# Petition for A Writ of Certiorari — Richards v. Lindsay

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for A Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 930

## Text

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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

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0093%3A1. Public record. Not legal advice.