Petition for Writ of Certiorari — Richards v. Alberti

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No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM 1992

Ann Richards, Governor of Texas; Carol S. Vance,

Jerry H. Hodge, Joshua W. Allen, Sr., Ellen J. Halbert, Clarence

N. Stevenson, Allan B. Polunsky, R. H. Duncan, Sr., Gilberto

Hinojosa, John R. Ward, Members, Texas Board of Criminal

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

of Criminal Justice,

Petitioners

v.

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

Steve Radack, Jerry Eversole, Harris County Commissioners;

Johnny Klevenhagen, Harris County Sheriff,

Respondents

v.

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

Pina, 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

PETITION FOR WRIT OF CERTIORARI

DAN MORALES ROBERT OZER*

Attorney General of Texas Assistant Attorney General

WILL PRYOR JOHN B. WORLEY

First Assistant Attorney General Assistant Attorney General

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

Deputy Attorney General Austin, Texas 78711

(512) 463-2076

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division *Counsel of Record

QUESTIONS PRESENTED

l Whether, under principles of federalism and

Article III of the Constitution, federal courts have jurisdiction to

decide unsettled questions of state law involving a dispute

between two levels of state government concerning state fiscal

policy and a complex regulatory scheme when resolution of the

dispute was not necessary to provide relief to the Plaintiff

prisoner class in a local jail?

‘

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

state law, that the state must compensate one of its political

subdivisions is in violation of the Eleventh Amendment when

such order is not necessary to provide relief to the prisoner class

in a local jail?

3. | Whether, under principles of federalism, federal

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

the state supreme court, unsettled questions of state law

involving a dispute between two levels of state government

concerning state fiscal policy and a complex state regulatory

scheme, when federal judicial intervention in the dispute is not

necessary to provide relief to the Plaintiff prisoner class in a local

jail and a state court proceeding involving identical issues and

identical parties is pending?

4. Whether state officials can possess the requisite

culpable state of mind to be found liable for unconstitutional

conditions in a local jail under Wilson v. Seiter, | US.___,

111, S.Ct. 2321 (1991), when their state law duty to remedy

conditions in a local jail was not clearly established and the

finding of liability was "tentative" and "contingent" on the

outcome of state court litigation?

TABLE OF CONTENTS

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES Vv

OPINIONS BELOW l

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .. 2

I CONSTITUTIONAL PROVISIONS 2

Il. STATUTORY PROVISIONS 3

STATEMENT OF THE CASE ...... r , 4

I PETITION INVOLVES FEDERALISM

ISSUES OF NATIONAL SIGNIFICANCE

AND IS NOW RIPE FOR

NUE EWE» sis cassasusaccaetertimaeeeean eiutvinen at 4

I. COURSE OF PROCEEDINGS AND

DISPOSITION BELOW.................... 6

Il. STATEMENT OF FACTS................00.000.... ) 9

A. State Law Prior to H.B. 93 Was

Unsettled As To Liability and

Financial Responsibility of State

Defendants for Transfer-Eligible

Inmates in Harris County Jail. ............ 9-10

B. Allocation Formula Was Lynchpin

of Reforms Aimed at Controlling

Local Jail and Prison Overcrowding........._ 11

C._ The State District Court Judgment

Relied On By The Fifth Circuit Has

Been Vacated Without Ever Being

Reviewed, Let Alone Affirmed, By A

State Appellate Court.

D. The Legislative History of H.B. 93

and State Court Settlements Indicate

the State Was Responsible for

Prisoner Transfers Only After

October 1, 1991.

E. County Had Full Authority and

Ability to Provide Remedy to

Inmate Class. .....

REASONS FOR GRANTING WRIT

[ THERE ARE SPECIAL AND IMPORTANT

REASONS TO GRANT THE WRIT

A. Certiorari Should Be Granted To

Resolve An Irreconcilable Conflict

Between The Circuits Over

(1) The Role of Federal Courts

in Deciding Disputes Between

Different Levels of State

Government And (2) The Scope

of the Eleventh Amendment

B. Certiorari Should Be Granted Because

of Lower Court's Clearly Erroneous

And Ill-Reasoned Ruling on Abstention

and Certification

a

1. Abstention Was Especially

Appropriate Because of Ongoing

State Court Proceedings Dealing

With Undecided Issues of State

Law

nN

Abstention Was Appropriate to

Avoid Disruption of State

Regulatory Programs. ..........

3. If Abstention Was Not

Appropniate, the Fifth Circuit

Should Have Stayed Further Action

Against State Defendants While

Certifying the Relevant Questions of

Law to the Texas Supreme Court. ......

C. Certiorari Should Be Granted to

Determine Whether State Officials

Can Be Found Liable for Conditions

In A Local Jail Under Wilson v. Seiter

When Their Responsibilities Under State

Law For Inmates In A Local Jail Are Not

Clearly Established

CONCLUSION

TABLE OF AUTHORITIES

Cases Page

Alberti v. Sheriff of Harris County v. Richards, 978

F.2d 893 (Sth Cir. 1992)............. ; 1,8

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

F.2d 984 (Sth Cir. 1991), cert denied sub nom,

Richards v. Lindsay, _US. __ , 112 S. Ct. 1994

RRR iva Oh eee ee me . oe _ passim

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

(Tex. 1964)... | als 14, 22

Anderson v. Creighton, 483 U.S. 635 (1987) 27

Bass v. Fontleroy, 11 Tex. 698 (1854) 1]

Brotherhood of Locomotive Firemen and Enginemen v.

Bangor and Aroostook Railroad Co., 389 U.S. 327

(1967)...... m 5

Bullock v. Calvert, 480 S.W.2d 367 (Tex. 1972) 10

Burford v. Sun Oil. Co., 319 U.S. 315 (1943) 23

Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986) 21, 28

Coleman v. Miller, 307 U.S. 433 (1939) 17

Colorado River Water Conservation Dist.

v. United States, 424 U.S. 800 (1976)..... 22, 23

Coyle v. Smith, 221 U.S. 559 (1911) 17

$$$ eee ee = - a

vi

District of Columbia Court of Appeals v. Feldman, 460

ne I cis acy scans pdsbdanesavanecsnessoactien 23

Employees v. Missouri Department of Public Health

and Welfare, 411 U.S. 279 (1973)............ 20

Estelle v. Gamble, 429 U.S. 97 (1976)................ 27

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

323 US. 459 (1945). pee 19

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

293 (1943)............ seat tevennnsunaesntccsSeenaeae ‘ 20

Haferv. Melo, _US.___, 112 S.Ct. 358 (1991)... 27

Hans v. Louisiana, 134 U.S. 1 (1890)......... me aoe 5

Harlow vy. Fitzgerald, 457 U.S. 800 (1982).......000000..... 27

Harris County Commissioners Court v. Moore, 420

IE overdo cit ssa uaa cesccebexteananerean : 22

Hills v. Gautreaux, 425 U.S. 284 (1976)....0000....cccees. 21

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

In Re Clements, 881 F.2d 145 (Sth Cir. 1989)............... 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, 487 U.S. 1206 (1988).........0.000.0000008.. 17, 18, 19, 21

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

573 (1946)... . | | 20

Vil

LaFaut v. Smith, 834 F.2d 389 (4th Cir. 1987) 27

Lehman Bros v. Schein, 416 U.S. 386 (1974) 25

Matthews v. Rodgers, 284 U.S. 521 (1932) 20

Milliken v. Bradley, 433 U.S. 267 (1977) 21

Moore v. Sims, 442 U.S. 415 (1979) 23

Pennhurst State School and Hospital v. Halderman,

465 U.S. 89 (1984)...... <— | oe 19, 28

Pennzoil v. Texaco, 481 U.S. 1 (1987) 21, 22, 23, 25

Presley v. Etowah County Comm'n Uo... uaa

fem ~ 1.’ | Seren 17

P. R. Aqueduct and Sewer Authority v. Metcalf and

Eddy, US. __, 113 S.Ct. 684 (1993)... © 6,27

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

| ET eS a Reet Rr cea ec A Ses enreae 21

Richards v. United States District Court for the

Southern District of Texas, US. __, 11},

SAX. 1408 (1991 ).....00.50:.. 4

Rizzo v. Goode, 423 U.S. 362 (1976). 28

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

Lett) >) | | 1]

San Antonio Independent School District v. Rodriguez,

411 US. 1 (1973)............ 18

Smith v. Baldwin, 611 S.W.2d 611 (Tex. 1981) 15

Vill

South Macomb Disposal Authority v. Township of

Washington, 790 F.2d 500 (6th Cir. 1986)........... 17

State of Louisiana ex rel. Guste v. Roemer, 949 F.2d

ON IE. WIP oe sce vesitndencicknsncend zecnsnctbincess 7 25

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

1049 (Sth Cir. 1984)..000. ee. | 17

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

1262 (Sth Cir. 1986), cert. denied sub nom.

Lubbock I.S.D. v. Texas Education Agency, 479

Sh | i |: RARER EIR Hepa OT | 19

Whitley v. Albers, 475 U.S. 312 (1986) 27

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

58 (1989). 22

Wilson v. Seiter, _US.__, 111 S.Ct. 2321

SINE ccs oh cc castudaust buck gvetsnen deacenesecunkcs 8, 26, 26-27

Younger v. Harris, 401 U.S. 37 (1971)....... wii 22

United States Constitution

Article III, § 2, cl. 1 oo... 2

U.S. Const. Amendment 8........... 2-3

EE | eee 3,17

U.S. Const. Amendment 11.................. 3, 17

United States Statutes

28 U.S.C. § 1254(1) 2

28 U.S.C. § 2283........

42 U.S.C. § 1983

Texas Constitution

TEX. CONST. Art. I, § 13

TEX. CONST. Art. II, § 1

TEX. CONST. Art. VIII, 6

TEX. CONST. Art. IX § 1

Texas Statutes

S.B. 171, 73rd Texas Legislature (eff. February 23,

1993). oo oocccccccceceseeveseseevesveveveseeveeeee,

TEX. CODE CRIM. PROC. ANN. art. 104.002

(Vernon Supp. 1993)

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

Ch. 10, pp. 180-226 ("H.B. 93") (eff. August 29,

BUD idiots sath Sevsen tuninteesends(iechaectsnasenesesnobeainaiina ,

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

Ch. 10 ("H.B. 93"), Section 22.03, p. 224 (eff.

FI BOE cin sceseneichievincsiseneiacinons

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

1263, pp. 5184-5200 (eff. June 16, 1989)...

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

785, pp. 3471-3558 ("H.B. 2335") (generally eff.

September 1, 1989)

N

nN

Oo

10

TEX. GEN. & SPECIAL LAWS 1987, 2d Called Sess.,

Ch. 78, Para. 49, p. 343 (eff. August 6, 1987)

TEX. GOV'T CODE ANN

1993)

TEX. GOV'T CODE ANN

1993)

TEX. GOV'T CODE ANN

Supp. 1993)

TEX. GOV'T CODE ANN

1993)

TEX. GOV'T CODE ANN

1993)

TEX. GOV'T CODE ANN

Supp. 1993)

TEX. GOV'T CODE ANN

Supp. 1993)

TEX. GOV'T CODE ANN

1993)

TEX. GOV'T CODE ANN

(Vernon 1990) ..............

TEX. GOV'T CODE ANN

1993).

TEX. GOV'T CODE ANN

Pamph. 1993) ..

§ 493.001 (Vernon Supp

§ 495.003 (Vernon Supp

Ch. 499, Subch. B (Vernon

§ 499.071 (Vernon Supp

§ 499.121 (Vernon Supp

§§ 499.121-125 (Vernon

§§ 499.122-125 (Vernon

§ 499.125 (Vernon Supp

§§ 511.012(b) & (c)

Ch. 791 (Vernon Pamph

§ 791.003(3)(A) (Vernon

13,

ww

14

15

15

1S

Xi

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

I WI xccxsuasnkacaticarectucncans

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

351.035 (Vernon 1988)

Texas. LOCAL GOV'T CODE ANN. § 351.041

(Vernon 1988)

TEX. LOCAL GOV'T CODE ANN. Ch. 351, Subch. F

& G (Vernon Supp. 1993)

re

Tex. Rev. Civ. Stat. art. 6166a-4 (repealed)

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

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

(Vernon Pamph. 1993)

Texas Court Rules

TEX. R. APP. P. 114

Texas Administrative Regulations

37 TAC §§ 152.1-152.3

17 Tex. Reg. 6788 (October 2, 1992)

Texas Attorney General Opinions

Op. Atty Gen. JM-730 (1987)

Op. Atty Gen. JM-743 (1987)

10

10

10

No.

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM 1992

ANN RICHARDS, GOVERNOR OF TEXAS, ET AL.,

Petitioners

y

THE SHERIFF OF HARRIS COUNTY, TEXAS, ET AL.,

Respondents

LAWRENCE R. ALBERTI, ET AL

Respondents

PETITION FOR CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth Circuit

after remand is attached as Appendix A. Alberti v. Sheriff of

Harris County v. Richards, 978 F.2d 893 (Sth Cir. 1992). The

order of the panel denying the State's Motion for Panel

Rehearing and Suggestion for Rehearing En Banc is attached as

Appendix B. The initial opinion of the Court of Appeals for the

Fifih Circuit reviewing the District Court's orders finding liability

against state officials and ordering state officials to compensate

Harris County is attached hereto as Appendix C. Alberti v.

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

1991), cert. denied sub. nom. Richards v. Lindsay, ___ US.

___, 112 S.Ct. 1994 (1992). The order of the panel denying

the state's Motion for Panel Rehearing in the initial appeal is

attached as Appendix D. The decision of the district court

finding State Defendants deliberately indifferent after the initial

opinion in the Fifth Circuit is attached as Appendix O. The

opinion of the district court initially finding liability is attached as

Appendix Y. Other district court opinions ordering the deposit

or dispersal of monies to Harris County or denying relief from

such orders which are the subject of this petition are attached as

Appendices I, J, K, L, M, N, O, P, Q, S and U

JURISDICTION

The judgment of the Court of Appeals was entered on

November 20, 1992. A timely filed Suggestion for Rehearing

En Banc and a Motion for Panel Rehearing were denied on

January 13, 1993. This Petition for Wnt of Certioran is filed

within 90 days of the Final Judgment. The jurisdiction of this

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

CONSTITUTIONAL

AND STATUTORY PROVISIONS INVOLVED

I. CONSTITUTIONAL PROVISIONS:

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

The judicial power shall extend to all cases in law

and equity arising under this Constitution, the laws

of the United States . . .

Eighth Amendment:

Excessive bail shall not be required, nor excessive

fines imposed, nor cruel and unusual punishments

inflicted

Tenth Amendment

The powers not delegated to the United States by

the Constitution, nor prohibited by it to the States,

are reserved to the States respectively, or to the

people

Eleventh Amendment:

The judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or presented against one of the United

States by citizens of another state; or by citizens or

subjects of any foreign state

STATUTORY PROVISIONS:

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

part

[A] county is liable for all expenses incurred in the

safekeeping of prisoners confined in county jails or

kept under guard by the county.

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

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

Tex. Gov't Code § 499.121-499.125 is attached as

Appendix AA

STATEMENT OF THE CASE

ie PETITION INVOLVES FEDERALISM ISSUES OF

NATIONAL SIGNIFICANCE AND IS NOW RIPE FOR

REVIEW.

This controversy swirls around whether Texas prison

officials and the Governor of Texas (hereinafter "State

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

felons sentenced to the state prison system but confined and

maintained in the Harris County jail. State Defendants do not

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

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

court. Appendix ("App.") C15. Rather State Defendants

maintain that federal courts, especially in a suit between two

different levels of state government and involving complex state

regulatory policies, lack authority to decide these “hard

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

the dispute involved primarily the fiscal question of

compensation to the counties which should only have been

resolved on the terra firma of Texas politics in the Texas

legislature. At the very least, under abstention doctrine, federal

courts should have deferred to state courts to avoid decision on

the difficult constitutional questions concerning State

Defendants’ liability under the Eighth Amendment and their

immunities under the Eleventh Amendment

Petitioners recognize they have sought relief or review

before this Court on two separate occasions. On March 29,

1991, Justice Scalia stayed the initial order of the district court

requiring state officials to reimburse Harris county for cost of

transferring to other county jails certain inmates sentenced to

Texas prisons. Richards v. United States District Court for the

Southern District of Texas, _- US. __, 111 S.Ct. 1409

(1991). The full court subsequently vacated that stay. /d.

Subsequently, this Court denied certiorari when State

Defendants sought precautionary review of the Fifth Circuit's

initial decision while the district court's finding of deliberate

indifference was still pending before the Fifth Circuit. Richards

v. Lindsay, US. __, 112 S.Ct. 1994 (1992)

However, neither this Court's unquestioned discretion to

deny extraordinary relief in the context of an interim measure

involving the safety and welfare of the inmates in the x yin

County Jail nor this Court's wise traditions of justiciability | can

any longer afford a reasonable basis for denying review of a

decision which involves questions of burning importance to the

states and our federal system

Fiscal disputes between different levels of state

government should be resolved exclusively by state institutions

under our federal system. It is not the proper role of federal

courts to permanently resolve perceived gridlocks in state

government at the expense of those state institutions. Rather,

time and again this court has admonished that these disputes

must be resolved delicately with due deference given to state

institutions. Most recently in the context of allowing "arms of

the state" to take advantage of the collateral order doctrine to

appeal a district court order denying an Eleventh Amendment

immunity claim, this Court has, with a booming voice,

eloquently reafffirmed these principles:

The Amendment is rooted in a recognition that

the States, although a union, maintain certain

attributes of sovereignty, including sovereign

immunity. See Hans v. Louisiana, 134 US. 1

3, 10 S.Ct. 504, 506, 33 L.Ed. 843 (1890). It

thus accords the States the respect owed them as

members of the federation. While application of

| State Defendants’ previous Petition for Certioran, filed as a precautionary

measure, could well have been judged premature, since the appeal of the

trial court's deliberate indifference finding was still pending before the Fifth

Circuit. See e.g. Brotherhood of Locomotive Fireman and Enginemen \

Bangor and Aroostook Railroad Co., 389 U.S. 327, 328 (1967)

the collateral order doctrine in this type of case is

justified in part by a concern that States not be

unduly burdened by litigation, its ultimate

justification is the importance of ensuring that the

States’ dignitary interests can be fully vindicated

P. R. Aqueduct and Sewer Authority v. Metcalf and Eddy,

US. _, 113 S.Ct. 684, 689 (1993)

That this case arises in the context of perhaps our

greatest national malaise, crimina! justice, only heightens its

importance Litigation concerning prison and local jail

overcrowding is tragically chronic in our society. In resolving

these cases federal courts must work with and respect state

institutions and policies. Under the Constitution, federal judges

are not intended to sit as criminal justice czars over state

criminal justice institutions defining and, in fact here, redefining

State fiscal policy.

For all these reasons this case presents issues of

profound importance to the nation.

II. COURSE OF PROCEEDINGS AND DISPOSITION

BELOW

This case arises from Lawrence Alberti v. The Sheriff of

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

class action suit alleging constitutional violations brought under

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

against the Sheriff of Harris County, certain of his employees

and the members of the Harris County Commissioners Court

(hereinafter "County Defendants"). County Defendants in early

1989 filed a Third Party complaint against Petitioners herein

seeking to have the Texas Department of Corrections ("TDC,"

now called the Texas Department of Criminal Justice-

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

to TDC but awaiting transfer in the Harris County jail. The only

real dispute in this case has been between the State and County

Defendants.2

On September 25, 1989, the Alberti court, determining

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

unconstitutional and, on the basis of its interpretation of state

law, held State and County Defendants jointly liable for its

unconstitutionality 3 On February 7, 1991, the Alberti court

ordered the transfer to other county jails of certain prisoners

who were eligible for transfer to TDCJ-ID. These inmates were

to "continue to be Harris County prisoners,” but, under the

terms of the order, Harris County was to be compensated by

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

expenditures incurred as a result of the transfers. App. U 6.

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

nature of state law, the assessment of costs was "tentative" and

—_—T upon the outcome of state court litigation. App

U 7.

Upon appeal, a panel of the Fifth Circuit acknowledged

that this case presented a "hard question" of "exclusively" state

law. Alberti v. Sheriff of Harris County v. Klevenhagen, 937

F.2d 984, 994 (Sth Cir. 1991), cert. denied sub nom. Richards v.

2 The plaintiff class sued Defendants only after the second of two trials 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.

3 The Fifth Circuit had previously ordered “the transfer, to the judge

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

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

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

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

the operation or management of TDC-operated confinement facilities." /n

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

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

abstained on the issue of compensation to Harris County. App.T

Lindsay, US, 112 S. Ct. 1994 (1992) (emphasis on

original) (hereinafter "Alberti 1"), App. C 15. However, despite

obvious federalism concerns, rather than abstain to an ongoing

state court action or certify to the Texas supreme court (which

State Defendants urged), the panel adopted the lower court's

methodology concerning liability

In sum, state courts should eventually determine

whether the state or the county is responsible for

ready-felons in the county's jails. The Alberti

court's assessment of costs was "tentative" and

"contingent on the outcome of pending

litigation in state courts over the allocation of

costs for maintaining felons ready for transfer to

the TDCJ-ID in county facilities."

App. C 30. The panel then remanded for consideration of this

Court's decision in Wilson v. Seiter, US 111 S. Ct

2321 (1991). App. C 34

The lower court held both State and County Defendants

deliberately indifferent under Seiter, App. O. The same panel

affirmed the lower court's ruling, acknowledging, however,

some "force" to the argument that State Defendants could not

have acted with deliberate indifference in light of the legal

uncertainty of their state law duties. Alberti v. Sheriff of Harris

County v. Richards, 978 F.2d 893 (Sth Cir. 1992) (hereinafter

"Alberti II"), App. A 4

To date, federal courts have, without state legislative

authorization, required state officials to directly reimburse a

political subdivision of the State of Texas for $12,649,874.25

ostensibly as a component of the remedy in this case. App. F, I,

J, K, L, M,N, O, P, and US Moreover, the lower court has

5 App. F is the order of November 23, 1992 which was issued after this

appeal. State Defendants request the Court to take judicial notice of this

order, which State Defendants refer to solely to show the total amount of

compensation they have been required to pay to the County.

recently required the state to enact an additional remedial plan

costing millions of dollars and has imposed anticipatory "fines"

or "sanctions" of $50 per prisoner per day on the state of Texas

for every prisoner over the jail cap after March 31, 1993. App

E, G, and H.©

State Defendants seek certiorari to challenge the lower

court's jurisdiction to decide this dispute, to correct the lower

court's misapplication of principles of federalism and to overrule

a finding of deliberate indifference under Seiter when state law

duties establishing the responsibility of a state actor are not

clearly established and the liability finding was admittedly

"tentative" and "contingent."

Hi. STATEMENT OF FACTS

The panel acknowledged in Alberti / that the threshold

question of these state officials’ liability for inmates in local jails

who were eligible for transfer to state prison rested "exclusively"

on state law. App. C 15. Thus, the relevant "factual" context

here is the context of state law concerning these state officials’

duties (if any) toward the transfer-eligible inmates in the Harris

County jail. While State Defendants maintain they had no duty

to remedy unconstitutional conditions in a local jail at the time of

the liability finding here, at the very least any such duty was and

still is unsettled and not clearly established

A. State Law Prior to H.B. 937 Was Unsettled as

to Liability and Financial Responsibility of

6 Although not a subject of this petition, State Defendants ask this Court to

take judicial notice of the Alberti court's Memorandum Opinion and Final

Order of September 29, 1992 attached as App. G and H. App. E is an order

of the Alberti court of March 24, 1993, which renames the anticipatory

fines "remedial sanctions." Although not a subject of this petition, State

Defendants also request the Court to take judicial notice of this order

7 TEX. GEN. & SPECIAL LAWS 1991, 2d Called Sess., Ch. 10, pp. 180-

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

10

State Defendants for Transfer-Eligible

Inmates in Harris County Jail.

It is difficult to seriously contend that state law before

August of 1991 was settled as to the responsibility (financial or

otherwise) of State Defendants for prisoners in local jails. Two

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

CODE ANN. §§ 351.001 (Vernon Supp. 1993) and 351.041

(Vernon 1988), vest responsibility for county jails in the county

commissioners courts and the sheriffs, respectively. Moreover,

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

making the counties financially responsible for all prisoners in

their jails:

"[A] county is liable for all expenses incurred in

the safekeeping of prisoners confined in county

jails or kept under guard by the county."

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

1993); see Op.Atty Gen. JM-743 (1987) (counties, not TDC, are

liable for medical expenses of parole violator in TDC's legal

custody but confined in county jail), App. BB; Op.Atty Gen

JM-730 (1987) (counties, not TDC, liable for medical expenses

of TDC inmates confined in county jail on bench warrant), App

CC. In fact, prior to August 1991, the Texas Legislature had on

three occasions failed to pass bills to compensate Texas counties

for holding convicted felons, as well as a constitutional

amendment and accompanying legislation to require the State to

reimburse local governments for any new State mandates. See

State Defendants’ Exhibits 4-8, introduced at the trial of October

22, 1990 and testimony at that trial transcript [tr.] vol. 1, pp.

122-24. Nor, pnor to August 1991, had the legislature

appropriated money for compensating the counties for holding

such prisoners. See TEX. GEN. & SPECIAL LAWS 1989, Reg.

Sess. Ch. 1263, pp. 5184-5200 (eff. June 16, 1989). The lack of

appropriations to compensate the counties is evidence of the

intent of the iegislature, see Bullock v. Calvert, 480 S.W.2d 367,

371 (Tex. 1972); TEX. CONST., Art. VIII, § 6 (funds may not

SS

11

be drawn from the State treasury without a_ specific

appropriation therefor). Under the State constitution, the

legislature has plenary power over the counties. See TEX.

CONST., Art. IX, § 1; Robbins v. Limestone County, 114 Tex.

345, 268 S.W. 915, 919-20 (1925); Bass v. Fontleroy, 11 Tex.

698, 706 (1854).

While the district court attributed the unconstitutional

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

meet a state-law duty to accept inmates sentenced to it, see App.

Y 21, state law is explicit and abundantly clear that the state

prison system has a duty to accept inmates "only" pursuant to

former Tex. Rev. Civ. Stat. Ann. art. 6166a-4, which requires

the Texas Board of Criminal Justice to "develop, adopt and

enforce an allocation formula’ that allocates admissions to

TDCJ-ID.8 TEX. GOV'T CODE ANN. § 499.121 (Vernon

Supp. 1993). In fact, repeatedly the district court ordered the

State Defendants to "maintain" the allocation formula, App. U 8,

App. V 3, and App. W 3-4.

B. Allocation Formula was Lynchpin of Reforms

Aimed at Controlling Local Jail and Prison

Overcrowding.

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

the Comprehensive Criminal Justice Reform Act, TEX. GEN. &

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

(generally eff. September 1, 1989). State Defendants have long

maintained -- and the legislative history shows -- that H.B.

2335's primary purpose was to establish a system of financial in-

centives and disincentives directed at controlling front-end popu-

8 Former article 6166a-4 is now codified as TEX. GOVT CODE ANN. §

499.071 (Vernon Supp. 1993), App. Z. The allocation formula regulation

that it mandates is codified as Chapter 152 in Title 37 of the Texas

Administrative Code (37 TAC §§ 152.1-152.3). App. DD. Under the

current formula, Harris County is allocated 20.6961% of total weekly

admissions to the state prison. See 17 Tex. Reg. 6788 (October 2, 1992)

lation pressures by providing state financing for sentencing alter-

natives while at the same time forcing local governments to fund

the cost of their own transfer-eligible inmates.? State

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

Report of the Texas House Appropriations Subcommittee on

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

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

allocation system for local governments" and "a system to

discourage local governments from sending criminals to the

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

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

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

"institutionalized the allocation formula, with its explicit cap on

admissions to TDCJ, and encouraged the development within

the counties of a wide range of both institutional and community

based alternatives to incarceration for a broad class of sentenced

felons convicted of essentially non-violent offenses."

It must be noted that State Defendants have consistently

and persistently maintained that Harris County underutilizes

intermediate sanctions and takes a disproportionate number of

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

9 Texas has, of course, also maintained an aggressive prison construction

program that is almost unprecedented in scope: "Since 1984, the State has

brought 22,299 new prison beds on line, 13,270 of them in 1989 and 1990.

In 1989, the State further committed itself to the construction of 15,550

more beds. . ." See Report of December 13, 1991 by the Alberti Special

Master on Harris County sentencing practices (hereinafter “Report of

Alberti Special Master," copies lodged with Clerk of the Court) at 3. In

addition, H.B. 93, Sec. 22.03, p. 224, appropriated $672,100,000 for the

construction of 25,000 additional beds, and S.B. 171, passed by the 73rd

Texas Legislature (eff. February 23, 1993), appropriated $250.8 million,

which TDC] plans to use in part to construct and operate 10,000 "state jail"

beds. (See copies of $.B. 171 and State Defendants’ Motion to Modify Final

Order or, in the Alternative, to Stay the Imposition of Fines, lodged with the

Clerk of the Court. State Defendants request the Court to take judicial

notice of these documents.) This makes a grand total of 72,849 beds either

built or funded for construction since 1984.

13

3, pp. 534-572.!9 The Report of the Alberti Special Master on

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

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

these facts, State Defendants have contended that the allocation

formula should not have been overridden, so that it would have

had its natural effect of encouraging the use of sentencing

alternatives in Harris County, as the Texas legislature intended.

C. The State District Court Judgment Relied on

By the Fifth Circuit Has Been Vacated

Without Ever Being Reviewed, Let Alone

Affirmed, by a State Appellate Court.

Both the panel and the district court sought to resolve

these complex issues of state law by reliance on an act passed in

198911 resting “primary responsibility" in TDCJ for the

“confinement, supervision and rehabilitation of felons." Alberti

I, App. C 21. In doing so, the panel noted its reliance on the

only state district court to have addressed the issue. /d.

However, the state cases!2 raised not only complicated

issues of state court jurisdiction and complex factual issues but

overarching separation of powers issues under Article II § 1 of

the Texas Constitution. !3 Moreover, under state law, because

10 See also Affidavit of Steve Martin (with summary) concerning the

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

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

with the clerk of the Court).

|! Now codified as TEX. GOVT CODE ANN. § 493.001 (Vernon Supp.

1993).

12 County of Nueces v. Texas Bourd of Corrections, No. 451,071 (Dist. Ct.

of Travis County, 250th Judicial Dist. of Texas, pending); Harris County v.

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

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

district court judge.

13 State Defendants have lodged with the Clerk of the Court copies of

their appellate brief in Texas Board of Criminal Justice, et al. v. Nueces

14

state entities were involved, the state court judgment on appeal

(Nueces County), was superseded or automatically stayed.

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

(Tex. 1964). Before the state court case could be argued, let

alone decided on appeal, the counties involved, including Harris

County, agreed to vacate their judgments and settle pursuant to

H.B. 93. App. EE, FF and GG. No state appellate court, let

alone the Texas supreme court, has ever ruled on the state law

issues presented to and decided by the Fifth Circuit. Indeed,

plaintiffs recognized the lack of certainty in state law when they

vigorously urged certification to the Texas Supreme Court in the

Fifth Circuit. See Plaintiffs'-Appellees' Brief in Alberti v. Sheriff

of Harris County v. Richards, Fifth Cir. Nos. 91-2274, 91-2210,

90-6034, 90-2441 at 65-72. App. HH.

D. The Legislative History of H.B. 93 and State

Court Settlements Indicate the State Was

Responsible for Prisoner Transfers Only After

October 1, 1991.

After intense lobbying by Texas counties, the Texas

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

provides for compensation to the counties for housing inmates

sentenced to TDCJ-ID at amounts specifically set by the

Legislature. TEX. GOV'T CODE ANN. §§ 499.122-125

(Vernon Supp. 1993), App. AA 2-6. Moreover, as of October

1, 1991 a mechanism was established for transferring, at state

expense, inmates to other county jails when a county jail has

been declared unconstitutionally overcrowded and over 20

percent of its population is made up of inmates awaiting transfer

to TDCJ-ID. TEX. GOV'T CODE ANN. § 499.125 (Vernon

Supp. 1993) App. AA 4-5. The legislative history of H.B. 93

indicates that an earlier version of H.B. 93 contained a provision

that would have allowed compensation for transferred inmates

under state law from February 7, 1991, the date of the Alberti

County, et al. No. 3-90-282-CV (3rd Court of Appeals-Austin, Texas) (now

dismissed).

15

court's onginal order. S.B. 24 (introduced in the First Called

Session, 1991), unapproved Conference Committee Report,

§ 14.02, p. 34, proposing Tex. Gov't Code § 499.123(b). See

App. II. That provision was dropped in H.B. 93, indicating that

the Legislature's intent was not to compensate Harris County

prior to October 1, 1991. Smith v. Baldwin, 611 S.W.2d 611,

616-17 (Tex. 1981).

E. County Had Full Authority and Ability to

Provide Remedy to Inmate Class.

It is indisputable that the County had and still has full

authority under Texas law to contract with other counties and

transfer prisoners out of its jail to detention facilities in those

counties. TEX. GOV'T CODE ANN. Ch. 791 (Vernon Pamph.

1993); esp. TEX. GOV'T CODE ANN. § 791.003(3)(A)

(Vernon Pamph. 1993); TEX. LOCAL GOV'T CODE

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

(Vernon Supp. 1993); see also TEX. GOV'T CODE

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

contention that the County lacked the financial resources to have

made the contracts.

REASONS FOR GRANTING THE WRIT

I. THERE ARE SPECIAL AND IMPORTANT

REASONS TO GRANT THE WRIT.

A. Certiorari Should Be Granted To Resolve An

Irreconcilable Conflict Between The Circuits

Over (1) The Role of Federal Courts In

Deciding Disputes Between Different Levels of

State Government And (2) The Scope of the

Eleventh Amendment.

This case arose in the context of an internal political

dispute between the Texas legislature and the counties of Texas

over whether counties should be compensated for housing

16

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

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

often between representatives of the state's rural and urban

counties

Without reducing to a disagreement between you

and I individually, kind of globally the problem

with that is, you have judges in Harris County

that are making decisions that raise my taxes, as

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

sive amount of time and trouble to try to establish

this. Harris County has about 19!4 percent of the

State's population, produces about 20 percent of

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

30 percent of the prison resources

When your locally elected judge in Harris County

makes a decision about what to do with the

criminal, in excess of that 20 percent, taxes in

Dallas and Bexar and Parker County go up to pay

for that decision . .

Meeting of the Appropriations Committee of the Texas House

on February 21, 1991, Remarks by Representative Ric.

Williamson of Parker County (Weatherford) in colloquy with

Representative Paul Hilbert from Harris County (Houston)

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

The Fifth Circuit showed no hesitancy to intrude directly

into the center of this political dispute, likening its orders to a

"lion in the street" when the Texas legislature passed H.B. 93 in

August, 1991. App.D3. And, after deciding the “hard

questions" of "exclusively" state law against Texas, the Fifth

Circuit found the state to be a constitutional violator, thereby

sidestepping, without discussion, its authority to decide the

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

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

17

State-law dispute in the first place. App. C 29. This merely begs

the question Did the Fifth Circuit have authority under Article

H1!5 and principles of federalism to decide a state-law dispute

between two state governmental entities?

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

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

federalism that federal courts lack authority "to adjudicate an in-

ternal dispute between a local governmental entity and the very

state that created it." Kelly v. Metropolitan Board of Education

of Nashville and Davidson County, Tennessee vy. State of

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

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

approach, numerous decisions of this Court and the Circuit

courts have ruled that local governmental entities lack standing

to bring an action in federal court against their creator. !6

The reasoning of the Sixth Circuit rests primarily on a

prudent and pragmatic deference!’ to state governments in

finding their own means of funding a remedy when a

constitutional violation occurs

Again, however, the existence of a duty to

eliminate [the constitutional violation] does not

mean that the duty may only be discharged

through taxes levied by the state, as opposed to

IS if Congress cannot tell a state where to locate her capital, how, under

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

counties? See Coyle v. Smith, 221 U.S. 559 (1911): see also Presley v

Etowah County Comm'n, __ US. ___, 112 S.Ct. 820, 832 (1992)

16 Eg, Coleman vy. Miller, 307 U.S. 433, 441 (1939): South Macomb

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

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

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

17 State Defendants maintain, of course, that this deference is anchored in

the Constitution, including the Tenth and Eleventh Amendments

18

taxes levied by the counties of the state. This

“constitutional wrongdoers must pay for their

wrongs” argument has little or no force where we

are talking about two political entities, a state and

one of its subdivisions, each of which has done

wrong (as have subdivisions not now before us)

and where the men and women representing the

electorate of the state as a whole -- an electorate

that includes the voters of all subdivisions -- have

chosen not to enact legislation shifting to the

state as a whole the costs of repairing the wrongs

within each subdivision

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

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

volve statewide systems relating to the fundamental structure of

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

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

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

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

Yet here, without authoritative state court interpretation,

federal courts construed a provision of state law vaguely

ascribing "primary responsibility" for felons to TDCJ!8 as carte

blanche authonty to force state taxpayers to acquire a special

prison system for one locality, despite that locality's

disproportionate use of state prison space. This federally

ordered, but state financed, capacity acquisition required

expenditures beyond the funding appropriated by the Texas

legislature for construction and acquisition of prison capacity

This is simply not the office of federal courts:

Such fundamental decisions as how many prisons

to build and how large to build them -- basic

decisions regarding the allocation of public

18 Now codified as TEX. GOVT CODE ANN. § 493.001 (Vernon Supp

1993)

19

resources are simply outside the domain of

federal courts

Inmates of Occ oquan v. Barry, 844 F 2d 828, 843 (DC. Cir

1988)

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

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

against the State Defendants led it to conclude that the money

payments to the County were incidental to injunctive relief. App

C 29. Bootstrapping again its state law decision, it sought to

distinguish Kelly by ruling that the state was a “current

constitutional violator." App. C 29. But as noted above, this

distinction begs the question Kelly rests primarily on the

' Proposition that it is not the province of federal courts to decide

at all a state-law dispute between different state subdivisions,

which the Fifth Circuit here necessarily had to decide first in

order to conclude that the State is a "current constitutional

violator." Rather, relying on Rodriguez, Kelly would leave such

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

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

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

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

Cir. 1986), cert. denied sub nom. Lubbock ISD. y Texas

Edcuation Agency, 479 U.S. 1030 ( 1987)

Accordingly, Kelly found, under Eleventh Amendment

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

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

that, "[WJhen the action is in essence one for the recovery of

money from the state, the state is the real substantial party in

interest and is entitled to invoke its sovereign immunity from suit

even though individual officials are nominal defendants " Kelly,

supra at 988-89 citing Ford Motor Co. vy. Department of

Treasury of Indiana, 323 US. 459, 464 (1945): see also

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

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

law counseling, under Eleventh Amendment analysis, non-

20

interference with the fiscal affairs of states. See e.g., Employees

v. Missouri Department of Public Health and Welfare, 411 U.S.

279 (1973); Kennecott Copper Corp. v. State Tax Comm'n, 327

U.S. 573, 577 (1946).

The reasoning of the Kelly case applies with particular

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

the Plaintiffs could have been achieved without involving the

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

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

It is in the public interest that federal courts of

equity should exercise their discretionary power

to grant or withhold relief so as to avoid needless

obstruction of the domestic policy of the states.

"The scrupulous regard for the nghtful

independence of state governments which should

at all times actuate the federal courts, and a

proper reluctance to interfere by injunction with

their fiscal operations, require that such relief

should be denied in every case where the as-

serted federal right may be preserved without it."

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

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

(1932). (emphasis added)

Especially in an era of tightening budgets, the role of

federal courts in resolving fiscal disputes between different levels

of state government raises fundamental questions of federalism.

Hence, the irreconcilable conflict between the Fifth Circuit and

other circuits as to how to approach this problem is important,

and this Court should resolve it.

B. Certiorari Should Be Granted Because of The

Lower Court's Clearly Erroneous And Iil-

Reasoned Ruling on _ Abstention § and

Certification.

21

1. Abstention Was Especially Appropriate

Because of Ongoing State Court

Proceedings Dealing With Undecided

Issues of State Law.

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

pled discussion of federalism, particularly this Court's decision in

Railroad Commission y. Pullman, 312 US. 496 (1941).

Although acknowledging that this case presented a “hard ques-

tion" of "exclusively" state law, App. C 15, the panel was simply

flat-footed on abstention, noting only that it did not "quite fit",

App. C 30, despite this Court's clear message that such stingy

judicial "pigeonholing" is not appropniate in abstention analysis.

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 n9 (1987). Judge

Higginbotham, no novice at federalism, has himself noted, in a

case which formed the gravamen of his analysis here, that if

there is "real ambiguity" about Statutory intent or state law,

“strong” grounds for Pullman abstention exist. Bush v. Viterna,

795 F.2d 1203, 1205 n.1 (Sth Cir. 1986).

There can be little question, especially in light of

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

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

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

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

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

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

its counties!9 and the obvious fiscal implications for the state,

19 Even assuming arguendo federal courts have authority to resolve a state

law dispute between two state governmental entities, abstention would still

seem the better course. Deference to state institutions is especially

appropriate, “when it is proposed that the remedial powers of the federal

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

mental entities." Kelley, 836 F.2d at 1000, citing Hills v. Gautreaux, 425

U.S. 284, 293, (1976). See also Milliken v. Bradley, 433 U.S. 267, 280-81

(1977) ("the federal courts in devising a remedy must take into account the

interests of state and local authorities in managing their own affairs”).

abstention under Pullman was appropriate. 29

The argument for abstention is especially compelling in

light of the pendency of a state court action involving the

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

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

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

favor of dismissing State Defendants to conserve the resources

of the courts and the parties. See Colorado River Water

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

(1976).

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

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

ment of its orders, see App. C 21-22, U 7, are a far cry from the

considerations of federalism embodied in the abstention doctrine

Here those state court proceedings had either been "superseded"

or stayed on appeal?! (as in County of Nueces) or had not even

been fully litigated in the trial court. Litigants should not be able

to use a federal court to make an end run around normal state

judicial processes. See Pennzoil, 481 U.S. esp. at 13-14. Nor

should they disrupt the ordinary process of trial or appeal in

state court by adjudicating a civil rights case in which the federal

20 Because this is a Texas case, the proper course was to dismiss State

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

financial responsibility for transfer-cligible inmates in the Harris County

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

(1975).

21 The basis for the automatic Stay on appeal was precisely because the

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

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

Pennhurst, it would have seemed particularly advisable under the Eleventh

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

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

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

other contexts involving the constitutional balance between states and the

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

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

23

constitutional claims are "inextricably intertwined with the state

court's grant or denial of relief." District of Columbia Court of

Appeals v. Feldman, 460 U.S. 462, 482-84 n.16 (1983).

Moreover, the whole idea of "contingent" liability raises

the very justiciability problem which the Pullman doctrine was

designed to avoid:

When federal courts interpret state statutes in a

way that raises federal constitutional questions,

“a constitutional determination is predicated on a

reading of the statute that is not binding on state

courts and may be discredited at any time -- thus

essentially rendering the federal court decision

advisory and the litigation underlying _ it

meaningless."

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

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

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

rated with the vacation of the judgments in state court pursuant

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

2. Abstention was Appropriate to Avoid

Disruption of State Regulatory

Programs.

The lower courts’ assumption of jurisdiction over the

Claims against State Defendants also violated the doctrine of

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

abstention when such jurisdiction interferes with a complex state

regulatory scheme. See also Colorado River Water

Conservation Dist. v. United States, 424 U.S. at 814 (federal

courts must abstain to avoid adjudication that would be

"disruptive of state efforts to establish a coherent policy with

respect to a matter of substantial public concern").

24

Requiring State Defendants to finance the housing of

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

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

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

County additional numbers above its current allocation.22 It also

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

encourage the use of intermediate sanctions and alternatives to

incarceration because it removed from Harris County the

financial burden of supporting inmates sentenced to state prison

in excess of Harris County's allocation.23

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

involves consideration of a wide variety of public policy deci-

sions in the Texas criminal justice system which are discretionary

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

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

good time to award (either under the Prison [or Population]

Management Act [PMA],4 or by prison officials), or how many

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

under the Texas Administrative Procedure and Texas Register Act, TEX.

REV. CIV. STAT. ANN. art. 6252-13a § 12 (Vernon Pamph. 1993).

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

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

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

CODE § 495.003 (Vernon Supp. 1993).

Moreover, the order circumvented the 1987 Appropriations Act

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

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

GEN. & SPECIAL LAWS 1987, 2d Called Sess., Ch. 78, paragraph 49, p.

343 (eff. August 6, 1987). Before H.B. 93, there were no additional

appropriations to allow the TDCJ-ID to contract out for more beds, nor

any change in the 1987 rider limiting the number of beds. And as the

testimony showed at the hearing in this case of the week of August 14,

1989, TDCJ-ID had already contracted out for all 2,000 beds. See tr. vol 4,

pp. 674 & 746.

24 TEX. GOVT CODE ANN. Ch. 499, Subch. B (Vernon Supp. 1993).

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

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

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

25

inmates to furlough. These discretionary decisions were all the

subject of state court review in both the Nueces and Harris

county actions. And all of these functions and decisions impli-

cate matters of substantial public concern and involve an attempt

to maintain a coherent, state-wide criminal justice policy. Federal

courts, accordingly, should have refrained from reviewing these

issues under a hybrid Burford-Younger type of abstention. Cf

Pennzoil, 481 U.S. at 11-12 and 15-17 (justifying abstention in

light of Art. I, § 13 of the Texas Constitution, the "open courts"

provision).

3. If Abstention Was Not Appropriate, the

Fifth Circuit Should Have Stayed

Further _ Action Against State

Defendants While Certifying the

Relevant Questions of Law to the Texas

Supreme Court.

Certainly, if abstention for some reason was not

appropmiate, the Fifth Circuit should have certified the relevant

questions concerning the State's liabilities and financial respon-

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

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

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

State law). Certification may also be the most appropriate

course now to resolve any remaining dispute about the

respective duties of the state and county actors, in light of the

settlement of the state court lawsuits and the accompanying

changes in state law. See State of Louisiana ex rel. Guste v.

Roemer, 949 F.2d 145 (Sth Cir. 1991) (certifying to Louisiana

Supreme court question relating to dispute between Governor

and Attorney General over who had authority and responsibility

to represent state in litigation concerning higher education

system). While these State Defendants cannot be held liable for

the alleged past actions or omissions at issue here, given the

uncertainty of their responsibilities under state law (see infra at

26-28), certification would serve to clarify once and for all the

respective present and future duties of the state and county

SSS

26

actors. If any of those actors then failed to fulfill their duties,

the plaintiffs would be entitled to pursue a remedy against them.

on Certiorari Should Be Granted To Determine

Whether State Officials Can Be Found Liable

For Conditions In A Local Jail Under Wilson

v. Seiter When Their Responsibilities Under

State Law For Inmates in A Local Jail Are

Not Clearly Established.

Relying on individual liability cases, the Court in Wilson

v. Seiter mandated an "inquiry into a prison official's state of

mind when it is claimed that the official has inflicted cruel and

unusual punishment." Seiter, | U.S. at, 111 S. Ct. at

2324. Here, the threshold question of which official, state or

county, was responsible for conditions in the local jail presented

a “hard question" of "exclusively" state law. App. C15

(emphasis in original). The panel correctly ruled that under

Texas law "(t]he county clearly has some responsibility for

conditions in the county's jails."2> Jd. It then went on to

resolve the "hard question" of the liability of state officials on a

"tentative" and "contingent" basis, pending the outcome of state

court litigation. However, it is difficult to square the Court's

reasoning with the requirement of a mental element under

Wilson v. Seiter. If state law presented a "hard question" as to

the responsibility of the state officials sued here for conditions in

the local jail, those officials could certainly in good faith maintain

the position that they had no such responsibility. Maintaining a

defensible legal position on a "hard question" of state law shows

no evidence of the culpable mental state required under Se/fer 26

25 As previously noted, the County had full authority and ability to provide

a remedy to the inmate class in the Harris County Jail. See supra at 15.

26 State Defendants maintain that given their overriding concern for public

safety and the prevention of early releases, their obligations to other

counties in Texas to take their fair share of inmates under the allocation

formula and the requirements of Ruiz v. Collins [state prison conditions

Case, see supra at 7 n.3, they should be held to the standard of “malicious or

27

This can clearly be seen through analogy to the law of

individual immunities. State officials sued in their individual!

capacity cannot be held liable unless their duties were "clearly

established" or readily "apparent." ( Jt Harlow v. Fitzgerald,

457 U.S. 800, 818 (i982): also Anderson vy. Creighton, 483

U.S. 635, 640 (1987). Certainly under Seiter the principles

applicable to good faith immunity in an individual liability case

are analogous to the analysis of whether officials have been

“deliberately indifferent" or "malicious and sadistic" in a prison

conditions case. In this connection, this Court clearly relied on

Estelle v. Gamble, 429 U.S. 97 (1976): Whitley v. Albers, 475

U.S. 312, 317 (1986); and LaFaut v. Smith, 834 F.2d 389, 395

(4th Cir. 1987) individual liability cases, in formulating the

“culpable mental state" requirement of Seiter. Seiter, US.

at__, 111 S.Ct. at 2323, 2326-27. Moreover, only weeks ago,

this Court analogized directly to cases allowing interlocutory

appeals for claims of individual immunity in ruling that "the same

rationale ought to apply to claims of Eleventh Amendment

immunity made by the States and state entities possessing a

claim to share in that immunity..." P. R. Aqueduct & Sewer

Authority v. Metcalf & Eddy, US. at __, 113 S.Ct. at 687.

State Defendants. of course, are not contending that

State officials are entitled to individual immunities when sued in

their official capacity. Hafer v. Melo, __ US. __,112 S.Ct

358, 362 (1991). Hafer made it clear that "the only immunities

available to the defendant in an official-capacity action are those

that the governmental entity possesses." Hafer, __ US. at

___, 112 S.Ct. at 362

On the other hand, State Defendants do maintain that

State officials acting in their official capacity should be entitled,

Sadistic" intent under Seiter. Seiter. __ US. at, : 111 S.Ct. at 2326

However, under whatever standard imposed under Seiter, State Defendants

cannot be liable when their underlying state law duties are not Clearly

established

28

as an incident of the State's Eleventh Amendment immunity, to a

rule assuring them that any state law duties which a federal court

might construe in the context of a civil rights claim will be

clearly established. Otherwise, a federal court could improperly

interpret state law and wrongly intrude into state structures and

fiscal policy. Hence, especially when state law is unclear, "it is

difficult to think of a greater intrusion on state sovereignty than

when a federal court instructs state officials on how to conform

their conduct to state law." Pennhurst, 465 U.S. at 106.27

State Defendants maintain that by analogy to Harlow and

Creighton, and especially in light of Pennhurst, until State courts

had authoritatively construed their State-law duties, they were

entitled to stand on their defense in federal court that they had

no duty to inspect the Harris County jail and no duty to fix it.

And with the vacation of the State court judgments pursuant to

H.B. 93, no Texas district court, let alone an appellate court or

the Texas supreme court, has entered a final judgment ruling

otherwise. Particularly under these circumstances, it is

inappropriate for federal courts to construe unsettled state law,

cf. Pennhurst, 465 U.S. at 106, let alone rule that state officials

were deliberately indifferent to any alleged state law duties.

Because this case involves core fiscal issues in the Texas

criminal justice system, the scope of the intrusion on the State of

Texas' basic structures and institutions in itself clearly warrants

certiorari, under fundamental principles of federalism. And

because this case arises in the context of jail overcrowding, an

area of pervasive litigation in the nation, resolution of the

fundamental questions in interpreting Seifer presented by this

27 These arguments are especially compelling when, as here, there is no

state law vesting direct supervisory responsibility in these state officials for

conditions in local jails. Absent a showing of direct supervisory

responsibility over local jails, state officials should not be held liable for

conditions in those jails. See Rizzo v. Goode, 423 U.S. 362, 375-76 (1976),

Bush v. Viterna, 795 F.2d 1203 (Sth Cir. 1986) (Texas state officials who

set standards for and inspect local jails held not responsible for conditions

in local jail).

29

petition will benefit litigants far beyond the immediate parties to

this case

CONCLUSION

For these reasons, Petitioners request that a writ of

certiorari issue to the Court of Appeals for the Fifth Circuit

Respectfully submitted,

DAN MORALES

Attorney General of Texas

WILL PRYOR

First Assistant

Attorney General

MARY F. KELLER

Deputy Attorney General

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division

“Attorney in Charge ines ite

ROBERT OZER*

Assistant Attorney General

Chief, Class Action Section

Enforcement Division

State Bar No. 15392700

JOHN B. WORLEY _

Assistant Attorney General

State Bar No. 22001480

30

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 320-5300

(512) 463-2200 (FAX)

ATTORNEYS FOR

PETITIONERS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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