Petition for A Writ of Certiorari — Richards v. Lindsay

b. . ‘s . one » 4

| / Supreme Court, U.S,

a or FILED

ez 2

gt ed JAN 17 1992 |

vo —— OFFICE OF Thin |

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM 1991

Ann Richards, Governor of Texas; Selden Hale, ITI,

Mamie Moore Proctor, Hon. Clarence N. Stevenson, Allan B.

Polunsky, James M. Eller, F. L. Stephens, Jerry H. Hodge,

Joshua W. Allen, Sr., Ellen J. Halbert, Members, Texas Board of

Criminal Justice; James A. Lynaugh, Executive Director, Texas

Department of Criminal Justice,

Petitioners

v.

John Lindsay, Harris County Judge; El Franco Lee, Jim Fonteno,

Steve Radack, Jerry Eversole, Harris County Commissioners;

Johnny Klevenhagen, Harris County Sheriff,

Respondents

v.

Lawrence R. Alberti, Jimmy E. Collins, Henry C. Langer, Jose' J.

Pina, Il, Pat Reed, Wesley Sellers, individually and on behalf of

all others similarly situated,

Respondents

On Petition for Certiorari

To the United States Court of Appeals

For the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

DAN MORALES ROBERT OZER*

Attorney General of Texas Assistant Attorney General

WILL PRYOR JOHN B. WORLEY

First Assistant Attorney General Assistant Attorney General

MARY F. KELLER P.O. Box 12548, Capitol Station

Deputy Attorney General Austin, Texas 78711

(512) 463-2076

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division *Counsel of Record

QUESTIONS PRESENTED

l. Whether, under principles of federalism and

Article III of the Constitution, federal courts have jurisdiction to

decide unsettled questions of State law involving a dispute

between two levels of state government concerning state fiscal

policy and a complex regulatory scheme when resolution of the

dispute was not necessary to provide relief to the Plaintiff

prisoner class in a local jail?

2. Whether a federal court's order, based solely on

State law, that the state must compensate one of its political sub-

divisions is in violation of the Eleventh Amendment when such

order is not necessary to provide relief to the prisoner class in a

local jail?

3 Whether, under principles of federalism, federal

courts should abstain from deciding, or, alternatively, certify to

the Texas Supreme Court, unsettled questions of state law in-

volving a dispute between two levels of state government con-

cerning state fiscal policy and a complex state regulatory

scheme, when federal judicial intervention in the dispute is not

necessary to provide relief to the Plaintiff prisoner class in a

local jail and a state court proceeding involving identical issues

and identical parties is pending?

4. Whether state officials who have no supervisory

responsibility over local jails can be held liable for unconstitu-

tional conditions in a local jail under Wilson v. Seiter, —_—US.

mae B18, SCR. 2931 (1991) because they (1) did not construct

or acquire additional Capacity in the state prison System beyond

that appropriated for by the state legislature and (2) did not

further expedite the release of convicted felons in the state

prison system, given a context of unsettled state law on their

responsibility (if any) for convicted felons in local jails and

federal court orders limiting the use of state prison capacity?

» Whether, under principles of: federalism, a

federal district court abuses its discretion in setting a

constitutional cap in a local jail at design capacity pursuant to

state law and previous consent decrees without adopting a

“wait-and-see" approach to determine whether, in operating

beyond design capacity, jail officials will be deliberately

indifferent to the significant human needs of the inmate class?

TABLE OF CONTENTS

PRPeee ROLPPO PMINEED, ge wc ces i

pe ae Fy yy, I are vi

OPINIONS BELOW

a eee a 6 oie ke eae’ aK v8 2

CONSTITUTIONAL AND STATUTORY

PO OWEN kh eae bees een 2

A. CONSTITUTIONAL PROVISIONS........... 2

B. STATUTORY PROVISIONS............... 3

he Seeenmees CO PMI CASE... ee eee ed

A. PETITION INVOLVES FEDERALISM

ISSUES OF NATIONAL SIGNIFICANCE. ......3

B. COURSE OF PROCEEDINGS............... 4

Statement OF FACTS............ 0.05. 6

1. State Law Prior to H.B. 93 Was Unsettled As

To Liability and Financial Responsibility of

State Defendants for Transfer-Eligible

Defendants In Harris County Jail. .........., 6

2. Allocation Formula Was Lynchpin of

Reforms Aimed at Controlling Local Jail and

PammOm COVGICTOWGING . ww ww. 7

3. State District Court Judgment Relied on By

the Fifth Circuit Has Been Vacated Without

|

iv

Ever Being Reviewed by State Appellate

Court, Let Alone Affirmed. .............. 9

4. Legislative History of H.B. 93 And State

Court Settlements Indicate State Was Liable

for Prisoner Transfers Only After October 1,

1991

5. County Had Full Authority and Ability to

Provide Remedy to Inmate Class........... 11

6. Constitutional Caps Are Set At Design

Capacity (Based on State Law and Previous

Consent Decrees) Not Constitutional Capa-

city, Which Both the Alberti Special Master

and State Expert Testified Was Substantially

Pe kw nea ea ee ks oa ee Se 11-12

I. THERE ARE SPFCIAL AND IMPORTANT

REASONS TO GRANT THE WRIT............. 13

A. CERTIORARI SHOULD BE GRANTED TO

RESOLVE AN IRRECONCILABLE

CONFLICT BETWEEN THE CIRCUITS

OVER (1) THE ROLE OF FEDERAL COURTS

IN DECIDING DISPUTES BETWEEN

DIFFERENT LEVELS OF STATE

GOVERNMENT AND (2) THE SCOPE OF

THE ELEVENTH AMENDMENT......... 13

B. CERTIORARI SHOULD BE GRANTED

BECAUSE OF THE LOWER COURT'S

CLEARLY ERRONEOUS AND ILL

REASONED RULING ON ABSTENTION...... 18

1. Abstention Was Especially Appropriate

Because of Ongoing State Court Proceedings

Dealing With Undecided Issues of State

Safe EERE See eS eee Te ee ere 18

ed

Abstention Was Appropriate to Avoid

Disruption of State Regulatory Programs... .. . 21

3. If Abstention Was Not Appropriate, the Fifth

Circuit Should Have Stayed Further Action

Against State Defendants While Certifying

the Relevant Questions of Law to the Texas

DONT, 6 ix cds l ree 23

. THIS COURT SHOULD GRANT CERTIORARI

TO DETERMINE IF, IN THE CONTEXT OF

UNSETTLED STATE LAW AND FEDERAL

COURT ORDERS IN THE STATE PRISON

CONDITIONS CASE, STATE OFFICIALS WITH

NO SUPERVISORY AUTHORITY OVER LOCAL

JAILS ARE LIABLE UNDER WILSON V. SEITER

FOR CONDITIONS OF CONFINEMENT IN A

LOCAL JAIL BECAUSE THEY (1) DID NOT

CONSTRUCT OR ACQUIRE MORE BEDS THAN

THE LEGISLATURE APPROPRIATED FUND-

ING FOR AND (2) DID NOT EXPEDITE THE

RELEASE OF MORE CONVICTED FELONS... . 23

. CERTIORARI SHOULD BE GRANTED TO

REVERSE AN ILL REASONED AND CLEARLY

ERRONEOUS RULING OF FEDERAL CON-

STITUTIONAL LAW ON CAPACITY LIMITA-

TIONS AND TO PROVIDE GUIDANCE TO THE

LOWER COURTS ON THE APPROPRIATE

APPROACH TO TAKE IN IMPOSING CAPS ON

LOCAL JAILS OR PRISONS.............. 27

CARAS so wn oo ae eee ae 29

vi

TABLE OF AUTHORITIES

Cases Page

Alberti v. Sheriff of Harris County v. Richards, 937 F.2d

S56 Cs CM. BORE) cs ik EE ee ee l

Ammex Warehouse Co. v. Archer, 318 S.W.2d 478 (Tex.

SPOS) cee tke ew ORES eee 10, 20

Anderson v. Creighton, 483 U.S. 635 (1987). ......... 24

Bass v. Fontleroy, 11 Tex. 698 (1854)............... 7

Bell v. Wolfish, 441 U.S. 520 (1979) ............00- 28

Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972). ........ 7

Burford v. Sun Oil Co., 319 U.S. 315 (1943). .....0.... 21

Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986). ...... 19, 24

Coleman v. Miller, 307 U.S. 433 (1939)... .......... 15

Colorado River Water Conservation Dist. v. United

Seates, 424 US. SO CIGTG) . ww ce eee 20, 21

Cooper v. Aaron, 330 U.3. 1 (13GB). 5 oc ek eee es 24

Coyle v. Smith, Z21 U3. FOP CIBER) os ce eke ee ee ee 15

District of Columbia Court of Appeals v. Feldman, 460

U.S. SE CEPOOe sone he eee ee eee eee 20

Employees v. Missouri Department of Public Health and

Wetfare, 411 US. 27 CIFTS) sa 3 ke ee ee ee ee

Ford Motor Co. v. Department of Treasury of Indiana,

EP Oe A ess 6 we sl ee a ee eee 17

Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S.

POP Le kk oe RRR OY ee ee 18

Harlow v. Fitzgerald 457 U.S. 800 (1982). ........... 24

Harris County Commissioners Court v. Moore, 420 U.S.

FF EE ee ae ERR ERE EA 19

Hills v. Gautreaux, 425 U.S. 284 (1976). ............ 19

In Re Clements, 881 F.2d 145 (Sth Cir. 1989). ........ 4-5

Inmates of Occoquan v. Barry, 844 F.2d 828 (D.C. Cir.

Pa ae a eee ee 16, 25

Kelly v. Metropolitan County Board of Education of

Nashville and Davidson County, Tennessee v. State of

Tennessee, 836 F.2d 986 (6th Cir. 1987), cert.

denied, 487 U.S. 1206 (1988). .......2... 15, 16, 17, 19

Kennecott Copper Corp. v. State Tax Comm'n, 327 U.S.

Se Gs oe Oe een 17

Lehman Bros. v. Schein, 416 U.S. 386 (1974). ......... 23

Lelsz v. Kavanaugh, 807 F.2d 1243 (Sth Cir. 1987), reh.

denied, 815 F.2d 1034 (Sth Cir. 1987), cert. dism'd

ae Sh WT NEP ka ee ks eer eee eae 28

Martin v. Wilks, 490 U.S. 755 (1989). ...........04. 28

Matthews v. Rodgers, 284 U.S. 521 (1932). ........... 18

Milliken v. Bradley, 433 U.S. 267 (1977)... ......02... 19

Vili

Moore v. Sims, 442 U.S. 415 (IST)... es 21

New York State Ass'n For Retarded Children v. Carey,

Fae Fee Pe CRU. PRO. vc eee ee ee 29

Pennhurst State School and Hospital v. Halderman, 465

Rene eT CON a hs kK olla oe W 17, 25, 26, 28

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1

COS, o- 4 ul 6 004:4 «Ghee a Ne ee 19, 19-20, 20-21, 22

Preiser v. Rodriguez, 411 U.S. 475 (1973). ........... 28

Railroad Commission v. Pullman, 312 U.S. 496

NG este ath. a Meakin de a's bw am ee a ee 18

Rhodes v. Chapman, 452 U.S. 337 (1981). ........... 28

Rizzo v. Goode, 423 U.S. 362 (1976). .............. 24

Rufo v. Inmates of Suffolk County Jail, No. 90-954, __

ea RS aaa eee a a re ae oe kes 25

Robbins v. Limestone County, 114 Tex. 345, 268 S.W.

POP oe Ca eed ke ee ee Re 7

Ruiz v. Estelle, 679 F.2d 1115 (Sth Cir. 1982), modified

on other grounds, 688 F.2d 266 (Sth Cir. 1982), cert.

embed, SG US. TORE CIO cc ke ee tee esas 28

Ruiz v. Lynaugh, 811 F.2d 856 (Sth Cir. 1987). ........ 25

San Antonio Independent School District v. Rodriguez,

PR a a ais ee Os oe oe ee ee 16

Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1981). ........ 1]

South Macomb Disposal Authority v. Township of

Washington, 790 F.2d 500 (6th Cir. 1986).......... 15

Thornburgh v. Abbot, 490 U.S. 401 (1989). .......... 28

Town of Ball v. Rapides Parish Police Jury, 746 F.2d

MOP COO, TOBE ce ke ewe daven 15

Turner v. Safely, 482 U.S. 78 (1987). .............. 28

U.S. v. District of Columbia, 897 F.2d 1152 (D.C. Cir.

PE held gee te he aE OO Pe Sel ig ee 24

United States v. Texas Education Agency, 790 F.2d 1262

(Sth Cir. 1986), cert. denied, 479 U.S. 1030 (1987)... .. 17

Watt v. Energy Action Educational Foundation, 454

ey SE Es Se WG a ek ee 4 bw dO 27

Will v. Michigan Department of State Police, 491 U.S.

PES oe ae ee eee ee 20

Wilson v. Seiter,__ U.S. ___, 111 S.Ct. 2321

DONS b so ae et ad een we weia ree e Hee OF

Youngberg v. Romeo, 457 U.S. 307 (1982)........... 29

Younger v. Harris, 401 U.S. 37 (1971). ............. 20

United States Constitution

matecne TL, SB Z.cl. 4. . 6. nc ccc Se ee et ae on er 2

ee WU a oe a eee ee Lk ee ee 2,24

re SP ree area Mae rahe ee Oe ae oe 2

|

xX

Amendment 11... .. BA wee eee ee re ee passim

United States Statutes

Ck eee eee eee Ter Cre eee ee 2

y SIS fog ps: . TET CET Tee Te Tee 20

fis fed | re ToCrrare ce tere ers 4

Texas Constitution

po a ee ee 22

See eg Ps ok se ee ee awe 9-10

Se a A TO es 6 ees Ne we ee dee 7

pe ae ee ere a er re re 7

Texas Statutes

TEX. CODE CRIM. PROC. art. 104.002 (Vernon Supp.

(eevee CeCe Tee ee ea ee ee eee eS 3,6

1987 Appropriations Act, TEX. GEN. & SPECIAL

LAWS 1987, 2d Called Sess., Ch. 78, para. 49, p.

wae Ges, Paget G, TSS7) cen ee

Comprehensive Criminal Justice Reform Act, TEX.

GEN. & SPECIAL LAWS 1989, Reg. Sess., Ch. 785,

pp. 3471-3558, (generally eff., September 1, 1989)

es PORTO eer eee oe 8,9, 16

1989 Appropriations Act, TEX. GEN. & SPECIAL

LAWS 1989, Reg. Sess., Ch. 1263, pp. 5184-5200

Geer CR Oy SS co ae eee ee aches 6a 6-7

TEX. GOV'T. CODE § 493.001 (Vernon Supp. 1992)... . . | 9

TEX. GOV'T CODE § 495.003 (Vernon Supp. 1992)..... 22

Tex. Gov't Code, Ch. 498, Subch. B (mepeaied)......... 22

Tex. Gov't Code § 498.025(b) (Wepented).. ww ca 26

Tex. Gov't Code § 499, Subch. B (enacted by Vernon's

Tex. Sess. Laws 1991, Reg. Sess., Ch. 16, Section

10.01, p. 301-304 [eff. August 26, 1991], amended

by Vernon's Tex. Sess. Laws 1991, 2d Called Sess.,

Ch. 10, Section 17.02, p. 215-17 [eff. August 26,

aaa eae we ee ek 22

Tex. Gov't Code § 499.025(b) (enacted by Vernon's Tex.

Sess. Laws 1991, Reg. Sess., Ch. 16, Section 10.01,

p. 302 [eff. August 26, 1991], amended by Vernon's

Tex. Sess. Laws 1991, 2d Called Sess., Ch. 10,

Section 17.02, p. 215 [eff. August 29, 1991])........ 26

TEX. GOV'T CODE § 499.071 (Vernon Supp.

ie SPREE EEE PRE EE Cee STO Ee & |

TEX. GOV'T CODE § 499.121 (Vernon Supp. 1992)... .. . 7

TEX. GOV'T CODE § 499.122-125 (Vernon Supp.

oe EER ET ean 10

TEX. GOV'T CODE § 499.125 (Vernon Supp. 1992)... . . 10

TEX. GOV'T CODE § 499.126 (Vernon Supp. 1992)..... 11

TEX. GOV'T CODE § 501.111 (Vernon Supp. 1992)... . . 25

TEX. GOV'T CODE § 511.012(b) & (c) (Vernon

PS 46 4h ed oe eR EE eS 11

|

xii

Tex. Gov't Code Ch. 791 (enacted by Vernon's Tex.

Sess. Laws 1991, 2d Called Sess., Ch. 38, § 1 pp.

461-466 [eff. September 1,1991])............... 11

Tex. Gov't Code § 791.003(3)(A) (enacted by Vernon's

Tex. Sess. Laws 1991, 2d Called Sess., Ch. 38, § 1 p.

oe eh | ee ee 11

TEX. LOCAL GOV'T CODE §§ 351, Subch. F & G

tt.) OB eee eee ee ee ll

TEX. LOCAL GOV'T CODE § 351.001 (Vernon Supp.

Ss & 03 6.5 406s so ee ee ee ee eee 6

Tex. Local Gov't Code § 351.006(d) (amended by

Vernon's Tex. Sess. Laws 1991, 2d Called Sess., Ch.

10, Section 13.01, p. 208 [eff. August 29, 1991])...... 13

TEX. LOCAL GOV'T CODE §§ 351.031-351.035

CR SPUD on acs tA de oe 8 © wee Oe ee 1]

TEX. LOCAL GOV'T CODE § 351.041 (Vernon

| MPP ERERTS TOT TTC Tee ee ee ee )

Tex. Rev. Civ. Stat. art. 4413(32c) (repealed). ......... 11

Tex. Rev. Ciy, Stat. art. 6166a-4 (repealed). ......... 3,7

Tex. Rev. Civ. Stat. art 6166g-2 (repealed)... ........ 22

TEX. REV. CIV. STAT. ANN. art. 6252-13a § 12

eo Oe eee ee ere ee a

Vernon's Tex. Sess. Laws 1991, 2d Called Sess., Ch. 10,

pp. 180-226 (eff. August 29, 1991)

yt yy Bearers Parser Pere FA ot 6, 27

xii

Texas Administrative Regulations

37 TAC Ch. 152

Texas Court Rules

Is ee eee

Texas Legislative History

Meeting of the Texas House Appropriations Committee

of February 21, 1991 (excerpt)...............

Report of the Texas House Appropriations

Subcommittee on Prison Construction Alternatives

wk tt tt tt tte eee

S.B. 24 (introduced in the 1st Called Sess. of the 1991

Texas Legislature), § 14.02, p. 34, proposing Tex.

SUPE PPPEE MO. wk we

a a wn oe ££ ££ eS 8 ££ Fe & © 6 8

Oe a a oe a a oe eee

No.

ee

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM 1991

ANN RICHARDS, GOVERNOR OF TEXAS, ET AL.

Petitioners

v.

THE SHERIFF OF HARRIS COUNTY, ET AL.

Respondents

v.

LAWRENCE R. ALBERTI, ET AL.

Respondents

PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth Circuit

reviewing the district court's orders finding liability against

state officials and ordering state officials to compensate Harris

County is attached hereto as Appendix A. Alberti v. Sheriff of

Harris County v. Richards, 937 F.2d 984 (5th Cir. 1991). The

order of the panel denying the state's motion for panel rehearing

is attached as Appendix B. The district court's findings of liabil-

ity against State Defendants are attached as Appendices J and

X. The initial order requiring state officials to compensate

Harris County is attached as Appendix R. Other district court

opinions and orders are attached as Appendices D-Q, S-W and

J

2

JURISDICTION

The judgment of the Court of Appeals was entered on

July 25, 1991. A timely filed motion for panel rehearing was

denied on October 22, 1991. This petition for writ of certiorari

is filed within 90 days of the final judgment. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL |

AND STATUTORY PROVISIONS INVOLVED

A. CONSTITUTIONAL PROVISIONS:

Article III, § 2, cl. 1 in pertinent part:

The judicial power shall extend to all cases in

law and equity arising under this Constitution,

the laws of the United States...

Art. VI, cl. 2

This Constitution and the Laws of the United

States which shall be made in pursuance thereof

... Shall be the supreme Law of the land...

Eighth Amendment:

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual

punishments inflicted.

Tenth Amendment:

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the

States, are reserved to the States respectively, or

to the people.

Eleventh Amendment:

The judicial power of the United States shall not

be construed to extend to any suit in law or

equity, commenced or presented against one of

the United States by citizens of another state: or

by citizens or subjects of any foreign state.

B. STATUTORY PROVISIONS:

Tex. Code Crim. Proc. art. 104.002 in pertinent

part:

[A] county is liable for all expenses incurred in

the safekeeping of prisoners confined in county

jails or kept under guard by the county.

Tex. Gov't Code § 499.071 (formerly Tex. Rev.

Civ. Stat. Ann. art. 6166a-4) is attached as

Appendix Z.

STATEMENT OF CASE

A. PETITION INVOLVES FEDERALISM ISSUES OF

NATIONAL SIGNIFICANCE

This controversy swirls around whether Texas prison

officials and the Governor of Texas (hereinafter "State

Defendants") bore any liability, especially financial liability, for

felons sentenced to the state prison system but confined and

maintained in the Harris County jail. State Defendants do not

dispute the Fifth Circuit's analysis that this is "exclusively" a

state law issue and that it presented a "hard question" for the

court. Appendix ("App.") A 18. Rather State Defendants

maintain that federal courts, especially in a suit between two

different levels of state government and involving complex

—————

state regulatory policies, lack authority to decide these “hard

questions" of "exclusively" state law. This is especially so since

the dispute involved primarily the fiscal question of compensa-

tion to the counties which should only have been resolved on

the terra firma of Texas politics in the Texas legislature. At the

very least, under abstention doctrine, federal courts should have

deferred to state courts to avoid decision on the difficult

constitutional questions concerning State Defendants’ liability

under the Eighth Amendment and their immunities under the

Eleventh Amendment. State Defendants also challenge the

ruling below setting the constitutional capacity of the Harris

County jail as its design capacity.

Litigation concerning prison and local jail overcrowding

is tragically chronic in our society. The proper role of federal

courts in resolving those disputes is therefore of profound

importance to the nation.

B. COURSE OF PROCEEDINGS AND DISPOSITION

BELOW

These issues arise from Lawrence Alberti v. The Sheriff

of Harris County, No. 72-H-1094, Southern District of Texas, a

class action suit alleging constitutional violations brought under

42 U.S.C. § 1983 by prisoners in the Harris County (Houston)

jail against the Sheriff of Harris County, certain of his employ-

ees and the members of the Harris County Commissioners

Court (hereinafter “County Defendants"). County Defendants in

early 1989 filed a Third Party complaint against Petitioners

herein seeking to have the Texas Department of Corrections

("TDC" now called the Texas Department of Criminal Justice-

Institutional Division or "TDCJ-ID") accept inmates sentenced

to TDC but awaiting transfer in the Harris County jail.

On September 25, 1989, the Alberti court, determining

the merits-liability aspect of the case,! found the jail unconstitu-

IThe Fifth Circuit had previously ordered "the transfer, to the judge

(footnote continued on next page)

a

tional and on the basis of its interpretation of state law, held

State and County Defendants jointly liable for its unconsti-

tutionality. App. X 29. On February 7, 1991 the Alberti court

ordered the transfer to other county jails of certain prisoners

ready for transfer to TDCJ-ID. These inmates were to "continue

to be Harris County prisoners," but, under the terms of the

order, Harris County was to be compensated by State

Defendants (at a rate up to $40 per inmate per day) for

expenditures incurred as a result of the transfers. App. R 6. The

district court went on to rule that in light of the unsettled nature

of state law the assessment of costs was "tentative" and "contin-

gent” upon the outcome of state court litigation and whether

sentencing alternatives were implemented in Harris County.

App. R 7.2

The Fifth Circuit provisionally approved the decision of

the lower court but remanded for findings in light of Wilson vy.

Seiter, ____ U.S. ___, 111 S.Ct. 2321 (1991).3 To date, State

Defendants have deposited $6,750,000 into the registry of the

district court. App.R 6; App. N; App. K; App. J 1; App. H;

App. G 2; App. F; App. E 2. County Defendants have requested

the deposit of an additional $4,572,285.25. It is not known

whether this represents the total amount which the taxpayers of

the State of Texas must pay, without state legislative authoriza-

(footnote continued from previous page)

presiding ovet the Ruiz case [Ruiz v. Collins, No. 78-H-987-CA (S.D. Tex..

Houston Div.), the state prison conditions case], of so much of the remedy

poruon of the Alberti third-party action . . . as seeks to enjoin them to receive

or take prisoners to TDC confinement or to otherwise take action in the

operauon or management of TDC-operated confinement facilities.” Jn Re

Clements, 881 F.2d 145, 153 (Sth Cir. 1989).

*In a Memorandum Opinion, the Ruiz court indicated it would have

abstained on the issue of compensation to the counties. App. S.

3The district court has entered an order finding deliberate

indifference and thus liability against State Defendants. App. J. That finding

is Currently the subject of a consolidated appeal in the Fifth Circuit styled

Alberti v. Sheriff of Harris County v. Richards, Fifth Circuit Nos. 91-2946,

91-6062, 91-6206.

tion, to their own political subdivision pursuant to orders of the

federal judiciary.

hiss STATEMENT OF FACTS

l. State Law Prior to H.B. 934 Was Unsettled as to

Liability and Financial Responsibility of State

Defendants For Transfer Eligible Inmates in

Harris County Jail

It is difficult to seriously contend that state law before

August of 1991 was settled as to the liability or financial re-

sponsibility of State Defendants for prisoners in local jails. Two

sections of the Local Government Code, TEX. LOCAL GOV'T

CODE §§ 351.001 (Vernon Supp. 1992) and 351.041 (Vernon

1988), vest responsibility for county jails in the county

commissioners courts and the sheriffs, respectively. Moreover,

prior to August of 1991, state statutory law was unequivocal in

making the counties financially responsible for all prisoners in

their jails:

"[A] county is liable for a// expenses incurred in

the safekeeping of prisoners confined in county

jails or kept under guard by the county."

TEX. CODE CRIM. PROC. art. 104.002 (Vernon Supp. 1992)

(emphasis added). In fact, prior to August 1991, the Texas

Legislature had on three occasions failed to pass bills to

compensate Texas counties for holding convicted felons, as

well as a constitutional amendment and accompanying legisla-

tion to require the State to reimburse local governments for any

new State mandates. See State Defendants’ Exhibits 4-8, intro-

duced at the trial of October 22, 1990 and testimony at that trial

transcript [tr.] vol. 1, pp. 122-124. Nor, prior to August 1991,

had the legislature appropriated money for compensating the

counties for holding such prisoners. See TEX. GEN. &

4Vernon's Tex. Sess. Laws 1991, 2d Called Sess., Ch. 10, pp.

180-226 (hereafter, "H.B. 93") (eff. August 29, 1991).

ian

SPECIAL LAWS 1989, Reg. Sess., Ch. 1263, pp. 5184-5200

(eff. June 16, 1989). The lack of appropriations to compensate

the counties is evidence of the intent of the legislature, see

Bullock v. Calvert, 480 §.W.2d 367, 370-71 (Tex. 1972); TEX.

CONST., Art. VIII, § 6 (funds may not be drawn from the State

treasury without a specific appropriation therefor). Under the

State constitution, the legislature has plenary power over the

counties. See TEX. CONST., Art. LX, § 1; Robbins v. Limestone

County, 114 Tex. 345, 268 S.W. 915, 919-20 (1925); Bass vy.

Fontleroy, 11 Tex. 698, 706 (1854).

And while the district court attributed the unconstitu-

tional conditions in the Harris County jail to a failure of TDCJ-

ID to meet a state-law duty to accept inmates sentenced to it.

See App. X 29, state law is explicit and abundantly clear that

the state prison system has a duty to accept inmates "only"

pursuant to former Tex. Rev. Civ. Stat. Ann. art. 6166a-4.5 see

App. Z, which requires the Texas Board of Criminal Justice to

‘develop, adopt and enforce an allocation formula" that allo-

cates admissions to TDCJ-ID.6 See TEX GOV'T CODE §

499.121 (Vernon Supp. 1992). In fact, repeatedly the district

court ordered the State Defendants to "maintain" the allocation

formula,. App. R 8; App. U 3; App. V 3, and acknowledged it

was ‘adopted by State Defendants to protect the integrity of

Ruiz [state prison conditions case, see supra at 5 n.1] orders and

agreements." App. R 5.

A Allocation Formula Was Lynchpin of Reforms

Aimed at Controlling Local Jail and Prison

Overcrowding.

‘Now codified as TEX. GOV'T CODE § 499.071 (Vernon Supp.

~ 1992).

This regulation is codified as Chapter 152 in Title 37 of the Texas

Administrative Code (37 TAC §§ 152.1-152.3) (See App. AA for pertinent

parts of the regulation). Under the current formula 149 inmates per week

may be admitted from Harris County. See 16 Tex. Reg. 5261 (September 24,

1991),

The allocation formula was a component of H.B. 2335,

the Comprehensive Criminal Justice Reform Act, TEX. GEN.

& SPECIAL LAWS 1989, Reg. Sess. Ch. 785, pp. 3471-3558

(generally eff. September 1, 1991). Aside from insuring

compliance with Ruiz, State Defendants have long maintained --

and the legislative history shows -- that H.B. 2335's primary

purpose was to establish a system of financial incentives and

disincentives directed at controlling front-end population

pressures by providing state financing for sentencing alter-

natives while at the same time forcing local governments to

fund the cost of their own transfer-eligible inmates.’ State

Defendants’ Exhibit 49, trial of the week of August 14, 1989,

the Report of the Texas House Appropriations Subcommittee on

Prison Construction Alternatives (January 30, 1989), esp. at 10

(noting that the state of Texas should develop "a hard core bed

allocation system for local governments" and "a system to

discourage local governments from sending criminals to the

hard-core beds owned and operated by the state . . . beyond the

allocation system"). Thus, the recent Report of the Alberti

Special Master aptly summarized H.B. 2335 by saying at 4 that

it “institutionalized the allocation formula, with its explicit cap

on admissions to TDCJ, and encouraged the development

within the counties of a wide range of both institutional and

community-based alternatives to incarceration for a broad class

of sentenced felons convicted of essentially non-violent

offenses."

It must be noted that State Defendants have consistently

and persistently maintained that Harris County underutilizes

7Texas has, of course, also maintained an aggressive prison

construction program that is almost unprecedented in scope: "Since 1984,

the State has brought 22,299 new prison beds on line, 13,270 of them in

1989 and 1990. In 1989, the State further committed itself to the

construction of 15,550 more beds. . ." See Report of December 13, 1991 by

the Alberti Special Master on Harris County sentencing practices

(hereinafter "Report of Alberti Special Master", copies lodged with Clerk of

the Court) at 3. In addition, H.B. 93, Sec. 22.03, p. 224, appropriated

$672,100,000 for the construction of 25,000 additional beds. This makes a

grand total of 62,849 beds cither built or funded for construction since 1984.

intermediate sanctions and takes a disproportionate number of

state prison beds. See, trial of week of August 14, 1989, tr. vol.

3, pp. 534-572.8 The Report of the Alberti Special Master on

Harris County's sentencing practices has confirmed this. (See

copies lodged with the Clerk of the Court.) Especially in light

of these facts, State Defendants have contended that the

allocation formula should not have been overridden, so that it

would have had its natural effect of encouraging the use of

sentencing alternatives in Harris County, as the Texas

legislature intended.

3. State District Court Judgment Relied on By the

Fifth Circuit Has Been Vacated Without Ever

Being Reviewed By State Appellate Court, Let

Alone Affirmed

Both the Fifth Circuit and the district court sought to

resolve these complex issues of state law by reliance on § 1.02

of H.B. 23359 resting "primary responsibility" in TDCJ for "the

confinement, supervision and rehabilitation of felons.”

App. A 24-25; App. X 29. In doing so, the Fifth Circuit noted

its reliance on the only state district court to have addressed the

issue. App. A 25-26.

However, the state cases!9 raised not only complicated

issues of state court jurisdiction and complex factual issues but

overarching separation of powers issues under Article II § 1 of

5See Also Affidavit of Steve Martin (with summary) conceming the

Harris County criminal justice system, admitted into evidence at the trial of

February 27, 1990 as part of State Defendants’ Exhibit 17 (copies lodged

with the clerk of the Court).

%Now codified as TEX. GOV'T CODE § 493.001 (Vernon Supp.

1992).

'°County of Nueces v. Texas Board of Corrections, No. 452.07}

(Dist. Ct. of Travis County, 250th Judicial Dist. of Texas, pending); //arris

County v. State of Texas, No. 465,468 (Dist. Ct. of Travis Co., 126th Judicial

District of Texas, pending). Both of these were decided by the same state

district court judge.

10

the Texas Constitution.'! Moreover, under state law, because

State entities were involved, the state court judgment on appeal

(Nueces County), was superseded or automatically stayed.

Ammex Warehouse Co. v. Archer, 381 S.W.2d 478, 481-82

(Tex. 1964). Before that case could be argued, let alone decided

on appeal, the counties involved, as well as Harris County,

agreed to vacate their judgments and settle pursuant to H.B. 93.

No state appellate court, let alone the Texas Supreme Court,

has ever ruled on the issues presented to and decided by the

Fifth Circuit.

4. Legislative History of H.B. 93 and State Court

Settlements Indicate State Was Liable for

Prisoner Transfers Only After October 1, 1991

After intense lobbying by Texas counties, the Texas

Legislature in August, 1991 passed H.B. 93, a law which

provides for compensation to the counties for housing inmates

sentenced to TDCJ-ID at amounts specifically set by the

Legislature. TEX. GOV'T CODE § 499.122-499.125 (Vernon

Supp. 1992). Moreover, as of October 1, 1991 a mechanism was

established for transferring, at state expense, inmates to other

county jails when a county jail has been declared

unconstitutionally overcrowded and over 20 percent of its

population is made up of inmates awaiting transfer to TDCJ-ID.

TEX. GOV'T CODE § 499.125 (Vernon Supp. 1992). The

legislative history of H.B. 93 indicates that an earlier version of

H.B.93 contained a provision that would have allowed

compensation under state law from February 7, 1991, the date

of the Alberti court's original order. $.B. 24 (introduced in the

First Called Session) § 14.02, p. 34, proposing Tex. Gov't Code

§ 499.123(b) (see copies lodged with the Clerk of the Court).

That provision was dropped, indicating that the Legislature's

Copies of State Defendants’ Brief in Texas Board of Criminal

Justice, et al v. Nueces County, et al., No. 3-90-282-CV (3rd Cour of

Appeals - Austin, Texas) have been lodged within the clerk of the court for

the Court's convenience.

1]

intent was not to compensate Harris County prior to October 1,

1991. Smith v. Baldwin, 611 S.W.2d 611, 616-17 (Tex. 1981).

In order to qualify for the provisions allowing compen-

sation, a county had either to dismiss its state court suit or

settle. TEX. GOV'T CODE § 499.126 (Vernon Supp. 1992).

Harris County entered into a settlement agreement (copies

lodged with Clerk of the Court) consistent in all respects with

H.B. 93. Hence, with the passage of H.B. 93, Harris County

entered into a court settlement allowing transfer payments only

after October 1, 1991 pursuant to the provisions of H.B. 93.

Still, despite the language of the district court that the

assignment of costs was "contingent" on the outcome of the

state court litigation, the lower courts continue to require State

Defendants to compensate Harris County for inmates transfer-

red prior to October 1, 1991 and in derogation of the provisions

of H.B. 93.

a County Had Full Authority and Ability to

Provide Remedy to Inmate Class.

It is indisputable that the County had and still has full

authority under Texas law to contract with other counties and

transfer prisoners out of its jai! to detention facilities in those

counties. Tex. Gov't Code Ch. 791 (see esp. § 791.003 (3)(A)),

enacted by Vernon's Tex. Sess. Laws 1991, Ch. 38, § 1, pp.

461-466 (eff. September 1, 1991), superseding Tex. Rev. Civ.

Stat. art. 4413(32c); TEX. LOCAL GOV'T CODE

§§ 351.031-351.035 (Vernon 1988); Ch. 351, Subch. F & G

(Vernon Supp. 1992); see also TEX. GOV'T CODE

§ 511.012(b) & (c) (Vernon 1990). Nor has there been any

contention that the County lacked the financial resources to

have made the contracts.

6. Constitutional Caps Are Set At Design Capacity

(Based on State Law and Previous Consent

Decrees) Not Constitutional Capacity, Which

12

Both the Alberti Special Master and State Expert

Testified Was Substantially Higher.

The district court ruled that the design capacity (4,698

inmates) of the jail was its constitutional capacity because of

the "poor physical design" of the jail and the lack of a "second

means of egress from the Detention Center."!2 App. X 22. The

Alberti Special Master testified that the 100 percent of design

capacity limit was based on state statutes and the 1975 consent

decree. See, trial of week of September 12, 1989, tr. vol. I, pp.

162-63, 165. These standards do not, according to the Special

Master, necessarily establish a constitutional standard. /d. at

163-164. In fact, at a subsequent hearing, the Alberti Special

Master testified that, although there was no special science to

determining constitutional capacity levels, 5,500 to 6,000 was a

range within which "we can hope" the county officials could

operate the jail so as not to “trample on the constitutional rights

of the prisoners." See, trial of week of August 14, 1990, tr. Vol.

IT, p. 14.

This testimony was corroborated by the state's expert,

who explained that design capacity bears little relationship to

constitutional capacity. For example, the Ruiz court orders

routinely allow the Texas prison system to double-cell in

forty-five square foot cells obviously designed only for one,

allowing a significantly higher density standard for prisons

under federal court order in Texas (long-term detention) than

for jails (short-term detention) “under state law. See, trial of

week of August 14, 1989, tr. Vol. III, pp. 511-517. As a result,

some units in Texas operate at 150 percent of design capacity

under Ruiz court orders. See, trial of week of August 14, 1989,

tr. Vol. II, p. 515. Similarly, the California system, which also

is designed on a single-cell basis, can operate at 150 or 160

12Harris County has added a second means of egress (firestairs) at

the detenuon center. See County Defendants’ Harris County Judge's, Harris

County Commissioners’ and Harris County Sheriffs Response and

Objections to Monitor's July 23, 1990 Final Findings of Fact at 5.

13

percent of design capacity apparently without constitutional

problems. /d.

By contrast, the Harris County central jail single-cells at

least 30 percent of its population in fifty-square-feet cells which

are larger than many cells at TDCJ-ID that are commonly

double-bunked. See State Defendants’ offer of proof of March 1,

1990; see also H.B. 93, Section 13.01, p. 208, amending Tex.

Local Gov't Code § 351.006(d). It is not surprising, then, that

after his third tour of the jail, the State's expert testified that the

Harris County jail could be constitutionally managed at a

population ranging between 5,500-6,000, the same as the

Alberti Special Master's suggested range. See, trial of week of

August 14, 1999, tr. vol. IT, p. 78.

In fact, the Alberti court for the period of February 7,

1991 to December 2, 1991, routinely maintained a cap of 6,300.

App. R 6; App. P 3; App. I 2. Subsequent orders indicate, how-

ever, that design capacity will be the trigger for H.B. 93

transfers from Harris County facilities in existence at the time

of trial and likely will be the constitutional capacity for new

facilities even though no hearing was even held on their

constitutional capacity. App. D; App. E.

REASONS FOR GRANTING THE WRIT

I.

THERE ARE SPECIAL AND IMPORTANT REASONS

TO GRANT THE WRIT.

A. CERTIORARI SHOULD BE GRANTED TO RE-

SOLVE AN _ IRRECONCILABLE CONFLICT

BETWEEN THE CIRCUITS OVER (1) THE ROLE OF

FEDERAL COURTS IN DECIDING DISPUTES

BETWEEN DIFFERENT LEVELS OF STATE

GOVERNMENT AND (2) THE SCOPE OF THE

ELEVENTH AMENDMENT.

14

This case arose in the context of an internal political

dispute between the Texas legislature and the counties of Texas

over whether counties should be compensated for housing

inmates ready for transfer to the state prison system. Prior to the

passage of H.B. 93, that debate raged in the Texas legislature,

often between representatives of the state's rural and urban

counties:

Without reducing to a disagreement between you

and I individually, kind of globally the problem

with that is, you have judges in Harris County

that are making decisions that raise my taxes, as

he indicated earlier. And we've gone to an exten-

sive amount of time and trouble to try to estab-

lish this. Harris County has about 1913 percent of

the State's population, produces about 20 percent

of the State's tax revenue stream. It consumes 28

to 30 percent of the prison resources.

When your locally elected judge in Harris

County makes a decision about what to do with

the criminal, in excess of that 20 percent, taxes

in Dallas and Bexar and Parker County go up to

pay for that decision...

Meeting of the Appropriations Committee of the Texas House

on February 21, 1991, Remarks by Representative Ric

Williamson of Parker County (Weatherford) in colloquy with

Representative Paul Hilbert from Harris County (Houston)

(transcript of remarks lodged with the Clerk of the Court).

The Fifth Circuit showed no hesitancy to intrude

directly into the center of this political dispute, likening its

orders to a “lion in the street" when the Texas legislature passed

H.B. 93 in August, 1991. App. B 3. And, after deciding the

"hard questions" of “exclusively” state law against Texas, the

13The evidence in this case indicates 16 percent. See Affidavit of

Steve Martin (lodged with the clerk of the Court) at 22.

EE

15

Fifth Circuit found the state to be a constitutional violator,

thereby sidestepping, without discussion, its authority to decide

the state-law dispute in the first place. App. A 35n.8. This

merely begs the question: Did the Fifth Circuit have authority

under Article III'4 and principles of federalism to decide a

state-law dispute between two state governmental entities?

In contrast, to the Fifth Circuit's approach -- headlong

into the melee -- the Sixth Circuit has ruled under principles of

federalism that federal courts lack authority "to adjudicate an

internal dispute between a local governmental entity and the

very state that created it." Kelly v. Metropolitan Board of Edu-

cation of Nashville and Davidson County, Tennessee v. State of

Tennessee, 836 F.2d 986, 998 (6th Cir. 1987), cert denied, 487

U.S. 1206 (1988). And, again in contrast to the Fifth Circuit's

approach, numerous decisions of this Court and the Circuit

courts have ruled that local governmental entities lack standing

to bring an action in federal court against their creator. !5

The reasoning of the Sixth Circuit rests primarily on a

prudent and pragmatic deference!® to state governments in

finding their own means of funding a remedy when a

constitutional violation occurs:

Again, however, the existence of a duty to elimi-

nate [the constitutional violation] does not mean

that the duty may only be discharged through

taxes levied by the state, as opposed to taxes

levied by the counties of the state. This

141f Congress cannot tell a state where to locate her capital, how,

under Article III, can a federal court tell a state that it must compensate its

counties? See Coyle v. Smith, 221 U.S. 559 (1911).

'SE.g., Coleman v. Miller, 307 U.S. 433, 441 (1939); South

Macomb Disposal Authority v. Township of Washington, 790 F.2d 500 (6th

Cir. 1986); Town of Ball v. Rapides Parish Police Jury, 746 F.2d 1049, 1051

n.1 (Sth Cir. 1984) (and cases cited therein).

l6State Defendants maintain, of course, that this deference is

anchored in the Constitution, including the Tenth and Eleventh

Amendments.

16

"constitutional wrongdoers must pay for their

wrongs" argument has little or no force where

we are talking about two political entities, a state

and one of its subdivisions, each of which has

done wrong (as have subdivisions not now

before us) and where the men and women

representing the electorate of the state as a whole

-- an electorate that includes the voters of all

subdivisions -- have chosen not to enact legisla-

tion shifting to the state as a whole the costs of

repairing the wrongs within each subdivision.

Kelly, 836 F.2d at 998. In fact, this Court has traditionally

shown great deference to the states in regards to issues that in-

volve statewide systems relating to the fundamental structure of

the state's fiscal and taxing policies, public administration and

local initiative. See e.g., San Antonio Independent School

District v. Rodriguez, 411 U.S. 1, 40-41 (1973). Kelly relied on

Rodriguez heavily in its reasoning. Kelly, supra at 996-997.

Yet here, federal courts construed, without authoritative

state court interpretation, § 1.02 of H.B. 2335 as carte blanche

authority to acquire at state taxpayers’ expense a special prison

system for one locality, despite that locality's disproportionate

use of state prison space. This federally ordered, but state

financed, capacity acquisition required expenditures beyond the

funding appropriated by the Texas legislature for construction

and acquisition of prison capacity. This is simply not the office

of federal courts:

Such fundamental decisions as how many

prisons to build and how large to build them --

basic decisions regarding the allocation of public

resources are simply outside the domain of

federal courts.

Inmates of Occoquan v. Barry, 844 F.2d 828, 843 (D.C. Cir.

1988).

OE

17

Similarly, the Fifth Circuit's willingness to enter into the

fray and decide "hard questions" of "exclusively" state law

against the State Defendants led it to conclude that the money

payments to the County were incidental to injunctive relief.

App. A 35. Bootstrapping again its state law decision, it sought

to distinguish Kelly by ruling that the state was a “current con-

Stitutional violator." App. A 35. But as noted above, this dis-

tinction begs the question. Keily rests primarily on the proposi-

tion that it is not the province of federal courts to decide at all

that kind of state-law dispute between different State subdivi-

sions. Rather, relying on Rodriguez, Kelly would leave such

matters to the state political process, Kelly, supra at 996-997,

and not engage in an "end-run around the. . . legislature's

allocation of state funds'." Kelly, supra at 995 citing United

States v. Texas Education Agency, 790 F.2d 1262, 1265 (Sth

Cir. 1986), cert. denied, 479 U.S. 1030 (1987). -

Accordingly, Kelly found, under Eleventh Amendment

analysis, that "[t]he order to pay is ancillary only to itself"

Kelly, supra at 992, and, as such, violated settled precedents

holding that, "[w]hen the action is in essence one for the re-

covery of money from the state, the state is the real substantial

party in interest and is entitled to invoke its sovereign immunity

from suit even though individual officials are nominal defen-

dants." Kelly, supra at 988-89 citing Ford Motor Co. v. Depart-

ment of Treasury of Indiana, 323 U.S. 459, 464 (1945); see also

Pennhurst State School and Hospital v. Halderman, 465 U.S.

89, 101 (1984). This in turn is consistent with long-standing

case law counseling, under Eleventh Amendment analysis, non-

-interference with the fiscal affairs of of States. See e.g.,

Employees v. Missouri Department of Public Health and

Welfare, 411 U.S. 279 (1973); Kennecott Copper Corp. v. State

Tax Comm'n, 327 U.S. 573, 577 (1946).

The reasoning of the Kelly case applies with particular

force where, as here, vindication of the constitutional rights of

the Plaintiffs could have been achieved without involving the

18

state at all, while leaving the local governmental entity free to

pursue its relief before the state legislature or in state court.

It is in the public interest that federal courts of

equity should exercise their discretionary power

to grant or withhold relief so as to avoid needless

obstruction of the domestic policy of the states.

"The scrupulous regard for the rightful indepen-

dence of state governments which should at all

times actuate the federal courts, and a proper re-

luctance to interfere by injunction with their

fiscal operations, require that such relief should

be denied in every case where the asserted

federal right may be preserved without it.”

Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 298

(1943), quoting Matthews v. Rodgers, 284 U.S. 521, 525

(1932). (emphasis added)

Especially in an era of tightening budgets, the role of

federal courts in resolving fiscal disputes between different

levels of state government raises fundamental questions of

federalism. Hence, the irreconcilable conflict between the Fifth

Circuit and other circuits as to how to approach this problem is

important, and this Court should resolve it.

B. CERTIORARI SHOULD BE GRANTED BECAUSE

OF THE LOWER COURT'S CLEARLY ERRONEOUS

AND ILL REASONED RULING ON ABSTENTION.

i Abstention Was Especially Appropriate Because

of Ongoing State Court Proceedings Dealing

With Undecided Issues of State Law.

Few cases cry out so much as this one for some princi-

pled discussion of federalism, particularly this Court's decision

in Railroad Commission v. Pullman, 312 U.S. 496 (1941).

Although acknowledging that this case presented a "hard ques-

—

19

tion" of "exclusively" state law, App. A 18, the panel was

simply flat-footed on abstention, noting only that it did not

“quite fit", App. A 35, despite this Court's clear message that

such stingy judicial "pigeonholing" is not appropriate in

abstention analysis. Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11

n.9 (1987). Judge Higginbotham, no novice at federalism, has

himself noted, in a case which formed the gravamen of his

analysis here, that if there is "real ambiguity" about Statutory

intent or state law, "strong" grounds for Pullman abstention

exist. Bush v. Viterna, 795 F.2d 1203, 1205 n.1 (Sth Cir. 1986).

There can be little question, especially in light of

H.B. 2335 and the allocation formula, that at the very least there

was "real ambiguity" as to whether or not the intent of state law

was for TDCJ-ID or other state entities to assume responsibility

for transfer-eligible inmates in local Jails prior to the passage of

H.B. 93. Certainly, given the stakes of the State law dispute in

terms of the state's criminal justice policies, its relationship with

its counties!7 and the obvious fiscal implications for the state,

abstention under Pullman was appropriate. !8

The argument for abstention is especially compelling in

light of the pendency of a state court action involving the

identical state and county parties. See Pennzoil Co. v. Texaco,

\7Even assuming arguendo federal courts have authority to resolve

a state law dispute between two state governmental entities, abstention

would still seem the better course. Deference to state institutions is espe-

cially appropriate, "when it is proposed that the remedial powers of the fed-

eral courts be exercised ‘to restructure the operation of local and state

governmental entities." Kelley, 836 F.2d at 1000, citing Hills v. Gautreaux,

4°5 U.S. 284, 293, (1976). See also Milliken v. Bradley, 433 U.S. 267,

280-81 (1977) ("the federal courts in devising a remedy must take into ac-

count the interests of state and local authorities in managing their own

affairs").

'8Because this is a Texas case, the proper course was to dismiss

State Defendants or at least any claims relating to State Defendants’ liability

and financial responsibility for transfer-eligible inmates in the Harris County

jail. Harris County Commissioners Court y. Moore, 420 U.S. 77, 88-89

(1975).

20

Inc., 481 U.S. 1 (1987); Younger v. Harris, 401 U.S. 37 (1971).

In fact, “wise judicial administration" would have counseled in

favor of dismissing State Defendants to conserve the resources

of the courts and the parties. See Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 817-20

(1976).

The Fifth Circuit's "deference" to these ongoing state

court proceedings and the district court's "contingent" enforce-

ment of its orders, see App. A 26, App. R 27, are a far cry from

the considerations of federalism embodied in the abstention

doctrine. Here those state court proceedings had either been

"superseded" or stayed on appeal!9 (as in County of Nueces) or

had not even been fully litigated in the trial court. Lidgants

should not be able to use a federal court to make an end run

around normal state judicial processes. See Pennzoil, 481 U.S.

esp. at 13-14. Nor should they disrupt the ordinary process of

trial or appeal in state court by adjudicating a civil rights case in

which the federal constitutional claims are "inextricably inter-

twined with the state court's grant or denial of relief." District of

Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482-84

n.16 (1983).

Moreover, the whole idea of "contingent" liability raises

the very justiciability problem which the Pullman doctrine was

designed to avoid:

When federal courts interpret state statutes in a

way that raises federal constitutional questions,

19The basis for the automatic stay on appeal was precisely because

the judgment was against a state entity and issues of sovereign immunity

were implicated. Ammex, 381 S.W.2d at 481-82. Given this Court's decision

in Pennhurst, it would have seemed particularly advisable under the

Eleventh Amendment to have deferred to the normal state practice set forth

in Ammex. Cf. Will v. Michigan Department of State Police, 491 U.S. 58, 65

(1989) (considerations based on the Eleventh Amendment can be applied in

other contexts involving the constitutional balance between states and the

federal government). Non-interference with the stay and normal state court

process was also mandated by 28 U.S.C. § 2283.

SE

21

“a constitutional determination is predicated on a

reading of the statute that is not binding on state

courts and may be discredited at any time -- thus

essentially rendering the federal court decision

advisory and the litigation underlying _ it

meaningless."

Pennzoil, 481 U.S. at 11, citing Moore v. Sims, 442 U.S. 415,

428 (1979). And here that prophecy has been sadly fulfilled, for

the entire state-law basis of the Fifth Circuit's opinion has ev-

aporated with the vacation of the judgments in state court pur-

suant to the settlement of the state court actions under H.B. 93.

y Abstention was Appropriate to Avoid Disruption

of State Regulatory Programs.

The lower courts’ assumption of jurisdiction over the

claims against State Defendants also violated the doctrine of

Burford v. Sun Oil Co., 319 U.S. 315 (1943), which calls for

abstention when such jurisdiction interferes with a complex

state regulatory scheme. See also Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 814 (1976)

(federal courts must abstain to avoid adjudication that would be

‘disruptive of state efforts to establish a coherent policy with

respect to a matter of substantial public concern").

Requiring State Defendants to finance the housing of

transfer-eligible inmates in other counties implicated (and, in

fact, undermined), the important public policy objectives of the

allocation formula under H.B. 2335 by de facto giving Harris

County additional numbers above its current allocation.” It also

went at Cross-purposes to the manifest intent of H.B. 2335 to

encourage the use of intermediate sanctions and alternatives to

incarceration because it removed from Harris County the

20The allocation formula is, of course, subject to state court judicial

review under the Texas Administrative Procedure and Texas Register Act,

TEX. REV. CIV. STAT. ANN. art. 6252-13a § 12 (Vernon Pamph. 1992).

22

financial burden of supporting inmates sentenced to state prison

in excess of Harris County's allocation.?!

In fact, the entire process of federal review in this case

involves consideration of a wide variety of public policy deci-

sions in the Texas criminal justice system which are discre-

tionary in nature. These include (but are not limited to) how

many prison beds to construct, how many to contract for, how

much good time to award (either under the Prison [or

Population] Management Act [PMA],”2 or by prison officials),

or how many inmates to furlough. These discretionary decisions

were all the subject of state court review in both the Nueces and

Harris county actions. And all of these functions and decisions

implicate matters of substantial public concern and involve an

attempt to maintain a coherent, state-wide criminal justice

policy. Federal courts, accordingly, should have refrained from

reviewing these issues under a hybrid Burford-Younger type of

abstention. Cf. Pennzoil, 481 U.S. at 11-12 and 15-17 (justify-

ing abstention in light of Art. I, § 13 of the Texas Constitution,

the "open courts" provision).

21In addition, requiring State Defendants to pay the costs of

contracts with private vendors or counties for jail space interfered with or

superseded the bidding process for such contracts required by TEX. GOV'T

CODE § 495.003 (Vernon Supp. 1992).

Moreover, the order circumvented the 1987 Appropriations Act

which limited the number of beds that the State could contract out for under

former article 6166g-2 (Vernon's Texas Civil Statutes) to 2,000. TEX. GEN.

& SPECIAL LAWS 1987, 2d Called Sess., Ch. 78, paragraph 49, p. 343 (eff.

August 6, 1987). Before H.B. 93, there were no additional appropriations to

allow the TDCJ-ID to contract out for more beds, nor any change in the

1987 rider limiting the number of beds. And as the testimony showed at the

hearing in this case of the week of August 14, 1989, TDCJ-ID had already

contracted out for all 2,000 beds. See tr. vol 4, pp. 674 & 746.

22Formerly codified as Tex. Gov't Code, Ch. 498, Subch. B, now

re-codified as Tex. Gov't Code, Ch. 499, Subch. B, by Vernon's Tex. Sess.

Laws 1991, Reg. Sess., Ch. 16, Section 10.01, pp. 301-304 (eff. August 26,

1991), amended by H.B. 93, Section 17.02, pp. 215-217.

The PMA was itself the subject of a state constitutional attack in

Texas courts. See Appellants’ Brief in County of Nueces case (lodged with

the Clerk of the Court) at pp. 37-38.

a

23

3. If Abstention Was Not Appropriate, the Fifth

Circuit Should Have Stayed Further Action

Against State Defendants While Certifying the

Relevant Questions of Law to the Texas

Supreme Court.

Certainly, if abstention for some reason was not appro-

priate, the Fifth Circuit should have certified the relevant ques-

tions concerning the State's liabilities and financial responsibi-

lity to the Texas Supreme Court in accordance with TEX. R.

APP. P. 114. Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974)

(certification appropriate in light of the "great unsettlement" of

State law).

.. THIS COURT SHOULD GRANT CERTIO-

RARI TO DETERMINE IF, IN THE CON.

TEXT OF UNSETTLED STATE LAW AND

FEDERAL COURT ORDERS IN THE STATE

PRISON CONDITIONS CASE, STATE

OFFICIALS WITH NO _ SUPERVISORY

AUTHORITY OVER LOCAL JAILS ARE

LIABLE UNDER WILSON V. SEITER FOR

CONDITIONS OF CONFINEMENT IN A

LOCAL JAIL BECAUSE THEY (1) DID NOT

CONSTRUCT OR ACQUIRE MORE BEDS

THAN THE LEGISLATURE APPROPRIATED

FUNDING FOR AND (2) DID NOT EXPE.

DITE THE RELEASE OF MORE CON.

VICTED FELONS.

In analyzing State Defendants’ liability under Wilson v.

Seiter, the Fifth Circuit found that there was “no doubt that the

relevant state officials knew that ready felons were being back-

logged despite the objectively cruel conditions in the county's

jails." App. A 30. However, there is nothing in the record to

suggest that state officials on the prison board or the Governor

had even inspected the Harris County Jail, let alone knew of

conditions there prior to the time of trial in September 1989

24

when the state's expert toured the jail. Certainly there is no state

law vesting any direct supervisory authority in state officials for

conditions in the local jail. Absent a showing of direct

supervisory responsibility over local jails, state officials should

not be held liable for conditions in those jails. Rizzo v. Goode,

* 423 U.S. 362, 375-76 (1976); Bush v. Viterna, 795 F.2d 1203

(Sth Cir. 1986).

Moreover, since State Defendants’ duties under state-law

are at best unsettled, that lack of clarity is itself an

insurmountable obstacle to a finding of the requisite mental

state under Wilson v. Seiter. Cf. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982) (state officials liable for monetary damages

only if their conduct violates "clearly established

constitutional rights of which a reasonable person would have

known"), see also Anderson v. Creighton, 483 U.S. 635, 640

(1987) (in order to overcome qualified immunity "unlawfulness

must be apparent").

Still, the Fifth Circuit moved forward with its analysis

under Seiter, positing two methods in which State Defendants

could have fulfilled its obligations despite the existence of

constrictions on the state system under Ruiz. App. A 30. First,

state prison officials and the Governor could have simply built

or contracted for more beds. Second, state prison officials and

the Governor could have expedited the release of more

convicted felons under the Prison Management Act to ease

overcrowding at the local level, thereby providing more room

for the county's misdemeanants and pretrial detainees.

23Under Ruiz State Defendants must maintain system-wide capacity

at 95%. See, trial of week of August 14, 1989, tr. vol. 4, p. 661. This is,

however, a court-ordered capacity level, not a design capacity. See supra at

12-13. There is no dispute that TDCJ-ID operated at or near its court-ordered

Capacity at all times. /d. Ruiz orders, of course, take precedence under the

Supremacy Clause (Article VI, cl.2) over any state law duty to accept

inmates. See U.S. v. District of Columbia, 897 F.2d 1152, 1156 (D.C. Cir.

1990) (court-ordered population caps override statutory obligation to accept

inmates); see also Cooper v. Aaron, 358 U.S. 1 (1958).

25

As to the first method, expansion of capacity, TDCJ has

vigorously carried out its legislative mandate to expand state

prison capacity?4 up to the limits of its appropriations. See, trial

of week of August 14, 1989, tr. Vol. 4, pp. 741-760; trial of

week of February 27, 1990, tr. Vol. 1(A), pp. 184-193, esp. 193.

There were thus no unspent appropriations for the additional

military-style boot camps or tent cities Suggested by the Fifth

Circuit. App. A 30. This is also true for contracted capacity. See

surra at 22 n.21. Wilson v. Seiter left open the issue of a "cost"

defense based on the inability to obtain funding. Seiter, __

U.S. at___, 111 S.Ct. at 2326. This Court, on the specific facts

of this case, must now affirm such a defense because the Texas

Legislature specifically resolved under H.B. 2335 to build a set

number of beds and allocate that capacity. Under the Eleventh

Amendment and principles of federalism, federal courts may

not interfere with such basic resource allocation decisions of

state government. See Pennhurst, 465 U.S. at 101; Inmates of

Occoquan, 844 F.2d at 843. Moreover, Ruiz court orders (see

"Crowding Stipulation", Section IV. D., State Defendants

Exhibit 24, trial of week of August 14, 1989) prohibit the use of

temporary housing?5 such as tent cities, and efforts to modify

those orders have proved unsuccessful even under the flexible

Standard adopted by this Court in Rufo v. Inmates of Suffolk

County Jail, No. 90-954, _ U.S. — (1992). Ruiz v. Lynaugh,

811 F.2d 856, 857 & 862 (Sth Cir. 1987).

The second method, expediting the release of convicted

felons by awards of good time thereby enlarging the parole eli-

gible pool, raises issues of a more pragmatic but troubling na-

ture regarding public policy decisions in the state criminal

justice system. Use of the Prison (or Population) Management

2462,849 beds have been built or funded for construction since

1984. See supra at 8 n.7.

25In addition, state law currently prohibits the use of temporary

housing. TEX. GOV'T CODE § 501.111 (Vernon Supp. 1992). It would

seem that what type of prisons to construct, like how many to build and how

large to build them, are basic resource decisions "simply outside the domain

of federal courts." Inmates of Occoquan, 844 F.2d at 843.

26

Act (PMA) to reduce jail population levels would involve

flushing large numbers of offenders out the back door of the

state prison system, with the attendant threat to public safety

and the dilution of the felony sanction because of extreme

reduction in prison terms. See, trial of week of August 14, 1989,

tr. vol. 4(A), pp. 840-861; State Defendants’ Exhibit 53.

The PMA, however, has been used only as a means of

complying with Ruiz capacity limitations since the PMA is trig-

gered only when the population hits 95 percent of the court-

ordered capacity. See former Tex. Gov't Code § 498.025(b).76

See also, trial of week of August 14, 1989, tr. Vol. 1(A), pp.

176-77; vol. 4, pp. 676-679. It has never been used as means of

controlling overcrowding in local jails. This is best illustrated

by examining-use of the PMA in light of the allocation formula.

Assuming a transfer-eligible population of 3,420 (the

number in the Harris County jail at the time of the first trial,

according to the County's witness2’) and Harris County's current

admissions allocation of 20-plus percent it would be necessary,

assuming an evenhanded allocation of beds statewide, to release

at least 17,000 inmates from TDCJ-ID to clear the transfer-

eligible inmates out of the Harris County jail. The PMA was

never intended as a means to obtain the wholesale release of

convicted felons in order to clear out local jails. Rather,

TDCJ-ID has used it in a prudent and reasonable fashion to

comply with federal caps when they are exceeded. At the time

of the first trial it had been triggered 12 times and a total of 560

days awarded. Trial of the week of August 14, 1989, tr. Vol.

4(a), pp. 855-856. If state officials are acting reasonably within

the scope of their delegated functions under constitutional

statutes, Eleventh Amendment analysis should bar federal

judicial involvement. See Pennhurst, 465 U.S. at 101 n.11.

26Now re-codified as Tex. Gov't Code § 499.025(b) by Vernon's

Tex. Sess. Laws 1991, Reg. Session Ch. 16, § 10.01, p. 302 (eff. August 26,

1991), amended by H.B. 93, Section 17.02, p. 215.

2’Trial of week of August 14, 1989, tr. Vol. 1(A), p. 241.

27

Accordingly, the limited use of the PMA as a means to

control prison, not local jail overcrowding, cannot be

reasonably argued as conduct establishing liability under Wilson

v. Seiter given the state's interest in public safety and having

convicted felons serve their terms. Indeed, the Fifth Circuit

Stayed an order that would have expedited felony releases when

lesser offenders were available for release. App. C. And the

Alberti court, no doubt with its own concerns of public safety,

abandoned all release mechanisms, opting instead for ordering

transfer-eligible inmates in the custody of Harris County Jail

into other jails in the state. Given this history, it is difficult to

hold State Defendants liable for exercising the same prudent

reluctance to release convicted felons displayed by both the

Alberti Court and the Fifth Circuit. At the very least, given their

overriding concern for public safety, State Defendants’ conduct

should be held to the standard of “malicious or sadistic" intent

in order for liability to be imposed. Seiter, _ U.S. at ae oh

S.Ct. at 2326. However, under whatever standard imposed,

State Defendants' conduct cannot justify a finding of liability

under Wilson v. Seiter.

D. CERTIORARI SHOULD BE GRANTED TO RE-

VERSE AN ILL REASONED AND CLEARLY ERRO-

NEOUS RULING OF FEDERAL CONSTITUTIONAL

LAW ON CAPACITY LIMITATIONS AND TO PRO-

VIDE GUIDANCE TO THE LOWER COURTS ON

THE APPROPRIATE APPROACH TO TAKE IN IM-

POSING CAPS ON LOCAL JAILS OR PRISONS.28

28Under H.B. 93, the money to pay for transferring inmates from

unconstitutionally overcrowded jails is appropriated to TDCJ. H.B. 93,

Section 22.01(a), p. 223. TDCJ has the power to disburse the money to the

Texas Commission on Jail Standards, the agency which actually makes the

payments, through interagency contracts. /d. Any unexpended amounts may

be used for the operation of substance abuse felony facilities, H.B. 93.

Section 22.01(b), p. 224, which are run by TDCJ. Accordingly, TDCJ has

standing to contest artificially low population caps in local jails since they

result in the unnecessary disbursal of funds from TDCJ's budget. See Wait v.

Energy Action Educational Foundation, 454 U.S. 151, 161 (1981).

28

State Defendants do not dispute the offensive and de-

grading conditions of confinement found in the Harris County

jail at the time of trial. Still, the decision equating design capa-

city with constitutional capacity was precipitous and imprudent

in light of this Court's traditionally deferential approach to pri-

son and jail administration. See e.g. Thornburgh v. Abbot, 490

U.S. 401, 407-408 (1989); Turner v. Safely, 482 U.S. 78, 84-85

(1987); Rhodes v. Chapman, 452 U.S. 337, 351 & n. 16 (1981),

Bell v. Wolfish, 441 U.S. 520, 540-541 n.23, 547 & n.29 (1979);

Preiser v. Rodriguez, 411 U.S. 475, 492 (1973). More specifi-

cally, this court has noted that the issue in a prison or jail case

such as this "is not whether the designer of [the facility] guessed

incorrectly about future prison population, but whether the con-

ditions of confinement at [the facility] are cruel and unusual."

Rhodes, 452 U.S. at 349-50 n.15; see also Bell v. Wolfish, 441

U.S. at 542 (rejecting ‘one-man-one-cell' approach). Further-

more, state law standards, such as those of the Texas

Commission on Jail Standards certainly cannot be dispositive in

making this assessment under the Eleventh Amendment.

Pennhurst State School and Hospital v. Halderman, 465 U.S.

-89 (1984); see also Lelsz v. Kavanaugh, 807 F.2d 1243, 1252

(Sth Cir. 1987), reh. denied, 815 F.2d 1034 (Sth Cir. 1987), cert

dism‘d, 483 U.S. 1057 (1987). Nor can the previous consent de-

cree in this case be dispositive since State Defendants were not

a party to it. Martin v. Wilks, 490 U.S. 755, esp. at 763 (1989).

Given this case law, the Fifth Circuit's resolution of this

issue in Ruiz v. Estelle, 679 F.2d 1115, 1148 (Sth Cir. 1982),

modified on other grounds, 688 F.2d 266 (Sth Cir. 1982) cert.

denied, 460 U.S. 1042 (1983), where the court adopted a "wait

and see" approach as to constitutional capacity levels, provides

a far more appropriate compromise between constitutional

interests of the inmate class and the traditional deference to be

accorded prison and jail administrators. Setting caps based on

design capacity is inappropriate, especially when there was sub-

stantial and credible testimony of experts (including the Special

Master) that the jail could (and apparently did from February 7,

1991 to November 25, 1991) function tolerably at levels beyond

29

its design capacity. See Youngberg v. Romeo, 457 U.S. 307,

322-323 (1982) ("[W]Je emphasize that courts must show

deference to the judgment exercised by a qualified professional

. . » [L]iability may be imposed only when the decision by the

professional is such a substantial departure from accepted

professional judgment, practice, or standards as to demonstrate

that the person responsible actually did not base the decision on

such a judgment"); see also New York State Ass'n For Retarded

Children v. Carey, 706 F.2d 956, 971 (2nd Cir. 1983). And, in

light of Wilson v. Seiter, Supra, any Capacity level in which

defendants are not “deliberately indifferent" to the significant

human needs of the inmate class is sustainable.

Because overcrowding is a persistent and wide-ranging

problem nationally, this Court should grant certiorari to

establish clear guidelines for the lower courts on this issue.

CONCLUSION

For all of these reasons, a writ of certiorari should be

granted now and this case set for argument. Alternatively, this

petition should be deferred pending review in the Fifth Circuit

of the Alberti court's finding of deliberate indifference. State

Defendants request such other relief which this Court may deem

just, fair and equitable.

Respectfully submitted,

DAN MORALES

Attorney General of Texas

WILL PRYOR

First Assistant

Attorney General

MARY-F. KELLER

Deputy Attorney General

*Counsel of Record

30

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division

ROBERT OZER*

Assistant Attorney General

JOHN B. WORLEY

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2075

(512) 463-2200 (FAX)

ATTORNEYS FOR PETITIONERS