1981, defendants voluntarily changed the method A-42 used to issue capias in misdemeanor cases. Imple- mentation of this change has proceeded at a steady pace. At all times, defendants have demonstrated by concrete action their good faith effort to achieve a sound and legally sufficient system. Id.*& In Familias Unidas, this Court described the cir- cumstances in which the acts of a county judge would con- stitute official county policy under Monell: [A]t least in those areas in which he, alone, is the final authority or ultimate repository of county power, his official conduct and decisions must necessarily be con- sidered those of one “whose edicts or acts may fairly be said to represent official policy” for which the county may be held responsible under section 1983. 619 F.2d at 404. This language, which “relates to the offi- cer who obtains policymaking authority by virtue of the office to which that officer is elected,” was explicitly af- firmed in Bennett, 735 F.2d at 862. It clearly covers the acts of the District Attorney here. His authority to es- tablish County procedures for issuing misdemeanor capias derived from the County office to which he was elected by County voters. That he had such authority is patent and admitted by the District Attorney himself; his first amend- ed answer, filed with the court on September 12, 1980, 18See also Memorandum Order of September 8, 1982, in which the trial court stated, Moreover, though Dallas County changed its system for reasons including ‘administrative prudence,’ it is clear that Crane’s suit challenging the system was a Catalyst in ef- fectuating that change. Id. at 1-2 (citation omitted) (emphasis added). The conflict be- tween this statement and the trial court’s conclusion that the ay had no control over its system is obvious and irrecon- cilable. A-43 states that he ‘thas established policies and procedures of an administrative nature only as to the filing and process- ing of criminal information in Dallas County.” Jd. at 4. hus, because the ultimate authority for determining County capias procedures reposed in the District Attor- ney, an elected County official, his decisions in that regard must be considered official policy attributable to the County. As we stated in Bowen v. Watkins, 669 F.2d 979 (5th Cir.1982), At some level of authority, there must be an official whose acts reflect governmental policy, for the gov- ernment necessarily acts through its agents. Thus the question becomes one of identifying the official who has authority to make policy; then municipal lia- bility attaches to acts performed pursuant to that pol- icy. When an official has final authority in a matter involving the selection uf goals or of means of achiev. ing goals, his choices represent governmental poliey. 669 F.2d at 989. The County in this case acted thr. ugh the District Attorney; he selected the means by which the County was to achieve a sound and legally sufficient capias system. His choice of an unsound and legaliy insufficient system represents County policy for which the County is liable. The trial court’s finding to the contrary was error, and we reverse it.'® The trial court grounded its finding in part on our state- ment in Familias Unidas that the duty of a County judge “in implementing section 4.28, much like that of a county sheriff in enforcing a state law, may more fairly be characterized as the effectuation of the policy of the State of Texas embodied in that statute, for which the citizens of a particular county should not bear singular responsibility.” 619 F.2d at 404. Thus, because defendants here were “enforcing the state criminal law,” 534 F.Supp. at 1245, the trial court found the County im- mune. (Continued on following page) A-44 [12] Although the jury found that the District At- torney knew, or should have known, that the Dallas County capias system infringed Crane’s clearly established con- stitutional rights, the trial court held him immune from liability for damages. It found that the District Attorney had no duty to advise the County on its capias system; there being no duty, there could be no breach and there- fore no liability. This finding was grounded on ‘ex.liev. Civ.Stat.Ann. art. 334 (Vernon 1982), which provides, ‘‘The district and county attorneys, upon request, shall (Continued from previous page) This reading of Familias Unidas ignores two crucial dis- tinctions between that case and this. First, the defendants in Familias Unidas complied with a state statutory scheme later found to be unconstitutional; the error was in the scheme, not in defendants’ interpretation of it. Here, defendants failed to comply with a constitutional state statutory scheme; the error was in their interpretation, not in the scheme. Second, the statute at issue in Familias Unidas was narrow- ly drawn, leaving little, if any, room for the exercise of discre- tion in its implementation. By contrast, the statutes in question here were so drawn as to require the exercise of discretion. The point is clearly made in Familias Unidas: ‘‘The narrow au- thority delegated to the county judge in section 4.28, however, bears no relation to his traditional role in the administration of county government or to the discretionary powers delegated to him by state statute in aid of that role.” 619 F.2d at 404 (em- phasis added). Familias Unidas cannot thus properly be con- strued to immunize local governments from § 1983 damage liability for actions within the discretion of their officials which prove to be both unconstitutional and illegal under state law. See Williams v. Thomas, 692 F.2d 1032, 1039-40 (5th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 3115, 77 L.Ed.2d 1369 (1983); Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir.1981), cert. de- nied, 456 U.S. 925, 102 S.Ct. 1969, 72 L.Ed.2d 440 (1982). It stands rather for the unexceptionable proposition that local governments and their officials who act in conformance with a state statutory scheme will not be held liable for § 1983 dam- ages if the scheme is later held unconstitutional. Familias Uni- = therefore provides no support for the trial court’s finding in this case. A-45 give an opinion or advice in writing to any county or precinct officer of their district or county, touching their official duties.’’ There was no evidence that any County official had requested the District Attorney’s advice on the County’s capias system. The statute plainly did not require the District Attorney to give the County unso- licited legal advice. Therefore, the trial court reasoned, the District Attorney could not be liable for not doing something he had no duty to do. The obvious flaw in this reasoning is that the statute quoted above has no application to actions taken by the District Attorney in the exercise of his discretionary au- thority. Where, as here, the District Attorney himself established the procedures to be followed by the County in issuing misdemeanor capias, the statute does not and could not apply unless it were construed to require a County official to ask the District Attorney to provide legal advice to himself about his own system. The sug- gestion is not plausible. It is true, as the trial court noted, that the District Attorney has no duty, Statutory or other- wise, to monitor independently the manner in which other officials performed their public duties. This fact does not, however, relieve him of the duty to monitor his own actions, nor does it relieve him of responsibility when those actions result in the deprivation of federal!y guar. anteed rights. The District Attorney established the pro- cedures used in Dallas County to issue misdemeanor capias. His duty to do so in accordance with the United States Constitution and the laws of Texas was one entirely in- dependent of any duty to render legal advice to others. Thus, the trial court erred in finding the District Attor- ney immune from liability by reason of Tex.Rev.Civ.Stat. A-46 Ann. art. 334. Neither that statute nor any other pro- vides him with immunity from liability for actions that in- fringe the constitutional rights of others. We therefore hold the District Attorney liable for the damages awarded by the jury and assessed against him. We do not, however, hold him liable in his individual capacity. The conduct complained of was that of a County officer engaged in the furtherance of his duties; we have found that conduct to constitute official policy attributable to the County. This finding, as well as those factors dis- cussed supra n. 15, compel the conclusion that Crane brought suit against the District Attorney in his official capacity. See Williams, 692 F.2d at 1040. Because the defense of qualified, good faith immunity is not available to a defendant sued in his official capacity, Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980); Barrett, 649 F.2d at 1203 (Brown, J., concur- ring); Familias Unidas, 619 F.2d at 403 n. 12, it is thus unnecessary for us to determine whether, as Crane con- tends, the District Attorney was unprotected by such im- munity.” For the foregoing reasons, we .old that the trial court erred in finding the District Attorney and the County immune from liability for money damages. The jury’s 20In any event, it is by no means ciear that this point is properly before this Court. The trial court did not ground its finding that the District Attorney was not liable for damages on that officer's qualified, good faith immunity; such immunity is not even mentioned in the trial court’s opinion. There would thus appear to be no finding of qualified immunity for Crane to assign as error. The question would be of some importance had we found the instant action to be one against the District Attorney in his individual capacity; it is irrelevant in view of our conclusion that the District Attorney was sued in his of- ficial capacity. ee Mn mM A-47 award of money damages to Crane is accordingly rein- stated. Because the injury for which damages were awarded resulted from the official policy of the County as embodied in the official actions of the District Attor- ney, the County will be liable for those damages assessed against the District Attorney as well as those assessed against itself. Liability for Attorneys’ Fees The trial court awarded Crane attorneys’ fees pur- suant to the Civil Rights Attorneys’ Fees Awards Act of 1976, 42 U.S.C. § 1988. It assessed the fees against the State of Texas because ‘‘[t]he actors whose conduct was at issue in the maintenance of the warrant system and its specific application to Crane were wearing their state hats.’”” Memorandum Order of September 8, 1982, at 3. The State of Texas contends that this was error, arguing that the fee award should have been assessed against Dal- las County. We agree. [13] The general rule regarding §1988 attorneys’ fees is set forth in Familias Unidas: An award of attorneys’ fees under section 1988 against an individual in his official capacity ordinarily is treated as an award against the particular govern- mental body of which he is a representative, and is to be paid from the funds of that body, whether or not it is a named party to the suit. 619 F.2d at 406, citing Hutto v. Finney, 437 U.S. 678, 693- 700, 98 S.Ct. 2565, 2574-2579, 57 L.Ed.2d 522 (1978). Thus, attorneys’ fees are properly assessed against the state when its officials are sued in their official capacities, Hutto, 437 U.S. at 693-94, 98 S.Ct. at 2574-75, and when their conduct may fairly be said to represent its official A-48 policy. See Barrett, 649 F.2d at, 1201; Familias Unidas, 619 F.2d at 406. Neither condition is met here. [14] Crane did not sue the individual defendants for actions taken on behalf of the State; rather, he sued them because of the roles they played in establishing and im- plementing the Dallas County system of issuing misde- meanor capias. Defendants created that system and con- trolied it for the County, not for the State; therefore, in so doing they acted as County, not State, officials. The system they created and controlled violated Texas law; thus, it can scarcely be said to represent the official policy of the State of Texas.*! We have held instead that it rep- resented the official policy of Dallas County. The award of Crane’s attorneys’ fees must therefore run against the County; see Williams, 692 F.2d at 1040; Barrett, 649 F.2d at 1201-02. Accordingly, we reverse” the trial court’s assessment of those fees against the State, and render judgment holding Dallas County liable for them. Conclusion In sum, we hold that neither Dallas County nor its officials are protected by the immunity provided by the 21Familias Unidas is not to the contrary. In Familias Unidas we stated that the statute in question, to which defendants had conformed their conduct, ‘obviously represents tine official policy of the State.” 619 F.2d at 404. The same may be said of the statutes involved in this case. The conduct at issue here, however, violated rather than conformed to those statutes; it would be anomalous indeed to regard as official State policy actions taken by County officials in violation of State law. 22Our reversal of the trial court’s award of § 1988 attor- neys’ fees against the State is necessarily predicated on a find- ing that the award constituted an abuse of the trial court’s dis- cretion. Dean v. Gladney, 621 F.2d 1331, 1337 (5th Cir.1980); Morrow v. Dillard, 580 F.2d 1284, 1300 (5th Cir. 1978). | A-49 Eleventh Amendment and that both the County and its officials are ‘‘persons’’ within the meaning of 42 U.S.C. § 1983. We affirm the trial court’s findings that the Dal- las County system of issuing misdemeanor capias violated both Texas law and the United States Constitution. We reverse the findings of immunity from liability for money damages as to the County and the District Attorney, and hold the former liable for its official policy and the latter liable in his official capacity. We therefore reinstate the jury’s award of money damages. We reverse the assess- ment of attorneys’ fees against the State of Texas, and ren- der judgment against the County for the fees. It is so ORDERED. B-1 APPENDIX B Stephen C. CRANE, on behalf of himself and others similarly situated, Plaintiff-Appellee Cross Appellant, Vv. STATE OF TEXAS, Defendant-Appellant, Vv. COUNTY OF DALLAS, Ben Ellis, John Orvis, Mike Schwille, Berlaind Brashear and Chuck Miller, Defendants-Appellants Cross Appellees, Vv. Henry WADE and L. E. Murdoch, Defendants-Appellees. No. 83-1650. United States Court of Appeals, Fifth Circuit. July 22, 1985. Plaintiff brought action challenging county’s practice of issuing misdemeanor capias without finding of probable cause. The United States District Court for the North- ern District of Texas, Patrick E. Higginbotham, J., find- ing that both cou./y and district attorney were immune, awarded plaintiff only attorney fees, but the Court of Ap- peals, 759 F.2d 412, reversed in part, finding neither county nor district attorney immune. On motion for rehearing, the Court of Appeals held that: (1) district attorney was B-2 primarily county official, and county could be held liable for district attorney’s unlawful practice of issuing capias without probable cause, and (2) matter of attorney fees on appeal was more appropriately addressed by district court. in first instance. Prior opinion vacated in part; petition denied in part. 1. Civil Rights — 137 Texas district attorney was primarily county official, despite ultimately deriving powers of his office from state, and county could be held liable for district attorney’s practice of issuing misdemeanor capias without finding of probable cause, in violation of Fourth Amendment, U.S.C.A. Const.Amend. 4, 11; Vernon’s Ann.Texas Civ. St. arts. 323, 328, 332b-2(b), 332d, 333; Vernon’s Ann. Texas Const. Art. 5, $$ 19-21. 2. Civil Rights — 13.17(23) In civil rights action against various governmental parties, matter of plaintiff’s entitlement to attorneys fees and costs on appeal, as well as his claim for restoration of portion of trial attorneys’ fees because of developments on appeal, were more appropriately addressed by district court in first instance. Earl Luna, Dallas, Tex., for Ellis et al. and Dallas County. Jim Mattox, Atty. Gen., Mary F. Keller, Lawrence J. King, Asst. Attys. Gen., Austin, Tex., for State of Tex. Peter Lesser, Johnston & Larson, Douglas R. Larson, Dallas, Tex., for Crane. B-3 Sue L. Lagarde, Dallas, Tex., for appellees Henry Wade and Larry Murdoch. Appeals from the United States District Court for the Northern District of Texas. ' ON PETITIONS FOR REHEARING AND SUGGESTIONS FOR REHEARING EN BANC (Opinion May 2, 1985, 5, Cir., 1985, 759 F.2d 412) Before GEE, WILLIAMS, and JOLLY, Circuit Judges. PER CURIAM: [1] On motion for rehearing, appellant Dallas County advances one contention requiring comment: that a Texas district attorney is an officer of the State of Texas, not of the county in which he serves, and hence that Dallas County is not responsible for the policies which its Dis- trict Attorney set for it. The point is a nice one and fairly debatable. A complementary contention by the appellant district attorney maintains that as such a State official he partakes of its Eleventh Amendment immunity. It. is indubitable that a Texas district attorney has numerous, if relatively minor, attributes of a State offi- cial. As appellants point out, the geographic extent of his office’s authority is created by a specific state statute for each territory (‘‘district’’) within the state, some few of which comprise more than one county. E.g., Tex.Rev. Civ.Stat.Ann. art. 332b-2(b) (64th Judicial District: Hale and Swisher Counties). In the event of a vacancy in his office, the Governor appoints his interim successor. Tex. Rev.Civ.Stat.Ann. art. 328 (1973). His bond for faithful performance of his duties runs to the Governor of the Pee OS ae B-4 State. Tex.Rev.Civ.Stat.Ann. art. 323 (1973). A state administrative body, the Prosecutor’s Council, exists to discipline and assist the holders of his office. Tex.Rev. Civ.Stat. Ann. art. 322d (1985). The District Attorney is required by statute to make reports to the State Attor- ney General upon his request. Tex.Rev.Civ. Stat.Ann. art. 333 (1973). His office is created by Article V, 421, of the State Constitution; and a text on state law describes him, partly on the basis of this, as ‘‘an officer of the state.’’ 31 Tex.Jur.3rd 394.! Other and more significant factors, generally speak- ing, argue that he is a local official. He is elected by the voters of his district, usually one county. Tex.Const. art. V, §21. His major powers and duties—which con- cern the prosecution of serious crimes and which he exer- cises alone and without responsibility to the State Attor- ney General, who has no general prosecutorial powers— are limited to the territory of his district. He is paid by county funds, although these are partly reimbursed by the state. And the significance of the creation of his office by the State Constitution is diminished by the circum- stance that other local offices are created by it as well. See e.g., Article V, $19 (Justices of the peace) and § 20 (County clerks). In sum, much like the county itself, his office is a local entity, created by the State of Texas and deriving its powers from those of the State, but limited in the exercise of those powers to the county, filled by its 1Another cited basis is dubious, a reference to the duties of prosecutors in Lackey v. State, 148 Tex.Cr.R. 623, 190 S.W.2d 364, 365 (1945) (“[P]rosecuting attorneys are officers of the state, whose duty is to see that justice is done, ...’’). It seems that this reference is to the “state” in the abstract, rather than as a particular political entity. B-5 voters, and paid for with its funds. As for the case in hand, District Attorney Wade was responsible for the county policy attacked and conclusively demonstrated his ability to alter it on his own by doing that very thing. For present purposes, then, we conclude that he is properly viewed as a county official, elected by its voters and responsible for its relevant policy. In such cireum- stances, we see no injustice in holding the County respon- sible for his actions of this sort. Doubtless he is also in some senses an officer of the State (or of the state), at least as ultimately deriving the powers of his office from that source. But even were he a State official in every sense, called so in State law and designated by the State to make policy for its other creature, the county, our an- swer would likely remain the same; county responsibility for violation of the Constitution cannot be evaded by such ingenious arrangements. At all events, his immunity or want’ of it is of little practical consequence. The joint and several judgment against him in his official capacity only and against the county will expend itself on the county treasury. See, Kentucky, dba Bureau of State Police, Petitioner v. James E. Graham, et al., —U.S.—. 105 S.Ct. 3099, 85 L.Ed.2d — (1985). [2] Plaintiff has filed with us a motion for attor- neys’ fees and costs on appeal, as well as one for restora- tion of a portion of trial attorneys’ fees because of de- velopments on appeal. We conclude that such matters are better addressed as one by the district court, and we there- fore amend our original disposition to VACATE the award of attorneys’ fees heretofore made and REMAND to permit the district to do so. B-6 In [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0895%3A1. Public record. Not legal advice.