Reply Brief — Richards v. Lindsay

Supreme VOUrTt, V.o

FILED

| APR 2.0 1992

No. 91-1202 | OFFICE OF THE CLERK

IN THE

UNITED STATES SUPREME COURT

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,

7 Petitioners

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

Steve Radack, Jerry Eversole, Harris County Commissioners;

Johnny Klevenhagen, Harris County Sheriff,

. Respondents

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,

Respondents

On Petition for Certiorari

To the United States Court of Appeals

For the Fifth Circuit

PETITIONERS' REPLY TO RESPONDENTS' BRIEFS IN

OPPOSITION

DAN MORALES ROBERT OZER*

Attorney General of Texas Assistant Attorney General

WILL PRYOR JOHN B. WORLEY

First Assistant Attorney General Assistant Attorney General

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

Deputy Attorney General Austin, Texas 78711

(512) 463-2076

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division *Counsel of Record

TABLE OF CONTENTS

TABLE OF AUTHORITIES. ................./. li

REPLY TO RESPONDENTS' BRIEFS IN

Oi PE ee ee ]

A.

AS TO MOOTNESS: MASSIVE BAR-

RAGE OF FEDERAL JUDICIAL POWER

AIMED AT EXPANDING STATE PRISON

CAPACITY AT THE BACK-END OF THE

TEXAS CRIMINAL JUSTICE SYSTEM

WHILE HOLDING HARRIS COUNTY

JAIL AT DESIGN CAPACITY IMPOSES

ONGOING FINANCIAL LIABILITY FOR

STATE TAXPAYERS AND ENSURES

ONGOING CONTROVERSY ........... l

THE ALBERTI DECISION DOES

CONFLICT WITH KELLY............: 4

THE LOWER COURT SHOULD HAVE AB-

STAINED OR, ALTERNATIVELY, CERTI-

FIED TO THE TEXAS SUPREME COURT. .5

THE DELIBERATE INDIFFERENCE

ISSUE IS RIPE FOR REVIEW.......... 7

PETITIONERS HAVE STANDING TO

RAISE THE ISSUE OF THE ALBERTI

COURT'S EQUATING DESIGN CAPA-

CITY WITH CONSTITUTIONAL CAPA-

CITY AND EXPLICITLY RAISED THE IS-

SUE, INCLUDING THE "WAIT AND SEE"

APPROACH, IN THE COURT BELOW ... .9

SO aR et A eee ele ee aia ee 4k 10

TABLE OF AUTHORITIES

Cases Page

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

SO4 (Oe Ca. TOR. bn» sence PO eo ee BD 5, 6, 10

Anderson v. Creighton, 483 U.S. 635 (1987). .......... 7

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

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

(19ST) . oe cS ewe ue pe ee ee ees ee ee a ee 2

Board of Education of Oklahoma City v. Dowell, 498

U.S. __, 801 SAR Gp Gta ae se 8

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

Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986). ....... 8,9

Freeman v. Pitts, __. U.S. __, S.Ct. No. 89-1290

(Marca 31, IVE). ica oe eee eee ead 8

Harlow v. Fitzgerald, 457 U.S. 800 (1982)............ 7

Houston v. Hill, 482 U.S. 451 (1987)... 2... 2 ee eee. 6

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

312 U.S. ISS CIGSE).. . cas ee 7

Kelly v. Metropolitan County Board of Education of

Nashville and Davidson County, Tennessee v. State of

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

437 US. L206 GIFS). ss 6 ee ee eae 4,5,6

Martin v. Wilks, 490 U.S. 755 (1989). ............0.. 8

Pennhurst State School and Hospital v. Halderman, 465

ae ee 7

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

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

Stewart v. Winter, 669 F.2d 328 (Sth Cir. 1982)......... 9

Tarrant County Commissioners Court v. Markham, 779

S.W.2d 872 (Tex. App. - Fort Worth 1989, writ

Re 0 a a gg ke ke a ge 4 6 ew 8 eo 8 6

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

Wilson v. Seiter, 501 U.S. SERED Ge aeek ClPee). a ss z

Texas Statutes

TEX. GEN. & SPECIAL LAWS 1991, 2d Called Sess.,

Ch. 10, pp. 180-226, eff. August 29, 1991 ("H.B.

oss ae ee a ee l

TEX. GOV'T CODE, Ch. 444, Subch B (Vernon Supp.

ee geaals Wea 5G hoes wok 86 oe 8 be ee 4

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

TEX. GOV'T CODE § 511.012(b) (Vernon 1990)........ 8

Texas Constitution

eg a 2

Texas Legislative History

S.B. 24 (introduced in the First Called Session) § 14.02,

re 0c ea a's 4 5 0 AeA S 8 og 8 2

Other Statues

Miss. Code § 47-5-10 (Supp. 1981)...............-- 9

Miss. Code § 47-5-112 (1) (Supp. 1981).............. 9

Miss. Code § 47-5-159 (Supp. 1981)................ 9

REPLY TO RESPONDENTS' BRIEFS IN OPPOSITION

A. AS TO MOOTNESS: MASSIVE BARRAGE

OF FEDERAL JUDICIAL POWER AIMED AT

EXPANDING STATE PRISON CAPACITY

AT THE BACK-END OF THE TEXAS CRIMI-

NAL JUSTICE SYSTEM WHILE HOLDING

HARRIS COUNTY JAIL AT DESIGN CAPA-

CITY IMPOSES ONGOING FINANCIAL

LIABILITY FOR STATE TAXPAYERS AND

ENSURES ONGOING CONTROVERSY.

The Plaintiff and County Respondents (hereinafter,

sometimes "the Plaintiffs" and "the County") argue in their

Briefs in Opposition (hereinafter, "Briefs") that there is no

longer any controversy because legislation recently passed by

the Texas legislature, H.B. 93,! has "clarified the relation of the

duties and responsibilities of the state and the counties for hous-

ing prisoners." Plaintiffs’ Brief at 3-5; see also County Brief at

15. For several reasons, nothing could be further from the truth.

First, neither the Fifth Circuit nor the district court in

this case (hereinafter the "Alberti court") has even heeded the

explicit language of H.B. 93 and the state court settlement

agreements allowing compensation for transfers to other county

jails only on or after October 1, 1991. See TEX. GOV'T CODE

§ 499.125 (Vernon Supp. 1992) App. A 5; see also App. B to

this Reply at 4-5 (settlement agreement in Harris County v.

State of Texas, No. 475,468 (Dist. Ct. of Travis Co., 126th

Judicial District of Texas, pending)); Petition for Writ of

Certiorari (hereinafter "Petition") at 10-11. Instead, State

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

Alberti court to compensate Harris County for transfers prior to

October 1, 1991, and to date County Defendants have requested

an additional $4,572,285.25 for such transfers.

1 TEX. GEN. & SPECIAL LAWS 1991, 2d Called Sess., Ch. 10,

pp. 180-226, eff. August 29, 1991 (hereinafter, "H.B. 93"). See pertinent

excerpts in Appendix (hereinafter "App.") A to this Reply.

Moreover, compensation for transfers prior to October

1, 1991 is especially inappropriate in light of the legislative

history of H.B. 93 which shows that an earlier version of that

law would have allowed compensation under state law from

February 7, 1991, the date of the Alberti court's original order.

S.B. 24 (introduced in the First Called Session) § 14.02, p. 34,

proposing TEX. GOV'T CODE § 499.123(b) (copies of entire

bill lodged with Clerk of the Court). The deletion of that provi-

sion indicates that the Legislature's intent was not to compen-

sate Harris County prior to October 1, 1991. Smith v. Baldwin,

611 S.W.2d 611, 616-617 (Tex. 1980); see also Bullock v.

Calvert, 480 S.W.2d 367, 370-372 (Tex. 1972) (lack of appro-

priations evidence of legislative intent); TEX. CONST. Art.

VIII, § 6 (funds may not be drawn from the State treasury with-

out a specific appropriation therefor). Hence, the propriety of

what Harris County concedes to be federally ordered compensa-

tion? by the State of Texas to its political subdivision or "the

district court's reimbursements made to Harris County," County

Brief at 11, still remains a live controversy with state taxpayers

seeking the return of their monies improperly awarded as

compensation to Harris County by the lower court.

Second, the Alberti court has ordered the Harris County

jail capped at its design capacity (4,698 inmates) based on state |

Statutes and a 1975 consent decree even though these standards

do not, according to the Alberti Special Master, necessarily

establish a constitutional standard. See trial of week of

September 12, 1989, tr. vol. I, pp. 162-165; Petition at 12.

Moreover, both the Alberti Special Master and the state's expert

gave testimony which established that the Harris County jail

2 This is not a case at all like Benjamin v. Malcolm, 803 F.2d 46

(2nd Cir. 1986), cert. denied sub nom, Cuomo v. Koehler, 480 U.S. 910

(1987) or Tate v. Frey, 735 F.2d 986 (6th Cir. 1984) as the County

Respondents suggest. See County Brief at 14. Both Benjamin and Tate

concerned accepting inmates into existing units operated by the state, not

compensating a state's political subdivision for the acquisition of additional

capacity as is the case here. The latter situation raises profound questions

under Article III, the Eleventh Amendment and principles of federalism.

i eeeaeaeeensmieaisaeaaniaaeieiaaiiiiiiiaiiiiiiiiaiiil

could be constitutionally managed at a range of 5,500-6,000,

see Petition at 12-13, and the Alberti court routinely set caps at

6,300. Petition at 13.

Pursuant to the Alberti court's ruling, Petitioners must

make transfers under H.B. 93 to other counties sufficient to re-

duce the population in the Harris County jail to the design ca-

pacity (4,698) as opposed to a level of 6,000 which the Alberti

Special Master and the state's expert testified should be appro-

priate. The difference between those two population levels is

1,302. The current cost per day of a transfer under H.B. 93 is

approximately $35 per day. See Contracts attached to Request

for Ruling on Motion for Reconsideration and Vacation of

Portions of the Orders of November 25, 1991 and December 3,

1991 and Request for Expedited Consideration in Alberti v.

Klevenhagen v. Richards, Civil Action No. 72-H-1094 (S.D.

Tex. Houston Div.) (copies lodged with Clerk of the Court).

Under these figures State Defendants must bear a potential

aggregate cost of $45,570 per day in order to comply with the

district court's order setting the design capacity of the Harris

County jaii at its constitutional capacity. This amounts to an

aggregate cost of $16,643,050 per year. Hence, the district

court's determination that design capacity is equal to

constitutional capacity certainly is not moot and raises the

prospect of profound fiscal consequences for the state.

Third, the Alberti court's intrusion into the Texas

criminal justice system and state budgetary and legislative

process shows little sign of abating. Given the ability of

front-end population pressures in Harris County to "outstrip"4

3 Even assuming that the state would have to compensate Harris

County at a rate of $20 per day under H.B. 93 ($26,040 per day, $9,504,600

per year) for the 1,302 inmates that remained in the jail, the extra costs

(more than $7,000,000 per year) still would be substantial. Nor is it certain

that payments to Harris County will be maintained in light of state budgetary

constraints.

4 See Report of December 13, 1991 by the Alberti Special Master

on Harris County sentencing practices (hereinafter "Report of Alberti Special

(Footnote continued on next page)

the state's ability to add additional capacity, except for a few

isolated cells in remote counties, there are no more jail cells left

to transfer inmates pursuant to H.B. 93. As a result, the Alberti

court on March 13, 1992 entered an order (App. C to this

Reply) requesting jail and prison population projections for the

next six months, twelve months, two years and five years and

the filing of a joint remedial plan. Given its prior remedial order

and the Fifth Circuit's affirmance of that order, coupled with the

explosive population pressure in Harris County (number of

transfer-eligible felons sentenced to state prison sometimes

increasing at rate of approximately 100 per week), there can be

no doubt that the Alberti court will order either massive

acquisition of new capacity or compensation to Harris County

to acquire new capacity, if not wholesale release of felons,°

absent some limiting ruling by this Court.

B. THE ALBERTI DECISION DOES CONFLICT

WITH KELLY.

Both the Plaintiffs (Brief at 5-6) and the County (Brief

at 12-14) contend the Fifth Circuit successfully distinguished

Kelly v. Metropolitan County Board of Education of Nashville

and Davidson County, Tennessee v. State of Tennessee, 836

F.2d 986 (6th Cir. 1987), cert denied, 487 U.S. 1206 (1988)

from its decision in Alberti. They further assert -- erroneously --

that Petitioners did not address the Fifth Circuit's attempted

distinction between the two cases.

The distinction the Fifth Circuit attempted to draw

between Kelly and its own decision essentially was that in Kelly

(Footnote continued from previous page)

Master,") (copies lodged with the Clerk of the Court) at 24; see also Errata

to Monitor's Review of Objections of March 11, 1992 (hereinafter

"Monitor's Review") (copies lodged with the Clerk of the Court).

5 The Alberti Special Master has recommended triggering the

Prison Management Act (PMA), TEX. GOV'T CODE Ch. 444, Subch. B

(Vernon Supp. 1992); App. A 1, to expedite the release of felons thereby

easing population pressures in facilities housing misdemeanants. See

Monitor's Review at 15, 19-20.

the state had not been adjudicated a current constitutional

violator, whereas in Alberti, the State Defendants (Petitioners)

had been. Alberti v. Sheriff of Harris County v. Richards, 937

F.2d 984, 1001 (Sth Cir. 1991) (Petition at App. A 34-35).

Petitioners did address this distinction at 14-15 and 17 of the

Petition, arguing that the distinction begged the central and

critical question decided in Kelly -- whether federal courts

should inject themselves into internal state-law disputes

between state governmental entities and adjudicate such issues

as their division of financial responsibilities. Kelly's core hold-

ing was that federal courts should refrain from deciding such

disputes.® Petition at 15-17. Petitioners in this case were held

"constitutional violators" only because the Fifth Circuit ignored

Kelly's core holding and proceeded to adjudicate a dispute

concerning "hard questions" of "exclusively" state law, Alberti,

937 F.2d at 994 (Petition at App. A 18), between Petitioners and

the County over which State agency had legal responsibility for

the inmates in question. The Fifth Circuit thus failed to

harmonize its decision to adjudicate the "exclusively" state-law

dispute between state officials and the County’ with the chief

ground for decision in Kelly -- that federal courts should not

even reach such controversies.

i. THE LOWER COURT SHOULD HAVE AB-

STAINED OR, ALTERNATIVELY, CERTI-

FIED TO THE TEXAS SUPREME COURT.

It is almost impossible to overstate how weak the

Respondents’ arguments are in regards to abstention or, alterna-

tively, certification. Plaintiffs did not even address these issues,

6 This is expecially so when neither the County nor Plaintiffs have

argued that Petitioners’ financial assistance was necessary to secure

Plaintiffs’ federally protected rights. Petition at 17-18.

7 While the Plaintiffs did sue Petitioners, they did so only after the

second trial on liability and at the suggestion of the Alberti court. Transcript,

Trial of September 12-15, 1989, vol. 1, pp. 5-11, vol. 4(A), p. 83. Moreover,

Plaintiffs recognized that state, not federal, court was the appropriate forum

for the county to seek reimbursement. See Request for Emergency Order of

October 28, 1990 at 4-5 (Copies lodged with Clerk of the Court).

a response which has the benefit of candor since in the Fifth

Circuit they explicitly acknowledged the law was unsettled and

moved the court for certification. See App. D to this Reply.

On the other hand, the County, without citation to prece-

dent, advances the position that to impose a remedy against one

defendant without determining the liability of all is “contrary to

established principles of jurisprudence." County Brief at 17. Yet

this is exactly what the Sixth Circuit has suggested must be

done (at least as to third-party defendants) when it held that the

“constitutional wrongdoers must pay for their wrongs’ argu-

ment has little or no force when we are talking about two

political entities, a state and one of its subdivisions", and the

legislature has chosen not to shift “to the state as a whole the

costs of repairing the wrongs within each subdivision." Kelly,

836 F.2d at 998; Petition at 15-16. And the Sixth Circuit's

reasoning applies a fortiori here, where "(t]he county clearly

has some responsibility for the conditions in its own jails," but

where Petitioners’ liability rested on “hard questions" of

"exclusively" state law. Alberti, 937 F.2d at 994 (Petition at

App. A 18). Under the Eleventh Amendment, especially when

state law is unclear,® “it is difficult to think of a greater intru-

8 The County Respondents continue to rely on a single state district

court's letters, findings and judgments as clearly establishing the state law in

this case. See County Brief at App. A-H. However, they neglect to note that

the judgments underlying both state court cases have been vacated, App. E

and F to this Reply, pursuant to settlement (App. B). Accordingly, the

material in these appendices are of no legal effect.

The County Respondents’ reliance on Houston v. Hill, 482 U.S. 451

(1987), Brief at 15 n.36, is misplaced. In Hill the municipal courts had for 30

years “regularly applied" and construcd "an unambiguous statute" that

facially violated the First Amendment. Hill. at 470. Here, there are unsettled

issues of state law involving recently enacted statutes which implicate

Critical issues of statewide concer. In such circumstances, federal courts

should await a truly authoritative ruling from Texas’ highest court.

Nor can Tarrant County Commissioners Court v. Markham, 779

S.W.2d 872, 874-75 (Tex. App. - Fort Worth 1989, writ denied), County's

Brief at 9 n.21, be considered authoritative. The observations the County

quotes were gratuitous dicta made when Petitioners were not parties to the

case and had no opportunity to present their side of the story.

sion on state sovereignty than when a federal court instructs

state officials on how to conform their conduct to state law."

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

89, 106 (1984).9 Certainly, at the very lest, the Fifth Circuit

should have certifed to the Texas Supreme Court. Petition at 23.

D. THE DELIBERATE INDIFFERENCE ISSUE

IS RIPE FOR REVIEW.

Neither the County nor Plaintiffs have objected to

Petitioners’ Motion to Defer Proceedings on Petition for Writ of

Certiorari Pending Decision in Alberti v. Klevenhagen, Fifth

Cir. Nos. 91-2946, 91-6062, 92-6206. Oral argument for these

appeals has been set the week of July 6, 1992, App. G to this

Reply, and the Fifth Circuit has expedited the proceeding. App.

H to this Reply. Accordingly, this Court may simply defer

proceedings on this petition and await further rulings in the

Fifth Circuit.

However, this issue is ripe for review now inasmuch as

the Fifth Circuit should have concluded that Petitioners were

not deliberately indifferent as a matter of law, without the ne-

cessity of any remand for fact-finding. In light of the uncer-

tainty in state law, state officials cannot be held deliberately in-

different as a matter of law, because their duties under state law

were not "clearly established" or readily "apparent." Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982); Anderson v. Creighton

483 U.S. 635, 640 (1987); see also Wilson v. Seiter 501 U.S. __,

111 S.Ct. at 2323, 2326-27 (relying on individual liability cases

in formulating "deliberate indifference" standard).!° In this re-

9 Given Pennhurst, the County cannot reasonably stand on Huron

Holding Corp. v. Lincoln Mine Operating Co., 312 U.S. 183 (1941) or other

circuit authority cited in their Brief at 16 n:40. Such diversity cases,

involving private parties, do not raise Eleventh Amendment concerns.

10 The County also argues that State Defendants should have

moved to modify Ruiz. County Brief at 21. Petitioners have already

addressed that issue. Petition at 25. Certainly whether modification would

have been granted is not clearly established. Moreover, Petitioners moved on

(Footnote continued on next page)

gard, it is clear in the Fifth Circuit that, in the absence of clearly

established direct supervisory responsibility over local jails,

even a State-law duty to inspect the jails coupled with an obli-

gation to promulgate standards for them is insufficient to confer

a duty on a State agency (the Texas Commission on Jail Stan-

dards) to remedy unconstitutional conditions found in them.

Bush v. Viterna, 795 F.2d i203 (Sth Cir. 1986); see also Rizzo

v. Goode, 423 U.S. 362, 375-76 (1976). This is so despite the

fact that the Jail Standards Commission had the power under

Texas law to transfer inmates from a jail that is not "safe and

suitable." TEX. GOV'T CODE § 511.012(b) (Vernon 1990).

Here, in contrast, State Defendants had no state law means to

inspect locai jails (let alone a duty to do so) and no duty to pro-

mulgate standards.!! In light of Bush, it simply was not clearly

(Footnote continued from previous page)

January 29, 1991 to terminate jurisdiction in Ruiz pursuant to Board of

Education of Oklahoma City v. Dowell, 498 U.S. ___, 111 S.Ct. 630 (1991).

See also Freeman v. Pitts, __ U.S. ___, §.Ct. No. 89-1290 (March 31,

1992). A hearing on that motion is set for July 6, 1992.

11 If Petitioners had owed some clearly defined duty to remedy un-

constitutional conditions in the local jail, it might be argued that the

November 8, 1988 order, alluded to by County Respondents (Brief at 20),

constituted notice and placed an obligation on Petitioners to inspect the jail.

Here, however, Petitioners had no duty under Texas law to inspect the jail,

nor even the means to conduct an inspection, let alone a clear duty to remedy

the conditions there. At the time of the November 1988 order, none of State

Defendants’ agents had a right even to enter the jail. Indeed, this is true even

to this day at least as to inspecting the jail.

Furthermore, Petitioners were not a party to this suit in November

of 1988, and, accordingly, the Alberti court's order of that date did not bind

-them to any legal or factual assertion it made. Martin v. Wilks, 490 U.S. 755,

esp. at 763 (1989). Indeed, Petitioners still maintain that both the legal and

factual assertions contained in that order are clearly wrong. (For example, at

the time of that order, which alleged overcrowded conditions in the jail, the

jail’s population was reportedly approaching 6,000 [5,650 in July 1988,

according to the November 8, 1988 order]. However, both the Alberti

Special Master and the siate's expert testified that the jail can be

constitutionally managed at this population level. See Petition at 12-13; see

also Petition at 27-29. And the Alberti court routinely capped the jail at

6,300. Petition at 13.)

(Footnote continued on next page)

i. ,

established that a State agency (such as TDCJ) with no state law

authority to supervise local jails would be liable for remedying

unconstitutional conditions in one. Indeed, such a contention

would have had (and has) at least the appearance of anomaly. !2

This is especially the case when, in contrast to the Texas Com-

mission on Jail Standards, TDCJ had no statutory involvement

in transferring inmates to other county jails prior to H.B. 93.

B. PETITIONERS HAVE STANDING TO RAISE

THE ISSUE OF THE ALBERTI COURT'S

EQUATING DESIGN CAPACITY WITH

CONSTITUTIONAL CAPACITY AND EXPLI-

CITLY RAISED THE ISSUE, INCLUDING

THE "WAIT AND SEE" APPROACH, IN THE

COURT BELOW.

County Respondents claim, without citation, that

Petitioners lack standing to challenge the cap on the jail. County

Brief in Opposition at 21. Petitioners have, however, already

shown their standing in their Petition at 27 n.28.

Both the County (Brief at 22) and Plaintiffs (Brief at

7-10) claim that Petitioner did not raise the "wait and see" chal-

lenge to caps in the Court below. The record, however, shows

this assertion to be flatly wrong. See Brief of State Appellants

in Fifth Circuit at 85-87 (App. I to this Reply, the entire section

of Petitioners’ brief to the Fifth Circuit relating to the con-

(Footnote continued from previous page)

Moreover, knowledge of the assertions in court orders or parties’

pleadings, cannot serve as a surrogate for actual knowledge of the conditions

of confinement and a clear state law duty to remedy those conditions arising

from direct supervisory control over the jail. See Rizzo v. Goode, 423 U.S. at

375-76; Bush v. Viterna, supra.

12 Moreover, Bush, decided after Pennhurst and dealing with

Texas State structures, is far more persuasive authority than Stewart vy.

Winter, 669 F.2d 328 (Sth Cir. 1982). The Mississippi officials said to be

responsible in Stewart for convicted felons in local jails did have a degree of

supervisory authority over those jails. See e.g. Miss. Code §§ 47-5-112(1),

47-5-10, 47-5-159 (Supp. 1981).

10

Stitutional capacity of the jail, esp. at App I 2). Moreover, the

County also briefed thoroughly the equation of constitutional

capacity with design capacity. App. J attached hereto. In short,

two parties aligned on this issue raised and thoroughly briefed it

for review by the Fifth Circuit, which decided it. Alberti, 937

F.2d at 1000-1001 (Petition at App. A 33). There can be no

question, then, that the issue is properly before this Court.

CONCLUSION!

For these reasons, Petitioners request that the Court

grant them the relief sought in their Petition for a Writ of

Certiorari and for such other relief as this Court may deem just,

fair and equitable.

Respectfully submitted,

ROBERT OZER*

DAN MORALES Assistant Attorney General

Attorney General of Texas Chief, Class Action Section

Enforcement Division

WILL PRYOR

First Assistant Attorney General JOHN B. WORLEY

Assistant Attorney General

MARY KELLER

Deputy Attorney General P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

MICHAEL P. HODGE (512) 320-5300

Assistant Attorney General (512) 463-2200 (FAX)

Chief, Enforcement Division

*Counsel of Record ATTORNEYS FOR PETITIONERS

13° Petitioners are disturbed by County Respondents’ attempts to

portray Petitioners as misrepresenting the facts or law in this case.

Deviations from the County's positions are not misrepresentations. Suffice it

tc say that Petitioners disagree with the County's characterizations.

APPENDIX A

PERTINENT STATUTORY CHANGES ENACTED BY

H. B. 93

TEXAS GOVERNMENT CODE CHAPTER 499

SUBCHAPTER B. POPULATION MANAGEMENT

§ 499.025. Award of Administrative Good Conduct Time;

Advancement of Parole Eligibility Date.)

** * *

(b) * * * * If the Commission on Jail Standards deter-

mines that in any county jail in this state there exists an inmate

awaiting transfer to the institutional division following convic-

tion of a felony or revocation of probation, parole, or release on

mandatory supervision and for whom all paperwork and pro-

cessing required for transfer have been completed for not less

than 45 days, the board!2) may direct the Board of Pardons and

Paroles to proceed in the manner described by Subsection (c).

(c) If the Board of Pardons and Paroles receives a

directive from the board under Subsection (b), the Board of

Pardons and Paroles, acting in parole panels, shall immediately

begin to review and consider for early release to intensive

supervision parole each eligible inmate who would not at the

time of review otherwise be eligible for parole. The board may

impose additional criteria for determining which inmates are

eligible for release under this subsection. A parole panel may

not release an inmate under this subsection if the panel deter-

mines that the release of the inmate will increase the likelihood

of harm to the public, according to objective parole criteria.

[! The language set forth here under Subsection (b) is

entirely new language enacted by H.B. 93. A version of Subsection (c)

existed in previous law but was amended by H.B. 93.]

[2 The "board" refers to the Texas Board of Criminal Justice.}

A-2

****

SUBCHAPTER F. PROCEDURES FOR REDUCING

COUNTY JAIL BACKLOGI3i

§ 499.121. Legislative Declaration; Mandamus

(a) The legislature declares that until September 1,

1995, the institutional division shail continue to perform its

duty to accept inmates only as provided by the allocation

formula established under Section 499.071 {41

(b) The legislature declares that until September 1,

1995, a county shall continue to perform its duty to confine and

maintain under suitable conditions and at the county's own

expense each inmate eligible for transfer from the county to the

institutional division, until the date the inmate is actually

accepted into custody by the institutional division. This

subsection does not take effect if the County of Nueces et al. v.

Texas Board of Corrections, et al., in the 250th Judicial District

Court of Travis County, Texas, Cause No. 452,071 and Harris

County, Texas v, the State of Texas, et al, in the 126th District

Court of Travis County, Texas, Cause No. 475,468 are settled

by written agreement on or before the 31st day after the

effective date of this article.

(c) The legislature declares that on and after September

1, 1995, the institutional division has a duty to accept, not later

than the 45th day after the date on which all processing required

for transfer has been completed, each inmate confined in a

county jail while under an” order of commitment to the

institutional division.

(3 All the provisions set forth below were newly enacted by

H.B. 93.]

(4 This refers to Section 499.071 of the Texas Government

Code, which is set forth in App. Z to the Petition.]

A-3

(d) The duties provided by this subchapter may be

enforced by an action in mandamus.

§ 499.122. Inmate Count

The Commission on Jail Standards shall analyze

monthly the population of each jail in this state that is the jail

for a qualifying county and determine the number of inmates

confined in the jail who are awaiting transfer to the institutional

division following conviction of a felony or revocation of

probation, parole, or release on mandatory supervision and for

whom all paperwork and processing required under Section

8(a), Article 42.09, Code of Criminal Procedure, for transfer

have been completed. The commission may not consider in

determinng the population of the jail under this section any

inmate who is in the jail after having been transferred from

another jail and for whom the commission has made payment

under this subchapter.

§ 499.123. Payment

(a) Not later than the 32nd day after the effective date of

this subchapter, the Commission on Jail Standards shall deter-

mine for each jail in this state that is the jail for a qualifying

county the number of inmates confined in the jail on April 1,

1991, who were awaiting transfer to the institutional division

following conviction of a felony or revocation of probation,

parole, or release on mandatory supervision and for whom

paperwork and processing required under Section 8(a), Article

42.09, Code of Criminal Procedure,” for transfer had been

completed on that date.

(b) A qualifying county is entitled to payment from the

Commission on Jail Standards as compensation to the county

for confining the number of inmates determined as ready for

transfer under Subsection (a) at an amount per inmate to be de-

termined by dividing into $11.5 million the total number of

inmates in jails that are the jails for qualifying counties under

A-4

Subsection (a) confined by qualifying counties. The

_ commission shall make the payment under this subsection on or

before January 15, 1992.

(c) Not later than September 10, 1993, the Commission

on Jail Standards shall determine for each in this state that is the

jail for a qualifying county the number of inmates confined in

the jail on September 1, 1993, who were awaiting transfer to the

institutional division following conviction of a felony or

revocation of probation, parole, or release on mandatory

supervision and for whom paperwork and processing required

under Section 8(a), Article 42.09, Code of Criminal Procedure,

for transfer had been completed, as determined under Section

499.122, on that date.

(d) A qualifying county is entitled to payment from the

Commission on Jail Standards as compensation to the county

for confining the number of inmates determined as ready for

transfer under Subsection (c) at an amount per inmate to be

determined by dividing the total number of inmates in county

jails that are the jails for qualifying counties under Subsection

(c) confined by qualifying counties into $11.5 million. The

commission shall make the payment under this subsection or or

before January 15, 1994.

§ 499.124. Emergency Overcrowding Relief

(a) From the effective date of this subchapter until

August 31, 1993, for each month in which the number of in-

mates confined in a jail that is the jail for a qualifying county

who are awaiting transfer to the institutional division following

conviction of a felony or revocation of probation, parole, or

release on mandatory supervision and for whom paperwork and

processing required under Section 8(a), Article 42.09, Code of

Criminal Procedure, for transfer have been completed, as deter-

mined under Section 499.122, is greater than 50 percent of the

number of such inmates confined in the jail on April 1, 1991, as

determined under Section 499.123, the Commission on Jail

A-5

Standards shall pay to a qualifying county for each inmate in

excess of 50 percent but less than or equal to 210 percent of the

April 1, 1991, number for each day of confinement the sum of

$20, and for each inmate in excess of 210 percent of the April 1,

1991, number for each day of confinement the sum of $30.

(b) From September 1, 1993, until September 1, 1995,

for each month in which the number of inmates confined in a

jail that is the jail for a qualifying county who are awaiting

transfer to the institutional division following conviction of a

felony or revocation of probation, parole, or release on

mandatory supervision and for whom paperwork and processing

required under Section 8(a), Article 42.09, Code of Criminal

Procedure, for transfer have been completed, as determined

under Section 499.122, is greater than 25 percent of the number

of such inmates confined in the jail on April 1, 1991, as

determined under Section 499.123, the Commission on Jail

Standards shall pay to a qualifying county for each inmate in

excess of 25 percent but less than or equal to 210 percent of the

April 1, 1991, number for each day of confinement the sum of

$20, and for each inmate in excess of 210 percent of the April 1,

1991, number for each day of confinement the sum of $30.

§ 499.125. Transfer of Felony Backlog

(a) If a state or federal court determines that conditions

in a county jail are unconstitutional, and if on or after October

1, 1991, the percentage of inmates in the jail awaiting transfer

to the institutional division is 20 percent or more of the total

number of inmates in the jail, the commission shall transfer

inmates from the jail to an appropriate jail, detention center,

work camp, or correctional facility, but only to the extent

necessary to bring the county into compliance with court orders

or to reduce the percentage of inmates in the jail awaiting

transfer to the institutional division to less than 20 percent of

the total number of inmates in the jail.

A-6

(b) The Commission on Jail Standards is liable to

counties for payment of the costs of transportation for and

maintenance of transferred inmates. Costs paid to a county shall

be paid into the treasury of the county operating the facility

receiving the inmates. The costs for maintenance of an inmate

for which the commission is liable under this section are:

(1) the actual costs, as determined by the

agreement between the board and the officer or

governing body authorized by law to enter into

contracts, but only if Harris County, Texas v. the

State of Texas, et al., in the 126th District Court

of Travis County, Texas, Cause No. 475,468 is

settled by written agreement on or before the

31st day after the effective date of this

subchapter; or

(2) if the suit described by Subdivision (1) of

this subsection is not settled within the period

specified by the subdivision, for each inmate for

each day the first $20 of actual costs and

one-half of costs that are in excess of $20, with

the transferring county liable to the operators of

the receiving facility for all costs are [sic] not

paid by the state.

(c) If the board determines that a county is not

reasonably utilizing its available certified jail beds, the

payments authorized by this section shall be withheld to the

extent necessary to equal the cost of the unutilized beds.

§ 499.126. Definition

(a) In this subchapter, "qualifying county" means a

county that:

(1) on or after the effective date of this subchapter

does not initiate or become a party to a suit against the state or a

A-7

state agency or state official, the subject of which is the

reimbursement of the county for the confinement of inmates in

the county jail who are awaiting transfer to the institutional

division following conviction of a felony or revocation of

probation, parole, or release on mandatory supervision; and

(2) if, before the effective date of this subchapter, it

Was a party to a suit in state court described by Subdivision (1),

has before the 31st day after the effective date of this

subchapter:

(A)had the county's suit vacated and dismissed

by the court;

(B) had the county's suit abated by the court, by

entry of an abatement order that specifically provides that:

(i) the suit may not be reactivated except

before September 1, 1997, and except on a finding by the court

that the state has substantially failed to perform a duty imposed

under this subchapter;

(ii) the county is barred from any claim for

reimbursement for the cost of confining inmates on and after

the effective date of this subchapter and until September 1,

1995, other than reimbursement specified in this subchapter;

and

(ili) if the suit is not reactivated before

September 1, 1997, the court shall vacate and dismiss the suit

on that date; or

(C)had the county's suit settled by written

agreement.

(b) For the purposes of this section, a court retains

jurisdiction over a case in which the court has entered an

abatement order during the period in which the case is abated.

APPENDIX B

SETTLEMENT AGREEMENT IN HARRIS COUNTY, ET

AL. V. THE STATE OF THE STATE OF TEXAS, ET AL..,

NO. 475,468 IN THE 126TH DISTRICT OF TRAVIS

COUNTY, TEXAS

AGREEMENT

WHEREAS, overcrowding in the Institutional Division

of the Texas Department of Criminal Justice, and _ its

predecessor, the Texas Department of Corrections (hereinafter

collectively referred to as the "Institutional Division") has

contributed to the cost to the Plaintiff/Relator Harris County

and the Intervenor Montgomery County (hereinafter sometimes

referred to as the "Counties") of confining persons who have

received a judgment and sentence ordering confinement in the

Texas Department of Criminal Justice following conviction of a

felony, revocation of probation, parole, or release on mandatory

supervision for whom paperwork and processing required for

transfer has been completed (hereinafter "state-sentenced

inmates") prior to their transfer to the Institutional Division; and

WHEREAS, in the future Harris County and

Montgomery County are likely to continue incurring the cost of

confining state sentenced inmates prior to their transfer to the

Institutional Division; and

WHEREAS, House Bill 93 of the Seventy-Second

Legislature in the Second Called Session (hereinafter "H.B.

93") has been offered as a mechanism whereby the reformation

of the criminal justice system can begin to take place while, in

the meantime, providing partial compensation to Harris County

and Montgomery County for confining state-sentenced inmates

prior to their transfer to the Institutional Division; and

WHEREAS, the parties desire to settle and compromise

the judgment obtained by Harris County and Montgomery

B-2

County against the Respondents in Harris County v. State of

Texas, et al, cause number 475,468 in the 126th Judicial District

Court of Travis County, Texas (hereinafter the "suit"); and

WHEREAS, the parties desire to reach an agreement in

the suit which would be enforceable in the courts, but would

not, unfairly, limit the ability of the State of Texas to operate

and/or reform the criminal justice system;

NOW, THEREFORE, in order to induce Harris County

and Montgomery County to settle and compromise the

judgment obtained by Harris County and Montgomery County

in the suit, the Respondents hereby agree to:

1. Not later than the 32nd day after the effective date of

Article 11 of H.B. 93 or the signing of this Agreement,

whichever is later, the Texas Commission on Jail Standards

(hereinafter the "TCJS") shall determine for the county jails of

Harris County and Montgomery County, the number of inmates

confined in the jail and confined in another county jail at a cost

to the County on April 1, 1991, who were awaiting transfer to

the Institutional Division following conviction of a felony,

revocation of probation, parole or release on mandatory

supervision, and for whom paperwork and processing required

for transfer had been completed on that date. Harris County and

Montgomery County are entitled to payment from the TCJS as

compensation to the Counties for confining the number of

inmates determined as ready for transfer under Section 499.123

of the Government Code, as amended by H.B. 93, at an amount

per inmate to be determined by dividing into $11.5 million the

total number of inmates as determined by the provisions of

Section 499.123 (b) of the Government Code, as amended by

H.B. 93.

In the event Harris County or Montgomery County has

not made a record of the date the transfer paperwork required

by Article 42.09 of the Code of Criminal Procedure was

completed, they may use the date the judgment and sentence

B-3

was signed by a Judge. However, for purposes of payment

under other provisions of the Agreement, Harris County and

Montgomery County agree and are required to maintain a per-

manent record of the date the paperwork provided for by Article

42.09 of the Code of Criminal Procedure was completed and the

inmate became eligible for transfer to the Institutional Division.

The TCJS shall make the payment under this subsection

on or before January 15, 1992.

2. Not later than September 10, 1993, the TCJS shall

determine for the county jails of Harris County and

Montgomery County, the number of inmates confined in the

jails on September 1, 1993, who were awaiting transfer to the

Institutional Division following conviction of a felony, or

revocation of probation, parole or release on mandatory

supervision, and for whom paperwork and processing required

for transfer had been completed on that date. Harris County and

Montgomery County are entitled to payment from the TCJS as

compensation to the Counties for confining the number of

inmates determined as ready for transfer under this section at an

amount per inmate to be determined by dividing into $11.5

million the total number of inmates as determined by the

provisions of Section 499.123(d) of the Government Code, as

amended by H.B. 93.

The TCJS shall make the payment under this subsection

on or before January 15, 1994.

a From the effective date of H.B. 93 until August 31,

1993, for each month in which the number of inmates confined

in the Harris County or Montgomery County jail and confined

in another county jail at a cost to Harris County or Montgomery

County awaiting transfer to the Institutional Division following

conviction of a felony, revocation of probation, parole or

release On mandatory supervision for whom paperwork and

processing required for transfer has been completed, as

determined under Section 499.122 of the Government Code, as

B4

amended by H.B. 93, is greater than 50 percent of the number

of such inmates confined in the jail on April 1, 1991, as

determined under Section 499.123 of the Government Code, as

amended by H.B. 93, the TCJS shall pay to Harris County or

Montgomery County for each inmate in excess of 50 percent

but less than or equal to 210 percent of the April 1, 1991,

number for each day of confinement the sum of $20, and for

each inmates in excess of 210 percent of the April 1, 1991,

number, for each day of confinement the sum of $30.

4. From September 1, 1993, until September 1, 1995, for

each month in which the number of inmates confined in the

Harris County or Montgomery County jail and confined in

another county jail at a cost to tfarris County or Montgomery

County awaiting transfer to the Institutional Division following

conviction of a felony, revocation of probation, parole or

release on mandatory supervision for whom paperwork and

processing required for transfer has been completed, as

determined under Section 499.122 of the Government Code, as

amended by H.B. 93, is greater than 25 percent of the number

of such inmates confined in the jail on April 1, 1991, as

determined under Section 499.123 of the Government Code, as

amended by H.B. 93, the TCJS shall pay to Harris County or

Montgomery County for each inmate in excess of 25 percent

but less than or equal to 210 percent of the April 1, 1991,

number for each day of confinement the sum of $20, and for

each inmate in excess of 210 percent of the April 1, 1991,

number, for each day of confinement the sum of $30.

I If a state or federal court determines that conditions in

the Harris County or Montgomery County jail are unconstitu-

tional, and if on or after October 1, 1991, the percentage of

inmates in the jail awaiting transfer to the Institutional Division

is 20 percent or more of the total number of inmates in the jail,

the TCJS shall transfer inmates from the jail to an appropriate

jail, detention center, work camp, or correctional facility, but

only to the extent necessary to bring Harris County or

Montgomery County into compliance with court orders or to

B-5

reduce the percentage of inmates in the jail awaiting transfer to

the Institutional Division to less than 20 percent of the total

number of inmates in the jail. The TCJS is liable to the Counties

for payment of the costs of transportation for and maintenance

of transferred inmates. The costs for maintenance of an inmate

for which the TCJS is liable under this section are the actual

costs, as determined by the agreement between the Texas Board

of Criminal Justice (hereinafter the "TBCJ") and the officer or

governing body authorized by law to enter into contracts. No

payments will be withheld unless the TBCJ determines that

Harris County or Montgomery County is not reasonably

utilizing its available certified jail beds, and then only to the

extent necessary to equal the cost of unutilized beds.

6. Payments made to Harris County and Montgomery

County pursuant to the provision of paragraphs one and three

shall be made by the TCJS from a special fund of at least

$56,982,500 appropriated for that purpose for all counties of the

State in the 1992-93 legislative biennium.

(A Payments made to Harris County or Montgomery

County pursuant to the provision of paragraphs two and four

shall be made by the TCJS from a special fund of at least

$56,982,500 appropriated for that purpose for all counties of the

State in the 1994-95 legislative biennium.

8. Nothing in this Agreement shall be construed to limit

the Legislature's ability or responsibility to appropriate

additional amounts for purposes of payments provided for in

H.B. 93 or to limit the Counties’ ability to enforce the

provisions of H.B. 93 in a proceeding outside this suit.

9. Respondents agree to begin planning and construction of

thirteen thousand three hundred (13,300) additional prison beds

in the legislative biennium of 1992-93 with funds appropriated

for that purpose by the Legislature. Respondents further agree

(i) to begin construction of an additional twelve thousand

(12,000) drug treatment beds in the 1992-93 biennium or (ii) to

B-6

begin construction of at least an additional three thousand

(3,000) drug treatment beds in the 1992-1993 legislative

biennium and to begin construction of at least nine thousand

(9,000) additional prison beds in the TDCJ system during the

1994-1995 legislative biennium. This obligation will be in

addition to the obligation of the Respondents to complete

construction and begin operation, in the legislative biennium of

1992-93, of the fifteen thousand (15,000) prison beds, for which

funds have already been appropriated or obtained. The

obligation to begin planning and constructing of the additional

twenty-five thousand three hundred (25,300) prison and/or drug

treatment beds during the 1992-93 biennium is contingent on

the approval of the voters of S.J.R. No. 4, 72nd Legislature, ist

Called Session. However, no other provisions of this agreement,

including, but not limited to, the provisions in paragraph 11,

shall be contingent on the approval of the voters of S.J.R. No. 4,

72nd Legislature, 1st Called Session.

10. Respondents and the Counties agree that both parties

have important roles and responsibilities in the efficient

operation of the criminal justice system. Respondents

acknowledge that the Institutional Division has _ the

responsibility to accept state-sentenced inmates within a

reasonable time once their paperwork and processing required

for transfer has been completed. This Agreement reflects an

effort by both Respondents and the Counties to provide a

framework within which the backlog of state-sentenced inmates

in county jails can be cooperatively and successfully addressed

over the term of this Agreement. Respondents and the Counties

agree that it is their mutual objective to achieve a criminal

justice system in which state sentenced inmates are admitted to

the Institutional Division within a period less than 45 days after

they are ready for transfer. In furtherance of that objective, this

Agreement shall terminate prior to September 1, 1999, if

Respondents accept state-sentenced inmates, on an average over

one year, not later than the 15th day after the date on which all

processing required for transfer has been completed.

Respondents and the Counties agree that nothing in this

B-7

Agreement shall be construed as an acknowledgement,

admission or acceptance by the Respondents of an obligation,

duty or requirement to accept sooner than the 45th day after the

date on which all processing required for transfer has been

completed for an inmate confined in a county jail while under

an order of commitment to the Institutional Division and that

this paragraph is not intended to be an admission of liability in

this suit, or in any other suit, and shall be of no effect in any

further legal proceedings between Respondents and the

Counties, or any other entity.

il. Respondents agree that on and after September 1, 1995,

the Institutional Division will accept, not later than the 45th day

after the date on which all processing required for transfer has

been completed, each inmate confined in a county jail while

under an order of commitment to the Institutional Division.

12. Nothing in this Agreement shall be construed as an

acknowledgement, admission, or acceptance by Harris County

or Montgomery County of the reasonableness of a 45 day

period prior to transfer of state-sentenced inmates to the

Institutional Division. Nothing in this Agreement shall be

construed as an acknowledgement, admission or acceptance by

Harris County or Montgomery County of the reasonableness or

constitutionality of the policy or practice of limiting the number

of state-sentenced inmates being transferred to the Institutional

Division to the number prescribed by the allocation formula.

13. Nothing in this Agreement shall be construed so as to

require or obligate Respondents to increase the operational

capacity of the Institutional Division as provided in paragraph 9

if Respondents can demonstrate that it is not necessary to

increase operational capacity in order to, after September 1,

1995, accept, not later than the 45th day after the date on which

all processing required for transfer has been completed, each

inmate confined in a county jail while under an order of

commitment to the Institutional Division.

B-8

14. The parties agree to execute the Agreed Motion to

Vacate Judgment, Agreed Order Vacating Judgment, and

Judgment attached hereto as Exhibits A, B, and C.

15. The parties agree to file the Agreed Motion to Vacate

Judgment and Agreed Order Vacating Judgment attached as

Exhibits A and B in the 126th Judicial District Court of Travis

County, Texas.

The parties agree that the 126th Judicial District Court

of Travis County, Texas, (hereinafter the "trial court") in this

matter shall have continuing jurisdiction to determine whether

the parties have complied with the provisions of this settlement

Agreement.

In the event of the Respondents’ nonperformance, Harris

County and/or Montgomery County may move for

reinstatement of the vacated judgment. If the trial court

determines that the Respondents have violated the terms of this

Agreement, the judgment will be reinstated and judgment will

be entered for Harris County and/or Montgomery County. The

amount due under the judgment will include the amounts due

Harris County and/or Montgomery County as of April 30, 1991,

as stated in the judgment, and the amounts due the Counties for

confining state-sentenced inmates between May 1, 1991, and

the date the judgment is reinstated, plus interest at the rate of

ten percent (10%). The formula provided in the judgment for

determining the amount of compensation due the Counties will

be used in determining the amount due for the period from

April 30, 1991, until the date the judgment is reinstated.

Respondents will be entitled to an offset against the judgment

amount for the amounts paid under this Agreement prior to the

reinstatement of the judgment. The Respondents reserve their

right to appeal the judgment if it is reinstated.

16. ‘The parties agree that if the trial court determines that

the Respondents have violated the terms of this Agreement, and

the trial court determines that it is unable to reinstate the judg-

et t—‘—sS

B-9

ment as provided for in paragraph 15, the parties agree that the

new Judgment, attached hereto as Exhibit C, will be presented

to the trial court for entry. Respondents will be entitled to an

offset against the Judgment for the amounts paid under this

Agreement prior to the entry of the Judgment. The Respondents

reserve their right to appeal the Judgment after it is entered.

17. If the vacated judgment is reinstated or the new

Judgment is entered, Respondent's obligations pursuant to this

Agreement are terminated.

18. ‘It is agreed that the penalty for non compliance with the

Agreement by Respondents is reinstatement of the judgment

rather than specific performance of paragraphs 1, 2, 3, 4, 5, 6, 7,

8, 9, 11 of this Agreement or contempt sanctions. It is agreed

that paragraphs 14, 15, 16, 17, 18, 19, 20, and 21 of the Agree-

ment may be enforced by an action for specific performance.

19. It is agreed that the signing of this Agreement

constitutes a written agreement that settles the suit as required

by Sections 499.121 and 499.126 of the Government Code, as

amended by H.B. 93.

20. It is agreed that this Agreement is contingent on the

Court of Appeals remanding the suit to the trial court for further

proceedings, if necessary, and the trial court entering the

Agreed Order Vacating Judgment attached hereto as Exhibit B.

21. This Agreement shall terminate September 1, 1999,

unless a motion to reinstate the judgment has been filed or the

judgment has been reinstated pursuant to the provisions in

paragraph 15 above or the Judgment has been entered pursuant

to the provisions in paragraph 16, in which case it terminates on

reinstatement of the vacated judgment or entry of the new

Judgment. It is further agreed by all parties herein that upon

termination of the Agreement, other than by reinstatement of

the vacated judgment or entry of the new judgment, Harris

ee

B-10

County and Montgomery County will file a motion to dismiss

with prejudice in the trial court.

22. The negotiation of the terms of this document shall not

be admissible as evidence to prove intent of the parties or for

any other purpose in any proceeding. This shall include but not

be limited to previous drafts of this agreement, letters between

the parties, oral statements by the parties in the negotiation of

this document or any other communication between the parties.

The attorneys of record for the parties have hereunto signed

their names with full power to bind their respective clients to

this Agreement.

MIKE DRISCOLL

HARRIS COUNTY ATTORNEY

1001 Preston, Suite 634

Houston, Texas 77002

(713) 755-7961

By: /s/

FRANK SANDERS

State Bar No. 17588500

Assistant County Attorney

ATTORNEYS FOR HARRIS COUNTY, TEXAS

D.C. JIM DOZIER

MONTGOMERY COUNTY ATTORNEY

301 North Main Street, Suite 300

Conroe, Texas 77301

(409) 539-7828

By: Ls/

STEVE MCKEITHEN

State Bar No. 13700550

Assistant County Attorney

B-11

ATTORNEY FOR INTERVENOR

MONTGOMERY COUNTY, TEXAS

DAN MORALES

ATTORNEY GENERAL OF TEXAS

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

WILL PRYOR

First Assistant Attorney General

MARY F. KELLER

Executive Assistant Attorney General

ATTORNEYS FOR RESPONDENTS

By: Ls/

DAN MORALES

State Bar No. 14417450

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI, §

et al. §

§

V. § C.A. No. 72-H-1094

§

THE SHERIFF OF HARRIS §

COUNTY, TEXAS, etal., §

ORDER

The Court having reviewed the Monitor's report filed

December 13, 1991, the objections to that report, and the

Monitor's review of those objections, it is hereby

ORDERED

as follows:

(1) The parties shall file with the Court on or before

May 29, 1992 a joint population projection for the Harris

County Jail facilities and for the Texas Department of Criminal

Justice covering the following time periods: the next six

months, twelve months, two years and five years; and

(2) The parties shall file with the Court or or before

May 29, 1992 a joint proposed remedial plan addressing the

overcrowding problem in the Harris County Jail facilities; and

(3) The issue of the constitutional capacity of the

701 Building is REFERRED to the Monitor for an evidentiary

hearing and for findings and a recommendation to be submitted

to the Court on or before May 29, 1992.

C-2

Because of the gravity of the overcrowding problem in

Harris County and the rapid rate at which it is currently

escalating, the Court finds that prompt attention is necessary

and that the County and State defendants should give this

matter immediate priority. Consequently, the Court will not

entertain motions from the parties to extend the deadlines set

forth in this order.

SIGNED at Houston, Texas, this 12th day of March,

1992.

[s/

Chief Judge James DeAnda

United States District Judge

” ——

APPENDIX D

EXCERPTS FROM PLAINTIFFS'-APPELLEES' BRIEF (pp.

65-72) IN ALBERTI, ET AL. v. THE SHERIFF OF HARRIS

COUNTY, ET AL., v. ANN RICHARDS, THE GOVERNOR OF

TEXAS, ET AL., FIFTH CIR. NOS. 91-2274, 91-2210, 90-6034,

90-2441

h. Certification To Texas Supreme Court

If Judge Hart's rulings are not entitled to preclusive

effect until they are set aside on appeal, then the proper proce-

dure for this court to follow to respect the state's interest in ob-

taining state court resolution of state law issues while vindicat-

ing plaintiffs’ constitutional rights and the authority of federal

courts to redress constitutional deprivations, would be for this

court to certify to the Texas Supreme Court any unresolved

questions of Texas law. Plaintiffs further submit that the court

should certify certain state law questions to the Texas Supreme

Court for the additional reason that, as a practical matter, no

final resolution of this protracted litigation can ultimately be

achieved until those issues are decided by the Texas courts.

Certification presents the greatest promise for the quickest

definitive resolution of these issues, thereby speeding

considerably the day on which this tortuous litigation can

finally come to an end.

At this point, three things are indisputably clear: (1) the

Harris County jails are massively, unconstitutionally over-

crowded; (2) there are sufficient cells available in other county

jails throughout the state to alleviate the problem (at least for

the time being); and (3) the only question is whether, and to

what extent, state officials should be required to participate in

paying for that temporary remedy (utilization of vacant cells in

other counties) or otherwise assisting in the abatement of

ongoing constitutional violations in the jails.

D-2

This case has been pending for over eighteen years. Yet,

nobody disputes the fact that the mandates of the consent decree

entered more than sixteen years ago still have not been

achieved. Neither have the requirements of the supplemental

orders entered by the district court in accordance with the

reserved powers retained in the consent decree. Most import-

antly, no one denies that the Harris County detention facilities

are currently grossly unconstitutional as a result of severe

overcrowding. The only real issue at this point is whether, and

to what extent, state officials have a duty to participate in

eliminating these undeniably unconstitutional conditions.

While it is clear the county defendants have an obliga-

tion to eradicate unconstitutional conditions in the Harris

County jails, it is less certain how much responsibility the state

defendants bear, under state law, to participate in rectification

of the problem by either removing state-ready inmates prompily

from Harris County jails or paying the county for the cost of

housing excess populations elsewhere.

Once a constitutional violation has been shown to exist,

as it has in this case, the court must look to state law to deter-

mine which governmental officials are responsible for remedy-

ing the deficiency. Bush v. Viterna, 795 F.2d 1203, 1209 (Sth

Cir. 1986); In Re Clements, 881 F.2d 145, 154-155 (Sth Cir.

1989). It is common ground in this case (and indeed, indisput-

able) that the county defendants have affirmative obligations

under (a) the consent decree, (b) the constitution, and (c) state

law, TEX. LOCAL GOV'T. CODE §§ 351.001 and 351.041; In

re Clements, 881 F.2d at 154; Bush v. Viterna, 795 F.2d at

1206, to provide and pay for constitutional jails for all persons

confined in their facilities until they are transferred to the

custody of the state defendants. The unresolved question here is

whether, and to what extent, state officials also bear respons-

ibility for rectifying unconstitutional conditions in illegally

overcrowded county jails housing state-ready prisoners by

promptly removing from such facilities inmates who have been

sentenced to serve time in the custody of the Texas Department

D-3

of Criminal Justice - Institutional Division and are ready for

transfer to state custody (or paying for the housing of such

inmates elsewhere).

The reason there is uncertainty about this issue is that

the Texas courts have not yet finally ruled on the meaning or

scope of the Comprehensive Criminal Justice Reform Act

passed by the legislature in 1989, TEX. GEN. & SPECIAL

LAWS 1989, Reg. Sess. ch. 785, pp. 3470-3558 (H.B.No.2335)

in this context. Prior to September 1, 1989 (the effective date of

H.B.2335), Texas law had traditionally recognized a rather

bright line dichotomy concerning the responsibilities of county

and state officials for the housing of felony offenders: before

conviction, such prisoners were the responsibility of county

officials (the sheriff and the commissioners court); upon being

sentenced to serve penitentiary time, the inmates were to be

“speedily” transferred to the Texas Department of Corrections,

TEX. REV. CIV. STAT. ANN. art 6166r (Vernon 1970) and

became the responsibility of the state. Thus, prior to enactment

of H.B. 2335, state law effectively vested exclusive

responsibility for the constitutional housing of convicted felons

in state officials.

In 1989, the Texas legislature fundamentally revised the

relationship between the state and the counties with regard to

the housing of convicted felons. While the TDCJ-ID% still has

"primary" responsibility for the housing of convicted felons,

TEX. REV. CIV. STAT. ANN. art 44113(401) § 1.02(a)(1)

(Vernon Supp. 1991), there appears to have been a significant

change in the extent of the state's duty to house such inmates. In

the first place, the requirement that convicted felons be

transferred to the TDCJ-ID "speedily" has been deleted from

State law. More importantly, an elaborate mechanism, grounded

in a complex formula, has been established to "allocate" among

all the counties of Texas the finite number of prisoner spaces

available within the TDCJ-ID. TEX. REV. CIV. STAT. ANN.

46 That is the new name for what used to be called the Texas

Department of Corrrections (TDC).

a acer

D4

art 6166a-4 (Vernon 1991). Each county is permitted to send to

the TDCJ-ID a certain number of inmates each week, and that

number is determined by a detailed formula devised by the

legislature and implemented by the county defendants (the

members of the Texas Board of Criminal Justice).

Recognizing that the number of admissions "allocated"

to the counties would invariably be less than the numbers of

persons historical sentenced to TDC, the legislature created a

spectrum of intermediate sanctions*”? which the district courts

could utilize in lieu of TDCJ-ID incarceration, and the state

provided substantial funds to the counties to finance, at the local

level, those alternatives to institutionalization in the

penitentiary.*8

Thus, on the face of it, Texas appears to have decided in

1989 to limit state responsibility for accepting sentenced

inmates from the counties to the numbers derived from the

allocation formula, to provide funds to the counties to pay for

alternative intermediate sanctions, and to require the counties to

bear the financial burden of housing any more prisoners in their

facilities, including so-called state-ready inmates, themselves.

Not surprisingly, the counties balked at the state's

apparent effort to shift a portion of the traditional burden of

paying for the housing of state-ready inmates to the local

governments. Two lawsuits were filed in state district court in

Travis County asserting, in essence, that the state still has

responsibility to remove state-ready prisoners promptly from

the county jails, or to pay the counties the cost of incarcerating

them in local facilities pending transfer to the TDCJ-ID, even

47 Boot camps, super-intensive probation, residential

probation centers, and electronically monitored home detention are examples

of the kinds of intermediate, non-penitentiary punishments specifically

sanctioned by the legislature.

48 The statewide budget for funding H.B. 2335 programs

from September 1, 1990 through August 31, 1991, was $50 million. Harris

County's share of that fund was approximately $10 million.

D-5

after enactment of H.E. 2335. County of Nueces v. Texas Board

of Corrections, No. 452,071 (Dist. Ct. of Travis Co., 126th

Judicial Dist. of Tex.); Harris County v. State of Texas, No.

475,468 (Dist. Ct. of Travis Co., 126th Judicial Dist. of Tex.).

In both of those cases, state district court Judge Joseph Hart

ruled in favor of the counties and concluded that the state

officials continue to have a duty, unde~ Texas law, even after

passage of H.B. 2235, to take all convicted felons from the

counties promptly or pay for the cost of housing state-ready

inmates in local facilities.49 In essence, the state defendants

must either "take or pay" according to Judge Hart.

Ever since enactment of H.B. 2335, uncertainty con-

cerning its meaning and the extent to which it relieved state

officials of responsibility for state-ready prisoners, have pre-

vented comprehensive resolution of the Alberti case. Everybody

acknowledges that Harris County detention facilities are uncon-

stitutional due to massive overcrowding. The state defendants

claim, however, that the sole responsibility to cure those defici-

encies rest wholly with county officials (as a result of enact-

ment of H.B. 2335), while the county defendants unswervingly

insist that since the current overcrowding is in large part the

result of the state defendants’ failure promptly to remove

state-ready prisoners from the local jails, the state should effect

the remedy, notwithstanding passage of H.B. 2335.

This routine has gone on for more than a year and a half

now. At every opportunity, the state defendants cite the passage

49 The Nueces County case is winding its way through the

state appellate system. The state's opening brief was filed on March 29,

1991; the appellees’ brief will be due on April 29, 1991, if no extension of

time is requested or granted. In the Harris County case, Judge Hart granted

summary judgment in favor of the county as to liability. Since the parties

have been unable to agree to the per diem costs of incarcerating prisioners in

Harris County, trial on that "damages" issue has been set for May 13, 1991.

50 The county defendants argue that, other than providing a

few extra dollars for some locally based programs, H.B. 2335 really did not

effectuate a significant change in prior law concerning the state's traditional

responsibility with regard to state-ready prisoners.

D-6

from Bush v. Viterna, 795 F.2d at 1209, to the effect that the

state has "virtually complete freedom to decide who will be

responsible" for discharging constitutional obligations, and

claim that the legislature, in enacting H.B. 2335, did just that

and opted to delegate to the counties exclusive responsibility for

the housing of state-reeady inmates in constitutional facilities

(at least until there is room in the ID to accept them into state

custody), and assert that, therefore, they have been relieved, by

state law, from any duty to participate in effectuating a remedy

for the admittedly unconstitutional conditions in the Harris

County jails. Invariably, the county defendants respond that the

state officials misapprehend the real meaning and import of

H.B. 2335 and that state officials are still primarily obligated,

under Texas law, to remove state-ready inmates promptly from

the Harris County jails, at least where leaving the prisoners in

that terribly overcrowded facility subjects them to unconstitu-

tional privations and violates rights secured by the eighth and

fourteenth amendments to the constitution of the United States.

Meanwhile, plaintiffs languish in horrible conditions

which no one suggests comport with constitutional standards

and no one denies pose serious threats to the health, safety,

welfare, and, indeed, lives of the inmates condemned to be

warehoused there, as well as the public at large.

It is apparent that no real, final comprehensive remedy

will be achieved in this case until the Texas courts sort out the

uncertainties existing in Texas law and determine definitively,

and decisively, the scope of the state officials’ responsibility,

under Texas law, to remove state-ready prisoners from uncon-

Stitutional county jails. Until that state law determination is

made, this litigation is, effectively, on a tread mill and no

permanent solution to this protracted case and the seemingly

never-ending problems of overcrowding in the Harris County

jails can realistically be effected.

D-7

Accordingly, plaintiffs propose that this court certify to

the Texas Supreme Court, under TEX. R. APP. P. 144 and

TEX. CONST. 145 V § 3-c, the following questions:

a. Does Texas law impose on state (as

opposed to county) officials a duty

promptly to remove from unconstitu-

tionally overcrowded county jails

prisoners who have been convicted of

felony offenses and sentenced to serve

time in the custody of the Texas

Department of Criminal — Justice-

Institutional Division in excess of the

numbers of inmates required to be

accepted into the TDCJ-ID weekly pursu-

ant to the allocation formula promulgated

pursuant to TEX. REV. CIV. STAT.

ANN. art 6166a-4 (Vernon 1991)?

b. Assuming that the answer to the fore-

going question is yes, does Texas law

require or authorize funds from the state

treasury to be utilized to pay the cost of

housing excess state-ready prisoners in

available cells in county jails, where state

officials have declined (or are unable) to

receive such innjates into the TDCJ-ID as

a result of that facility being populated to

the maximum extent allowed by law?

Those questions are decidedly ones which shouid be

addressed by the Texas Supreme Court in the first instance.

There is obviously no clearly controlling Texas precedent (other

than Judge Hart's rulings, which are on appeal or interlocutory),

and the matters are truly issues of first impression in this state.

The principles of comity and federalism counsel in favor of

permitting the courts of the state of Texas the opportunity to

answer these crucial issues of state law, instead of the federal

D-8

courts trying to divine what Texas courts might ultimately do

with them so long as plaintiffs' constitutional rights are not

continually violated in the meantime (i.e. federally ordered

relief proceeds).

If the certification process has any role in preserving the

federal-state balance, certainly this case presents the ideal

occasion for the federal court to seek definitive guidance from

the highest court of the state on these state law questions in

these areas of such great importance to the public policy and

interest of the state.5!

51 Of course, referral of these questions to the Texas Supreme

Court must not delay relief to the plaintiff class in any respect. Rather, the

court should command the district court to order the defendants to take

whatever steps are necessary to achieve needed reductions in county jail

populations, including housing excess populations in vacant cells in other

counties, even while the certification process is going on. No principle of

comity or federalism, or other consideration, would permit the intolerable

conditions currently existing in the Harris County jails to continue and

persist while the Texas Supreme Court sorts out the unsettled qustions of

Texas law conceming which level of government (state or county) should

pay for the remedy.

APPENDIX E

NO. 475,468

HARRIS COUNTY, TEXAS, IN THE DISTRICT

COURT

Plaintiff and Relator,

7,

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; MAMIE MOORE

PROCTOR; ROBERT MANN;

AND ALLAN B. POLUNSKY;

AS MEMBERS OF THE TEXAS

BOARD OF CRIMINAL

JUSTICE, ~

TRAVIS COUNTY,

TEXAS

126TH JUDICIAL

DISTRICT

QW? LMP? OP7 O27 O27 OP? O27 WO? OO? OO? 2 2? HO? 7? OO? OH OM M

Defendants and Respondents

R RDER ATIN DGME

On the date indicated below came on to be heard the

joint motion of the Plaintiff/Relator, the Harris County, Texas,

and the Intervenor, Montgomery County, Texas; together with

the 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

E-2

Gallant, Jr.; James Eller; Maime Moore Proctor; Robert Mann;

and Allen B. Polunsky; as members of The Texas Board of

Criminal Justice for vacation of the judgment entered by this

Court on August 2, 1991. The Court, having considered the said

motion, finds that the parties have satisfactorily compromised

and settled all matters in dispute in this cause. The Court further

finds that the vacation of the judgment is conditional on the

' Defendants/Respondents' performance of the requirements of

the Agreement, attached to the motion as Attachment A, and on

the Plaintiff/Relator and Intervenor being able to file a motion

with this Court to reinstate the judgment, attached to the motion

as Exhibit C to Attachment A, if Defendants/Respondents fail

to perform under the terms of the Agreement. The Court further

finds that the vacation of judgment is conditional on the agree-

ment of the parties that if the Court determines that the

Defendants/Respondents have violated the terms of the

Agreement, then the Court shall reinstate and enter the original

judgment, attached to the motion as Exhibit C to Attachment A.

Further, the vacation of the judgment is, and shall be,

conditional on the agreement of the parties that if the Court

determines that the Defendants/Respondents have violated the

terms of the Agreement, and determines that it is unable to

reinstate the judgment as provided, the Court shall enter the

Judgment attached to the motion as Exhibit C to Attachment A.

The Court further finds that the Defendants/Respondents

reserve their right to appeal if the judgment is reinstated or the

new Judgment is entered. The Court further finds that the

motion should be granted.

It is therefore, ORDERED, ADJUDGED, and

DECREED that the judgment entered by this Court on August

2, 1991, in the above-styled and numbered cause be, and the

same hereby is, vacated subject to being reinstated if the

Defendants/Respondents fail to perform the requirements of the

Agreement attached to the motion as Attachment A, or, in the

alternative, if the Court determines that the Defendants/

Respondents have violated the terms of the Agreement, and

determines that it is unable to reinstate the judgment, the entry

E-3

of the new Judgment attached to the motion as Exhibit C to

Attachment A.

SIGNED and ENTERED this 25th day of October,

1991.

/s/

JUDGE JOSEPH HART

126th Judicial District

APPROVED AS TO FORM AND SUBSTANCE:

MIKE DRISCOLL

HARRIS COUNTY ATTORNEY

1001 Preston, Suite 634

Corpus Christi, Texas 77002-1891

(713) 755-7961

By: ls/

FRANK SANDERS

State Bar No. 17588500

Assistant County Attorney

ATTORNEYS FOR HARRIS COUNTY, TEXAS

D. C. JIM DOZIER

MONTGOMERY COUNTY ATTORNEY

301 North Main Street, Suite 300

Conroe, Texas 77301

(409) 539-7828

By: Ls/

STEVE MCKEITHEN

State Bar No. 13700550

Assistant County Attorney

ATTORNEYS FOR INTERVENOR

MONTGOMERY COUNTY, TEXAS

i

$

j -

.

E-4

DAN MORALES

ATTORNEY GENERAL OF TEXAS

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2080

WILL PRYOR

First Assistant Attorney General

MARY F. KELLER

Executive Assistant Attorney General

By: ls/

DAN MORALES

State Bar No. 14417450

ATTORNEYS FOR RESPONDENTS

APPENDIX F

NO. 452,071

THE COUNTY OF NUECES,

TEXAS, ET AL.

Relator IN THE DISTRICT

COURT

V.

TEXAS BOARD OF

CORRECTIONS; CHARLES T.

TERRELL; JERRY H. HODGE;

F. L. STEPHENS; DERALYN R.

DAVIS; JAMES ELLER;

DENNIS R. HENDRIX; JOE V.

LAMANTIA; ROBERT MANN,

ALLAN B. POLUNSKY;

JAMES A. LYNAUGH,

TRAVIS COUNTY,

TEXAS

250TH JUDICIAL

DISTRICT

CO? C0? OP? 02? OP? (OP? 2 OO? O27 2? O27 MH OH? MH

Respondents

R R N

On the date indicated below came on to be heard the

joint motion of the Relator, the County of Nueces, Texas; and

the Intervenors, The County of Travis, Texas, the County of

Tarrant, Texas, The County of Dallas, Texas, The County of

Victoria, Texas, The County of Collin, Texas, The County of

Hunt, Texas, The County of Bexar, Texas, The County of El

Paso, Texas, The County of Lubbock, Texas, The County of

Galveston, Texas, and The County of Hidalgo, Texas; together

with the Respondents, 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, and James A. Lynaugh for vacation of the

judgment entered by this Court on August 22, 1990. The Court,

having considered said motion, finds that the parties have

F-2

satisfactorily compromised and settled all matters in dispute in

this cause. The Court further finds that the vacation of the

judgment is conditional on the Respondents’ performance of the

requirements of the Agreement, attached to the motion as

Attachment A, and on the Relator or, any or all of, the

Intervenors being able to file a motion with this Court to

reinstate the judgment, attached to the motion as Exhibit D to

Attachment A, if Respondents fail to perform under the terms of

the Agreement. The Court further finds that the vacation of

judgment is conditional on the agreement of the parties that if

the Court determines that the Respondents have violated the

terms of the Agreement, then the Court shall reinstate and enter

the original judgment, attached to the motion as Exhibit D to

Attachment A. Further, the vacation of the judgment is, and

shall be, conditional on the agreement of the parties that if the

Court determines that the Respondents have violated the terms

of the Agreement, and determines that it is unable to reinstate

the judgment as provided, the Court shall enter the Judgment

attached to the motion as Exhibit E to Attachment A. The Court

further finds that the Respondents reserve their right to appeal if

the judgment is reinstated or the new Judgment is entered. The

Court further finds that the motion should be granted.

It is therefore, ORDERED, ADJUDGED, and

DECREED that the judgment entered by this Court on August

22, 1990, in the above-styled and numbered cause be, and the

same hereby is, vacated subject to being reinstated if the

Respondents fail to perform the requirements of the Agreement

attached to the motion as Attachment A, or, in the alternative, if

the Court determines that the Respondents have violated the

terms of the Agreement, and determines that it is unable to

reinstate the judgment, the entry of the new Judgment attached

to the motion as Exhibit E to Attachment A.

F-3

SIGNED and ENTERED this 14th day of November,

1991.

Is/

JUDGE JOSEPH HART

250th Judicial District

APPROVED AS TO FORM AND SUBSTANCE:

NUECES COUNTY ATTORNEY

Nueces County Courthouse

901 Leopard, Room 206

Corpus Christi, Texas 78401-3680

(512) 888-0206

By: /s/

Carlos Valdez

State Bar No. 20426250

ATTORNEYS FOR NUECES COUNTY

BICKERSTAFF, HEATH & SMILEY

98 San Jacinto Blvd., Suite 1800

Austin, Texas 78701-4039

By: Ls/

Ann Clarke Snell

State Bar No. 18788500

By: Ls/

Steve Bickerstaff

State Bar No. 02293800

ATTORNEYS FOR INTERVENORS

ATTORNEY GENERAL OF TEXAS

DAN MORALES

F-4

WILL PRYOR

First Assistant Attorney General

MARY F. KELLER

Executive Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2080

By: Ls/_

Dan Morales

State Bar No. 14417450

ATTORNEYS FOR RESPONDENTS

on

APPENDIX G

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

GILBERT F. GANUCHEAU TEL. 504-589-6514

CLERK 600 CAMP STREET

NEW ORLEANS, LA. 70130

April 7, 1992

IMPORTANT NOTICE

TO ALL COUNSEL OF RECORD

No. 91-6062 - Lawrence R. Alberti, El Al. vs.

The Sheriff of Harris County, TX, Et Al.

(Consolidated with Nos. 91-6206 & 91-2946)

Projected Week of Hearing July 6, 1992

Dear Counsel:

This letter will serve as advance notice that the above refer-

enced case will be assigned for oral argument sometime during

the week shown above, on a yet undetermined date.

We are giving this much advance notice to avoid conflicts. If

you should have a serious and otherwise irresolvable conflict,

please contact the undersigned IMMEDIATELY. Please do

not seek reassignment unless your problem is acute and cannot

be handled in any other manner.

GERALYN A. MAHER

Calendar Clerk

G-2

/gam

Messrs. Robert Ozer and

John B. Worley

Ms. Lisa S. Rice and

Mr. Harold M. Streicher

Mr. James Oitzinger

Mr. Gerald M. Birnberg

(504) 589-6071

FTS 682-6071

APPENDIX H

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-6062

(D.C. #CA-H-72- 1094)

LAWRENCE R. ALBERTI, ET AL.

Plaintiffs-Appellees,

versus

THE SHERIFF OF HARRIS COUNTY, TEXAS, ET AL.

Defendants-Third Party Plaintiffs-

Appellees-Cross Appellants,

versus

ANN RICHARDS, THE GOVERNOR OF TEXAS, ET AL.,

Third Party Defendants-Appellants-

Cross Appellees

KKK KKK KR KK RK KK KOK OK KOK OK OK KOK OK OK KOK OK Ok Ok O*

No. 91-6206

LAWRENCE R. ALBERTI,

Plaintiff,

versus

THE SHERIFF OF HARRIS COUNTY, TEXAS, ET AL.

Defendants-Third Party

Plaintiffs- Appellees,

versus

ANN RICHARDS, THE GOVERNOR OF TEXAS, ET AL.,

Defendants-Third Party Defendants-

Appellants.

KKK KKK KK OK OK KOK OK KK KK OK OK KOK KOK KOK KK OK OK OK OK &

H-2

-

No. 91-2946

LAWRENCE R. ALBERTI, ET AL.

Plaintiff

versus

THE SHERIFF OF HARRIS COUNTY, ET AL.

Defendants-Third Party

Plaintiffs-Appellees,

versus

ANN RICHARDS, THE GOVERNOR OF THE STATE OF

TEXAS, ET AL.,

Defendants-Third Party

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Texas

ORDER:

IT IS ORDERED that the motion of Governor Ann

Richards, Et Al., to consolidate the referenced appeals is

GRANTED.

IT IS FURTHER ORDERED that the motion of

Governor Ann Richards, Et Al., to Expedite the referenced

appeals is GRANTED.

[S/

PATRICK HIGGINBOTHAM

UNITED STATES CIRCUIT JUDGE

APPENDIX I

EXCERPTS FROM STATE APPELLANTS' BRIEF (pp.

85-87) IN ALBERTI, ET AL, V, THE SHERIFF OF HARRIS

COUNTY, ET AL, V, ANN RICHARDS, THE GOVERNOR

OF TEXAS, ET AL,, FIFTH CIRCUIT NOS. 91-2274,

91-2210, 90-6034, 90-2441

A. The Alberti Court Erred in Finding that the

Design Capacity of the Jail is the Constitutional

Capacity,”3 and the Lower Courts Erred in

Excluding Evidence on _ the Constitutional

Capacity of the Harris County Jail.

The Alberti court's Finding of Fact 28 states that the

design capacity of the jail (which has one prisoner per cell) is

also its constitutional capacity. Joint Appendix, No. 27 at 26.

The finding rests on the "poor physical design" of the jail and

the lack of a “second means of egress." Jd. There was no

testimony to show that adding a second means of egress would

be impossible. The "poor physical design" apparently refers to

the inability of the guards to see into all cells at all times. But

there was no testimony to show that the ability to see into all

cells at all times was necessary for the prisoners’ safety and

well-being given proper classification and segregation. There

was no testimony, in particular, to show that prisoners’ safety

would be compromised if properly classified non-violent

offenders were double-celled and the jail adequately staffed and

regularly patrolled.

State Defendants’ criminal justice expert Steve Martin

gave testimony to show that constitutional capacity and design

Capacity are not the same at the first trial. See trial of the week

of August 15, 1989, tr. vol. 3 pp. 511-516. At the trial of August

14-15, 1990, after his third tour of the jail, Mr. Martin testified

that the jail might be made constitutional, with the proper

3 State Defendants will not brief this point extensively, since

they understand that the County Defendants intend to brief it as well.

1-2

classification and management practices, at a population of

5,800. See tr. vol. 1, pp. 128-144, esp. 143-144.

At the trial of February 27, 1990, however, the Alberti

and Ruiz courts, sitting together, excluded testimony from Mr.

Martin that would have shown that some double-celling could

be used in the jail. They made this ruling on the grounds that

double-ceiling was not part of State Defendants’ remedial plan.

See trial of February 27, 1990, tr. vol. 1(A), pp. 89-95; also,

State Defendants’ Offer of Proof filed March 2, 1990. But it

would not have been appropriate for State Defendants to have

included doubie-celling in their remedial plan, since that

concerned the internal management of the jail. State Defendants

remedial plan properly addressed what they could do to relieve

the overcrowding. The courts should not have expected State

Defendants to have included recommendations on the internal

management of the jail in their plan.

In addition, the question of the constitutional capacity of

a detention facility in an institutional reform case, which is

imprecise, fluid and subject to changing circumstances, is one

that a court should be willing to re-visit when new and relevant

information is available. See Ruiz v, Estelle, 679 F.2d 1115,

1148 (Sth Cir. 1982) ("wait and see" approach taken on

constitutional necessity for single-celling). Indeed, as in Ruiz, a

"wait and see" approach would be appropriate here. See also

Rhodes v, Chapman, 452 U.S. 337, 348-50 (1981). The lower

courts therefore erred in excluding this evidence and in

adhering to design capacity as the constitutional capacity

without waiting to see the effect of reductions in population.

APPENDIX J

EXCERPTS FROM COUNTY APPELANTS' BRIEF

(pp. 49-56) IN ALBERTI, ET AL. V. THE SHERIFF OF

HARRIS COUNTY, ET AL. V. ANN RICHARDS, THE

GOVERNOR OF TEXAS, ET AL., FIFTH CIRCUIT NOS.

91-2274, 91-2210, 90-6034, 90-2441

ISSUE V

THE ALBERTI COURT ERRED AS A MATTER OF

LAW IN DETERMINING THAT THE

CONSTITUTIONAL CAPACITY OF THE HARRIS

INADEQUATE TO GIVE THE PARTIES AND THIS

4 DE ND H

R RT ;

L I D

ST VERSED

County Defendants contest the Alberti court's subsidiary

and ultimate findings of fact, mixed findings of fact and

conclusions of law, and application of law to the determination

of the constitutional capacity of the Harris County Jail facilities.

J-2

County Defendants further dispute the Alberti Court's denial of

their October 11, 1989 motion to amend the Alberti Court's

September 25, 1989 Findings of Fact and Conclusions of Law

as to this issue.!58

The Alberti Court's September 25, 1989 Findings of

Fact establish a per se, Constitutional threshold not supported in

law, or by the record and the Alberti/Ruiz Court's later remedial

orders. These findings provide, in pertinent part, that:

28. Because of the poor physical design

of the central jail and the lack of a second means

of egress from the Detention Center, the Court

finds that the maximum constitutional capacity

for the Harris County Jail is its overall design

capacity, or a total of 4,281 inmates. This Court's

previous staffing order entered December 18,

1984 assumed that a 9-9-7 staffing ration [sic]

could adequately safeguard no more than the

number of inmates the facilities were designed to

house.!59

The Alberti Court's Conclusions of Law, however, do not

specifically address its equation of design and Constitutional

Capacities.

The "Constitutional" capacity of a jail must be

determined by looking at the totality of the conditions in the

jail, not simply by referral to design capacity. In determining

whether conditions in the Jail facilities constitute cruel and

unusual punishment prohibited by the Eighth Amendment, the

Court "need not separately weight each of the challenged

158 App. 54-#1090; App. 25.

159 App. 27-26.

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practices and conditions, [but] instead must look to the totality

of the conditions.""!6

The Alberti Court erred in equating design capacity with

the Constitutional capacity in the Harris County Jail facilities.

In Miller v, Carson, for example, the United States District

Court for the Middle District of Florida ordered that the

officials house no more than the design capacity of

Jacksonville, Florida jail.'!6! This Court, in a November, 1977

appeal, observed that "'designed capacity" is a ‘tool’, not the

sine qua non, for determining constitutional capacity. '62

That same year, in Williams v. Edwards, the United

States District Court for the Middle District of Louisiana

enjoined the Governor of Louisiana, the Warden of Louisiana

State Prison, the Director of the Louisiana Department of

Corrections and others from accepting any new prisoners other

than escapees and parole revokees into Angola until such time

as the Angola inmate population "is no greater than design

capacity."'6 In 1977, this Court affirmed the "temporary,

emergency" order prohibiting new additions to the inmate

population at Angola. According to this Court:

The functions and characteristics of each

building should be taken into account in arriving

at the capacity of each. A simple mathematical

calculation of total square feet of space divided

160 Alberti v, Klevenhagen, 790 F.2d 1220, 1224 (Sth Cir.

1986), quoting Ruiz_v, Estelle, 679 F.2df 1115, 1139 (Sth Cir.),

modified on other grounds, 688 F.2d 266 (5th Cir. 1982), cert. denied,

460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1985); Jones _v,

Diamond, 636 F.2d 1364, 1368 (Sth Cir.), cert dism'd sub nom,

Ledbetter v. Jones, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981)

(Fourteenth Amendment); Newman v, Alabama, 559 F.2d 283, 291 (Sth

Cir. 1977), cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160

(1978) (Eighth Amendment).

161 Miller v. Carson, 563 F.2d 741 (1977).

162 Miller, 563 F.2d at 752, n. 18.

163 Williams, 547 F.2d at 1208.

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‘by a standard of square feet per man may not

necessarily be appropriate or practicable.!™

That Same year, this Court determined Newman v,

Alabama, rejecting the application of design capacity as the

only factor in calculating per se constitutional limitations on

capacity in Alabama prisons:

Unless intended to apply only to existing facili-

ties we do not discern the constitutional basis for

the requirement that Alabama State prisoners

shall be housed in individual cells, nor can we

agree that "design" standards, without more,

amount to a per se constitutional limitation on

the number of prisoners which may be housed in

a particular prison facility. Those who design

prisons are not vested with either the duty or the

power to prescribe constitutional standards to

prison space.

Although this Court allowed the district court to limit capacity

in existing prisons to design capacity, it remanded for

recalculation capacity limitations in future construction in

accordance with its decision in Williams y, Edwards. !®

In United § L._ Wolfis! United

("Wolfish"), the United States District Court for the Southern

District of New York made capacity determinations relating to

the dormitory unit at the New York City Correctional Center,

which, although designed to house 60 inmates, actually held

164 Williams, 547 F.2d at 1215.

165 Newman v, Alabama, 559 F.2d 283, 288 (Sth Cir.

1977), judgment rev'd in part sub nom on other grounds, Alabama

v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Edf.2d 1114 (1978), citing,

Williams, 547 F.2d at 1215.

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120 inmates, or 200 percent of its "rated" capacity.! After

considering two factors, including design capacity and the

“fundamental denia{l] of decency, privacy, personal security,

and, simply, civilized humanity..." associated with double

celling, the district court capped the permissible prisoner

population at rated capacity.167

Although it approved the district court's privacy

considerations, the Second Circuit found that the trial court's

refusal to consider whether "any number of inmates in excess of

rated capacity could be suitably quartered within the

dormitories" was unwarranted. That appellate court remanded

the case to the trial court for reconsideration of the lower court's

determination of constitutional capacity, emphasizing:

There is no constitutional magic to the term "rated

capacity." Indeed, "[t]hose who design prisons are not

vested with eiiher the duty or the power to prescribe

constitutional standards as to prison space. !68

The Supreme Court, on review, disagreed with the

district court's and Second Circuit's privacy analysis and

concluded that the Second Circuit had applied the wrong

standard of review.'!® According to the Court, there is no "one

man, one cell" principle lurking in the Due Process Clause of

the Fifth Amendment.!70

- United States ex rel, Wolfish v, United States,

428 F. Supp. 333, 136 (S.D.N.Y. 1977), affd in part, rev'd in part,

Wolfish v, Levi, 573 F.2d 118 (2d Cir. 1978), judgment rev'd, Bell v,

Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979).

167 Wolfish, 428 F. Supp. at 339.

168 Wolfish v, met 573 F.2d 118, 128 (2d Cir. 1978),

Vv! , Bell v. Wolfish, 441 U.S. 520, 99

S.Ct. 1861, 60 L.Ed.2d 447 A979) | (finding that Second Circuit used wrong

standard of review), Quoiing, Neman, 559 F.2d at 288.

169 Bell v, Wolfish, 441 U.S. 520, 531-32, 535, 539, 99

S.Ct. 1861, 60 L.Ed.2d 447 (1979).

170 Bell v, Wolfish, 441 U.S. 520, 541-42, 99 S.Ct. 1861,

60 L.Ed.2d 447 (1979).

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In Rhodes v, Chapman, the United States District Court

for the Southern District of Texas found that double bunking

two prisoners in one cell at the Southern Oil Correctional

Facility constituted cruel and unusual punishment. In making

this constitutional ‘capacity-ready determination, the district

court reasoned that: (1) the prisoners were serving long terms of

punishment, which "could only accent[uate] the problems of

close confinement and overcrowding; (2) that SOCF housed

38% more inmates at the time of trial than its “design capacity";

(3) that contemporary standards of decency reflected in several

studies recommended that each prison in an institution have at

least 50-55 square feet of living quarters (double celled

prisoners shared 63 square feet); (4) that a double-celled

prisoner at SOCF would spend most of his time in the cell with

his cellmate; and (5) that SOCF has made double celling a

practice, rather than a temporary condition.!7!

On appeal, the Sixth Circuit affirmed the district court's

order, holding that its findings were not clearly erroneous, that

its legal conclusions were permissible from the findings and

that its remedy reasonably responded to the violations.!72 The

Supreme Court, however, reversed,'73 finding that the five

conditions articulated by the district court fell short in

themselves of proving cruel and unusual punishment:

The five considerations on which the District

Court relied are insufficient to support its

constitutional conclusion . . . These general

considerations fall far short in themselves of

proving cruel and unusual punishment, for there

is no evidence that double celling under these

circumstances either inflicts unnecessary or

171 Rhodes v, Chapman, 452 U.S. 337, 101 S.Ct. 2392,

2397-98 L.Ed.2d 59 (1981).

172 Rhodes, 101 S.Ct. at 2398, citing Chapman _v,

Rhodes, 624 F.2d 1099 (6th Cir. 1980).

173 Rhodes, 101 S.Ct. at 2398.

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wanton pain or is grossly disproportionate to the

severity of crimes warranting imprisonment.!74

The Court a deemphasized the fact that SOCF was at 138% of

"design" capacity at time of trial, observing that "[t]he question

before us is not whether the designer of SOCF guessed

incorrectly about future prison population, but whether the

actual conditions of confinement at SOCF are cruel and

unusual.'75 Here, as in the above-referenced cases, a per se

Constitutional capacity tied to design capacity fails.

Both the Alberti/Ruiz Court's September 7, 1990 joint

remedial order and the Alberti Court's February 7, 1991

remedial order contradict this determination of Constitutional

capacity. The remedial orders cap the jail population at 6100

and 6300, respectively. As the Alberti Court observed in its

February 7, 1991 remedial order, "[iJn hearings in August,

1990, both the Alberti Special Master and the State defendants’

expert testified that Harris County detention facilities can be

managed safely and securely for a limited period at a population

level somewhere between 5,500 and 6,000."176 Given the

Court's own willingness to forego this "design" capacity tied

cap, this cap should be reversed.

174 Rhodes, 101 S.Ct. at 2400.

175 Rhodes, 101 S.Ct. at 2401.

176 App. 5-5 & App. 15-3. See Aug. 14, 1990 TR. at 144 11.

2-5 ("... 1 am confident in predicting that the 5800 number doesn't, per se,

constitute an unconstitutional overcrowding in the Harris County Jails.")

(testimony of Steve Martin). See also Aug. 14, 1990 TR. VOL. I at 28, 11.

19-25, at 129, 11. 1-3 (doesn't believe 5,865 population in Harris County Jail

facilities is inherently unconstitutional) (testimony of Steve Martin); (Aug.

15, 1990 TR. VOL. II at 14, 11. 8-25, at 15, 11. 5-15 (believes that prisoner

population constitutional somewhere between 5,500 and 6,000) (testimony

of Michael Keating, Alberti Court's Special Master).