Opposition Brief — Richards v. Lindsay

r suoreme Court, U&

a Se)

In The | KAR 23 1992

Supreme Court of the United) Htatesine crv

October Term, 1991

No. 91-1202

ANN RICHARDS, Governor of Texas; SELDEN HALE III,

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,

VS.

LAWRENCE R. ALBERTI, JIMMY E. COLLINS, HENRY C.

LANGER, JOSE J. PINA, II, PAT REED, WESLEY SELLERS,

individually and on behalf of all others similarly situated,

Inmate Respondents,

-and-

JOHN LINDSAY, HARRIS COUNTY JUDGE; EL FRANCO

LEE, JIM FONTENO, STEVE RADACK, JERRY EVERSOLE,

Harris County Commissioners; JOHNNY KLEVENHAGEN,

Harris County Sheriff,

County Respondents.

On Petition for Certiorari to the United States Court of Appeals

for the Fifth Circuit

COUNTY RESPONDENTS’ BRIEF IN OPPOSITION

LISA S. RICE

Counsel of Record

KERRIE J. QUALTROUGH

HAROLD M. STREICHER

Assistant County Altorneys

Attorneys for County Respondents

MIKE DRISCOLL 1001 Preston, Suite 634

County Attorney Houston, Texas 77002

Of Counsel (713) 755-7110

1756

tz * NJ (908) 257-6850*(800) 3 APPEAL *NY (212) 840-4640*MA (617) 542-1114

MAEP Atte. tae. DC (202) 783-7288*PA (215) 925-6500*USA (800) 5 APPEAL

QUESTIONS PRESENTED

Respondents Harris County Judge Jon Lindsay, Harris

County Commissioners El Franco Lee, Jim Fonteno, Steve Radack

and Jerry Eversole (‘‘County Respondents’’) do not concur with

Petitioners’ statement of ‘‘Questions Presented.’ County

Respondents urge that the following constitutes an accurate

presentation of the substantive questions presented by Petitioners

in their Petition for Writ of Certiorari:

1. Whether a federal district court is authorized to fashion

a remedy upon finding violations of constitutional rights?

2. Whether the Eleventh Amendment Shields state officials

acting contrary to the United States Constitution from prospective

injunctive relief ordered by a federal district court because of

ancillary costs.

3. Whether a federal district court can rely on the

pronouncement of state law by a state trial court to fashion a

remedy.

4. Whether a federal district court abuses its discretion by

refusing to abstain when state law is clear and important

constitutional rights are at issue.

5. Whether the Supreme Court should grant certiorari on

an issue that is not ripe and presently pending in the Fifth Circuit,

whose decision may moot any questions now presented.

6. Whether the Supreme Court should grant certiorari on

the issue of the constitutional capacity of a county jail facility

when the party seeking the writ lacks standing to complaint.

complain.

re

il

TABLE OF CONTENTS

Page

Question Presented ....« ...s5.sies<ceseue eee eee i

Table of ComeeiiS : so 5.4555 55556 ene eee il

Table of CitQtiems .....050iauaes bueeaeeee eee ili

Opinions Batow . .. ... ssi 0eesh be aee eee 2

Texas Constitutional and Statutory Provisions Omitted by

PORIGONE .. 00 dacucduvyeeeeuee ete 2

Statement of the Case .........00ccccceeeceeseeueeees 3

Summary of the AQQueegl «« «655065 45.000 coe eee 11

Reasons for Denying the Wait ..csccccccuacncscntanses 1]

I. The Fifth Circuit’s A/berti opinion does not conflict

with this Court’s decisions or with the decisions of

other United States courts of appeals deciding these

same or simmilee GUQUNRUO) «é.oc46< ck cau bee es esas 1]

II. The Fifth Circuit’s absention and certification

holdings do not depart from the accepted and usual

course of judicial proceedings. ................. 15

lil. The Wilson ¥. Sa CE Cas sak brake eee es 18

[V. Constitutional COGGGED ous is cdessuendeasdeeaes 21

Contents

Page

V. Petitioners’ Failure to Accurately Present the Lower

Courts’ Factual Findings and Legal Holdings .... 22

A Sg eg 24

TABLE OF CITATIONS

Cases Cited:

Alberti v. Sheriff of Harris County, 937 F.2d 984 (Sth

I a ea Bigeye Ee passim

Benjamin v. Malcolm, 803 F.2d 46 (2d Cir. 1986), cert.

denied sub nom, Cuomo v. Koehler, 480 U.S. 910

fe? @. Gt. 1356, 94 L. Bd. 20 $28 (1967) ..........5, 14

Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098 (1943)

I rg NGL = Eat a ee een 18

Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986) .......... 4,5

City of Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96

ee cava setae sbaeccwacvenes 15

County of Allegheny v. Frank Mashuda Co., 360 U:S.

ee eR 16

Duncan v. Poythress, 657 F.2d 691 (Sth Cir. 1981), cert.

dism’d, 459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504

Te eee an RK haw Ae eden eens 17

Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L.

Neca wbbunetecucceses 12, 14

iv

Contents

Page

Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed.

ee Re NG hens Shh peta sakwead obese 12

Fidelity St. Life ins. Co. v. First Nat. Bank & Trust, 510 F.2d

272 (Sth Cir. 1975), cert. denied, 423 U.S. 864 (1975)

ee ERR ee Pee a ey SER eR 16

Graver Tank & Mfg. Co. v. Linde Air Products Co., 336

U.S. 271, 69 S. Ct. 535, 93 L. Ed. 2d 672 (1949) ... 19

Harman v. Forssenius, 380 U.S. 528, 85 S. Ct. 1177, 14 L.

Se Me ee CE t-te hb 6 6xG Rok CEU Ose ea Ween eee 16

Harris County, Texas et al. v. State of Texas, (126th

Judicial District Travis County, Tex.) ............. 9, 18

Huron Holding Corp. v. Lincoln Mine Operating Co., 312

sh Se RED a hae eee area bcneekeeeenie cemuks 16

Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986), rev’d in

part on other grounds, 415 U.S. 651, 94S. Ct. 1347, 39

Be es ee RES 454455 oleae he ch abe wees eau 14

Kelley v. Metropolitan County Board of Education, 836 F.2d

986 (6th Cir. 1987), cert. denied, 487 U.S. 1206 (1988)

Nee eck eee eee DEERE ET oe ea eee 12, 13, 14

Milliken v. Bradley, 433 U.S. 267, 97 S. Ct. 2749, 53 L.

BR 0. gy . Fer Ee erty ern Cane 12, 14

New Orleans Public Service v. Council of New Orleans,

Fe i as ee I sc hav one raseee en ehareleem 18

Contents

Page

Nissan Motor Corp. v. Harding, 739 F.2d 1005 (Sth Cir. 1984)

000 eb es eet ee ee 6 6a eee eee 17

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

89, 104 S. Ct. 900, 97 L. Ed. 2d 67 (1984)......... 5

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

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

denied, 460 U.S. 1042, 103 S. Ct. 1438, 75 L. Ed. 2d

Fee CRs 00 cave es cansok eee 12

Ruiz v. Lynaugh, 811 F. 2d 856 (Sth Cir. 1987)........ a1, a

Stewart v. Winter, 669 F.2d 328 (Sth Cir. 1982) ........ 5, 14

Tarrant v. County Commissioners Court v. Markham, 779

S.W. 2d 872 (Tex. App.-Fort Worth 1989) ......... 9

Tate v. Frey, 735 F.2d 986 (6th Cir. 1984) ............. 5, 14

Williams v. Edwards, 547 F.2d 1206 (Sth Cir. 1977)

PTT eee TTT eee ee ee re en 14

Wilson v. Seiter, 111 S. Ct. 2321 (1991) ........... 18, 19, 20

Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673 (1978)

5 hn: te week ec © wale moe aa ee 18

Statutes Cited:

Tex. Rev. Civ. Stat. Ann. art. 6166r (1927-1989), recodified

at Tex. Gov’t Code Ann § 499.006 (Vernon 1990),

recodified at Tex. Gov’t Code Ann. § 500.006 (Vernon

SON, TFGUR once ctncvtudenssveneh sales :

vi

Contents

Page

Tex. Crim. Proc. Code Ann. art. 42.09 § 1-4 (Vernon Supp.

AGRE) ov ce scnscewkss5eaeuu k oben 2,3

Tex. Gov’t Code § 493.001 (Vernon Supp. 1982), formerly

Tex. Rev. Civ. Stat. Ann. 4413(401) § 1.02(a)....... ,

Tex. Gov’t Code § 494.001(a) (Vernon 1990)............ y

Tex. Gov’t Code § 495.004 (Vernon Supp. 1992), formerly

Tex. Gov’t Code Ann § 494.004 (Vernon 1990)

Tex. Gov’t Code § 499.071 (Vernon Supp. 1992) ....... 22

Tex. Gov’t Code §§ 499.123 & 499.125 (Vernon Supp. 1992)

Tex. Penal Code Ann. § 12.31(a) (Vernon Supp. 1992)

Tex. Penal Code Ann. § 12.32(a) (Vernon Supp. 1992)

Tex. Penal Code § 12.33(a) (Vernon 1974) .............. a

Tex. Penal Code § 12.34(a) (Vernon Supp. 1992) ........ p

Tex. Penal Code § 12.42 (Vernon 1974 & Supp. 1992)....2, 3

United States Constitution Cited:

eee eee eee 6, 10, 13

Vil

Contents

Page

Eleventh Amendment...................eeeceeeee lii, 11, 12

POM PUM, 6 csc cntaheceeectavsusuenineees 6

Other Authority Cited:

Tex. Const. art. VIII, § l-a (Vernon Supp. 1992)....... 3

APPENDIX

Appendix A — Findings of Fact and Conclusions of Law

Dated November 26, 1990 — The County of Nueces v.

Terms Board Gf COPreceiOns ... ccc eee ceanense

Appendix B — Judgment Dated August 22, 1990 — The

County of Nueces v. Texas Board of Correction ....

Appendix C — Peremptory Writ of Mandamus Dated August

22, 1990 — The County of Nueces v. Texas Board of

a re eee re rene

Appendix D — Letter Decision Dated May 31, 1990 — The

County of Nueces v. Texas Board of Corrections ...

Appendix E — Letter Decision Dated November 21, 1989 —

The County of Nueces v. Texas Board of Corrections

os. 2S & 8 oe 28-2 FO 2.8 5 OO 6 2.4: FE OSE SEE. EE SS SES ES BD AR OD

Appendix F — Letter Decision Dated August 24, 1989 — The

County of Nueces v. Texas Board of Corrections ..

Appendix G — Final Judgment Filed August 2, 1991 —

Harris County v. The State of Texas ..............

la

l6a

23a

27a

33a

50a

vill

Contents

Page

Appendix H — Peremptory Writ of Mandamus Filed August

2, 1991 — Harris County v. The State of Texas .... 62a

Appendix I — Supplemental Complaint Dated September 15,

1989 — Alberti v. Johnny Klevenhagen............ 66a

Appendix J — Third Party Complaint Filed January 13, 1989

— Alberti v. Sheriff of Harris County (Without Exhibits)

ACCEL ECDMNE EE ORY EM CREM EERERESUIOR See ae s 76a

Appendix K — Order Filed October 10, 1990 — In the United

States Court of Appeals for the Fifth Circuit....... 86a

Appendix L — Additional Constitutional and Statutory

Provisions Involved in Alberti .................0.. 88a

No. 91-1202

In The

Supreme Court of the United States

October Term, 1991

ANN RICHARDS, Governor of Texas; SELDEN HALE III,

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,

VS.

LAWRENCE R. ALBERTI, JIMMY E. COLLINS, HENRY C.

LANGER, JOSE J. PINA, II, PAT REED, WESLEY SELLERS,

Individually and on behalf of all others similarly situated,

Inmate Respondents,

and

JOHN LINDSAY, HARRIS COUNTY JUDGE; EL FRANCO

LEE, JIM FONTENO, STEVE RADACK, JERRY EVERSOLE,

Harris County Commissioners; JOHNNY KLEVENHAGEN,

Harris County Sheriff,

County Respondents.

On Petition for Certiorari to the United States Court of Appeals

for the Fifth Circuit

COUNTY RESPONDENTS’ BRIEF IN OPPOSITION

OPINIONS BELOW

County Respondents do not agree with Petitioners’ summary

of the opinions rendered below, which mischaracterizes two of

the underlying district court and Fifth Circuit orders as orders

granting Harris County ‘‘compensation.’’' In addition, Petitioners

failed to include the state court opinions upon which the United

States District Court for the Southern District of Texas partially

based its prospective injunctive remedial relief, and upon which

the Fifth Circuit affirmed that relief.? These opinions are included

in Respondents’ Appendices A-H.

TEXAS CONSTITUTIONAL AND STATUTORY

PROVISIONS OMITTED BY PETITIONERS

County Respondents do not concur with Petitioners’ list of

constitutional and statutory provisions relating to this case.

Petitioners have omitted numerous provisions which the state

courts of Texas have construed in finding that Petitioners have

a duty to accept convicted felons sentenced to imprisonment in

1. Petitioners’ Petition for Writ of Certiorari (hereinafter ‘‘Petition’’) at |.

2. The lower courts’ orders were also based upon Texas statutes which,

inter alia, require that convicted felons shall be imprisoned in the state

penitentiary. Tex. Penal Code Ann. § 12.31(a) (Vernon Supp. 1992); Tex. Penal

Code Ann. § 12.32(a) (Vernon Supp. 1992); Tex. Penal Code Ann. § 12.33(a)

(Vernon 1974); Tex. Penal Code Ann. § 12.34(a) (Vernon Supp. 1992); Tex.

Penal Code Ann. § 12.42 (Vernon 1974 & Supp. 1992); Tex. Crim. Proc. Code

Ann. art. 42.09 §§ 1-4 (Vernon Supp. 1992); Tex. Rev. Civ. Stat. Ann. art.

6166r (in effect from 1927 - August 31, 1989) (recodified at Tex. Gov’t Code

Ann. § 499.006 (Vernon 1990) and later recodified at Tex. Gov't Code Ann.

§ 500.006 (Vernon Supp. 1992)); Tex. Gov’t Code § 493.001 (Vernon Supp.

1992) (formerly Tex. Rev. Civ. Stat. Ann. 4413(401) § 1.02(a)); Tex. Gov't

Code Ann. § 494.001(a) (Vernon Supp. 1992) (formerly Gov’t Code Ann.

§ 494.001(a) (Vernon 1990)); Tex. Gov't Code Ann. § 495.004 (Vernon Supp.

1992) (formerly Tex. Gov’t Code Ann. § 494.004 (Vernon 1990)). These statutes

are attached as County Respondents Appendix L.

the Texas Department of Criminal Justice-Institutional Division

(hereinafter ‘‘TDCJ-ID’’). County Respondents supplement

Petitioners’ list with the following state constitutional and statutory

provisions: Tex. Const. art. VIII, § l-a (Vernon Supp. 1992);

Tex. Penal Code Ann. § 12.31(a) (Vernon Supp. 1992); Tex. Penal

Code Ann. § 12.32(a) (Vernon Supp. 1992); Tex. Penal Code

Ann. § 12.33(a) (Vernon 1974); Tex. Penal Code Ann. § 12.34(a)

(Vernon Supp. 1992); Tex. Penal Code Ann. § 12.42 (Vernon

1974 & Supp. 1992); Tex. Crim. Proc. Code Ann. art. 42.09 §§ 1-4

(Vernon Supp. 1992); Tex. Rev. Civ. Stat. Ann. art. 6166r (in

effect from 1927-August 31, 1989) (recodified at Tex. Gov’t Code

Ann. § 499.006 (Vernon 1990) and later recodified at Tex. Gov’t

Code Ann. § 500.006 (Vernon Supp. 1992)); Tex. Gov’t Code

§ 493.001 (Vernon Supp. 1992) (formerly Tex. Rev. Civ. Stat.

Ann. 4413(401) § 1.02(a)); Tex. Gov’t Code Ann. § 495.001(a)

(Vernon Supp. 1992) (formeriy Tex. Gov’t Code Ann. § 494.001(a)

(Vernon 1990)); Tex. Gov’t Code Ann. § 495.004 (Vernon Supp.

1992) (formerly Tex. Gov’t Code Ann. § 494.004 (Vernon 1990)).

These provisions are reproduced in County Respondents’ Appendix

a

STATEMENT OF THE CASE

County Respondents adopt the factual and procedural history

set forth by the Fifth Circuit in its July 25, 1991 opinion, which

is substantially accurate.’ Petitioners’ Petition is rife with

misstatements of the facts and law relating to this case. Even after

the Fifth Circuit’s opinion memorialized several instances where

Petitioners mischaracterized the holdings of the United States

District Court for the Southern District of Texas in this case,*

3. See Alberti v. Harris County, Petitioners’ Appendix at Al-A15, A1l8-A19,

A24-A25.

4. See, e.g., Alberti v. Harris County, Petitioners’ Appendix at A34-A35

& n. 8.

Petitioners appear before this Court, mischaracterizing the nature

of this suit, as well as the action taken by the district court and

by the Fifth Circuit.

For example, the opening paragraph of Petitioners’

**Statement of the Case’’ took three words used by the Fifth Circuit

in its Alberti opinion out of context and thereby misstated the

foundation of the Fifth Circuit’s opinion. According to Petitioners’

Petition:

This controversy swirls around whether Texas

prison officials and the Governor of Texas

{hereinafter ‘‘Petitioners’’] bore any liability,

especially financial liability, for felons sentenced

to the state prison system but confined and

maintained in the Harris County jail. [Petitioners]

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.’

Contrary to Petitioners’ representations, the Fifth Circuit did not

find that Petitioners’ liability ‘‘exclusively’’ presented a state law

issue which in turn presented a ‘‘hard question’’ for the court.

Drawing from the Fifth Circuit’s decision in Bush v. Viterna,

Judge Higginbotham outlined the three-pronged analysis

undertaken by the Fifth Circuit when enforcing constitutional

standards under 42 U.S.C. § 1983:

Whenever a plaintiff alleges a cause of action under

§ 1983, a federal court must ask three questions.

First, is a federal secured right involved ....

Second, was the alleged deprivation of the right

5. Petitioners’ Petition at 3 (emphasis in Petition), citing A/berti v. Sheriff

of Harris County, Petitioners’ Appendix at A18. See also, Petitioners’ Petition

at 4, 14, 17 & 18-19.

accomplished by state action? .. . Finally, who

is the state actor responsible for the violation?

Unlike the first two questions, the third question

turns exclusively on state law .... The hard

question in this appeal is the third question, the

issue of who is liable for the conditions in the

county’s jails.°

Petitioners’ representations, in contrast, raise the Pennhurst’

specter while ignoring the first two questions outlined by the Fifth

Circuit, ignoring the Fifth Circuit’s analysis of their liability for

deprivations of Respondents’ federal constitutional rights under

Stewart v. Winter, Benjamin v. Malcolm, and Tate v. Frey,* and

ignoring the Fifth Circuit’s explicit rejection of their contention

that their duties only arose pursuant to state law.’

Alberti is neither a suit seeking the recovery of monetary

damages, a suit between different levels of state government,'°

6. Alberti v. Sheriff of Harris County, Petitioners’ Appendix at A-18

(emphasis added in part), citing Bush v. Viterna, 795 F.2d 1203, 1208 (Sth Cir.

1986).

7. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.

Ct. 900, 97 L. Ed. 2d 67 (1984).

8. Alberti v. Sheriff of Harris County, Petitioners’ Appendix A18-A26,

A34-A35, citing, Stewart v. Winter, 669 F.2d 328 (Sth Cir. 1982); Benjamin

v. Malcolm, 803 F.2d 46 (2d Cir. 1986), cert. denied sub nom, Cuomo v. Koehler,

480 U.S. 910, 107 S. Ct. 1358, 94 L. Ed. 2d 528 (1987); Tate v. Frey, 735 F.2d

986 (6th Cir. 1984). Compare Petitioners’ Petition at 1-2.

9. Alberti v. Sheriff of Harris County, Petitioners’ Appendix at A34.

10. Petitioners’ Petition at 15-17. On virtually every page of their Petition,

Petitioners attempted to portray A/berti as a case between two governmental

entities, rather than a case in which they were found liable for violations of

(Cont'd)

nor a suit based upon Petitioners’ violations of state law.'' Instead,

this is a class action civil rights case filed in 1972 under 42 U.S.C.

§ 1983 and the Eighth and Fourteenth Amendments by pretrial

and convicted misdemeanants and felons incarcerated in the Harris

County jail facilities (hereinafter ‘‘Inmate Respondents’’),

contesting the conditions of their confinement.

In February, 1987, County Respondents filed a motion for

Final Judgment in A/berti, urging that they were in compliance

with the district court’s remedial orders and that the conditions

of confinement in the jail facilities were constitutional. After

reviewing the facilities, court-appointed monitors determined that

‘fas of June 1, 1987, the County’s facilities were five percent over

capacity.’’'? Citing County Respondents’ renovation of their 301

San Jacinto Jail facility, construction of a new 4,000-bed

downtown jail, and design of a Criminal Justice Center, the A/berti

monitors stated, ‘‘[uJnlike most jurisdictions around the country

prodded to reform by judicial intervention, the defendants are

not content to rest on their laurels until the next crisis emerges,

but instead have moved aggressively and efficiently to anticipate

(Cont'd)

Respondent’s Eighth Amendment rights. The Fifth Circuit succinctly addressed

this argument, stating: ‘‘The state also makes a general federalism argument,

suggesting that ‘[a] federal court has no jurisdiction (no power) to act as arbiter

between different levels of a State’s government that are in dispute.’ Again,

this argument mischaracterizes the action; the state is responsible for a federal

constitutional violation.’’ A/berti v. Sheriff of Harris County, Petitioners’

Appendix at A35 n. 8.

11. See, e.g., Petitioners’ Petition at 1, 3-6, 10, 11, 14 & 24. The sheer

number of misstatements made in Petitioners’ ‘‘Statement of the Case,’’ as well

as the balance of their Petition, has compelled County Respondents to address

them in a separate section, under roman numeral ‘‘V.”’

12. Alberti Monitors’ Oct. 7 1987 Findings & Recommendations at 28.

future needs.’’'> According to the monitors, ‘‘[w]hile the task is

not yet complete, the distance already covered [by County

Respondents] is vast, and a finish line is discernable.’’'*

Since September, 1987, however, Petitioners have refused

to timely accept convicted felons ready for transfer (hereinafter

‘*prison-ready felons’’) into the state prison system, thereby causing

severe overcrowding in the Harris County Jail facilities. In 1989,

Inmate Respondents and County Respondents joined Petitioners

as Defendants and Third Party Defendants in their official

capacities in the A/berti case, seeking to enjoin Petitioners to

remove all prison-ready felons from the Harris County Jail

facilities, and to continue thereafter to remove them. Neither

Inmate Respondents nor County Respondents sought any

monetary relief from Petitioners.'* Petitioners’ Petition does not

even mention that Respondents sued them directly for

constitutional violations.

After a bench trial in August, 1989, and hearings in

September, 1989, the district court issued its September 25, 1989

Findings of Fact and Conclusions of Law, finding that Petitioners

caused and were responsible for the overcrowding in the Harris

County Jail facilities — the essential element in its finding that

the jail facilities were unconstitutional. In particular, the district

court held that ‘‘extreme overcrowding is the primary cause of

the conditions of confinement listed below that inmates must

endure at the Harris County Jail facilities,’’ that Petitioners

‘‘caused the overcrowding crisis in the Harris County Jail

facilities,’’ that the jail ‘‘conditions are cruel and unusual in

violation of Plaintiffs’ Eighth and Fourteenth Amendment nghts,”’

13. Alberti Monitors’ Oct. 7, 1987 Findings & Recommendations at 80-81.

14. Alberti Monitors’ Oct. 7, 1987 Findings & Recommendations at 92.

15. County Respondents’ Appendix at I & J.

that Petitioners’ refusal to accept convicted felons ready for

transfer to TDC has caused those inmates to suffer cruel and

unusual punishment in the Harris County Jail facilities,’’ and that

Petitioners’ ‘‘refusal to accept all convicted felons ready for

transfer from the jail prevented respondents from fully complying

with this Court’s orders.’’'®

Thereafter, the district court issued the injunctive remedial

orders at issue here, requiring both County Respondents and

Petitioners to limit the numbers of county and state prisoners

in the Harris County Jail facilities.'’ The details of any necessary

reductions in prisoner populations made by County Respondents

and Petitioners pursuant to the order were left to the defendants’

discretion. On the contrary, the order set caps on both the

‘“‘county’’ and ‘“‘state’’ prisoner populations in the jail, ordered

the transfers of prison ready felons to other county jail facilities

if either population exceeded the cap, and imposed liability for

the ancillary costs of those transfers upon the party (either State

or County) exceeding its cap.'* The remedial orders thus gave

Petitioners a choice of limiting the prison-ready population within

the Harris County Jail facilities to 1,575 prison-ready felons, taking

any steps consistent with state law or federal court orders to reduce

the prison-ready felon population, or paying the ancillary costs

of housing prison-ready felons above their cap in other Texas

county detention facilities.'* Recognizing that County Respondents

16. Petitioners’ Appendix at X4, X17, X22.

17. When citing the district court’s February 7, 1991 injunctive remedial

order, Petitioners wrongly inferred that they alone bore the burden of any

transfers of prison-ready felons to other county jail facilities. Petitioners’ Petition

at $.

18. Petitioners’ Appendix at R6-R7.

19. Petitioners’ Appendix at R6-R8.

and Petitioners, as well as many other Texas counties, were

litigating the duty and reimbursement issues in state court, the

district court noted that its costs assessment was tentative and

preliminary and would be finalized contingent on the outcome

of pending litigation.”°

In Nueces County v. Texas Board of Corrections and Harris

County v. Texas, Judge Joseph Hart rejected each of the

arguments Petitioners make in their Petition, and held that

Petitioners had a duty to accept prison-ready felons under state

law or pay for their upkeep in the county jails.*' Given Petitioners’

failure to timely take their prison-ready felons, the state district

courts ordered them to take their prisoners or to reimburse the

counties for housing prison-ready felons. After final judgment

had been entered in these state lawsuits, the Petitioners settled

20. Petitioners’ Appendix at R7.

21. See orders entered in Civil Action No. 452,071; County of Nueces,

Texas, et al. v. Texas Board of Corrections (250th Judicial District Court of

Travis County, Tex.); Civil Action No. 475,468; Harris County, Texas, et al.

v. State of Texas (126th Judicial District Travis County, Tex.), at County

Respondents’ Appendix A-H. See also, Tarrant County Commissioners Court

v. Markham, 779 S. W. 2d 872, 874-75 (Tex. App.-Fort Worth, writ denied

1989) (wherein Texas’ Second Court of Appeals observed that ‘‘[t]he sad truth

is that the State of Texas fails to meet its obligations to incarcerate convicted

felons because of the state’s settlement agreement in the well known Ruiz case

... the unhappy result is that there are two prison systems in Texas. One is

operated ‘on the books’ by T.D.C. and appears to meet the state’s obligations

under Ruiz. This prison system is financed by the State of Texas out of the

state budget. The second prison system is less visible to the public eye; but it

exists in increasingly overcrowded county jails. In this system, inmates who

have been committed to T.D.C. by state courts are forced to languish in jails

of the various counties throughout the state, because of state’s failure to accept

the inmates committed to T.D.C. .. . These county jails were not designed

to house convicted felons who have been committed to T.D.C. for relatively

long periods of time.’’).

10

their lawsuits with the various counties, thereby precluding state

appellate review of those judgments. In House Bill 93, the State

Legislature essentially codified the state court reinbursement

holdings and adopted the A/berti district court’s transfer remedy.

Pursuant to this statute, Petitioners are required to reimburse

counties for the costs of housing the state’s prison-ready felons

left in the counties’ jails and must pay for transfers of prison-

ready felons to other county jail facilities given overcrowded

conditions. ”?

On July 25, 1991, the Fifth Circuit rendered its opinion in

four consolidated appeals.*’ In this opinion, the Fifth Circuit held,

inter alia, that Petitioners could not disclaim responsibility for

violations of prisoners’ Eighth Amendment rights in the Harris

County Jail facilities under all arguments advanced by

Petitioners.”

22. Tex. Gov. Code §§ 499.123 & 499.125 (Vernon Supp. 1992).

23. Alberti v. Sheriff of Harris County, 937 F.2d 984 (Sth Cir. 1991)

(Petitioners’ Appendix at A). The consolidated appeals related to County

Respondents’ and Petitioners’ appeals of the district court’s September 25, 1989

Findings of Fact and Conclusions of Law (Petitioners’ Appendix at X);

Respondents’ appeal of the district court’s October 23, 1989 order denying their

motion to amend or supplement the September 25, 1989 Findings and

Conclusions or for a New Trial (Petitioners’ Appendix at W); County

Respondents’ and Petitioners’ appeals of the district court’s April 5, 1990,

September 7, 1990, February 7, 1991 and March 15, 1991 injunctive remedial

orders (Petitioners’ Appendix at P, R, U & V); County Respondents’ appeals

of the Ruiz Court’s February 7, 1991 and March 15, 1991 advisory opinions

(Petitioners’ Appendix at Q & S), Petitioners’ appeal of the district court’s April

22, 1991 and November 19, 1990 remedial orders (Petitioners’ Appendix at O

& T) and Petitioners’ Petition for Writ of Mandamus, Motion to Stay the district

court’s May 28, 1991 Order and Motion to Stay and/or Petition for Wnt of

Prohibition, filed in the Fifth Circuit on or about March 5, 1991, June 5, 1991

and July 25, 1991. The orders found at Petitioners’ Appendix at D-N were

not part of the consolidated appeal decided on July 25, 1991.

24. See generally, Alberti v. Harris County, Petitioners’ Appendix A.

1]

On October 22, 1991, the Fifth Circuit denied Petitioners’

Petition for Panel Rehearing, finding that neither House Bill! 93

nor the settlement of Harris County v. State of Texas changed

the legal relationship between the state and counties in such a

manner as to require it to reconsider its earlier opinion or the

district court’s reimbursements made to Harris County.’°

SUMMARY OF THE ARGUMENT

This case should not be reviewed on certiorari because the

Fifth Circuit’s opinion raises no issues of national importance,

because there are no conflicting circuit court opinions commanding

reconciliation by this Court, and because Petitioners have failed

to present their petition for certiorari with accuracy in violation

of Rule 14.5. Petitioners merely seek this Court to serve as a

‘‘super-appellate’’ court, reviewing well-settled legal principles and

factual findings which have been decided adversely to them.

REASONS FOR DENYING THE WRIT

I.

THE FIFTH CIRCUIT’S ALBERTI OPINION DOES NOT

CONFLICT WITH THIS COURT’S DECISIONS OR WITH

THE DECISIONS OF OTHER UNITED STATES COURTS OF

APPEALS DECIDING THESE SAME OR SIMILAR

MATTERS.

Petitioners’ Pennhurst and Eleventh Amendment arguments

are neither novel nc; substantial, and have been squarely addressed

previously by this Court. It is well-settled that federal district courts

have broad discretion in imposing injunctive remedial relief with

attendant ancillary costs against state officials when

25. See generally, Petitioners’ Appendix B.

12

vindicating constitutional rights.** Upon finding that Petitioners

violated Respondents’ Eighth Amendment rights, the district court

was not only authorized, but was mandated, to fashion a remedial

order to adjudicate the wrong.’’

Petitioners argue that certiorari should be granted because

Alberti conflicts with the Sixth Circuit’s opinion in Kelley v.

Metropolitan County Board of Education.** No such conflict

exists. Kelley is patently inapplicable to the factual and legal issues

raised in Alberti.

In Kelley, the Metropolitan County Board of Education sued

state officials seeking recovery of costs previously incurred

in a school desegregation case where the relief sought by the

Plaintiffs — desegregation — had been fully implemented. In

Kelley, unlike Alberti, the Sixth Circuit observed, ‘‘[t]he Tennessee

officials are not doing anything wrong; they have been joined

solely to permit one sometime constitutional wrongdoer to recover

monetary compensation from another.’’?® In Alberti, however, the

26. Milliken v. Bradley, 433 U.S. 267, 97 S. Ct. 2749, 53 L. Ed. 2d 745

(1977); Edelman v. Jordan, 415 U.S. 651, 668, 94 S. Ct. 1347, 1358, 39 L.

Ed. 2d 662 (1974); Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed.

2d 714 (1908).

27. In Ruiz v. Estelle, the same Petitioners in charge of the State’s prison

system argued that they were entitled to Eleventh Amendment immunity from

suit. The Fifth Circuit rejected the State’s Eleventh Amendment immunity claims,

holding that the ‘‘Board members are responsible as individuals, in the same

manner as the Director of TDC, for any violation of constitutional rights caused

by their management.”’ Ruiz v. Estelle, 679 F.2d 1115, 1137 (Sth Cir.), modified

in part on other grounds, 688 F.2d 266 (Sth Cir. 1982), cert. denied, 460 U.S.

1042, 103 S. Ct. 1438, 75 L. Ed. 2d 795 (1983).

28. Kelley v. Metropolitan County Board of Education, 836 F.2d 986 (6th

Cir. 1987), cert. denied, 487 U.S. 1206 (1988).

29. Kelley, 836 F.2d at 990.

13

“A

Inmate Respondents and County Respondents have not sought

the imposition of any monetary damages against the Petitioners,

nor have such damages been assessed.’°

In Kelley, unlike Alberti, the Sixth Circuit found that the

record ‘‘simply did not show that the State of Tennessee is

currently a participant in any constitutional violation.’’’' In

Alberti, in contrast, the district court held that Petitioners were

directly causing continuing deprivations of Respondents’ Eighth

Amendment rights. Petitioners’ Kelley argument also ignores the

fact that the district court found that they caused the

unconstitutionally overcrowded conditions in the Harris County

Jail facilities, ignores the fact that the prison-ready felon

population continued to grow, making it virtually impossible for

the County Respondents to remedy the overcrowding in these

facilities and hence provide constitutional conditions of

confinement to all inmates, and ignores the fact that the district

court gave Petitioners the choice of limiting the prison-ready

population in the jail facilities or expending the ancillary costs

associated with transferring those in excess of their cap to other

county detention facilities.*?

Upon review of these arguments, Judge Higginbotham

observed:

30. County Respondents’ Appendix at I & J.

31. Kelley, 836 F.2d at 995. According to the Sixth Circuit, “‘[W]Je have

searched the record of this case in vain for any demonstration that the integration

of metropolitan Nashville’s schools has been wrongfully impeded by anything

the state has done, or has failed to do, in the 1970s or 1980s. The mere fact

that Tennessee was a constitutional wrongdoer prior to 1956 does not mean

that it was still a constitutional wrongdoer when the district court entered its

order 30 years later.’’ Kelley, 836 F.2d at 993-94.

32. See Petitioners’ Appendix S & X.

14

The state also urges that the orders violate the

Eleventh Amendment because they exact monetary

rather than prospective relief. Like the Pennhurst

argument, however, this contention

mischaracterizes the orders — the plaintiffs

established a federal constitutional violation, and

’ the state is a responsible party. The required

payments are thus ‘a necessary consequence of

compliance in the future with a substantive federal

question determination.’ ... Kelley, cited

extensively by the state, is distinguishable — the

order remedying the violation in Kelley ran only

against the county, and the state was not a current

constitutional violator, yet the county sought

reimbursement from the state for the costs of the

remedial order.*?

Indeed, the Fifth Circuit’s A/berti opinion follows three cases

‘‘involv[ing] essentially identical situations’ as presented in A/berti,

including the Sixth Circuit’s Tate v. Frey decision, the Second

Circuit’s Benjamin v. Malcolm decision (wherein certiorari was

denied), and the Fifth Circuit’s Stewart v. Winter decision.** There

33. Alberti v. Sheriff of Harris County, Petitioners’ Appendix at A34-A35,

citing Edelman v. Jordan, 415 U.S. 651, 668, 94 S. Ct. 1347, 1358 39 L. Ed.

2d 662 (1974); see also, Milliken v. Bradley, 433 U.S. 267, 97 S. Ct. 2749, 53

L. Ed. 2d 745 (1977); Williams v. Edwards, 547 F.2d 1206, 1212-13 (Sth Cir.

1977); Jenkins v. Missouri, 807 F.2d 657 (8th Cir. 1986), rev’d in part on other

grounds, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974), and citing

Kelley, 836 F.2d at 990-94.

34. Alberti v. Sheriff of Harris County, Petitioners’ Appendix at A19-A22,

A34-A35, citing Stewart v. Winter, 669 F.2d 328 (Sth Cir. 1982); Benjamin

v. Malcolm, 803 F.2d 46 (2d Cir. 1986), cert. denied sub nom, Cuomo v. Koehler,

480 U.S. 910, 107 S. Ct. 1358, 94 L. Ed. 2d 528 (1987); Tate v. Frey, 735 F.2d

986 (6th Cir. 1984) (per curiam).

15

is, therefore, no conflict between the Fifth and Sixth Circuits,

or any other circuit.

THE FIFTH CIRCUIT’S ABSTENTION AND

CERTIFICATION HOLDINGS DO NOT DEPART FROM THE

ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS.

In the Fifth Circuit, Petitioners argued that the district court

should have abstained from ordering it to pay for the housing

of prison-ready felons transferred to other Texas county jail

facilities pending the ultimate resolution of the state litigation.”

Both state cases have been resolved. In each case, the state district

court found that Petitioners have a clear, mandatory, non-

discretionary duty to take and make provision for prison-ready

felons within a reasonable time after they are sentenced to the

state penitentiary or to pay for their upkeep in Texas county jail

facilities. Thereafter, the parties settled the litigation. Given the

resolution of these cases, Petitioners’ argument is now moot.

Notwithstanding the mootness of Petitioners’ argument,

Petitioners’ abstention and certification arguments wrongly

35. See Alberti v. Sheriff of Harris County, Petitioners’ Appendix at A35.

36. See County Respondents’ Appendix at A-H. Petitioners argue that since

they settled these cases before a state appellate court reviewed these decisions,

the state court pronouncement should be given no weight in the federal

proceedings. However, this Court has recognized that trial court interpretations

constitute a ruling on a question of state law which is binding on the federal

courts. See City of Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 2514, 96

L. Ed. 2d 398 (1987). Therefore, there was no necessity to abstain until a state

appellate court had had an opportunity to rule. /d.

16

attempt to elevate matters of discretion to mandatory requirements.

The Fifth Circuit’s A/berti opinion presents no departure from

settled principles which grant discretion to the lower courts in

deciding whether to postpone or decline jurisdiction under the

abstention doctrine.’’ This Court has admonished that abstention

should only be used in extraordinary and narrow circumstances

where it would clearly serve an important countervailing interest.’*

Abstention is the exception, not the rule.’® After determining that

none of the abstention theories fit the facts of Alberti, the Fifth

Circuit found that the district court ‘‘simply adopted the approach

of the only state court to have decided the issue pending a decision

by a higher state court.*°

‘*Federal abstention . . . presupposes the availability of an

37. Harman v. Forssenius, 380 U.S. 528, 85 S. Ct. 1177, 1181, 14 L. Ed.

2d 50 (1965). ‘‘If the stxte statute in question, although never interpreted by

a state tribunal, is not fairly subject to an interpretation which will render

unnecessary or substantially modify the federal constitutional question, it is

the duty of the federal court to exercise its properly invoked jurisdiction . .

Thus, ‘recognition of the role of state courts as the final expositors of state

law implies no disregard for the primacy of the federal judiciary in deciding

questions of federal law.’ ’’ Harman, 85 S. Ct. at i182 (citations omitted).

38. County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S. Ct.

1060, 1063 (1959).

39. Colorado River Water Conservation District v. United States, 424 U.S.

800, 96 S. Ct. 1236, 1244, 47 L. Ed. 2d 483 (1976).

40. Albert v. Sheriff of Harris County, Petitioners’ Appendix at A35-A36.

While an appeal! with a supersedeas stays the execution of the judgment, it does

not, until and unless reversed, detract from its decisiveness and finality. See

e.g., Huron Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183 (1941);

Fidelity St. Life Ins. Co. v. First Nat. Bank & Trust, $10 F.2d 272, 273 (Sth

Cir. 1975), cert. denied, 423 U.S. 864 (1975).

17

alternative state forum which can afford full and fair relief.’’*'

Where certain types of relief are not available in state court, or

where delay might significantly impair constitutional rights,

abstention is inappropriate.*? Petitioners erroneously characterize

this case as simply a dispute between County Respondents and

Petitioners.*? On the contrary, the dispute resolved by the lower

courts’ orders is between the Inmate Respondents and Petitioners

and is based upon federal constitutional law. In the present case

abstention would have vitiated Inmate Respondents’ federal

constitutional claims against Petitioners. Furthermore, abstention

would have prevented an adjudication of Petitioners’ liability,

leaving County Respondents strictly liable for Petitioners’ breach

of their federal constitutional duties. To impose a remedy against

one defendant without ascertaining the respective liabilities of all

defendants would have been contrary to established principles of

jurisprudence and would have contravened fundamental concepts

of due process, fairness and justice.

Petitioners urge that the district court’s injunctive remedial

orders ‘‘undermined’’ House Bill 2335’s allocation formula by

‘‘de facto giving Harris County additional beds above its allocation

formula.’’** Petitioners fail to mention, however, that the

allocation formula specifically provided for the dedication of

additional beds to counties with overcrowded jails. Petitioners

also contend that the orders removed Harris County’s financial

41. Nissan Motor Corp. v. Harding, 739 F.2d 1005, 1010 (Sth Cir. 1984),

quoting Duncan v. Poythress, 657 F.2d 691, 696 n. 5 (Sth Cir. 1981), cert. dism’d,

459 U.S. 1012, 103 S. Ct. 368, 74 L. Ed. 2d 504 (1982).

42. Nissan Motor Corp., 739 F.2d at 1010-11 (citations omitted).

43. E.g., Petitioners’ Petition at 19-20.

44. Petitioners’ Petition at 21.

siaiatietciemnieeacineiaeemeettmeilll

18

burden of supporting inmates sentenced to state prison in excess

of Harris County’s allocation.*’ In Harris County v. State of

Texas, the state district court not only found that House Bill 2335

and its allocation formula in no way relieved or excused

Petitioners’ financial liability for prison-ready felons, but also

held that Petitioners unconstitutionally used ad valorem tax money

collected by Harris County.** Even assuming arguendo, if there

were a complex state regulatory scheme for sentencing and housing

convicted felons, Burford would not require abstention.*’ No

doctrine requires abstention merely because resolution of a federal

question may result in the overturning of a state policy.**

Petitioners also argue that the Fifth Circuit abused its

discretion in not attempting to certify the state law questions to

the Texas Supreme Court. Certification is not mandated but is

discretionary and provides no basis for this Court’s review.

Il.

THE WILSON V. SEITER ISSUE

This Court should deny Petitioners’ application for certiorari

on the Wilson v. Seiter issue because their contentions are presently

pending before the Fifth Circuit, because Petitioners essentially

ask this Court to serve as a fact-finder and because Petitioners’

Petition misstates the record and holdings relating to this issue.

45. Petitioners’ Petition at 21-22.

46. See, e.g., County Respondent’s Appendix G at page 53a.

47. New Orleans Public Service v. Council of New Orleans, 109 S. Ct.

2506, 2514 (1989), citing Burford v. Sun Oil Co., 319 U.S. 315, 63 S. Ct. 1098

(1943).

48. Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 678 n. 5 (1978).

19

Petitioners’ Wilson v. Seiter contentions are not ripe for this

Court’s determination of certworthiness because they are presently

pending before the Fifth Circuit after remand.“ The Fifth Circuit’s

July 25, 1991 opinion remanded A/berti to the district court for

its entry of findings regarding the ‘‘deliberate indif ference’’ issue

in light of Wilson v. Seiter.*° On August 7, 1991, the Alberti court

found that the Petitioners were deliberately indifferent.*'

Petitioners’ appeal from this finding is presently pending before

the Fifth Circuit. This finding is not of ‘‘such imperative public

importance to justify deviation from normal appellate practice

and to require settlement in this Court.’’”’

Furthermore, Petitioners are essentially asking this Court to

decide factual issues, as evidenced by their extensive citation to

the Alberti court transcripts on pages 25 and 26 of their petition

for writ of certiorari. Petitioners are requesting that this Court

decide issues of fact concerning the reasonableness of the use of

state mechanisms, such as the Prison Management Act. This Court

would have to decide these factual issues before it could reach

the legal issues implicated in Alberti. This Court is a ‘‘court of

law... . rather than a court for correction of errors in fact finding,

[and] cannot undertake to review concurrent findings of fact by

two courts below in the absence of a very obvious and exceptional

showing of error.’’’’

49. Wilson v. Seiter, 111 S. Ct. 2321 (1991).

50. Alberti v. Sheriff of Harris County, Petitioners’ Appendix A490.

$1. See Petitioners’ Appendix J.

$2. See S. Cr. R. 11.

53. Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271,

69 S. Ct. 535, 538, 93 L. Ed. 2d 672 (1949).

20

Finally, Petitioners’ Wilson v. Seiter argument should be

summarily denied because their argument misrepresents the A/berti

record and misstates the Fifth Circuit’s holdings. Petitioners boldly

claim that nothing in the A/berti record suggests that they knew

about the conditions in the Harris County Jail facilities prior to

September, 1989.°* Without even attempting a foray into the

Alberti testimony and exhibits, the A/berti pleadings themselves

reveal that Petitioners knew about the conditions in the Harris

County jail facilities in October, 1988, when the Harris County

Sheriff sent letters to Petitioner James Lynaugh, pleading for

removal from the jail of the State’s convicted felons. The district

court’s November 8, 1988 order directing the Sheriff to transfer

prison-ready felons to the State’s prison, County Respondents’

December 12, 1989 motion to join Petitioners as Third Party

Defendants, County Respondents’ January 13, 1989 third party

complaint and every one of the scores of Alberti pleadings filed

before September, 1989, as well as the August, 1989 trial, gave

Petitioners ample notice of the conditions of confinement in the

Harris County Jail facilities.

Petitioners did not accurately restate the Fifth Circuit’s

discussion of the various methods by which they could have

Satisfied their duties to the Inmate Respondents.** Contrary to

the two-item list given by Petitioners, the Fifth Circuit enumerated

several ‘‘common sense solutions’’ and directed Petitioners to other

solutions specified in a district court order.**

Petitioners argue that this Court must affirm a cost defense

under Wilson v. Seiter because the Texas Legislature ‘‘resolved

54. Petitioners’ Petition at 23-24.

55. Petitioners’ Petition at 24.

56. Alberti v. Sheriff of Harris County, Petitioner’ Appendix at A30-31.

21

to build a set number of beds and ailocate that capacity.’’*’

Petitioners neglect to acknowledge that they made no efforts to

seek additional funding from the state legislature when confronted

with the overcrowding problem.** Accordingly, they failed to make

any showing that a ‘‘recalcitrant legislature was the culprit.’’*

Petitioners assert that Ruiz court orders prohibited their use

of temporary housing ‘‘such as tent cities,’ and claim that “efforts

to modify those orders have proved unsuccessful.’’* Petitioners

failed to note that they have disregarded open invitations from

the Fifth Circuit to seek modification of their Ruiz cap, and that

their previous efforts to modify that cap included only one attempt

in 1986, a year after they signed their overcrowding stipulation

agreement in Ruiz.*' These and other misstatements and

inaccuracies require summary denial of Petitioners’ Petition.

IV.

CONSTITUTIONAL CAPACITY

Petitioners have no standing to complain about the

constitutional capacity limitations placed on the Harris County

Jail facilities. No pending A/berti order imposes injunctive relief

against Petitioners in conjunction with the district court’s

determination of the constitutional capacity of the jail facilities.

57. Petitioners’ Petition at 25.

$8. Oct. 20, 1990 Tr. Vol. 1 at 66, Il. 18-25.

§9. Alberti v. Harris County, Petitioners’ Appendix at A31.

60. Petitioners’ Petition at 25.

61. See County Respondents’ Appendix at K; Ruiz v. Lynaugh, 811 F.2d

856 (Sth Cir. 1987).

22

Furthermore, after only a passing reference to this issue in their

Fifth Circuit brief, Petitioners did not fully brief this issue. They

cannot, therefore, raise this issue before this Court.

V.

PETITIONERS’ FAILURE TO ACCURATELY PRESENT THE

LOWER COURTS’ FACTUAL FINDINGS AND LEGAL

HOLDINGS

‘*The failure of a petitioner to present with accuracy, brevity,

and clearness whatever is essential to a ready and adequate

understanding of the points requiring consideration will be a

sufficient reason for denying the Petition.’’*? County Respondents

are constrained to catalog the most blatant misstatements made

by Petitioners made in violation of this Court’s rules.

Petitioners state that the Texas Legislature, on ‘‘three

occasions, failed to pass bills to compensate Texas counties for

holding convicted felons.’’*? They failed to note, however, that

these bills never made it to the floor of the Legislature.®* Petitioners -

urge that ‘‘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. . .’’** The

Statute does not state this proposition, and the state court has

ruled that Article 6166a-4, the allocation formula, does not change

62. See, S. Ct. R. 14.5.

63. Petitioners’ Petition at 6.

64. Alberti v. Harris County, Petitioner’ Appendix at A27.

65. Petitioners’ Petition at 7 (emphasis in Petition), citing Tex. Gov’t Code

§ 499.071 (Vernon Supp. 1992).

23

Petitioners’ duties owed to convicted felons.*°

Petitioners maintain that House Bill 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 alternatives while at the same time

forcing local governments to fund the cost of their own transfer-

eligible inmates.’’*’ Neither House Bill 2335, nor its legislative

history, supports the highlighted portion of this proposition.**

In support of their arguments, Petitioners cite a Special

Master’s report which has not been adopted by the district court,

and which is not properly part of the record in this Court.®* Citing

this report, Petitioners state that they have built or funded a grand

total of 62,849 beds since 1984. They fail to add that the report

references only the gross number of beds brought on line by

Petitioners, while ignoring their own Ruiz depopulation

agreements. They fail to acknowledge that they provided a net

increase of only three prison beds in the state’s penitentiary

between 1982 and 1987, and a net increase of only 11,771 prison

beds between 1982 and 1991.

Contrary to Petitioners’ contentions, neither the legisiative

history of House Bill 93 nor the settlements of the state cases

indicated that the State was liable for prisoner transfers only after

October 1, 1991.’°

66. County Respondents’ Appendix at A-H.

67. Petitioners’ Petition at 8 (emphasis added).

68. See County Respondents’ Appendix at A-H.

69. Petitioners’ Petition at 8. Petitioners also cite a transcript of remarks

which is not properly before this Court. /d. at 14.

70. Compare, ?etitioners’ Petition at 10.

24

These and the other examples of misstatements made by

Petitioners included in this brief compel summary denial of

Petitioners’ Petition.

CONCLUSION

While every case involving the deprivation of constitutional

rights is important, Petitioners have failed to establish any special

and important reasons for this Court to grant certiorari in this

case. County Respondents therefore ask this Court to deny

Petitioners’ Petition for Writ of Certiorari.

Respectfully submitted,

LISA S. RICE

Counsel of Record

KERRIE J. QUALTROUGH

HAROLD M. STREICHER

Assistant County Attorneys

Attorneys for County Respondents

MIKE DRISCOLL

County Attorney

Of Counsel

la

APPENDIX A — FINDINGS OF FACT AND CONCLUSIONS

OF LAW DATED NOVEMBER 26, 1990 — THE COUNTY OF

NUECES v. TEXAS BOARD OF CORRECTIONS

IN THE DISTRICT COURT

TRAVIS COUNTY, TEXAS

250th JUDICIAL. DISTRICT

NO. 452,071

THE COUNTY OF NUECES, TEXAS,

Reiator,

vs.

TEXAS BOARD OF CORRECTIONS; CHARLES T.

TERRELL; JERRY H. HODGE; F. L. STEFHENS; DERALYN

DAVIS: JAMES ELLER: DENNIS R. HENDRIX; JOE V.

LAMANTIA, JR.; ROBERT MANN; ALLAN B. POLUNSKY;

JAMES A. LYNAUGH,

Respondents.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above-captioned cause came on for trial before the Court

without a jury in several proceedings. Partial summary judgment

was rendered in favor of Plaintiff/Relator and Intervenors (the

Counties). Evidentiary hearings were held on October 2-5, 1989

on Defendants/Respondents’ impossibility defense; on April

30-May 2, 1990 on what constitutes a reasonable amount of time

after sentencing for the State to take its prisoners or to begin

compensating the Counties and what constitutes reasonable

compensation per prisoner day when the State does not take the

prisoners; and on August 8, 1990 on whether the amount of time

and compensation found to be reasonable prior to the adoption

—————

2a

Appendix A

of the allocation formula on March 2,1990 pursuant to House

Bill 2335 was reasonable thereafter. All parties were present

through their attorneys at all trial proceedings. After considering

the pleadings, the evidence, the argument and briefs from counsel,

the Court in response to a request from the State makes its findings

of fact and conclusions of law as follows:

FINDINGS OF FACT

1. This cause was commenced by Nueces County seeking a writ

of mandamus to compel the Texas Board of Corrections; the

members of the Texas Board of Corrections; and James A.

Lynaugh, Executive Director of the Texas Department of

Corrections, to take and to make provision for prisoners sentenced

to confinement in the State penitentiary (‘‘State prisoners’’) who

were being held in the county jail (or in the jail of another entity

under contract).

2. Seeking the same relief as Nueces County, the Counties of

Bexar, Collin, Dallas, El Paso, Galveston, Hidalgo, Hunt,

Lubbock, Tarrant, Travis and Victoria intervened (these counties

together with Nueces County are referred to as ‘‘Counties’’).

3. The Counties demanded that Respondents carry out their duty

to take prisoners within a reasonable time after sentencing to

confinement in the State penitentiary and the Counties’ demands

were refused.

4. The Counties continue to hold state prisoners in their jails or

in the jails of other entities under contract.

5. During the pendency of these proceedings, the Texas Board

of Corrections and the Texas Department of Corrections were

3a

Appendix A

replaced by successors.

6. The Texas Board of Criminal Justice is the successor to the

Texas Board of Corrections and the Texas Department of Criminal

Justice is the successor agency to the Texas Department of

Corrections.

7. The State prison system is now operated by the Institutional

Division of the Texas Department of Criminal Justice.

8. All the members of the former Board of Corrections were

appointed to its successor, the Texas Board of Criminal Justice,

and James A. Lynaugh was appointed by the new Board as

Executive Director of the successor agency, the Texas Department

of Criminal Justice.

9. The members of the Texas Board of Criminal Justice, the

Executive Director of the Texas Department of Criminal Justice,

and the Director of the Institutional Division of the Texas

Department of Criminal Justice along with the respective Board,

Department, and Division are Respondents in this action.

(Respondents are hereafter jointly referred to as ‘‘TDC.’’)

10. Lack of joinder of all Texas counties and State prisoners in

county jails does not impair or impede the ability of such parties

to protect their interests.

11. The Crowding Stipulation in Ruiz v. Lynaugh, Civil Action

No. H-78-987 (S.D. Tex.) (hereinafter ‘‘Ruiz’’) represents a

settlement agreement entered by ine State which, among other

things, limits the State penitentiary inmate population.

12. It is not impossible for TDC to carry out its mandatory duty

ta

Appendix A

to take State prisoners within a reasonable time after the prisoners

are sentenced to serve a term in the State penitentiary.

13. A number of means of carrying out the mandatory duty to

make provision for convicted felons are available to TDC

including: a) contracting with private vendors, local governmental

entities such as counties, or the federal government; b) use of

the Prison Management Act, furloughs, and good conduct time

to control prison pgpulation administratively; c) seeking reasonable

modification of the crowding stipulation in Ruiz in good faith;

and/or d) use of appropriated funds or seeking additional funds

to perform this nondiscretionary obligation.

14. TDC has not compensated the Counties for holding State

prisoners that TDC should have taken.

15. A demand by the Counties for payment of compensation from

TDC for holding State prisoners would have been futile.

16. TDC was given opportunity to set an amount it deemed to

be reasonable compensation to the Counties for carrying out the

mandatory duty on which TDC had defaulted.

17. TDC refused to set an amount of reasonable compensation

and requested a jury trial on this issue which was granted but

was later withdrawn by TDC in favor of a trial before the Court

without a jury.

18. TDC was given opportunity to set an amount of time that

it considered to be a reasonable amount of time after sentencing

for TDC to take its prisoners or to begin compensating the

Counties that are providing for the prisoners because of the TDC’s

default.

Sa

Appendix A

19.TDC refused to set an amount of reasonable time and requested

a jury trial on this issue which was granted but was later withdrawn

by TDC in favor of a trial before the Court without a jury.

20. The reasonable value of the services provided by the Counties

in holding State prisoners that TDC should have taken is $40.00

per prisoner per day.

21. An amount of compensation to the Counties of less than the

reasonable value of services provided in holding State prisoners

would be an inceritive to TDC to continue to impose its mandatory

duty by default on the Counties which are unwilling and

unauthorized to accept that duty.

22. A reasonable amount of time after sentencing for TDC to

either take the State prisoners or begin compensating the Counties

who hold the prisoners because of the TDC’s default is seven days.

23. TDC’s failure and refusal to carry out their duty to take State

prisoners caused a backlog of State prisoners in the Counties’

jails or in facilities with which the Counties contracted and made

it futile for the Counties to timely prepare transfer paperwork

and present prisoners to TDC for admission to the State

penitentiary.

24. From September 28, 1987 through March 1, 1990, TDC’s

Scheduled Admissions Policy allocated to the Counties a portion

of the total capacity available in TDC’s prison facilities.

25. Effective March 2, 1990, the allocation formula adopted by

TDC pursuant to Tex. Rev. Civ. Stat. Ann. art. 6166a-4 (Vernon

Supp. 1990) allocates to the Counties a portion of the total capacity

available in TDC’s prison facilities.

Appendix A

26. The number of prisoner days for which TDC is required to

compensate the Counties for the period from September 28, 1987

through February 28, 1990 is as follows:

Bexar

Collin

Dallas

E] Paso

Galveston

Hidalgo

Hunt

Lubbock

Nueces

Tarrant

Travis

Victoria

403,750

77,318

848,740

220,367

86,038

63,013

20,717

92,198

143,266

377,021

170,987

4,621

27. The aggregate amount of compensation owed by TDC to the

Counties for the period from September 28, 1987 through February

28, 1990 is as follows:

Bexar

$16,150,000

Collin

Dallas

FE] Paso

Galveston

Hidalgo

Hunt

Lubbock

Nueces

Tarrant

Travis

Victoria

7a

Appendix A

3,092,720

23,949,600

8,814,680

3,441,520

2,520,520

828,680

3,687,920

5,730,640

15,080,840

6,839,480

184,840

28. The number of prisoner days and amounts of compensation

listed in these findings do not include any prisoners (a) returned

to county jail on bench warrants awaiting further proceedings,

(b) awaiting trial in state court on the remainder of multiple

charges, (c) placed in county jail pursuant to blue warrants prior

to parole revocation proceedings, (d) being held on federal

detainers awaiting trial in federal court, and (e) pending appeal

of sentences of ten years or less who have not exercised their right

to be transferred to the State penitentiary immediately upon

sentencing.

a

8a

Appendix A

29. The $40 per prisoner per day compensation figure and the

7 day period from sentencing for compensation to accrue are

reasonable for periods occurring from and after March 2, 1990.

30. The backlog of State prisoners in county jails has had the

following effect: a) detrimentally affected the provision of local

law enforcement services; b) diluted any deterrent effect that felony

convictions might otherwise have on persons on whom prison terms

are imposed by state judges and juries because their sentences

are not being carried out with reasonable dispatch and certainty;

and c) further eroded public confidence in Texas’ criminal justice

system.

31. The Counties’ records regarding the number of State prisoners

backlogged and the amount of time such prisoners were held in

county jails and summaries of such records were examined by

TDC’s expert auditors from Price Waterhouse, and the number

of prisoner days contained in these findings is consistent with

the calculations made by Price Waterhouse for TDC.

32. A conservative estimate of the cost to TDC if TDC had taken

actual physical custody of the State prisoners involved in this action

is at least between $37.00 and $47.00 per prisoner per day.

33. The Crowding Stipulation which is the consent agreement in

Ruiz in which TDC agreed not to exceed capacity limits set out

therein has been modified on several occasions pursuant to TDC’s

good faith requests for modification.

34. TDC’s request for modification in Ruiz v. Lynaugh, 811 F.2d

856 (Sth Cir. 1987), with regard to use of the Fort Wolters

substandard facilities was not a reasonable request because of

the serious deficiencies in those facilities.

9a

Appendix A

35. TDC has taken a proactive role in requesting additional funds

to comply with the agreements and orders in Ruiz v. Lynaugh,

Civil Action No. H-78-987 (S. D. Tex.).

36. Despite their awareness of the backlog in county jails of State

prisoners, TDC has not requested funds to provide for these State

prisoners.

37. The federal court orders on which TDC bases its res judicata,

collateral estoppel, and issue preclusion defenses do not reach

the issue of TDC’s duty to take State prisoners or to compensate

the Counties for holding State prisoners.

38. A proposed amendment to Title 108, Revised Civil

Statutes,adding article 6166a-3 which provided that the Texas

Department of Corrections was not required to accept an inmate

if such acceptance would cause the Texas Department of

Corrections to exceed ninety-five percent of its capacity was

rejected by the 71st Legislature.

39. The only documents required under article 42.09 of the Code

of Criminal Procedure prepared after judgment and sentencing

are the standardized felony judgment form and the statement of

facts form which is required only if the standardized felony

judgment form has not been modified to include citation to the

Penal Code or other provision under which the convicted felon

was sentenced to serve a term in the State penitentiary.

40. The standardized felony judgment form, which is used by

all of the State district courts for sentencing persons to the State

penitentiary, can be completed in five minutes or less.

41. All other documents provided pursuant to article 42.09 of

es

10a

Appendix A

the Code of Criminal Procedure including the offense report,

indictment, arrest record, change of venue statement, and criminal

history are prepared prior to judgment and sentencing.

42. Even if the paperwork required by article 42.09 of the Code

of Criminal Procedure is submitted to TDC prior to prisoners’

transfer to the Institutional Division of the Texas Department

of Criminal Justice, the paperwork is not reviewed or officially

accepted until the prisoners are actually physically accepted by

TDC at the Diagnostic Unit of the Institutional Division of the

Texas Department of Criminal Justice.

43. Some of the alternatives availabie to TDC to take and make

provisions for State prisoners are politically unpopular.

44. A backlog of State prisoners in county jails, which at some

times amounted to approximately one-fourth of all convicted

felons, was created by TDC’s refusal to carry out its mandatory

duty.

CONCLUSIONS OF LAW

1. This mandamus action is not precluded or otherwise barred

by sovereign immunity.

2. A mandamus action to compel TDC to carry out its mandatory

duty is not a suit against the State.

3. Adequate relief can be granted in this case without the joinder

of all Texas counties and all State prisoners in county jails.

¢ . .

4. TDC has a clear, mandatory, non-discretionary legal duty to

take and make provision for State prisoners in the categories

lla

Appendix A

involved in this case within a reasonable time after they are

sentenced to confinement in the State penitentiary.

5. The Counties — having established that TDC has a mandatory

duty to take and make provision for such prisoners within a

reasonable time, that the Counties have demanded that TDC

perform its mandatory duty, and that TDC has refused their

demands — have established the necessary elements for the

granting of a writ of mandamus.

6. The burden of proof to establish impossibility or any other

defense is on TDC.

7. TDC has not established impossibility or any other defense

to the issuance of a writ of mandamus.

8. Neither TDC’s Scheduled Admissions Policy, the Crowding

Stipulation, nor any order issued in Ruiz preempts, modifies or

nullifies TDC’s State law duty to make provisions for the sentenced

felons involved in this case nor prohibits the granting of

mandamus.

9. The Counties have no adequate remedy at law other than this

mandamus action.

10. TDC has authority to plan for prison population pressures

and to carry out its mandatory duty to take and to make provision

for convicted felons through various means.

11. Means available to TDC to carry out its mandatory duty to

take and to make provision for State prisoners include: a)

transferring funds between fiscal years and appropriations for

various programs administered, supervised and operated by the

12a

Appendix A

Texas Department of Criminal Justice and the Texas Board of

Criminal Justice; b) contracting with private vendors, counties,

or the federal government to care for prisoners sentenced to the

State penitentiary; c) greater or continuous use of the Prison

Management Act, furloughs, or good conduct time.

12. The political unpopularity of some of the alternatives available

to TDC to carry out their mandatory duty does not make it

impossible for TDC to utilize these or other alternatives to perform

its duty.

13. Counties are authorized to act only pursuant to statutory or

constitutional provisions directly imposing duties on counties or

necessarily implied in order to carry out such constitutionally or

Statutorily imposed duties.

14. No statutory or constitutional provisions or other law transfers

to the Counties TDC’s mandatory duty to take and to make

provisions for the categories of prisoners involved in this case.

15. TDC has a clear, mandatory, nondiscretionary duty to make

provisions for the proper care, treatment, feeding, clothing, and

management of the prisoners involved in this case.

16. Inherent in and integral to TDC’s duty to accept and to make

provisions for the care and management of the prisoners involved

in this action is the financial responsibility for the carrying out

of TDC’s duty.

17. TDC’s default in performing its duty to make provisions for

the care and management of the prisoners involved in this case

does not transfer to the Counties TDC’s duty or the financial

responsibility for carrying out that duty.

l3a

Appendix A

18. TDC has a mandatory duty to compensate the Counties for

services provided by the Counties in holding State prisoners that

TDC should have taken.

19. Payment of compensation by TDC to the Counties may be

mandated by this Court because TDC has failed to take the

prisoners or to be financially responsible for them when it has

a clear, mandatory, nondiscretionary duty to do so.

20. A writ of mandamus may issue against TDC to raise revenue

to carry out its mandatory duty even though exactly how the

revenue is to be raised may be left up to TDC, and even though

TDC may have to look at third parties as a source of revenue.

21. TDC must seek and obtain or raise the revenues necessary

to carry out its mandatory duty and to compensate the Counties

when the Counties are required to hold State prisoners because

of TDC’s default.

22. An effective judgment and peremptory writ of mandamus

in this action require the inclusion of provisions ordering TDC

to compensate the Counties when they are holding State prisoners

because of TDC’s default in carrying out its mandatory duty to

make provisions for such prisoners.

23. This action is a mandamus action is not an action for damages

sounding in contract or tort.

24. The compensation awarded in this case is incident to this

mandamus action and is not an award of damages.

25. Res judicata, collateral estoppel, or issue preclusion do not

bar this action or constitute a defense-to the issuance of a judgment

l4a

Appendix A

and peremptory writ of mandamus against TDC in this mandamus

action.

26. Where, as in the instant case, a demand for performance of

a mandatory duty would be futile the usual requirement for a

formal demand and refusal may be dispensed with in a mandamus

action.

27. TDC’s duty to take and make provisions for the categories

of prisoners involved in this action continues after the adoption

of an allocation formula pursuant to Tex. Rev. Civ. Stat. Ann.

art. 6166a-4 (Vernon Supp. 1990).

28. The Counties’ failure to prepare and present to TDC the

paperwork required to accompany prisoners transferred to the

State penitentiary does not relieve TDC of its mandatory duty

to make provisions for such prisoners within a reasonable time

after their sentencing to terms in the State penitentiary because

preparation and presentation of such paperwork would have been

futile.

29. The adoption of an allocation formula under Tex. Rev. Civ.

Stat. Ann. art. 6166a-4 (Vernon Supp. 1990) does not shift or

transfer TDC’s mandatory duty to the Counties.

30. The measure of compensation to be paid to the Counties is

the reasonable value of the services the Counties have provided

in holding State prisoners that TDC should have taken.

31. The measure of what constitutes a reasonable time for TDC

to either take the prisoners or c. npensate the Counties holding

the prisoners because of TDC’s default is the amount of time

it would reasonably take to perform the task of preparing the

transfer paperwork and arranging for the transportation of the

15a

Appendix A

prisoners if TDC were accepting the prisoners.

32. The paperwork requirements authorized by article 42.09 of

the Code of Criminal Procedure do not alter or nullify TDC’s

duty to carry out judgments sentencing prisoners to the State

penitentiary but rather create procedural and administrative

requirements that are to be met at the time that prisoners are

actually physically transported and transferred to the State

penitentiary.

33. TDC is not required to compensate the Counties for days

that State prisoners are held by the Counties pending parole

revocation hearings, trial on other offenses, appeals of sentences

of ten years or less when the prisoners have not elected to be

transferred to the State penitentiary immediately upon sentencing,

or dispositions of matters for which such prisoners are being held

at the request of federal law enforcement authorities.

34. TDC’s duty to take State prisoners or to compensate the

Counties for holding such prisoners continues after March 2, 1990,

as well as before that date.

35. TDC is liable for post-judgment interest at the rate of 10%

in accordance with Tex. Rev. Civ. Stat. Ann. art. 5069-1.05

(Vernon Supp. 1980).

36. TDC is liable for costs of suit.

Signed this 26th day of November, 1990.

s/ Joseph H. Hart

JOSEPH H. HART

Judge Presiding

Travis County, Texas

——————————————————

l6a

APPENDIX B — JUDGMENT DATED AUGUST 22, 1990 —

THE COUNTY OF NUECES v. TEXAS BOARD OF

CORRECTIONS

No. 452,071

IN THE DISTRICT COURT, TRAVIS COUNTY, TEXAS

250TH JUDICIAL DISTRICT

THE COUNTY OF NUECES, TEXAS,

Relator,

VS.

TEXAS BOARD OF CORRECTIONS; CHARLES T.

TERRELL; JERRY H. HODGE; F. L. STEPHENS: DERALYN

DAVIS; JAMES ELLER; DENNIS R. HENDRIX; JOE V.

LAMANTIA, JR.; ROBERT MANN; ALLAN B. POLUNSKY;

JAMES A. LYNAUGH,

Respondents.

JUDGMENT

The above entitled cause came on for hearing before this

Court on October 2 through 5, 1989, and April 30 through May

2, 1990. Relator Nueces County, Texas, and Intervenors, Bexar,

Collin, Dallas, El Paso, Galveston, Hidalgo, Hunt, Lubbock,

Tarrant, Travis and Victoria Counties, Texas, (the Counties)

appeared through their attorneys, and Respondents, Texas Board

of Criminal Justice (successor to the Texas Board of Corrections),

Charles T. Terrell, Jerry H. Hodge, F. L. Stephens, Ben Gallant,

Jr., James Eller, Pedro Diaz, Jr., Mamie Proctor, Robert Mann,

Allan B. Polunsky, members of the Texas Board of Criminal

— el

17a

Appendix B

Justice, James A. Lynaugh, Executive Director of the Texas

Department of Criminal Justice, and James A. Collins, Director

of the Institutional Division of the Texas Department of Criminal

Justice, appeared through their attorney.

On April 18, 1989, and September 9, 1989, this Court granted

partial summary judgment finding that Respondents had a

mandatory, non-discretionary duty to take custody of prisoners

sentenced by a trial court to the custody of Texas Department

of Corrections (‘‘TDC’’) or to its successor agency, the Texas

Department of Criminal Justice (“‘TDCJ’’).

After presentation of testimony, evidence and argument of

counsel at the October 2 through 5, 1989 hearing, the Court found

that Respondents had not established legal impossibility or any

other defense that would prevent issuance of a writ of mandamus.

The €ourt also found that Respondents must reasonably

compensate Relator and Intervenor Counties (the ‘*Counties’’)

for holding such prisoners if Respondents failed to take custody

of such prisoners within a reasonable time.

After presentation of testimony, evidence and argument of

counsel at the April 30 through May 2, 1990 hearing regarding

what constitutes reasonable compensation and a reasonable time

to take prisoners, the Court found that Respondents shall

compensate Relator and Intervenor Counties for holding prisoners

at the rate of Forty Dollars ($40.00) per day for each prisoner

sentenced to the custody of the TDC or its successor agency,

TDCJ; and further found that the compensation owed by the

Respondents should begin to accrue seven (7) days after the date

of the judgment and sentence of the court ordering confinement

in the TDC or TDCJ. The evidence regarding the number of days

that such prisoners were held in the Counties’ jails after sentencing

—————

18a

Appendix B

for the period beginning September 28, 1987 up to and including

February 28, 1990 was uncontrovered by the parties.

The Court has further found that Respondents’ adoption

effective March 2, 1990, of an allocation formula under the

provisions of Tex. Rev. Civ. Sta. Ann. art. 6166a-4 (Vernon Supp.

1990) does not alter or shift to the Counties the Respondents’

duty to take prisoners sentenced to the custody of the TDC or

TDCJ, or to compensate the Counties for holding such prisoners.

After presentation of further testimony, evidence and

argument of counsel at a hearing on August 8, 1990 concerning

the applicability of the Forty Dollar ($40.00) amount and seven

(7) day period after March 2, 1990, the effective date of the

allocation formula, the Court found that after the adoption of

the allocation formula Respondents shall compensate Relator and

Intervenor Counties at the rate of Forty Dollars ($40.00) per day

for each prisoner sentenced to the custody of the TDC or its

successor agency, TDCJ; and further found that the compensation

owed by the Respondents for post allocation formula periods

should begin to accrue seven (7) days after the date of the judgment

and sentence of the court ordering confinement in the TDC or

TDCJ.

ACCORDINGLY, the Court is of the opinion that judgment

should be rendered in favor of the Counties and that a Writ of

Mandamus should be issued to compel Respondents to perform

said duty.

IT IS, THEREFORE, ORDERED:

1. That a preemptory Writ of Mandamus issue

directing and commanding Respondents, Texas Board of

19a

Appendix B

Criminal Justice, Charles T. Terrell, Jerry H.

Hodge, F. L. Stephens, Ben Gallant, James Eller,

Mamie Proctor, Robert Mann, Allan B. Polunsky,

James A. Lynaugh, and James A. Collins to cause

the Texas Department of Criminal Justice to

provide for the care and custody of all prisoners

sentenced by a court of competent jurisdiction to

the TDCJ or to its predecessor, the TDC, or to

compensate the Counties at a rate of Forty Dollars

($40.00) per day for each such prisoner held in

the Counties’ jails (including prisoners held in

facilities with which the Counties have contracted)

and to raise any revenue necessary to pay such

compensation.

2. That Respondents’ duty to provide for the

care and custody of prisoners sentenced to the

TDCJ or to its predecessor, TDC, or to pay

compensation to the Counties for holding such

prisoners, shall begin seven (7) calendar days after

issuance of judgment sentencing and committing

such prisoners to the TDCJ, or to its predecessor,

the TDC.

3. That Respondents shall pay to the Counties

the following amounts as the aggregate amount

of compensation due to each County for all periods

beginning September 28, 1987 up to and including

February 28, 1990, for holding prisoners that were

Respondents’ responsibility under this Judgment:

Nueces $ 5,730,640

Bexar $16,150,000

20a

Appendix B

Collin $ 3,092,720

Dallas $33,949,600

El Paso $ 8,814,680

Galveston $ 3,441,520

Hidalgo - $ 2,520,520

Hunt $ 828,680

Lubbock $ 3,687,920

Tarrant $15,080,840

Travis $ 6,839,480

Victoria $ 184,840

4. That Respondents shall pay to the Counties

compensation in accordance with this Judgment

for prisoners held by the Counties on or after

March 1, 1990, that are the responsibility of

Respondents. In computing the prisoner days for

which compensation is owed from Respondents

to the Counties, the Counties shall exclude days

during which prisoners have elected, to the extent

permitted by law, to remain in county jail; and

days that prisoners are confined in county jail

awaiting resolution of other judicial proceedings

(e.g., persons on bench warrants or who are subject

to detainer) prior to transfer to the TDCJ or its

predecessor, the TDC.

5. That the Counties shall submit invoices to

Respondents for payment of compensation for

prisoners held by the Counties on or after March

1, 1990 (including prisoners held in facilities with

which the Counties have contracted), for which

Respondents are responsible under this Judgment,

together with copies of the judgments of

2la

Appendix B

commitment to the TDCJ or to its predecessor,

the TDC, that correspond to the prisoners covered

by the invoices.

6. That the Counties’ invoices for

compensation for the period from and after March

1, 1990 to the date of entry of this Judgment, shall

be presented to Respondents by each County by

submitting the invoice to the Director of the Texas

Department of Criminal Justice by the last day

of the month following the month in which this

Judgment is entered. Thereafter, the Counties’

invoices for compensation shall be presented by

each County to Respondents by submitting the

invoice to the Director of the Texas Department

of Criminal Justice by the last day of the month

following the month in which compensation to the

County accrues under this Judgment.

7. That the Judgment hereby rendered shall

bear interest in accordance with Tex. Rev. Civ.

Stat. Ann. art. 5069-1.05 (Vernon Supp. 1990) at

the rate of ten percent (10%) from the date of

judgment until paid.

8. That costs of suit be taxed against

Respondents.

- IT IS FURTHER ORDERED that Respondents shall not by

this Judgment be relieved of carrying out their obligations under

any other relevant order issued by a court of competent

jurisdiction, including the agreed orders Respondents have entered

into in Ruiz v. Lynaugh, No. 78-087-CA; provided, however, that

22a

Appendix B

Respondents shall not be precluded from seeking modifications

to such orders.

This Judg,.ient should not be considered to contain findings

of facts or conclusions of law.

SIGNED this 22nd Day of August, 1990

s/ Joseph H. Hart

JOSEPH H. HART, Judge

126th Judicial District Court

Travis County, Texas

APPROVED AS TO FORM:

HONORABLE JIM MATTOX

ATTORNEY GENERAL OF TEXAS

By:

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division™

State Bar No. 09754000

Texas Attorney General’s Office

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2080

23a

APPENDIX C — PEREMPTORY WRIT OF MANDAMUS

DATED AUGUST 22, 19909 — THE COUNTY OF NUECES

v. TEXAS BOARD OF CORRECTIONS

NO. 452,071

IN THE DISTRICT COURT, TRAVIS COUNTY, TEXAS

250TH JUDICIAL DISTRICT

THE COUNTY OF NUECES, TEXAS,

Relator,

VS.

TEXAS BOARD OF CORRECTIONS; CHARLES T.

TERRELL; JERRY H. HODGE; F. L. STEPHENS; DERALYN

DAVIS; JAMES ELLER; DENNIS R. HENDRIX; JOE V.

LAMANTIA, JR.; ROBERT MANN; ALLAN B. POLUNSKY;

JAMES A. LYNAUGH,

Respondents.

PEREMPTORY WRIT OF MANDAMUS

On April 18, 1989 and September 9, 1989 this Court granted

partial summary judgment in the above numbered and styled cause

finding the Respondents, Texas Board of Criminal Justice, Charles

T. Terrell, Jerry H. Hodge, F. L. Stephens, Ben Gallant, Jr.,

James Eller, Pedro Diaz, Jr., Mamie Proctor, Robert Mann, Allan

B. Polunsky, James A. Lynaugh, and James A. Collins have a

mandatory, nondiscretionary duty to take custody of inmates

sentenced by a trial court to the custody of Texas Department

of Corrections or its successor agency Texas Department of

Criminal Justice.

24a

Appendix C

On October 2-5, 1989 and April 30-May 2 and August 8,

1990, in hearings in the above-numbered and styled cause this

Court further found that Respondents had not established legal

impossibility or any of the defenses that would preclude issuance

of a writ of mandamus and that Respondents have a duty to

reimburse the Relator Nueces County, Texas and Intervenors ©

Bexar, Collin, Dallas, El Paso, Galveston, Hidalgo, Hunt,

Lubbock, Tarrant, Travis, and Victoria Counties, Texas

(‘‘Counties’’) by paying them reasonable compensation in the

amount of $40 per day for the care, treatment, feeding, clothing

and management of the inmates that the State should have taken.

The compensation should begin to accrue seven days after the

date of the judgment and sentence of the court ordering

confinement in the Texas Department of Corrections, or the

successor agency, the Texas Department of Criminal Justice.

Respondents have a duty to take all actions necessary to obtain

funds required to pay such amounts of compensation.

The Counties have demanded that Respondents perform their

duty to take inmates and Respondents have unjustly refused and

still refuse to take or make provisions for the inmates.

Respondents show by their acts of refusal to perform the

ministerial duty to take the inmates that it is futile for the Counties

to issue formal demands for compensation and this Court dispenses

with the need for a formal demand and refusal.

The Respondents’ failure to fulfill their duty as outlined above

has resulted in manifest injury to the Counties.

Therefore, this Court commands Respondents to provide for

the care and custody of all prisioners sentenced by a court of

competent jurisdiction to the Texas Depariment of Criminal Justice

25a

Appendix C

or its predecessor the Texas Department of Corrections, or to

compensate the Counties at the rate of $40 per day for each such

prisoner held in the Counties’ jails (including prisoners held in

facilities with which the Counties have contracted) after seven

days from the date of judgment and sentence.

This Court further commands Respondents to pay to the

Counties the aggregate amount of compensation at the rate of

$40.00 per day which has accured for all periods up to and

including February 28, 1990, for holding prisoners (including

prisoners held in facilities with which the Counties have contracted)

that Respondents failed to provide for under Respondents’ duty

to provide for the care and custody of all persons sentenced by

a court of competent jurisdiction to the Texas Department of

Criminal Justice or its predecessor the Texas Department of

Corrections and to continue paying amounts that become due

until such time as Respondents carry out their duty as outlined

above. The aggregate amounts due each County are:

Nueces $ 5,730,640

Bexar $16,150,000

Collin $ 3,092,720

Dallas $33,949,600

El Paso $ 8,814,680

Galveston | $ 3,441,520

Hidalgo $ 2,520,520

26a

Appendix C

Hunt $ 828,680

Lubbock $ 3,687,920

Tarrant $15,080,840

Travis $ 6,839,480

Victoria $ 184,840

Further, this Court commands Respondents to take all action

necessary to obtain funds to pay reasonable compensation.

You are hereby further commanded to make return to this

writ before this Court on November 26, 1990 at the Travis County

Courthouse, stating how you have executed or what you ‘have

done in compliance to this writ and have you then and there this

writ.

Signed this 22nd day of August, 1990

s/ Joseph H. Hart

Joseph H. Hart, Judge

126th Judicial District Court

° Travis County, Texas

2 ten aco

27a

APPENDIX D — LETTER DECISION DATED MAY 31, 1990

— THE COUNTY OF NUECES v. TEXAS BOARD OF

CORRECTIONS

SEAL OF THE STATE OF TEXAS

JOSEPH H. HART

District Judge

126th Judicial District Court

P.O. BOX 1748

AUSTIN, TEXAS 78767

May 31, 1990

Ms. Ann Clarke Snell

BICKERSTAFF, HEATH & SMILEY

San Jacinto Center

Suite 1800

98 San Jacinto Blvd.

Austin, Texas 78701-4039

Mr. Carlos Valdez

County Attorney

Nueces County Courthouse

901 Leopard, Room 206

Corpus Christi, Texas 78401-3680

Mr. Robert Ozer

Assistant Attorney General

Chief, Class Action Section

Mr. John Worley

Assistant Attorney General

Enforcement Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

28a

Appendix D

Re: Cause No. 452,071; The County of Nueces, Texas

vs. Texas Board of Corrections, et al.

Dear Counsel:

In the letter decision of November 21, 1989 I held that the

counties had proven all elements necessary for the issuance of

a writ of mandamus to take prisoners committed to TDC and

that the State failed to prove the defense of impossibility. I held

that a mandamus would also.issue requiring TDC to reimburse

the counties the reasonable amounts for the care, treatment,

feeding, clothing and management of the inmates that the State

should have taken and to raise the revenues required to pay such

amounts. In that letter I did not reach the question of the effect

of the allocation formula (37 T.A.C. 152.3) on TDC’s duty to

take the prisoners or reimburse the counties. At that time the

statutorily required allocation formula had not yet taken effect,

and TDC was refusing to take prisoners on the basis of its own

admissions policy. On March 2, 1990, the formula became

effective, and the question is now ripe for decision.

The question remaining in the November 21, 1989 letter was

whether prisoners which were not taken by the state because of

the formula could be considered as ‘‘committed to the county

jails by lawful authority’’ [Local Gov’t Code Ann. § 351.041(a)

' (Vernon 1988)]. If so, then arguably the counties would be liable

for the expenses of care of the prisoners. Tex. Crim. Proc. Code

Ann. art. 104.002(a) (Vernon Supp. 1989); See Tex. Att’y Gen.

Op. Nos. JM-615, JM-730 and JM-743. I hold that article 6166a-4

[Tex. Rev. Civ. Stat. Ann. art. 6166a-4 (Vernon Supp. 1990)]

and the allocation formula cannot be read to require the counties

to pay for the prisoners which have been committed to TDC by

29a

Appendix D

lawful court order but which the state has refused to take by

default.

I have outlined below generally the reasons for my decision.

Again, this letter should not be considered findings of fact or

conclusions of law nor is it intended to preclude other findings

or conclusions not expressed in the letter.

The statutes by which prisoners are sentenced to TDC are

clear and unambiguous. They clearly provide that individuals

convicted of felonies ‘‘shall be punished by confinement”’ in TDC

and that TDC shall transport the prisoners to the state penitentiary.

Tex. Penal Code Ann. §§ 12.31-12.34 (Vernon 1988); Tex. Crim.

Proc. Code Ann. art. 42.09 (Vernon 1988); Tex. Rev. Civ. Stat.

Ann. art. 6166r (Vernon Supp. 1989).

On the other hand, article 6166a-4, on which the state relies,

is ambiguous at best. Insofar as the responsibility for housing

felons is concerned, it calls for the development of a formula

which “‘allocates. . .to each county. . . the number of institutional

division admissions allocated to the county. . . .until sufficient

capacity is available.’’ It neither expressly relieves the state of

the duty to take and confine felons nor expressly places that duty

on the counties. Only by inference can such an interpretation be

reached. If article 6166a-4 is interpreted as TDC requests, however,

this ambiguous statute will have the following effects:

1. H.B. 2335 which places the ‘‘primary responsibility’’ for the

confinement, supervision and rehabilitation of felons on the Texas

Department of Criminal Justice will be rendered meaningless. Act

of June 15, 1989, Ch. 785, art. 1, § 1.02, 1989 Tex. Sess. Law

Serv. 3471 (Vernon) (H.B. 2335).

30a

Appendix D

2. The statutes cited above which unambiguously require that TDC

confine felons will, in effect, be repealed.

3. The portions of the court orders which sentence felons to TDC

will be meaningless. -

4. New duties will be placed on the counties which they have never

had before, possibly in violation of article 5, § 18(b) of the Texas

Constitution. Conversely, the State will be relieved of duties clearly

placed on it by statute.

5. The taxpayers of the affected counties will have to shoulder

a tremendous financial burden which under the unambiguous

Statutes should be borne by the whole state. Governor Clements

has stated:

It is totally wrong to house state prisoners in county

jails.

Convicted felons should serve their sentences

behind prison walls — not in crowded county jails

at local taxpayer expense.

Clements, Message from the Governor, | Texas

Criminal Justice Intelligence, No. 3 (June/July

1988). (Emphasis added)

Even according to the state’s figures based on incremental costs,

the amount exceeds $36,000,000. The counties’ figures are several

times higher.

Had the legislature wished to have such a profound effect

on the criminal justice system and the taxpayers of the affected

3la

Appendix D

counties, it could have done so with clear, unambiguous language.

For example, one part of H.B. 2335 explicitly allows ‘‘a period

of detention in a county jail’’ for convicted felons. Tex. Crim.

Proc. Code Ann. art. 42.12, § 12 (Vernon Supp. 1990).

Furthermore, as mentioned in the letter decision of November

21, 1989, an attempt was made to enact a statute to do exactly

what the state requests that I do in this case, that is, relieve it

from financial responsibility. A proposed amendment to article

6166a-3 would have stated specifically that TDC was ‘‘not required

to accept an inmate for confinement if accepting will cause the

department to exceed 95% of its capacity. . . ’’. The legislature

failed to pass the proposed amendment; I will not by judicial

construction perform an act which the legislature itself rejected.

The defendant is asking that I manufacture from the

ambiguously worded article 6166a-4 precisely what the legislature

failed to enact. The statutes clearly placing the responsibility on

the state arein effect and should not be repealed by such a vague

and ambiguous statute. Meek v. Wheeler, 125 S.W. 2d 331 (Tex.

Civ. App. — Amarillo 1930) aff'd 144S.W. 2d 885 (Tex. Comm’n

App. 1940, opinion adopted). The repeal of clear, long standing

Statutes should not arise by implication. Sutherland, Statutory

Construction, § 23.10 (4th Ed. 1984).

I hold, therefore, that article 6166a-4 does not relieve the

state of its duty to take the prisoners or shift the responsibility

to the counties. The addition of the allocation formula does

nothing more than control the administrative process of allocating

availablé space to the institutional division. The duty of the state

to take felons sentenced to the custody of the state or reimburse

the counties continues after March 2, 1990.

32a

Appendix D

Thank you.

Very truly yours,

s/ Joseph H. Hart

JOSEPH H. HART

Judge, 126th District Court

Travis County, Texas

JHH/jw

33a

APPENDIX E — LETTER DECISION DATED NOVEMBER

21, 1989 — THE COUNTY OF NUECES v. TEXAS BOARD

OF CORRECTIONS

SEAL OF THE STATE OF TEXAS

JOSEPH H. HART

District Judge

126th Judicial District Court

P.O. BOX 1748

AUSTIN, TEXAS 78767

November 21, 1989

Ms. Ann Clarke Snell

BICKERSTAFF, HEATH & SMILEY

San Jacinto Center

Suite 1800

98 San Jacinto Blvd.

Austin, Texas 78701-4039

Mr. Carlos Valdez

County Attorney

Nueces County Courthouse

901 Leopard, Room 206

Corpus Christi, Texas 78401-3680

Mr. Robert Ozer

Assistant Attorney General

Chief, Class Action Section

Mr. John Worley

Assistant Attorney Generai

Enforcement Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

) | — 7

34a

Appendix E

Re: Cause No. 452,071; The County Nueces, Texas

vs. Texas Board of Corrections, et al.

Dear Counsel:

Based on the evidence, authorities and briefs submitted and

arguments of counsel, I have reached a decision in this case. I

have outlined below in general the bases for my decision. This

letter should not be considered formal facts or conclusions of

law, nor is it intended to preclude other findings or conclusions

which may support the decision.

Question Presented

The ultimate question involved in this case is whether or not

a mandamus should issue either to compel TDC to take convicted

felons being housed by the counties or to pay for the costs of

care and maintenance of such felons, or both.'

Elements

Before a mandamus may issue, there must be a mandatory,

non-discretionary legal duty on the part of TDC to take the

inmates, the Counties must have demanded that TDC perform

such duty, and TDC must have refused to perform. Stoner v.

Massey, 586 S.W. 2d 483, 486 (Tex. 1979). By a summary

judgment I have already ruled that TDC has a mandatory, non-

discretionary duty to take the inmates:

1. *“*TDC"’ will be used to refer to the respondents Texas Board of

Corrections, its members, the Department of Corrections and its director,

although the names have now been changed to the Texas Board of Criminal

Justice and Texas Department of Criminal Justice. Nueces County and the

intervening counties will be referred to as ‘‘Counties’’.

3Sa

Appendix E

1. The Penal Code states that individuals convicted of felonies

‘‘shall be punished by confinement in the Texas Department of

Corrections’’ for various periods. Tex. Penal Code Ann.

§§ 12.31-12.34 (Vernon 1988) (Emphasis added).

2. Under the Code of Criminal Procedure a convicted felon must

be transferred to TDC, under certain ascertainable conditions,

when his sentence is pronounced. Tex. Crim. Proc. Code Ann.

art. 42.09 (Vernon 1988); Ex Parte Rodriguez, 597 S.W. 2d 771

(Tex. Crim. App. 1980).

3. Article 6166r states that the ‘‘director [of TDC] sha// make

suitable provisions. . .for the safe transportation of prisoners from

counties where sentenced fo the State penitentiary. . . .’’ Tex. Rev.

Civ Stat. Ann. art 6166r (Vernon Supp. 1989). (Emphasis added).

4. Under H.B. 2335 the ‘‘department is the state agency with

primary responsibility for: (1) the confinement, supervision and

rehabilitation of felons.’’ Act of June 15, 1989, ch. 785, art. 1,

§ 1.02, 1989 Tex. Sess. Law Serv. 3471 (Vernon) (H.B. 2335).

(Emphasis added).

I have also ruled that the Counties have demanded that TDC

perform its duty to take the inmates and that TDC has refused

to do so. Therefore, under Stoner the Counties have satisfied the

elements for the granting of a mandamus.

Mootness

TDC has suggested that due to the passage of H.B. 2335

this case has been rendered moot. I have previously overruled

this suggestion. The primary changes resulting from H.B. 2335

were the removal of the word ‘‘speedy’’ as a modifier of

36a

Appendix E

‘*transportation’’ from art. 6166r and the requirement that a

formula should be developed in the future for allocating admissions

from the counties to the TDC until a sufficient capacity is available.

The removal of the word ‘‘speedy’’ results only in the

implication of a ‘‘reasonable’’ time in which to perform the

transportation. Sutherland, Statutory Construction, § 55.03 (4th

Ed. 1984). The allocation formula, under H.B. 2335 is yet to be

devised or implemented; its impact on TDC’s responsibilities after

it does take effect is not ripe for decision. The question of TDC’s

past and current duties prior to the implementation of the

allocation formula is before me and is not moot.’

Impossibility

The remaining question, and that addressed in the hearing

beginning October 2, 1989, was whether the taking of prisoners

by TDC that were ready for transfer from the counties is

2. No other provision shifts to the counties, or relieves the state from the

obligation to confine TDC ready prisoners. Had the legislature wanted to relieve

TDC of its duty to accept the inmates, it could have done so. A proposed

amendment to art. 6166a-3 ‘‘relating to duty of the state to house felons’’ stated

that the ‘‘Texas Department of Corrections is not required to accept an inmate

for confinement in the department if accepting will cause the department to

exceed 95% of its capacity .. . .’” That amendment was deleted. If the intent

of the legislature was to relieve the state of its duty to take, such intent was

not expressed in any enacted legislation and must be inferred. There is a

presumption against the repeal of prior laws by implication, and this rule is

especially applicable to laws, such as those in question, which are important

public statutes of long standing. If les ‘slators are to make such fundamental

changes in the obligation of the department as suggested by TDC, they should

designate the provision to be changed, ratheer than leaving the repeal to arise

by implication. Sutherland, at § 23.10.

37a

Appendix E

impossible. This was an affirmative defense expressly raised by

TDC, and if proven, a mandamus could not issue. Manion v.

Lockhart, 131 Tex. 175, 114 S.W. 2d 216, 219 (1938).

1. Burden of Proof

In my letter decision of March 21, 1989, I implied that the

burden of proving impossibility would be on TDC. TDC proceeded

at the trial on the question as though it did have the burden. TDC

has now cited King v. Guerra, 1 S.W. 2d 373 (Tex. Civ. App.

— San Antonio 1927, writ ref’d), for the proposition that the

party seeking a mandamus has the burden to negative every fact

that would have authorized defendant to refuse to take action.

I do not believe that King, if it is still the law, applies to this

case. King involved the denial by the Board of Commissioners

of San Antonio of an application for the issuance of a permit

authorizing the relator to construct and operate an undertaking

establishment. In reaching its decision, the board had to weigh

various factors involving the public health and welfare. The only

question involved was ‘‘the validity of the discretionary act.’’ Id.

at 377 (Emphasis added). The essence of the ruling on burden

of proof was that the board did not have the burden of proving

the existence of the various factors it considered in denying the

application. The matters in question were not actually affirmative

defenses. Here, on the other hand, there is no discretion involved

in determining the duty to take the prisioners. Prisoners have been

convicted of crimes which require TDC to take charge of them.

The affirmative defense has been raised that it is impossible to

take them.

The law on this point is, I believe, more accurately set out

in the following authorities:

38a

Appendix E

55 C.J.S. ‘‘Mandamus’’ § 325 (1948):

‘*The burden of proof is on respondent to prove matters set

up in defense... .’’

53 Am. Jur. 2d ‘‘Mandamus’’ § 466 (1970):

‘*Where, however, the right and the duty appear, the burden

of proving matter set up by way of excuse for failure to act, or

of justifying such failure to act, rests upon the respondent or

defendant. And if the petitioner makes out a prima facie case

for the issuance of the writ, the burden of refuting it is on the

respondent.’’

One author on the subject has summarized the law as follows:

‘*The conduct of the trial in mandamus differs in no respect

from the trial of any civil action, the burden of proof being

governed by the general rule that the party holding the affirmative

of the issue must establish his allegations by a preponderance of

the evidence. The burden of establishing a clear legal right to the

relief sought is therefore primarily on relator. [MJatter in avoidance

alleged in the return, if denied by relator, must be proved by

respondent.

‘**Following the general rule, affirmative averments in the

answer, as fraud, are upon respondent to prove.’’ Ferris, The

Law of Extraordinary Legal Remedies, 304-306 (1926).

Texas cases more in point than King have followed the

position in the authorities set out above. In City of Beaumont

v. Stephenson, 107 S.W. 2d 915, 917 (Tex. Civ. App. — Beaumont >

1937, writ dism’d) a mandamus was sought against the city to

39a

Appendix E

require it to pay a draft. The city alleged that relator did not

show that the city had available funds sufficient to pay the draft.

The Court held that ‘‘this point was one of defense to be pleaded

and supported by proof by [respondents].”’

In Simpson v. Williams Rural High School District, 153 S.W.

2d 852, 855 (Tex. Civ. App. — Amarillo 1941, writ ref’d) a

mandamus was sought to order the school board to sign and affix

the corporate seal of the school district to bonds to allow payment

On interest coupons. The obligation represented by the interest

coupons was valid. Respondent sought to defeat the mandamus

based on fraud and false representations. The Court placed the

burden of proof of affirmative defenses on respondent:

In order for the appellees to defeat appellant’s suit

because of false representations, it was necessary

for them to show that the appellant or his agent

made representations which were false, were as to

material facts, were made with the intent and

design to induce appellees to refund the interest

coupons and that such representations were relied

upon by them. The testimony wholely fails to

establish the elements constituting fraud based on

false representations.

Like the fraud in Simpson, impossibility is also an affirmative

defense for which I hold respondent has the burden of proof.

2. Proof of impossibility

The question remaining is whether or not respondent has met

its burden and proven impossibility. I hold that it has not.

40a

Appendix E

I have already held that the Crowding Stipulation in Ruiz

v. Lynaugh, Civil Action No. H-78-987 (S.D. Tex.), which requires

a 95% population cap in TDC does not in itself make compliance

with a writ of mandamus an impossibility. Other than a

modification of the Crowding Stipulation, there are various

measures that could be taken by TDC to take the prisioners from

the counties. I do not believe that a preponderance of the evidence

indicates that these other measures cannot be used. While each

alone may not allow TDC to take all the prisioners from the

counties, that does not mean that in combination all or part of

the prisoners could not be removed from the county jails. Such

other methods include contracting with private vendors, the federal

government, and local governments and greater use of the Prison

Management Act, [Tex. Rev. Civ. Stat. Ann. art 61840 (Vernon

Supp. 1984)], furloughs, and good time.

Some of the measures would be costly; some are perceived

to be politically unpopular. These factors, however, do not make

the carrying out of TDC’s mandatory duty impossible. Funds

appear to be available within the existing appropriation bill,

pursuant to several riders, including riders 8, 45, 56 and 57.

Further, statutory authority exists for contracting with counties

and private vendors and with the federal government. Texas Gov’t.

Code Ann. §§ 494.001, 494.021 and § 494.022. (Vernon supp.

1989).

TDC has argued that the counties could make greater use

of diversionary programs called for in H.B. 2335. However, the

possible use of the diversionary programs at the local level does

not relieve TDC of any duty to take the prisioners nor does it

create an impossibility.

I find, therefore, that TDC has not met its burden of showing

impossibility.

4la

Appendix E

Mandamus to Take

All elements for the issuance of a mandamus having been

proven by the counties, and TDC having failed to prove by a

preponderance of the evidence that it would be impossible to take

the prisoners, the mandamus will issue requiring TDC to take

the state ready prisoners within a reasonable time. As I have held

previously, while there may be some limited flexibility as to when

prisoners are to be accepted, I hold that Texas statutes do not

vest discretion in TDC to delay accepting state-ready inmates on

the basis of relative overcrowding at state and local facilities. Ayres

v. Coughlin, 72 N.Y. 2d 346, 530 N.E. 2d 373, 533 N.Y.S. 2d

849 (1988). That is, the fact of overcrowding will not be considered

relevant to the question of what is a reasonable time to receive

prisoners.

Mandamus to Reimburse or Pay

The Counties have also sought a mandamus for TDC to pay

or reimburse them for the costs of housing prisoners that are TDC

ready. As held above, TDC does have an obligation to take the

prisioners. Therefore, normally the prisoners would be transported

to and confined in TDC. Tex. Penal Code Ann. §§ 12.31-12.34;

Texas Crim. Proc. Code Ann. art. 42.09; art. 6166r.

Had TDC met its statutory obligations and confined the felons

in TDC, then the financial burden would clearly be on TDC.

Article 6166g provides that the Texas Board of Corrections and

the director:

shall be responsible for... the proper care,

treatment, feeding, clothing and management of

the prisoners confined therein.

42a

Appendix E

Tex. Rev. Civ. Stat. Ann. art. 6166g (Vernon 1970).

Questions have previously arisen as to whether or not

prisoners who are in the legal, but not physical custody of TDC,

similar to the situation in this case, could be considered ‘‘confined

therein’’ within the meaning of article 6166g. Attorney General

opinions have discussed the comparative responsibility between

counties and TDC in such situations, for example, for medical

costs where a TDC prisoner was in a county jail awaiting hearing

on a violation of parole conditions [Tex. Att’y Gen. Op. No.

JM-743(1987)] or in the county jail from TDC on a bench warrant

[Tex. Att’y Gen. Op. No. JM-730 (1987)]. The Attorney General

considered article 6166g along with article 104.002(a) [Tex. Crim.

Proc. Code Ann. art. 104.002(a) (Vernon 1988)] which states that

a county is liable for expenses incurred in the safe keeping of

prisoners confined in the county jail. He concluded that ‘‘confined

therein’’ meant the physical presence of the prisoner in TDC was

necessary before TDC, rather than the counties, would be liable

for the prisoners’ expenses.’

However, Opinion Nos. JM-730 and JM-743 must be

construed in light of art. 5116 (Vernon 1987) [now Tex. Local

Gov’t Code Ann. § 351.041(a) (Vernon 1988)], as was done in

Att’y Gen. Op. No. JM-615 (1987). Article 5116 states that the

sheriff shall safely keep in jail ‘‘all prisoners committed thereto

by lawful authority, subject to the order of the proper court... ”’

3. Article 6166g has been changed and is now art. 492.001(a) of the

Government Code. The phrase ‘‘prisoners confined therein’’ has been dropped

and replaced by ‘‘inmates.’’ A question could arise, therefore, as to whether

it is still necessary that prisoners be physically confined in TDC for TDC to

be responsible for their care. I will interpret the phrase ‘‘prisoners confined

therein’’ to be synonymous with the word ‘‘inmates’’ for purposes of this

decision.

43a

Appendix E

(Emphasis added). In other words, as long as TDC prisoners are

committed to a county jail under lawful authority, the county

is responsible for their care, even though they may be in the legal

custody of TDC. In the situations described in Opinion Nos.

JM-615, JM-730 and JM-743, TDC prisoners were required to

be in the county jails by law (thereby complying with art. 51 16);

therefore, the counties were liable for expenses for care of the

prisoners under art. 104.002 of the Code of Criminal Procedure.

Here, however, the situation is completely different. The

prisoners have been committed to the custody of TDC by the

trial courts. They are in the county jails not under lawful authority,

such as under a bench warrant or for a parole violation hearing,

but by default. The admissions policy used by TDC violates its

Statutory duty to take prisoners and, therefore, can not be

considered lawful authority. The question is, therefore, as follows:

Can TDC merely by defaulting on its obligations and by refusing

to take the prisoners (so that they are not physically ‘‘confined

therein’’) shift the burden and cost of housing and caring for

the TDC-ready prisoners to the taxpayers of the counties where

those prisoners are being housed (although not ‘‘under lawful

authority’’)?

I hold that it cannot and that responsibility for the proper

care, treatment, feeding, clothing and management of the TDC-

ready prisoners is on the state, not the Counties.‘

4. Under art. 5115.1, § 11 (Vernon 1987) [Now Tex. Gov’t. Code Ann.

§ 511.012 (Vernon 1989)] and Attorney General Opinion MW-398 (1981) the

Commission on Jail Standards can require a county to accept prisoners from

another county’s jail that does not comply with minimum jail standards. The

statute requires that the county of the non-complying jail bear the costs of

transportation and maintenance of the prisoners. It is interesting that the state

(Cont'd)

44a

Appendix E

Where a county incurs costs as a result of performing the

public obligation of another public entity, the other entity may

be required to reimburse the performing county. Orange County

v. Cow Bayou Canal Co., 143 S.W. 963 (Tex. Civ. App. —

Galveston 1912, no writ). The primary responsibility for

confinement of felons is expressly placed on TDC. H.B. 2335,

art. 1, § 1.02(a). Where a governmental body refuses to

appropriate or pay when it has the clear, statutory duty to do

sO, payment may be mandated by the district court. Vondy v.

Commissioners of Uvalde County, 620 S.W. 2d 104 (Tex. 1981)

(mandamus against County Commissioners to set a reasonable

salary for the constable).* Where an amount is owed that is not

fixed, the county still may be mandamused to calculate 2

reasonable amount, even if it may require an additional decision

by the respondent as to what is reasonable. /d. at 109.

Where the funds to pay may not be available, a mandamus

may issue against a governmental authority to ‘‘raise revenue’’

even though exactly how the revenue is to be raised may be left

up to the authority and even though the authority may have to

look to third parties as a source for the revenue. Hawthorne v.

(Cont'd)

is willing to require non complying counties to reimburse other counties who

cover for their deficiencies while the state is not itself willing to do the same

when counties cover for the state’s own non-compliance with federal standards.

5. Another basis for the holding in Vondy was the inherent power of the

court to protect and preserve the proper administration of the judicial system.

This ground is arguably present here, as judicially ordered sentences could not

be carried out without means to incarcerate as required by law, i.e. without

confinement in TDC. I do not base my decision on the inherent power of the

judiciary, however.

45a

Appendix E

La-Man Constructors, Inc., 672 S.W. 2d 255 (Tex. App. —

Beaumont 1984, no writ). In addition, a mandamus may issue

to pay an amount owed if and when funds are lawfully available

or when the voters approve an appropriate tax levy. Coulson v.

Harris County MUD No. 29, 678 S.W. 2d 726 (Tex. App. —

Houston [14 Dist] 1984, writ ref’d n.r.e.). Courts may dispense

with a formal demand for payment and refusal where the

respondent shows, as it does here, that such a demand would

be futile, see, e.g., City of Austin v. Cahill, 99 Tex. 172, 88 S.W.

542, 545 (1905) or where the respondent has neglected and refused

to perform its ministerial duty, as TDC has done in refusing to

take the prisoners. Lake L.B.J. MUD v. Coulson, 771 S.W. 2d

145, 156 (Tex. App. — Austin 1988), aff’d in part and rev’d in

part on other grounds, 32 Tex. Sup. Ct. J. 442, 447 (June 10,

1989) (The Supreme Court affirmed the holding of the Court of

Appeals that the Texas Water Code does not authorize the issuance

of a mandamus to collect a judgment debt created by the same

judgment.)

An interpretation of article 6166g [now Government Code

§ 492.001(a)] that the TDC could refuse to be financially

responsible whenever it wished and for whatever reason so long

as the inmates were not physically confined in TDC would render

§ 492.001(a) and TDC’s duty to care for inmates meaningless.

Cf. Vondy, 620 S.W. 2d at 109.

Therefore, I hold, that a mandamus will issue requiring TDC

to pay the reasonable costs that the Counties have incurred in

the care, treatment, feeding, clothing and management of the

inmates, and to raise the revenue to pay such costs.

I do not decide at this point what amount should be paid

(Vondy) or from what sources such funds should come

46a

Appendix E

(Hawthorne). The determination of the amount of the reasonable

costs will initially be left to TDC. I urge TDC and the Counties

to confer together to resolve this issue. The source of the funds

is a decision to be made by TDC.

A holding that TDC is financially responsible does not mean

that it is relieved of the statutory duty to house TDC-ready

prisoners. It means only that if by default TDC refuses to do

so and the counties shoulder the responsibility where TDC has

failed, then the counties must be reimbursed.

Conclusion

I would like to conclude this letter decision with a passage

from a recent opinion by Justice Keltner in Tarrant County

Commissioner’s Court, et al. v. Markham, No. 2-89-097-CV (Tex.

App. — Ft. Worth, September 28, 1989, n.w.h.) (not yet reported).

While the opinion deals with Tarrant County jail overcrowding,

the following passage is otherwise completely applicable to this

case:

All the parties admit that [the counties’ jails] are

over-crowded. Much of this blame is due to the

failure of the State of Texas to meet its obligations

to house inmates who have been committed to the

Texas Department of Corrections (T.D.C.) by the

order of state courts. See Tex. Code Crim. Proc.

Ann. art. 42.09 (Vernon Supp. 1989).

The sad truth is that the State of Texas fails to

meet its obligations to incarcerate convicted felons

because of the state’s settlement agreement in the

well-known Ruiz v. Estelle, 679 F.2d 1115 (Sth Cir.

47a

Appendix E

1982). By its settlement, the State of Texas made

several agreements regarding the incarceration of

inmates, including an agreement to limit the inmate

population incarcerated in T.D.C. In order to meet

its obligations under the Ruiz settlement, the state

has adopted a policy of refusing to accept inmates

from county jails, committed to T.D.C.., as is the

state’s obligation under law.

~ The unhappy result is that there are two prison

systems in Texas. One is operated ‘‘on the books’’

by T.D.C. and appears to meet the state’s

obligations under Ruiz. This prison system is

financed by the State of Texas out of the state

budget. The second Texas prison system is less

visible to the public eye; but it exists in increasingly

overcrowded county jails. In this system, inmates

who have been committed to T.D.C. by state

courts, are forced to languish in jails of the various

counties throughout the state, because of the state’s

failure to accept the inmates committed to T.D.C.

As a result, this second system is not financed out

of the state’s budget. Instead, these inmates

committed to the T.D.C. are incarcerated at the

cost of the various counties throughout Texas.

The costs of these efforts are being borne

by. . .County taxpayers for a function which is

properly that of the State of Texas.

This holding is not (as suggested by TDC) an attempt by

the court to substitute its own plan for dealing with prison over-

crowding for the plan of the Legislature adopted in H.B. 2335.

48a

Appendix E

It is purely a determination that under the statutes as they now

exist TDC has not been relieved of its responsibility to take felons

committed to its custody. If the Legislature wishes to relieve TDC

of that responsiblity, perhaps it may do so, but it must do so

expressly. Until that time, TDC must comply with its obligation

to take the prisoners or reimburse counties for housing and caring

for them on its behalf.

This decision does not reach the question of the effect of

the allocation formula on TDC’s duty to take the prisoners or

reimburse the Counties. The allocation formula required under

art. 6166a-4 has not yet taken effect; therefore, the question is

not before me. Will TDC’s refusal to take prisoners from Counties

pursuant to the statutorily mandated formula mean that the

prisoners will be ‘‘committed’’ to the county jails ‘“‘by lawful

authority.’’? If so, will TDC then be relieved of its financial

obligations under the reasoning expressed -in Attorney General

Opinion Nos. JM-615, 730 and 743? These, and possibly other

questions are not now ripe for decision and will not be reached

until they are.

I request that counsel for the Counties prepare a draft of

a judgment in line with this decision and submit it to me for

Signature after approval as to form by opposing counsel.

Thank you.

Very truly yours,

s/ Joseph H. Hart

JOSEPH H. HART

Judge, 126th District Court

Travis County, Texas

49a

Appendix E

JHH/jw

cc: Mr. John Dickson

Travis County District Clerk

50a

APPENDIX F — LETTER DECISION DATED AUGUST 24,

1989 — THE COUNTY OF NUECES v. TEXAS BOARD OF

CORRECTIONS

SEAL OF THE STATE OF TEXAS

JOSEPH H. HART

District Judge

126th Judicial District Court

P.O. BOX 1748

AUSTIN, TEXAS 78767

August 24, 1989

Mr. Carlos Valdez

County Attorney

Nueces County Courthouse

901 Leopard, Room 206

Corpus Christi, Texas 78401-3680

Mr. Robert Ozer

Assistant Attorney General

Chief, Class Action Section

Enforcement Division

P.O. Box 12548, Capitol Station -

Austin, Texas 78711-2548

Mr. Steve Bickerstaff

Ms. Anne Clark Snell

BICKERSTAFF, HEATH & SMILEY

San Jacinto Center

Suite 1800

98 San Jacinto Blvd.

Austin, Texas 78701-4039

LL

Sla

Appendix F

Re: Cause No. 452,071: The County of Nueces,

Texas vs. Texas Board of Corrections, et al.

Dear Counsel:

I have decided that the suggestion of mootness filed by

defendant should be denied. I request that Mr. Valdez prepare

a draft of an order in line with this decision and submit it to

me for signature after approval as to form by other counsel.

As things now stand, we will proceed with the hearing on

October 2, 1989 at 9:00 a.m. on the question of impossibility.

Please try to stipulate to as many uncontested facts as possible

SO as to reduce unnecessary in-court testimony. Also, please let

us know your current estimates of length of time for the hearing.

Thank you.

Very truly yours,

s/ Joseph H. Hart

JOSEPH H. HART

Judge, 126th District Court

Travis County, Texas

JHH/jw

cc: Mr. John Dickson

Travis County District Clerk

52a

APPENDIX G — FINAL JUDGMENT FILED AUGUST 2, 1991

— HARRIS COUNTY v. THE STATE OF TEXAS

No. 475,468

IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS

126TH JUDICIAL DISTRICT

HARRIS COUNTY, TEXAS

Plaintiff/Relator

VS.

THE STATE OF TEXAS; ANN RICHARDS, GOVERNOR OF

THE STATE OF TEXAS; TEXAS DEPARTMENT OF

CRIMINAL JUSTICE; JAMES LYNAUGH, DIRECTOR;

TEXAS BOARD OF CRIMINAL JUSTICE; CHARLES T.

TERRELL; JERRY H. HODGE; F. L. STEPHENS; BEN

GALLANT, JR.; JAMES ELLER; MAIME MOORE

PROCTOR; ROBERT MANN; AND ALLAN B. POLUNSKY;

AS MEMBERS OF THE TEXAS BOARD OF CRIMINAL

JUSTICE

Defendants/Respondents

FINAL JUDGMENT

BE IT REMEMBERED that on the 20th day of May, 1991,

the above entitled and numbered cause came on for hearing before

this Court, and Plaintiff/Relator Harris County appeared by and

through its attorney of record, and Intervenor Montgomery

County appeared by and through its attorney of record, and

Defendants/Respondents The State of Texas; Ann Richards,

S3a +

Appendix G

Governor of the State of Texas; Texas Department of Criminal

Justice; James Lynaugh, Director; Texas Board of Criminal

Justice; Charles T. Terrell; Jerry H. Hodge; F. L. Stephens; Ben

Gallant, Jr.; James Eller; Maime Moore Proctor; Robert Mann;

and Allan B. Polunsky; as members of the Texas Board of

Criminal Justice, appeared by and through their attorneys of

record.

By an order signed April 25, 1991, this Honorable Court

granted partial summary judgment in favor of Plaintiff/Relator

Harris County, and Intervenor Montgomery County against

Defendants/Respondents, finding and holding that

Defendants/Respondents were and are liable to Plaintiff/Relator

and Intervenor for the cost of caring for, housing, incarcerating

and transporting TDC ready convicted felons both in the past

and in the future; and that Defendants/Respondents non-

discretionary, mandatory and ministerial duty to house, care for,

incarcerate and transport such convicted felons was not and is

not in any way relieved or excused or in any way imposed upon

any other entity by virtue of House Bill 2335 and/or Article

6166a-4, V.A.C.S., and/or the allocation formula, 37 TAC 152.3,

nor were Defendants/Respondents in any way excused from

financial liability and responsibility for such convicted felons, nor

was such financial liability and responsibility imposed upon any

other entity; and that by virtue of its scheduled admissions policy

and allocation formula the Defendants/Respondents have enjoyed

the use and benefit of ad valorem tax money collected by Harris

County and Montgomery County by using such ad valorem tax

money to carry out Defendants/Respondents non-discretionary,

mandatory and ministerial duties in violation of the Constitution

of the State of Texas; and that by doing so

Defendants/Respondents have deprived Plaintiff/Relator Harris

County and Intervenor Montgomery County of the use of their

54a

Appendix G

ad valorem tax revenues for county purposes; and that

Plaintiff/Relator Harris County and Intervenor Montgomery

County are entitled to a writ of mandamus ordering the

Defendants/Respondents to reimburse and compensate Harris

County and Montgomery County for carrying out

Defendants/Respondents mandatory, non-discretionary and

ministerial duties and responsibilities by housing, caring for,

incarcerating and transporting convicted felons both in the past

and in the future.

The issue of liability having been determined by the court’s

summary judgment of April 25, 1991 as aforesaid, on the 20th

day of May, 1991, a jury having been previously demanded, and

a jury consisting of twelve good and lawful jurors having been

duly impaneled, the case proceeded to trial on the issue of damages.

At the conclusion of the evidence, the court submitted the

case to the jury on questions. The jury did retire to deliberate

its verdict, and returned into open court the following verdict

and answers to the following questions.

**STATE PRISONER”’ means prisoners sensenced

to the state penitentiary.

‘“*PRISONER DAY’”’ means each day or a part

of a day that a state prisoner is held in a county

jail, but does not include days spent in a county

jail by a state prisoner who (1) is returned to county

jail on a bench warrant and is awaiting further

proceedings; (2) is awaiting trial in state court on

the remainder of multiple charges; (3) is awaiting

a parole revocation hearing; (4) is being held on

federal detainers awaiting trial in federal court;

5Sa

Appendix G

and (5) is awaiting a pending appeal of a sentence

of ten years or less and who has not exercised his

or her right to be transferred to the state

penitentiary immediately upon sentencing.

QUESTION NO. |!

For each state prisoner, how many prisoner days

after sentencing would be reasonable for the state

to accept state prisoners?

In answering this question, you may consider only

the following elements and none others.

a. The reasonable amount of time after sentencing

that it would take the counties to prepare the paper

work required for transfer to the state, if the state

were not restricting admissions of state prisoners.

b. The reasonable amount of time that it would

take to arrange for transportation of such prisoners

to the state, if the state were not restricting

admissions of state prisoners.

Answer by indicating the number of days for each

county.

Answer:

HARRIS COUNTY 5 days

MONTGOMERY COUNTY 7 days

56a

Appendix G

QUESTION NO. 2

Between September 28, 1987 and April 30, 1991,

how many prisoner days, if any, did the counties

hold state prisoners?

Do not include in your answer the time you have

found in answer to question number one to be

reasonable for the state to accept state prisoners.

Answer by giving the total number of prisoner

days, if any, for each county.

Answer:

HARRIS COUNTY 2,310,214 days

MONTGOMERY COUNTY 65,256 days

QUESTION NO. 3

What is the reasonable value per prisoner day, if

any, of the services provided by the counties in

holding state prisoners?

Answer in dollars and cents, if any, for each

county.

Answer:

HARRIS COUNTY $21.34

MONTGOMERY COUNTY $17.31

S7a

Appendix G

Thereafter, said verdict was duly received in open court and

ordered filed, and the Court being of the opinion that judgment

herein should be rendered in accordance with its summary

judgment of April 25, 1991 and the aforesaid verdict of the jury,

it is the opinion of this court that judgment should be rendered

in favor of Plaintiff/Relator Harris County and Intervenor

Montgomery County and that a writ of mandamus should be

issued to compel Defendants/Respondents to perform their non-

discretionary, mandatory and ministerial duty, it is therefore

ORDERED, ADJUDGED and DECREED:

1. That a pre-emptory writ of mandamus issue directing and

commanding Defendants/Respondents The State of Texas; Ann

Richards, Governor of the State of Texas; Texas Department of

Criminal Justice; James Lynaugh, Director; Texas Board of

Criminal Justice; Charles T. Terrell; Jerry H. Hodge; F. L.

Stephens; Ben Gallant, Jr.; James Eller; Maime Moore Proctor;

Robert Mann; and Allan B. Polunsky; as members of the Texas

Board of Criminal Justice to cause the Texas Department of

Criminal Justice to provide for the care and custody of all prisoners

sentenced by a court of competent jurisdiction to the Institutional

Division of the Texas Department of Criminal Justice or to its

predecessor, the Texas Department of Corrections, or to

compensate Plaintiff/Relator Harris County at a rate of $21.34

per day and Intervenor Montgomery County at a rate of $17.31

per day for each such prisoner held in Harris County’s or

Montgomery County’s jails and to raise any revenue necessary

to pay such compensation.

2. That Defendants/Respondents’ duty to provide for the

care and custody of prisoners sentenced to the Institutional

Division of the Texas Department of Criminal Justice or to its

58a

Appendix G

predecessor, the Texas Department of Corrections, or to pay

compensation to Harris County and Montgomery County for

holding such prisoners shall begin five calendar days after issuance

of judgment sentencing and committing such prisoners to the Texas

Department of Criminal Justice, or to its predecessor the Texas

Department of Corrections in Harris County, and seven days after

issuance of such judgment in Montgomery County.

3. That Defendants/Respondents shall pay to Harris County

$49 299 966.76 and to Montgomery County $1,129,581.36 as the

aggregate amount of compensation due to Harris County and

Montgomery County for the period beginning September 28, 1987

up to and including April 30, 1991 for holding prisoners that were

Defendants/Respondents’ responsibility under this judgment.

4. That Defendants/Respondents shall pay to Harris County

and Montgomery County compensation in accordance with this

judgment for prisoners held by each county on or after May |,

1991 that are the responsibility of Defendants/Respondents. In

computing the prisoner days for which compensation is owed from

Defendants/Respondents to Harris County and Montgomery

County, the county shall exclude days spent in the county jail

by a prisoner who (1) is returned to county jail on a bench warrant

and is awaiting further proceedings; (2) is awaiting trial in state

court on the remainder of multiple charges; (3) is awaiting a parole

revocation hearing; (4) is being held on federal detainers awaiting

trial in federal court; and (5) is awaiting a pending appeal of a

sentence of ten years or less and who has not exercised his or

her right to be transferred to the state penitentiary immediately

upon sentencing.

5. That Harris County and Montgomery shall submit invoices

to Defendants/Respondents for payment of compensation for

aaa

59a

Appendix G

prisoners held by the counties on or after May |, 1991, for which

Defendants/Respondents are responsible under this judgment.

6. That Harris County’s and Montgomery County’s invoices

for compensation for the period from and after May |, 1991 to

the date of entry of this judgment shall be presented to

Defendants/Respondents by each county by submitting the invoice

to the Director of the Texas Department of Criminal Justice by

the last day of the month following the month in which this

judgment is entered. Thereafter, the counties’ invoices for

compensation shall be presented by each county to

Defendants/Respondents by submitting the invoice to the Director

of the Texas Department of Criminal Justice by the last day of

the month following the month in which compensation to the

county accrues under this judgment.

7. That a constructive trust is hereby imposed on all funds

now and hereafter found, deposited and/or on deposit in the State

treasury for the purposes of satisfying this judgment and

reimbursing Harris County and Montgomery County for housing,

caring for, incarcerating and transporting state prisoners both in

the past and in the future.

8. That the judgment hereby rendered shall bear post-

judgment interest in accordance with Tex. Rev. Civ. Stat. Ann.

art. 5069-1.05 (Vernon Supp. 1990) at the rate of 10% from the

date of judgment until paid.

9. That the judgment hereby rendered shall bear pre-

judgment interest in accordance with Tex.Rev.Civ.Stat.Ann. art.

5069-1.05 (Vernon Supp. 1990) at the rate of 10% from June

6, 1990 through the date the judgment is signed.

60a

Appendix G

10. That all costs of court be taxed against

Defendants/Respondents.

li is further ORDERED that Defendants/Respondents shall

not by this judgment be relieved of carrying out their obligations

under any other relevant order issued by a court of competent

jurisdiction, including the agreed orders Defendants/ Respondents

have entered into in Ruiz v. Lynaugh, No. 78-087-CA; provided,

however, that Defendants/Respondents shall not be precluded

from seeking modifications to such orders.

SIGNED this 2nd day of August, 1991.

s/ Joseph H. Hart

JOSEPH H. HART

JUDGE, 126TH JUDICIAL

DISTRICT COURT

TRAVIS COUNTY, TEXAS

APPROVED AND ENTRY REQUESTED:

MIKE DRISCOLL

Harris County Attorney

By Frank Sanders

FRANK SANDERS, SBN 17588500

Assistant County Attorney

1001 Preston, Suite 634

Houston, Texas 77002

(713) 221-7961

Fax # (713) 225-8924

ATTORNEYS FOR PLAINTIFF/RELATOR

HARRIS COUNTY, TEXAS

6la

Appendix G

D. C. JIM DOZIER

Montgomery County Attorney

By Steve McKeithen

STEVE McKEITHEN, SBN 13700550

Assistant County Attorney

301 North Main St., Suite 300

Conroe, Texas 77301

(409) 539-7828

ATTORNEYS FOR INTERVENOR

MONTGOMERY COUNTY, TEXAS

62a

APPENDIX H — PEREMPTORY WRIT OF MANDAMUS

FILED AUGUST 2, 1991 — HARRIS COUNTY v. THE STATE

OF TEXAS

IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS

126TH JUDICIAL DISTRICT

NO. 475,468

HARRIS COUNTY, TEXAS

Plaintiff/Relator

THE STATE OF TEXAS; ANN RICHARDS, GOVERNOR OF

THE STATE OF TEXAS; TEXAS DEPARTMENT OF

CRIMINAL JUSTICE; JAMES LYNAUGH, DIRECTOR;

TEXAS BOARD OF CRIMINAL JUSTICE; CHARLES T.

TERRELL; JERRY H. HODGE; F. L. STEPHENS; BEN

GALLANT, JR.; JAMES ELLER; MAIME MOORE

PROCTOR; ROBERT MANN; AND ALLAN B. POLUNSKY;

AS MEMBERS OF THE TEXAS BOARD OF CRIMINAL

JUSTICE

Defendants/ Respondents

PEREMPTORY WRIT OF MANDAMUS

On April 25, 1991, this Court granted partial summary

judgment in the above numbered and styled cause finding the

Respondents, The State of Texas; Ann Richards, Governor of

the State of Texas, Texas Department of Criminal Justice; James

Lynaugh, Director; Texas Board of Criminal Justice; Charles T.

63a

Appendix H

Terrell; Jerry H. Hodge; F. L. Stephens; Ben Gallant, Jr.; James

Eller; Maime Moore Proctor; Robert Mann; and Allan B.

Polunsky; as members of the Texas Board of Criminal Justice

have a ministerial, mandatory, nondiscretionary duty to take

custody of inmates sentenced by a trial court to the custody of

Texas Department of Corrections or its successor agency Texas

Department of Criminal Justice.

This Court further found that Respondents had not

established legal impossibility or any of the defenses that would

preclude issuance of a writ of mandamus and that pursuant to

a jury verdict returned May 30, 1991, Respondents have a duty

to reimburse the Relator Harris County, Texas and the Intervenor

Montgomery County, Texas (‘‘Counties’’) by paying reasonable

compensation in the amount of $21.34 as to Harris County and

$17.31 as to Montgomery County per day for the care, treatment,

feeding, clothing and management of the inmates that the State

should have taken. The compensation should begin to accrue five

days in the case of Harris County and accrue seven days in the

case of Montgomery County after the date of the judgment and

sentence of the court ordering confinement in the Texas

Department of Criminal Justice. Respondents have a duty to take

all actions necessary to obtain funds required to pay such amounts

of compensation.

The Counties have demanded that Respondents perform their

duty to take inmates and Respondents have unjustly refused and

sull refuse to take or make provisions for the inmates.

Respondents show by their acts of refusal to perform the

ministerial duty to take the inmates that it is futile for the Counties

to issue formal demands for compensation and this Court dispenses

with the need for a formal demand and refusal.

64a

Appendix H

The Respondents’ failure to fulfill their duty as outlined above

has resulted in manifest injury to the Counties.

Therefore, this Court commands Respondents to provide for

the care and custody of all prisoners sentenced by a court of

competent jurisdiction to the Texas Department of Criminal Justice

or its predecessor the Texas Department of Corrections, or to

compensate the Counties at the rate of $21.34 as to Harris County

and $17.31 as to Montgomery County per day for each such

prisoner held in the Counties’ jails after five days from the date

of judgment and sentence in the case of Harris County and after

seven days from the date of judgment and sentence in the case

of Montgomery County.

This Court further commands Respondents to pay to the

Counties the aggregate amount of compensation at the rate of

$21.34 per day as to Harris County and $17.31 per day as to

Montgomery County which has accrued for all periods up to and

including April 30, 1991, for holding prisoners that Respondents

failed to provide for under Repondents’ duty to provide for the

care and custody of all persons sentenced by a court of competent

jurisdiction to the Texas Department of Criminal Justice or its

predecessor the Texas Department of Corrections and to continue

paying amounts that become due until such time as Rspondents

carry Out their duty as outlined above. The aggregate amounts

due each County are:

Harris $49 299,966.76

Montgomery $1,129,581.36

Further, this Court commands Respondents to take all action

necessary to obtain funds to pay reasonable compensation.

65a

Appendix H

You are hereby further commanded to make return to this

writ before this Court on November 4, 1991 at the Travis County

Courthouse, stating how you have executed or what you have

done in compliance to this writ and have you then and there this

writ.

SIGNED this 2nd day of August, 1991.

s/ Joseph H. Hart

JOSEPH H. HART, JUDGE

126th Judicial District Court

Travis County, Texas

66a

APPENDIX I — SUPPLEMENTAL COMPLAINT DATED

SEPTEMBER 15, 1989 — ALBERTI v. JOHNNY

KLEVENHAGEN

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. H-72-1094

LAWRENCE R. ALBERTI, ET AL.,

Plaintiffs,

V.

JOHNNY KLEVENHAGEN, ET AL.,

Defendants.

and

WILLIAM P. CLEMENTS; JAMES LYNAUGH; CHARLES

T. TERRELL; BEN J. GALLANT, ALLAN BRUCE

POLUNSKY; JAMES M. ELLER; F. L. ‘‘STEVE’’ STEPHENS;

MAMIE MOORE PROCTOR ROBERT MANN; JERRY H.

HODGES; HENRY B. KEENE, RUBEN M. TORRES, CHRIS

A. MEALY, WINONA W. MILES, JAMES H. GRANBERRY,

WENDELL A. ODOM AND THE STATE OF TEXAS

Rule 19 Defendants.

SUPPLEMENTAL COMPLAINT

LAWRENCE R. ALBERTI, et al., and the class composed

67a

Appendix I

of all persons in the Harris County who are under the

custodianship of the Harris County Sheriff, respectfully allege

as follows:

ADDITIONAL DEFENDANTS

WILLIAM P. CLEMENTS is the Governor of the State of

Texas. He is sued in his official capacity.

JAMES LYNAUGH is the Director of the Texas Department

of Corrections. He is sued in his official capacity.

CHARLES T. TERRELL is of the Texas Board of Criminal

Justice. He is sued in his official capacity.

BEN GALLANT is a board member on the Texas Board

of Criminal Justice. He is sued in his official capacity.

MAMIE MOORE PROCTOR is a board member of the

Texas Board of Criminal Justice. He is sued in his official capacity.

ALLAN BRUCE POLUNSKY is a board member on the

Texas Board of Criminal Justice. He is sued in his official capacity.

JAMES M. ELLER is a board member of the Texas Board

of Criminal Justice. He is sued in his official capacity.

F. L. *“‘STEVE’’ STEPHENS is a board member of the Texas

Board of Criminal Justice. He is sued in his official capacity.

ROBERT MANN is a board member of the Texas Board

H

i

|

68a

Appendix I

of Criminal Justice. He is sued in his official capacity.

JERRY H. HODGES is a board member of the Texas Board

of Criminal Justice. He is sued in his official capacity.

HENRY B. KEENE is the Chairman of the Texas Board

of Pardons and Paroles. He is sued in his official capacity.

RUBEN M. TORRES is the Vice Chairman of the Texas

Board of Pardons and Paroles. He is sued in his official capacity.

CHRIS A. MEALY is a board member of the Texas Board

of Pardons and Paroles. He is sued in his official capacity.

WINONA W. MILES is a board member of the Texas Board

of Pardons and Paroles. He is sued in his official capacity.

JAMES H. GRANBERRY is a board member of the Texas

Board of Pardons and Paroles. He is sued in his official capacity.

WENDELL A. ODOM is a board member of the Texas Board

of Pardons and Paroles. He is sued in his official capacity.

THE STATE OF TEXAS is a sovereign state with ultimate

responsibility for the care and custody of convicted felons.

II.

JURISDICTION

The Court has continuing jurisdiction over this matter and

the County of Defendants by virtue of the Consent Judgment

entered in this civil action on February 4, 1975. Additionally the

69a

Appendix I

Court has jurisdiction over the State of Texas Defendants by virtue

of 42 U.S.C. § 1983, 28 U.S.C. §§ 1331 and 1343, and the All

Writs Act, 28 U.S.C. § 1651.

III.

EVENTS OCCURRING SINCE ENTRY OF THE CONSENT

JUDGMENT

On February 4, 1975, Plaintiffs and the County Defendants

executed and the Court approved a Consent Judgment, whereby

the County Defendants agreed to reduce the overcrowding in the

Harris County Jail. Through this consent Judgment and a

December 16, 1975, Memorandum and Opinion, Alberti vy.

Klevenhagen, 406 F. Supp. 649 (S.D. Tex. 1975), the Court

retained jurisdiction to enter any interim orders necessary to

effectuate compliance with the Consent Judgment and has

monitored such compliance, entering other remedial orders.

On April 28, 1987, the Court appointed a Speciai Master

and two Monitors (‘‘the Monitors’’) to oversee the County

Defendants’ compliance efforts. A/berti v. Klevenhagen, 660 F.

Supp. 605 (S.D. Tex. 1987). On December 17, 1987, the Court

entered an Order which directed the Monitors to assess the

overcrowding problem in the Jail. On September 12, 1988, the

Monitors filed their Findings of Fact and Recommendations,

determining that:

The Jail is dangerously overcrowded. All systems

are impossibly stressed, including food service,

programming, elevators, recreation, classification,

maintenance, visiting, supplies of clothing and

bedding, security, medical care and mental health

70a

Appendix |

services. So far these stressed systems have not

broken down completely under the population

pressures, but the Monitors believe that there is

no elasticity left in the institution and its service

systems.

The Monitors have recommended (Monitors’

Recommendations on Population April 11, 1989) that the Court,

within 30 days from entry of the order impose a maximum capacity

on the Harris County jail is an overall population of 7,000 inmates

with no more than 1,000 housed in the Detention Center; within

90 days of the entry of the Courts’ Order, reducing the total inmate

population to 6,400, with no more than 900 being housed in the

Detention Center; within 180 days, of the entry of the Courts’

Order, reducing the total population of Harris County facilities

to $5,800, with no more than 810 being housed in the Detention

Center; within 270 days, reduce the total inmate population of

Harris County facilities to 5,200, with no more than 810 being

housed in the Detention Center; with completion of the new jail,

or in any case no later than June 1, 1991, the defendant must

reduce the population of all of their facilities to 100 percent of

their design capacity of 8,732 (3,505 for the Jail, 810 for the

Detention Center, 417 for the 301 Building; 4,000 for the new

jail) by June 1, 1991. Moreover in open Court on September 13,

1989, at a hearing where constitutionality was at issue, the Attorney

General of Texas appearing on behalf of the State of Texas

judicially conceded that the living conditions at the Harris County

Jail including overcrowding are so egregious as to be in violation

of the United States Constitution. Likewise on September 12, 1989,

in open Court at the same hearing, the County Attorney appearing

on behalf of Defendant Klevenhagen conceded that the living

conditions at the Harris County Jail including overcrowding are

SO egregious as to be in violation of the United States Constitution.

Tila

Appendix |

1V

INVOLVEMENT OF THE STATE DEFENDANTS

Despite its statutory responsibility to accept convicted felons

into its facilities, TEX. CODE CRIM. PROC. ANN. art. 42.09:

TEX. PENAL CODE §§ 12.32 - 12.34; Todd v. State, 598 F.2d

286, 292 (Tex. Crim. App. 1980), the State of Texas by and

through its officials has refused to accept its prisoners presently

incarcerated in the Harris County Jail.

William Clements, Governor of the State of Texas, is

empowered to invoke the Prison Management Act by ‘‘certify{ing|

that an emergency overcrowding situation exists, and

order[ing] the director fof TDC] to credit not more than 90 an

of administrative good time to all] eligible inmates.’’ TEX. REV.

CIV. STAT. ANN. art. 61840. He has, however, taken no steps

to invoke the Act and alleviate TDC’s overcrowding, which in

turn would reduce the numbers held in the Harris County Jail

James Lynaugh, Director of the Texas Department of

Corrections; Charles T. Terrell, of the Texas Board of Criminal

Justice; Ben J. Gallant; Allan Bruce Polunsky, James M. Eller,

F. L. ‘*Steve’’ Stephens, Mamie Moore Proctor, Robert Mann

and Jerry H. Hodges, Board Members on the Texas Board of

Criminal Justice, are vested with the exclusive management and

control of TDC. TEX. REV. CIV. STAT. ANN. art. 6166q.

Furthermore, these individuals, acting in their official capacities,

are responsible for ‘‘mak[ing] suitable provisions and regulations

for the safe and speedy transportation of prisoners from counties

where sentenced to the State penitentiary by the sheriffs of such

respective counties if such sheriffs are willing to perform such

services ...’’ TEX. REV. CIV. STAT. ANN. art. 6166r.

72a

Appendix I

Henry B. Keene, Chairman of the Texas Board of Pardons

and Paroles, Ruben M. Torres, Chris A. Mealy, Winona W. Miles,

James H. Granberry, Wendell A. Odom, Board Members on the

Texas Board of Pardons and Paroles are vested with the exclusive

authority to administer the provisions of the Adult Probation,

Parole, and Mandatory Supervision Law, Tex. Crim. Proc. Ann.

art. 42.12 and to determine which prisoners shall be paroled from

TDC, the conditions of their parole and mandatory supervision

including the degree and intensity of supervision a prisoner released

on parole or released to mandatory supervision should receive.

Although a substantial number of persons currently

incarcerated in the Harris County Jail are convicted felons who

are eligible for parole, their paroles are being delayed because

of the lack of prompt processing by the Texas Board of Pardons

and Paroles.

Convicted felony jail inmates are denied the same

consideration for good time and trustee time as inmates transferred

to the penitentiary (Institutional Division). Inmates in jail are not

given credit for good time presented through the Prison

Management Act. Jail inmates who are jail trustees are not

awarded additional trustee time credits that they would earn if

they had been transferred to the penitentiary. Awarding good time

and trustee time based upon whether a person is sent by the Sheriff

to the penitentiary (Institutional Division) is an unreasonable

classification and constitutes a violation of the equal protection

clause of the fourteenth amendment.

V.

CONSTITUTIONAL BASIS

The foregoing actions by the Rule 19 defendants have cause

73a

Appendix |

plaintiffs to suffer deprivations of the rights secure by the

fourteenth amendment (due process and equal protection) and

the eighth amendment (cruel and unusual punishment) and their

Participation is necessary to achieve complete relief.

WHEREFORE, Plaintiffs pray that the above-named State

Officials be cited to appear and that upon final hearing of this

matter, the Court entered such Orders as are appropriate to

eliminate the unconstitutional conditions that exist at the Harris

County Jail facilities and to effectuate full compliane with the

Consent Judgment entered by this Court on February 4, 1975.

Plaintiffs further pray for such other and further relief,

including reasonable attorneys fees and costs, to which Plaintiffs

may show themselves justly entitled.

Respectfully submitted,

s/ James T. Oitzinger

JAMES T. OITZINGER

Fed. Adm. No. 6298

1932 Wroxton

Houston, Texas 777005

(713) 524-4237

ATTORNEY IN CHARGE FOR

PLAINTIFFS

STUART M. NELKIN

Fed. Adm. No. 4089

P.O. Box 25303

$417 Chaucer

Houston, Texas 77265

74a

Appendix I

(713) 526-4500

CO-COUNSEL FOR PLAINTIFF

s/ Gerald M. Birnberg

GERALD M. BIRNBERG

By James Oitzinger, with

permission

Admissions I.D. No. 2120

6671 Southwest Freeway, Suite 303

Houston, Texas 77074

(713) 981-9595

CO-COUNSEL FOR PLAINTIFF

75a

Appendix I

CERTIFICATE OF SERVICE

I hereby certify that on the 15th day of September, 1989,

a true and correct copy of the foregoing Plaintiffs’ Supplemental

Complaint was served upon the following counsel of record by

Hand Delivery in the courtroom of Judge James DeAnda:

Mr. Harold Streicher

Assistant County Attorney

1001 Preston, Suite 634

Houston, Texas 77002

Mr. Roderick Lawrence

Assistant County Attorney

1001 Preston, Suite 634

Houston, Texas 77002

Ms. Lisa Rice

Assistant County Attorney

1001 Preston, Suite 634

Houston, Texas 77002

Mr. Robert Ozer

Assistant Attorney General

Supreme Court Building

P.O. Box 12548

Capitol Station

Austin, Texas 78711

s/ James T. Oitzinger

JAMES T. OITZINGER

76a

APPENDIX J — THIRD PARTY COMPLAINT FILED

JANUARY 13, 1989 — ALBERTI v. SHERIFF OF HAKRIS

COUNTY (WITHOUT EXHIBITS)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 72-H-1094

LAWRENCE R. ALBERTI, ET AL.,

Plaintiffs

VS.

THE SHERIFF OF HARRIS COUNTY, ET AL.,

VS.

WILLIAM P. CLEMENTS; JAMES LYNAUGH; CHARLES

T. TERRELL; DERALYN R. DAVIS; JOSEPH V. LAMANTIA;

ALLAN BRUCE POLUNSKY; JAMES M. ELLER; F.L.

‘““STEVE’’ STEPHENS, DENNIS R. HENDRIX; ROBERT

MANN; JERRY H. HODGES (each in his or her official

capacity).

THIRD PARTY COMPLAINT

THE SHERIFF OF HARRIS COUNTY, TEXAS, and

HARRIS COUNTY, TEXAS, by and through its

COMMISSIONERS COURT, DEFENDANTS and THIRD

PARTY PLAINTIFFS herein, complaining of William P.

Clements, Governor of the State of Texas; James Lynaugh,

77a

Appendix J

Director of the Texas Department of Corrections; Charles T.

Terrell, Chairman of the Texas Board of Corrections; Deralyn

R. Davis, Joseph V. Lamantia, Allan Bruce Polunsky, James M.

Eller, F.L. ‘‘Steve’’ Stephens, Dennis R. Hendrix, Robert Mann

and Jerry H. Hodges, Board Members on the Texas Board of

Corrections, each in his or her official capacity, respectfully allege

as follows:

I. Parties

1. Johnny Klevenhagen is the SHERIFF OF HARRIS COUNTY,

TEXAS, and a defendant in the underlying action filed pursuant

to 42 U.S.C.A. § 1983 (West 1981).

2. HARRIS COUNTY, TEXAS, a political subdivision of the

State, Jon Lindsay, the HARRIS COUNTY JUDGE, and Harris

County Commissioners E.A. Lyons, Jim Fonteno, El Franco Lee

and Steve Radack, all of whom are members of the HARRIS

COUNTY COMMISSIONERS COURT, which is the governing

body of Harris County, Texas, are defendants in the underlying

action filed pursuant to 42 U.S.C.A § 1983 (West 1981).

3. WILLIAM P. CLEMENTS is the Governor of the State of

Texas, and may be served by mail at P.O. Box 12428, State

Capitol, Austin, Texas 78711.

4. JAMES LYNAUGH is the Director of the Texas Department

of Corrections and may be served by mail at P.O. Box 99,

Huntsville, Texas 77340.

5. CHARLES T. TERRELL is the Chairman of the Texas Board

of Corrections and may be served by mail at P.O. Box 35948,

Dallas, Texas 75235.

78a

Appendix J

6. DERALYN R. DAVIS is a board member on the Texas Board

of Corrections and may be served by mail at P.O. Box 15126,

Fort Worth, Texas 76110.

7. JOSEPH V. LAMANTIA is a board member on the Texas

Board of Corrections and may be served by mail at P.O. Box

1003, Weslaco, Texas 78596.

8. ALLAN BRUCE POLUNSKY is a board member on the Texas

Board of Corrections and may be served by mail at 1 Forum

16th Floor, 8000 Interstate Highway 10 West, San Antonio, Texas

78230.

9. JAMES M. ELLER is a board member on the Texas Board

of Corrections and may be served by mail at P.O. Box GJ, College

Station, Texas 77841.

10. F.L. ‘SSTEVE’’ STEPHENS is a board member on the Texas

Board of Corrections and may be served by mail at P.O. Box

5581, San Angelo, Texas 76902.

11. DENNIS R. HENDRIX is a board member on the Texas Board

of Corrections and may be served by mail at P.O. Box 2521,

Houston, Texas 77252.

12. ROBERT MANN is a board member on the Texas Board

of Corrections and may be served by mail at P.O. Box 8436, Waco,

Texas 76714.

13. JERRY H. HODGES is a board member on the Texas Board

of Corrections and may be served by mail at 25 Medical Drive,

Amarilio, Texas 79106.

79a

Appendix J

Il. JURISDICTION

14. The Court has jurisdiction pursuant to 42 U.S.C.A. § 1343(3)

(West Supp. 1988).

15. Additionally, the Court has pendent jurisdiction of the claims

against the Third Party Defendants in that the Third Party

Complaint arises out of the matters alleged in the Original

Complaint filed in this cause.

III. CAUSE OF ACTION

16. On August 14, 1972, Plaintiffs filed a Complaint against

Defendants, contending, inter alia, that the overcrowded

conditions existing in the Harris County Jail violated their

constitutional rights. See Exhibit A. On February 4, 1975, the

parties executed and the Court approved a Consent J udgment,

whereby Defendants agreed to reduce the overcrowding in the

Harris County Jail. See Exhibit B. Through this Consent Judgment

and a December 16, 1975, Memorandum and Opinion, Alberti

v. Kelvenhagen, 406 F. Supp. 649 (S.D. Tex. 1975), the Court

retained jurisdiction to enter any interim orders necessary to

effectuate compliance with the Consent Judgment and has

monitored such compliance, entering other remedial orders. See

Exhibit B at 5.

17. On April 28, 1987, the Court appointed a Special Master and

two Monitors (‘‘the Monitors’’) to oversee the Defendants’

compliance efforts. Alberti v. Klevenhagen, 660 F. Supp. 605 (S.D

Tex. 1987). On December 17, 1987, the Court entered an Order

which directed the Monitors to assess the overcrowding problem

in the Jail. On September 12, 1988, the Monitors filed their

Findings of Fact and Recommendations, determining that:

80a

Appendix J

The Jail is dangerously overcrowded. All systems

are impossibly stressed, including food service,

programming, elevators, recreation, classification,

maintenance, visiting, supplies of clothing and

bedding, security, medical care and mental health

services. So far these stressed systems have not

broken down completely under the population

pressures, but the Monitors believe that there is

no elasticity left in the institution and its service

systems.

See Exhibit C at 26. The Monitors stressed that the State of Texas,

not the Defendants, caused and was responsible for the current

overcrowding dilemma:

It should be re-emphasized in the strongest of terms

that Harris County has addressed its responsibilities

fully and well. The culprit here is the State of Texas

which has failed to provide adequate constitutional

housing for its offender population and has gotten

away so far with simply exporting the results of

its failure to the counties. The anomalous result

is that while the State is subject to a 95 percent

cap by one federal district court, one of its

subdivisions is being pushed to demand permission

of another federal district court to overpopulate

its facilities limitlessly.

See Exhibit C at 28 (emphasis added). The Monitors recommended

that the Court impose a ceiling capacity on the Harris County

Jail, reducing its overall population to 120 percent of total design

capacity within 60 days of the entry of the Court’s Order; to 110

percent of total design capacity by the time the 301 San Jacinto

8la

Appendix J

Jail’s renovation has been completed; and to 95 percent of total

design capacity by June 1, 1991. See Exhibit C at 29.

18. On November 8, 1988, the Court entered an Order requiring

the SHERIFF to transport and deliver to the Texas Department

of Corrections (‘‘TDC’’) at least 290 ‘‘convicted felons ready for

transfer to TDC’’ per week each week beginning December 5,

1988, finding that:

[D]jangerously overcrowded conditions exist in the

Harris County correctional facilities [that] have

been exascerbated substantially, if not caused

primarily or solely, by the failure of TDC to receive

convicted felons ready for transfer to the TDC in

sufficient numbers and in a sufficiently timely

manner to alleviate the overcrowded and dangerous

conditions which exist within Harris County

correctional facilities. The Court also finds that

such circu

This text is long and has been trimmed here. Open the source document for the complete record.