Appendix — Richards v. Alberti

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

Appendices A-T

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

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2946

LAWRENCE R. ALBERTI, ET AL.,

Plaintiffs- Appellees,

versus

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

Defendants-Third Party

Plaintiffs- Appellees,

versus

ANN RICHARDS, THE GOVERNOR OF THE

STATE OF TEXAS, ET AL.,

Defendants-Third Party

Defendants-Appellants

No. 91-2996

IN RE: GOVERNOR ANN RICHARDS, ET AL ,

Petitioners

No. 91-6062

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

No. 91-6206

LAWRENCE R. ALBERTI, et al

Plaintiff- Appellees,

versus

THE SHERIFF OF HARRIS COUNTY, ET AL.,

Defendants-Third Party

Plaintiffs- Appellees,

versus

ANN RICHARDS, THE GOVERNOR

OF TEXAS, ET AL.,

Defendants-Third Party

A-3

Defendants-Appellants

Appeal from the United States District Court

for the Southern District of Texas

Before REAVLEY, HIGGINBOTHAM, and DUHE, Circuit

Judges.

PER CURIAM:

I

In Alberti J, 937 F.2d 984 (Sth Cir. 1991), we affirmed

virtually all of the rulings by the district court except we

remanded for findings required by the Supreme Court's

intervening decision in Wilson v. Seiter, —- U. S. ----, 111 S

Ct. 232i, 115 L.Ed.2d 271 (1991). We remanded to allow the

district court to find whether the state and county had acted with

deliberate indifference. Alberti ], 937 F.2d at 1000. We left to

the judgment of the district court whether additional hearings or

evidence was necessary. /d.

The district court did not hold hearings but found on the

basis of the record evidence that the state and the county acted

with deliberate indifference to the constitutional rights of felons

in the Harris County jail.

I]

The state's arguments repeat many earlier made. The

county presents more difficult questions

[1] In Alberti ] we observed that there was "strong if not

compelling evidence of deliberate indifference to the plight of

these ready-felons.". 937 F.2d at 999.! Nonetheless, the state

| The State points out that our prior statements regarding the officials’

deliberate indifference are not the law of the case because they were dicta in

the earlier decision. Nonetheless, I think it is unlikely that the State can

argues that the finding of deliberate indifference is clearly

erroneous. The state suggests that it is not chargeable with

knowledge of the jail conditions. The record, however,

demonstrates that the state knew that by refusing to accept

felons it was causing severe overcrowding in Harris County jails.

[2, 3] The state's second argument denies liability

because its officers had a good faith, objectively reasonable

belief that the state owed county prisoners no duty. The state

relies upon principles of qualified immunity under Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73

L.Ed.2d 396 (1982), and its requirement that the law be "clearly

established at the time an action occurred." As plaintiffs point

out, this doctrine is applicable only as a defense to the individual

liability of persons. Owen v. City of Independence, 445 U.S.

622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). The state enjoys

no protection from any qualified immunity of a state official.

The closely related argument that given the asserted legal

uncertainty of state duty it could not be found to have acted with

deliberate indifference has more force. The state points to

uncertainty of state responsibility for the care of felons in the

county jail in light of rulings by the Ruiz court and legislation

proposed by the Texas legislature; both signaled that prisoners

who are ready for transfer to TDC remain the responsibility of

the county until their transfer to TDC. We are not persuaded.

The state elected to refuse felons to solve its own problems of

overcrowding. We are not persuaded that the state's duty was

sO uncertain, as we explained in Alberti I.

The state also asserts that we should apply the higher

standard of "malicious or sadistic intent." In Seiter, the Supreme

Court held that the level of intent required to constitute cruel

and unusual punishment depends upon the constraints facing the

official. As examples, the Court contrasted actions responding

to a prison disturbance, which must be taken quickly, under

change the mind of this exact same panel a little over a year later about the

probability that they were deliberately indifferent.

A-5

pressure, and with concern for compelling safety concerns with

the provision of medical care to prisoners which "does not

ordinarily clash with other equally important governmental

responsibilities." We read Seiter to hold that the constraints

imposed on the officer which justify the "malicious and sadistic"

standard must at least be of an emergency or immediate nature.

[4] The state argues that it could not relieve

overcrowding because the legislature would not appropriate

more funds for prison expansion and it was constrained by

concern for public safety inherent in early release of felons.

Justice Scalia's opinion in Seiter leaves open how difficulty in

funding might negate the intent requirement. In Alberti J, we

noted that "before Seiter, it was well established to this circuit

that inadequate funding will not excuse the perpetuation of

unconstitutional conditions of confinement." 937 F.2d at 999,

citing Smith v. Sullivan, 611 F.2d 1039, 1044 (Sth Cir. 1980).

How the Supreme Court will develop the "funding" defense to

eighth amendment violations is not certain. Regardless, the

evidence that an absence of funding made the state unable to

accept the convicted felons is equivocal. Indeed, the state has

at earlier times pointed to the Ruiz decree's setting of population

levels as the culprit. But as we explained in Alberti J, that

decree was no barrier to the state's constitutional duty. The

concern about the release of felons is the flip-side of the

inadequate funding argument: if the state would simply expand

its prison facilities, no excess release of prisoners would be

necessary. We find no error in the finding by the district court

that the state was deliberately indifferent and find no occasion

for further exploring the "funding" defense.

[5] The district court's conclusion that the county was

deliberately indifferent to the unconstitutional conditions in its

jail is not so easy. The record is mixed. There is evidence of

“arguably formidable constraints" facing the county including the

dramatic increase in the number of state ready-felons being kept

in the county jail, largely beyond the county's control to prevent.

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Nonetheless, the district court found that the jails would exceed

"constitutional capacity" with all ready-felons removed.

Whether county efforts to relieve overcrowding were

sufficient to avoid a finding of deliberate indifference is a close

case. The county can point to several things it did to reduce the

jail population. Some of these were successful; some were not

through the failure of other participants in the legal system to do

their part. For example, the county encouraged local judges to

use pretrial release for certain low-risk offenders, but the Special

Master found that the judges were reluctant to do so. On the

other hand, the county has continued to operate the jail over its

constitutional capacity for some time. As we indicated in A/berti

I, "[w]hile the huge jump in the population of ready-felons might

weigh against a finding of deliberate indifference, other facts

could weigh in favor of such a finding.” 937 F.2d at 1000. The

district judge was intimately familiar with the push and shove of

state government and its response to sorry prison conditions.

This trial judge was uniquely informed of the county "mental

state" and we decline to upset it. In short, the district court's

finding of deliberate indifference is not clearly erroneous.

[6] The county defendants assert problems with the

remedies iinposed against them by the district court. We

declined to address the remedial issues in Alberti ]. The main

argument seems to be that the district court abused its discretion

by imposing a cap on the jail population. The county defendants

argue that this is the most intrusive remedy and therefore an

abuse of discretion. Ruiz v. Estelle, 679 F.2d 1115, 1144 (Sth

Cir. 1982). A numerical cap on the number of prisoners is not

an overly intrusive remedy. It gives the county maximum

flexibility in determining on its own how to meet the population

goals. The remaining contentions are without merit.

AFFIRMED.

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-2946, 91-2996, 91-6062, 91-6206

Lawrence R. ALBERTI, et al., Plaintiffs,

V.

The SHERIFF OF HARRIS COUNTY,

TEXAS, et al.,

Defendants-Third Party,

Plaintiffs- Appellees,

Vv

Ann RICHARDS, the Governor of the

State of Texas, et al., Defendants-Third

Party Defendants-Appellants

In re Governor Ann RICHARDS,

et al., Petitioners

Lawrence R. Alberti, et al

Plaintiffs- Appellees

y

The SHERIFF OF HARRIS COUNTY

TEXAS, et al

Defendants-Third Party Plaintiffs,

Appellees-Cross Appellants

¥

Ann RICHARDS, the Governor of Texas,

Third Party Defendants,

Appellants-Cross Appellee

B-2

Lawrence R. ALBERTI

Plaintiff,

V.

The SHERIFF OF HARRIS COUNTY, et al.

Defendants-Third Party

Plaintiffs-Appellees,

V.

Ann RICHARDS, the Governor of Texas, et al.

Defendants-Third Party

Defendants Appellants.

Appeals from the United Siates District Court

for the Southern District of Texas

ON PETITIONS FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion November 20, 1992, 5 Cir., , F.2d )

(January 13, 1993)

Before REAVLEY, HIGGINBOTHAM, and DUHE', Circuit

Judges

PER CURIAM:

(X) The Petitions for Rehearing are DENIED and no

member of this panel nor Judge in regular active service on the

Court having requested that the Court be polled on rehearing en

banc, (Federal Rules of Appellate Procedure and Local Rules of

Appellate Procedure and Local Rule 35) the Suggestion for

Rehearing En Banc is DENIED.

B-3

() The Petitions for Rehearing are DENIED and the Court

having been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in regular

active service not having voted in favor of it, (Federal Rules of

Appellate Procedure and Local rule 35) the Suggestion for

Rehearing En Banc is also DENIED.

() A member of the Court in active service having

requested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having voted in

favor of it, rehearing en banc is DENIED.

ENTERED FOR THE COURT:

/s/ Patrick S$. Higginbotham

United States Circuit Judge

APPENDIX C

Lawrence R. ALBERTI, et al.,

Plaintiffs- Appellees,

i

The SHERIFF OF HARRIS COUNTY,

TEXAS et al.,

Defendants-Third Party

Plaintiffs-Appellants, Appellees,

In re Ann RICHARDS,

the Governor of Texas, et al.,

Third Party Defendants-Appellants

Nos. 90-2441, 90-6034, 91-2274 and 91-2801.

United States Court of Appeals,

Fifth Circuit.

July 25, 1991.

Before REAVLEY, HIGGINBOTHAM, and DUHE, Circuit

Judges

PATRICK E. HIGGINBOTHAM, Circuit Judge:

This is another chapter in the now epic struggle of Texas with its

bulging prisons. The reality is that the colloquial expression

“state pen" has often been apt. Harris County, Texas, after many

years of federal prodding, brought its jails into substantial

compliance with constitutional standards. County jails in Texas

house both county and state prisoners. A substantial portion of a

county's jail population consists of prisoners destined for the

State prison system. The struggle of Harris County for an

adequate jail system was frustrated by the state's refusal to take

its state prisoners. This delay served state penalogical goals, but

its resulting success at the state level came out of the hide of

Harris County. Judge DeAnda of Houston and Judge Justice of

Tyler have commendably presided over this intricate fracas, and

we find today no errors in their effort. We are compelled to

remand findings of county and state liability due to an

intervening decision of the United Sates Supreme Court. We do

so despite compelling evidence of state liability, and some

evidence of county liability, only because the requisite fact-

findings required by the new law were understandably not made

and we decline to exceed our appellate role by supplying the

findings.

I.

A. Procedural background.

It will soon be twenty years since Lawrence Alberti and his

fellow prisoners filed a class action on behalf of past, present,

and future inmates of Harris County jails. The complaint named

members of the Harris County Commissioners Court and the

Harris County Sheriff's Department as defendants and, pursuant

to 42 U.S.C. § 1983, alleged that the jails' conditions violated

numerous constitutional and statutory provisions.

The original district judge, Judge Bue, conducted extensive

hearings, including visits to the facilities. He concluded that

conditions in the jails were "inhumane." The plaintiffs and the

county then entered intc a consent decree on February 4, 1975.

The decree called for renovations of existing facilities, the

development of a new central jail, and improvements in staff and

security. The district court retained jurisdiction to issue further

interim orders, and shortly thereafter, on December 16, 1975,

the court issued a lengthy opinion setting forth broad guidelines

for the streamlining of the criminal justice system, the

implementation of an effective pre-trial release program, and the

improvement of living conditions within the jails.

At the time of the decree, the county's facilities consisted of a

central jail, with a design capacity of 1150, at 301 San Jacinto

and a detention center, with a design capacity of 810, in Humble,

Texas. In 1982, spurred by the consent decree and later remedial

orders, the county completed a new central jail, with a design

capacity of 3505, at 1301 Franklin and closed the old central jail.

Attendant staffing and supervision concerns were the subject of

several additional orders by the Alberti court. See Alberti v.

Klevenhagen, 606 F.Supp. 478 (S.D.Tex. 1985); Alberti v.

Heard, 600 F.Supp. 443 (S.D.Tex. 1984). The county also

commissioned an expert, Dr. Charles Friel, to consider future

needs. Pursuant to his projections, the county authorized the

construction of a third jail facility, with a capacity of 4000, at

701 North San Jacinto and the renovation of the old central jail,

to house 400, at 301 San Jacinto.

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The county filed a motion for final judgment and permanent

injunction on February 20, 1987. Shortly thereafter, on April 28,

1987, the Alberti court appointed three monitors--a special

master, a medical monitor-assessor, and a jail monitor-assessor--

to periodically inspect the jails and to assess their conditions, to

make findings on the county's compliance with its orders, and to

determine the maximum capacities of the jails. See Alberti v.

Klevenhagen, 660 F.Supp. 605 (S.D.Tex. 1987). The monitors

issued their first report on October 7, 1987. Of the eighteen

conditions surveyed, the monitors found full compliance as to

nine, partial compliance as to seven, and non-compliance only as

to two, medical and dental care and drug and alcohol treatment.

The monitors also found that, as of June 1, 1987, the county's

fails were only five pergent over their design capacity. However,

in light of the inordinate delay in achieving substantial

compliance, the monitors recommended continued supervision

by the Alberti court.

B. The state's scheduled admissions policy.

The state of Texas has been beset with its own overcrowding

problems. In 1985, after many years of litigation in Ruiz v.

Estelle, the state entered into a "crowding stipulation," agreeing

to limit the population in its prisons to 95% of capacity. See Ruiz

v. Lynaugh, 811 F.2d 856 (Sth Cir. 1987). To stay within the

limits, the state periodically closed its prisons to convicted felons

sentenced to the state's prison system, and ready for transfer, but

awaiting transfer in county jails. In September of 1987, the state

attempted to order the rationing with a “scheduled admissions

policy," setting daily quotas on the number of ready-felons that it

would accept into its prison system from each county.

As stated by the monitors, "[t]he painful consequences for Harris

County of this new admissions policy quickly became evident."

A backlog of ready-felons developed, and on December 17,

1987, the Alberti court directed the monitors to reassess the

jails' conditions in light of the state's new policy. The monitors

issued their report on March 21, 1988 They found that the jails

were “clean, well-run, and reasonably safe and secure," but

warmed of the potential consequences of the state's scheduled

admissions policy:

What this quota policy means for the defendants is obvious

Over the preceding years, the number of convicted felons in

Harris County facilities awaiting transfer to the TDC fluctuated

regularly between 100 and 200. By the end of September, 1988

[sic], that number was up to 512; by December 31, 1987, the

number stood at 798. Even more alarming than the growth itself

is the likelihood that it will continue at about the same rate for

the foreseeable future... . Harris County is, in effect, operating

an 800-bed facility for TDC, by March or April, they may be

operating the equivalent of a 1,000 bed facility.

By September of 1988, the monitors' dire forecast was realized

In their fourth report, issued on September 12, 1988, the

monitors found that the jails' population increased from 4576 in

January of 1988 to 5650 in July of 1988, or thirty percent over

design capacity. The monitors concluded that the jails were

dangerously overcrowded:

All systems are impossibly stressed, including

food service, programming, _ elevators,

recreation, classification, maintenance, visiting,

supplies of clothing and bedding, security,

medical care, and mental health services. So far

these stressed systems have not broken down

completely under the population pressures, but

the Monitors believe that there is no elasticity

left in the institution and its service systems.

The monitors further concluded that the appropriate capacities

of the central jail at 1301 Franklin and the detention center in

Humble were 3330 and 770 respectively, or 95% of design

capacity. They recommended that the A/berti court direct the

county and state to immediately reduce the jails’ population to

120% of design capacity (4200 at the central jail and 970 in the

detention center) and also set future population caps at 110% of

design capacity upon the completion of the renovation of the old

central jail at 301 San Jacinto and 95% of design capacity upon

the completion of the new facility at 701 San Jacinto.

On November 8, 1988, on the basis of the monitors' report, the

Alberti court sua sponte directed the county sheriff to transport

and deliver to the Texas Department of Corrections (later the

Texas Department of Criminal Justice--Institutional Division) at

least 290 ready-felons each week beginning December 5, 1988.

The court reasoned that, under Texas law, "the TDC, not Sheriff

Klevenhagen or the Harns County Commissioner's Court, is

responsible for housing persons who have been convicted of

C-5

felony offenses in the State criminal courts." In support of this

conclusion, the court cited Tex. Penal Code §§ 12.32-12.34,

Tex.Code Crim.Proc. Art. 42.09 § 2, and Tex.Rev.Civ.State

Art. 6166r (now Tex.Gov.. Code § 499.006). The state,

however, refused to accept ready-felons above the quota

allocated to the county in its scheduled admissions policy,

leaving the county unable to comply with the order.

By December of 1988, the population of ready-felons in the

county's jails leaped to over 2100, representing more than a third

of the jails’ population. On December 12, 1988, the county

moved the Alberti court to require the plaintiffs to join state

officials as additional defendants, urging that it could not achieve

constitutional compliance without the participation of the state

The Alberti court denied the motion on January 12, 1989, but

allowed the county to file a third-party complaint against the

state. In the third-party complaint, the county prayed that the

court enjoin the state to immediately remove all ready-felons

from its jails, the county sought no monetary damages.

The state moved to dismiss the county's third-party complaint

and, alternatively, for the joinder of all Texas counties and alli

ready-felons backlogged in Texas county jails. The state also

moved to dismiss for lack of venue, to transfer venue, and to

stay-the Alberti proceedings pending an application to the

judicial panel on multidistrict litigation. On May 12, 1989, the

Alberti court denied the motion, reasoning that the state had a

state law duty to "speedily" accept ready-felons and a federal

constitutional duty not to impose cruel and unusual punishment

on felons. See Tex.Rev.Civ.State. Art. 6166r (now Tex.Gov

Code § 499.006). If the state violated the latter constitutional

duty, continued the court, then Pennhurst State School &

Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d

67 (1984), would not bar an order compelling compliance with

constitutional standards. The court also denied the venue

arguments, concluded that Ruiz was no bar to the third-party

complaint, refused to abstain, and found the joinder of all other

Texas counties unnecessary.

oe The In re Clements bifurcation.

On May 30, 1989, the plaintiffs moved the Alberti court to

transfer to the Ruiz court their pending motions for a population

cap on the county's jails and the county's motion for an order

directing the state to remove ready-felons from its jails. The

C-6

state joined the request that the third-party complaint be

transferred to the Ruiz court.

Meanwhile, on June 26, 1989, the state moved the Alberti court

to reconsider its May 12 order in light of a recently enacted

statute, H.B. 2335, Tex.Gen. & Special Law 1989, Reg.Sess.,

Ch. 785, effective September 1, 1989. H.B. 2335 made a

number of changes in the state's criminal justice system. Most

relevant to this appeal, H.B. 2335 created the Texas Board of

Criminal Justice as a replacement for the Texas Department of

Criminal Justice, deleted the word "speedy" from Tex.Gov.Code

§ 409.006, and authorized the adoption of the scheduled

admissions policy. Alternatively, the state moved the Alberti

court to transfer the third-party complaint to the Ruiz court; the

state objected, however, to the transfer of the plaintiffs’ pending

motions.

The Alberti court denied both the requests for transfer and the

motion to reconsider on July 10, 1989. The court reasoned that

the transfer was not required by this court's en banc decision in

Gillespie v. Crawford, 858 F.2d 1101 (Sth Cir. 1988), nor

would it advance the purposes of Gillespie. As to the adoption

of H.B. 2335, the court stated:

[t]he fact that Third-Party Defendants may no longer have a

State-law duty to ‘speedily’ accept convicted felons contrary to

their admissions allocation formula does not abate their federal

Constitutional duties toward these felons. . . . Third-Party

Defendants’ federal Constitutional duty to not impose cruel and

unusual punishment upon convicted felons remains, regardless of

the actual location of the felons' confinement.

The plaintiffs and the state then petitioned for a writ of

mandamus from this court. We granted the writ in part on

August 11, 1989, transferring to the Ruiz court

so much of the relief portion of the third-party

complaint as seeks an injunction ordering our

individual petitioners (in their official capacities)

to receive or take prisoners into TDC

confinement or to otherwise take action in the

operation or management of TDC-operated

confinement facilities.

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

C-7

D The bench trial.

The population of ready-felons in the county's jails continued to

escalate, and by March of 1989, the jails’ total population

exceeded 7200, forcing 2700 prisoners to sleep on the floors

each night. As stated by the monitors, "[t]o put this into some

perspective, Harris County now has more prisoners sleeping on

the floors of its detention facilities than the total number of

convicted offenders incarcerated in each of fourteen states." In

light of the increase in total population, the monitors revised

their recommendations in a report issued on April 11, 1989.

They suggested that the A/berti court direct the county and state

to reduce the jails’ population to 7000 (6000 in the central jail

and 1000 in the detention center) within 30 days, 6400 (5500 in

the central jail and 900 in the detention center) within 90 days,

5800 (4990 in the central jail and 810 in the detention center)

within 180 days, and 5200 (4390 in the central jail and 810 in the

detention center) within 270 days. They further suggested that

the Alberti court set a final population cap of 8732, equal to

design capacity, upon completion of the new facility at 701 San

Jacinto. In a report issued the following month, on June 1, 1989,

the monitors concluded that “living conditions for inmates. _ .

have become intolerable, shocking to the conscience and

unequivocally unconstitutional."

The Alberti court held a "merits-liability” bench trial August 14

through 18, 1989. By the time of the trial, the total population in

the county's jails stood at 8086, or 188% of design capacity,

with ready-felons, then a population of 3420, representing 45%

of the total population. A parade of witnesses testified to the ill

effects of the overcrowding. The lead special master, J. Michael

Keating, described "much attenuated protection" because of

inadequate staff, inadequate ventilation and food service, supply

shortages, precarious fire safety, and a medical care system on

the verge of collapse. The captain of the central jail, Don

McWilliams, concurred with Keating's assessment and, in

addition, testified to "a spectacular increase in the incidence of

disciplinary infraction."

The Alberti court held an additional hearing on the plaintiffs’

requests for supplemental relief September 12 through 15, 1989

At the hearing, the court expressed its concern that the county's

joinder of the state as a third-party defendant could suffer

jurisdictional defects under Pennhurst. Upon the court's

suggestion, the plaintiffs sought leave to file a supplemental

complaint against the state on September 15, 1989.

The Alberti court issued its findings of fact and conclusions of

law on September 25, 1989. The court opened its opinion by

granting the plaintiffs’ motion for leave to file the supplemental

complaint. It found that the conditions in the jails were "cruel

and unusual," citing extreme overcrowding as "the primary

cause" of the constitutional violation. More specifically, the

court found that 2800-2900 prisoners slept on the floor each

night, forming a "human carpet" in some cellblocks, that the staff

was inadequate to assure the safety of all prisoners, that there

had been a great increase in disciplinary violations, that there

were problems with plumbing and ventilation, that fire safety

was "severely compromised,” that supplies and food service

were inadequate, that medical care conditions reflected "cons-

cious indifference towards the inmates’ serious medical needs,"

and that county judges gave greater weight to pre-trial release

recommendations than state judges.

The Alberti court concluded that the county was liable for the

violation because, under Texas law, its sherff and

commissioners court were keepers of the jails. Tex.Local Govt.

Code §§ 351.001-351.015 and 351.041-351.042. The court

further found the state jointly liable because, under Texas law, it

had the "primary responsibility" for convicted felons. Tex. Rev.

Civ.Stat. Art. 4413(401) § 1.02. In the opinion, the A/berti court

also transferred the third-party complaint and the supplemental

complaint to the Ruiz court.

On October 11, 1989, the county moved to supplement or

amend the September 25, 1989, findings of fact and conclusions

of law and, alternatively, for a new trial. The Alberti court

denied the motion on October 23, 1989. Shortly thereafter, both

the county and the state filed protective notices of appeal. This

court dismissed the appeals as premature on January 3, 1990.

E. Subsequent remedial orders.

After the transfer to the Ruiz court in the September 25 findings

of fact and conclusions of law, the Alberti and Ruiz courts

combined to hold joint hearings and issue joint orders on the

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remedial aspects of the Alberti case.1 The parties at first

engaged in settlement negotiations, but when the prospects for

settlement dimmed, the combined courts ordered the county and

state to submit proposed remedial plans by January 17, 1990.

After the parties submitted their proposed plans, the combined

courts held joint hearings on February 27 and 28, 1990.

On March 15, 1990, the combined courts entered a joint

remedial order, directing the county and state to reduce the jails’

population to 6700 upon entry of the order and to 6100 by

August 31, 1990. The order contained a number of additional

provisions, addressing among other matters a reduction in the

population of ready-felons, the development of alternatives to

incarceration, and releases of prisoners in the event of non-

compliance.

After the parties moved the combined courts to alter or amend

the order, the courts vacated the March 15 order and replaced it

with a second order, munc pro tunc, on April 5, 1990. The April

5 order directed the county and state to reduce the jails’

population to 6700 upon entry of the order, to 6400 by May 15,

1990, and to 6100 by August 31, 1990. The order specifically

required the state to remove 9130 ready-felons between

February 1 and August 31, 1990. The state complied with this

aspect of the order. Like the March 15 order, the April 5 order

provided for the development of alternatives to incarceration

and, in addition, directed releases of prisoners in the event of

non-compliance. The combined courts denied the parties’

motions to alter or amend the order, or for a new trial on April

25, 1990.

In an opinion issued shortly after the transfer, Judge Justice

described the transfer as partial. Citing Jn re Clements, he stated that:

it is apparent from the Court of Appeals’ opinion that the

Alberti court retains the power to order certain forms of

relief against the State Defendants, so long as that relief

docs not require those defendants to "receive or take

prisoners into TDC” or to take other action “in the

operation or management of TDC-operated facilities.”

Judge Justice proceeded to direct his special master in Ruiz to confer with

the Alberti special master.

The April 5 order proved effective in reducing the jails’

population. By August 13, 1990, the total population stood at

6097, or 130% of design capacity, and the population of ready-

felons had dropped to 1069. The renovation of the old central

jail at 301 San Jacinto, completed in December of 1989, had

increased the combined design capacities of the county's jails to

4698.

Upon the expiration of the April 5 order, the combined courts

issued a third joint remedial order on September 7, 1990. In the

order, the courts purported "to bridge the next 12 months” until

the completion of the new facility at 701 San Jacinto, designed

to house an additional 4000 prisoners. The order first required

the county to occupy the new facility by September 1, 1991, and

provided for "a substantial daily fine for each day beyond

September 1, 1991 they failed to occupy the 701 Building.” The

order further directed the county and state to reduce the jails’

population to 6100 upon entry of the order and to 6000 by

December 31, 1990, capping the ready-felon population at 1350

and the remaining population at 4751, to be reduced to 4650 by

December 31, 1990. Again, like the earlier orders, the

September 7 order provided for the development of alternatives

to incarceration and directed releases of prisoners in the event of

non-compliance.

Pursuant to the September 7 order, the A/berti court issued four

orders directing the release of 254 pretrial and convicted

misdemeanants on September 14, 17, and 18, 1990. Both the

county and the state appealed this order. The state obtained a

partial stay of the order from this court on September 21, 1990.

We later withdrew the stay on the understanding that, first, the

combined courts would not release felons without sufficient

notice for application by the parties for further stay and, second,

that the parties would work together "to obtain a process that

will protect the public safety and the integrity of the criminal

justice system as well as the rights of prisoners."

Prior to the releases, the county and state had moved the

combined courts to alter or amend the September 7 order, or

alternatively, for a new trial. The Alberti court set a hearing for

October 22, 1990, and ordered the defendants to submit new

proposed remedial plans. The court specifically announced that

the alternatives to be considered at the hearing would include

"(1) temporary housing and the expense and time necessary for

the construction thereof and (2) the utilization of facilities of

$e rm

C-11

nearby counties which may have available jail space." After the

hearing, the court concluded that the county and state had “not

yet developed a feasible strategy for addressing the

overcrowding problem in Harris County detention facilities that

precludes the need for further releases of inmates, although

elements of a possible solution surfaced." The court accordingly

directed the defendants to meet with the monitors in the Alberti

and Ruiz cases and “to jointly develop an acceptable plan for

ae with the short-term population crisis in Harris County

acilities."

On November 19, 1990, the Alberti court stayed the releases

authorized in the September 7 order, giving the county and state

sixty days to implement alternative programs designed to bring

the jails’ population within the caps set in the September 7 order.

The November 19 order also contained a fallback provision; it

stated that if the required caps were not met within sixty days,

the court would require "the defendants, or either of them. . . to

contract for the use of private jail cells or empty county jail cells

around the State to house excess prisoners."

On February 7, 1991, upon finding that the jails' population still

exceeded the — set in the September 7 order, the Alberti

court issued a fourth remedial order. Evidencing a growing

impatience, the court refused the state's request to further delay

implementation of the population caps established in the earlier

orders. Instead, the court implemented an alternative remedy

pending the opening of a boot camp in April of 1991 and the

new facility at 701 San Jacinto in September of 1991. The order

first directs the county and state to reduce the jails' population to

6300 within 45 days. County prisoners, including felons not

ready for transfer, are not to exceed 4725 (75% of capacity),

and ready-felons are not to exceed 1575 (25% of capacity). If

necessary to meet the population caps, the order directs the

county sheriff to transfer ready-felons to facilities in other

counties. The state is required to deposit $750,000 with the

Alberti court's registry by March 20, 1991. The order authorizes

the county to pay up to $40 per day for the housing of each

transferred prisoner, the expenditures are to be reimbursed by

the state's deposit to the extent that ready-felons exceed the

1575 cap.

Unlike the previous remedial orders, the February 7 order was

not a product of the combined courts. Instead, Judge Justice

wrote separately "to clarify my relationship to the relief set

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forth." Although he conceded that the order was within the

scope of Alberti, he suggested that the requirement that the state

deposit $750,000 "seemingly falls within the purview of Ruiz"

and stated that he "would abstain" from deciding whether, under

Texas law, the state was obliged to pay costs incurred by the

county in housing ready-felons in other counties’ facilities.

Both the county and state filed motions to modify the February 7

Alberti order. The state also filed a motion to vacate the order

and a notice of appeal. While the motions to vacate were

pending, the state petitioned for a writ of mandamus from this

court, asking that we vacate the portion of the February 7 order

requiring the state to deposit $750,000 and, in addition, either

enforce or modify our previous decision in /n re Clements.

Alternatively, the state requested a stay of the portion of the

order requiring the $750,000 deposit, a writ of prohibition,

summary reversal, or certification to the Texas Supreme Court

On March 15, 1991, the Alberti court slightly modified the order

and denied the motions to vacate or stay the order. The county

and state then filed new notices of appeal. On March 21, 1991,

this court similarly denied the state's request for a stay of the

portion of the order requiring a $750,000 deposit. The Supreme

Court temporarily stayed the provision the same day, but on

April 1, 1991, withdrew the stay. The state and county now

appeal the September 25 findings of fact and conclusions of law

and each of the subsequent remedial order.

II.

The county and the state initially offered little resistance to the

assertion that excessive overcrowding in the county's jails

renders the conditions of confinement for the plaintiff class

unconstitutional. While this appeal was pending, however, the

Supreme Court held in Wilson v. Seiter, US. _,111 S.Ct.

2321, 115 L.Ed.2d 271 (1991), that the Eighth Amendment

"mandate[s] inquiry into a prison official's state of mind when it

is claimed that the official has inflicted cruel and unusual

punishment." In supplemental briefs to this court, each defendant

argued that only the other acted with the requisite intent.

Even after Seiter, then, the heart of the appeal remains the

relative responsibilities of the state and county. The county

believes that the state should shoulder full responsibility, as the

overcrowded conditions have resulted largely from the huge

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backlog of ready-felons. The state, on the other hand, contends

that state law places full responsibility for the jails on the county.

In formulating its remedial orders, the Alberti court faced the

difficult task of remedying the constitutional violation without

intruding on the state's right, as a sovereign, "to decide who will

be held liable for civil rights violations that occur in the course of

carrying out [state powers]." Bush v. Viterna, 795 F.2d 1203,

1209 (Sth Cir. 1986). We believe the balance was well struck by

the Alberti court. However, we vacate and remand the liability

findings against the state and the county to allow the Alberti

court to consider the effect of Seiter. Before addressing the

liability and remedial issues, we turn to two jurisdictional issues.

A Jurisdictional issues:

l. The expired remedial orders.

[1] The first three remedials orders, issued on March 15,

April 5, and September 7, are now expired. The county argues

that the orders are still appealable, however, because the issues

presented by the orders are "capable of repetition, yet evading

review." Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60

L.Ed.2d 447 (1979). We took this position in an order denying

the state's motion to dismiss the county's appeal of the first

remedial order as moot but noted that, upon further

consideration, the oral argument panel might find the appeal

moot. The plaintiffs contend that the first two remedial orders

are moot even under Bell because the latest order, issued on

February 7, 1991, expressly "superseded" them. However, we

continue to find the county's characterization convincing. See

National Wildlife Federation v. Costle, 629 F.2d 118, 123-24 n.

19 (D.C.Cir. 1980).

2. The medical care findings.

[2,3] In its September 25 findings of fact and conclusions of

law, the Alberti court suggested that the medical conditions in

the county's jails constituted an independent constitutional

violation.2 However, none of the remedial orders specifically

2 The Alberti court found that the poor level of medical care

reflected "conscious indifference towards the inmates’ serious medical

needs.” Under Seiter, 111 S.Ct. at 2321, and Estelle v. Gamble, 429 U.S

97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), this finding alone establishes an

Eighth Amendment violation.

address medical care. The plaintiffs contend that the county's

challenge to the medical care findings is thus premature. We

agree with the plaintiffs, but not fully with their characterization

of the relevant jurisdictional defect. There has been no final

judgment in the Alberti case, and the state and county are thus

appealing the remedial orders under 28 U.S.C. § 1292(a)(1). As

medical care has not yet been implicated in a remedial order, the

related findings are outside the § 1292(a)(1) exception to the

final judgment rule.

B. Liability issues:

l. The relative obligations of the state and the

county.

[4] The starting point in evaluating the relative obli-

gations of the state and the county is Bush v. Viterna, 795 F.2d

1203 (Sth Cir. 1986). In Bush, a class of county inmates brought

an action under § 1983 to compel a newly created state

commission, the Texas Commission of Jail Standards, to dis-

charge its state law duties. The authorizing statute required

TCJS to establish minimum standards for county jails and to re-

view reports of noncompliance. Additionally, the statute gave

TCJS discretionary enforcement powers. The plaintiffs urged a

"supervisory liability" theory, suggesting that TCJS legally

caused constitutional wrongs that it failed to prevent or correct.

In rejecting the plaintiffs' theory, we reasoned that Texas law

identifies county sheriffs and commissioners courts, not TCJS, as

— of the county jails. /d. at 1206. Bush thus concluded as

ollows:

[A]ccepting for now the concept that the breach

of a state-imposed duty can cause a constitutional

tort, we hold that the necessary causal

relationship is absent when a state duty to

regulate, monitor, inspect, or advise is not

accompanied by an obligation to extirpate

constitutionally substandard conditions or

activities that may be encountered.

Id. at 1208.

Particularly relevant to this appeal is the final section of Bush,

where we explained "the different roles that state and federal law

inevitably play in the analysis of constitutional torts." /d. at

C-15

1208. Whenever a plaintiff alleges a cause of action under

§ 1983, a federal court must ask three questions. First, is a

federally secured right affected? In some cases, particularly pro-

cedural due process cases, the federal court must look to state

law to answer related threshold questions, such as “whether the

claimant in fact had a property right in whatever it was that was

taken away from him," but the nght itself is defined by federal

standards. /d. at 1209. Second, was the alleged deprivation of

the right accomplished by state action? Here again, some

reference to state law is necessary, but "the definition of state

action is ultimately a question of federal law." /d. Finally, who is

the state actor responsible for the violation? Unlike the first two

questions, the third question turns exclusively on state law. "The

states have virtually complete freedom to decide who will be

responsible for such tasks, and therewith to determine who will

be held liable for civil rights violations that occur in the course of

carrying them out." Jd.

The hard question in this appeal is the third question, the issue of

who is liable for the conditions in the county's jails. The county

clearly has some responsibility for the conditions in its own jails.

Texas law requires the county's commissioners court to provide

"safe and suitable jails" and makes the county's sheriff "keeper of

the county jail" Tex. Local Govt. Code §§ 351.001 and

351.041. The county does not deny these obligations; rather, it

argues that the objectively cruel conditions in its jails have

resulted solely from the state's backlogging of ready-felons. For

reasons discussed more fully below, Seifer gives some new fuel

to the county's argument.

By contrast, the state denies any responsibility for the conditions

in the county's jails. The Alberti court twice rejected the state's

contention that Texas law makes the county solely liable, first in

an order denying the state's motion to dismiss the county's third-

party complaint and again in its September 25 findings of fact

and conclusions of law. The court distinguished Bush because

"[iJn contrast to the Texas Commission of Jail Standards, Third-

Party Defendants have a state and constitutionally imposed duty

to provide appropriate conditions of confinement for the

approximately 3500 convicted felons currently incarcerated in

the Harris County Jails." In support of this conclusion, the court

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

remarkably similar case.

C-16

In Stewart, a class of inmates housed in Mississippi county jails

brought an action against both county and state officials under

§ 1983 to challeng. the conditions of the jails. The district court

granted the state's motion to dismiss on the ground that the state

had no authority over the county's jails. On appeal, however, this

court held that the district court erred in dismissing the claims

against the state. We reasoned as follows:

Several of the named plaintiffs, and thousands of

the putative class members, are state prisoners

committed to the custody of the Mississippi

Board of Corrections. The district court's holding

would allow the defendant state officials to

relegate their prisoners to "cruel and unusual pun-

ishment" so long as they have no power to

change the conditions of confinement in county

jails. We reject this theory. This court has

consistently held that state officials cannot

disclaim responsibility for cruel and unusual

conditions of confinement of prisoners in their

custody on the ground that it is beyond their

power to effect the changes necessary to bring

the conditions up to minimal standards. [citations

omitted] Even if the district court were correct in

deciding that the defendant state officials have no

authority to make changes in county jails, the

district court could have ordered the state

officials to remove prisoners in their custody from

any county jail found constitutionally inadequate,

or, in the alternative, offered them the

opportunity to assist the county in making the

necessary changes in order to continue using the

jail to incarcerate state prisoners.

Id. at 332.

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

Frey, 735 F.2d 986 (6th Cir. 1984), like Stewart, involved

essentially identical situations. In Benjamin, after city inmates

brought a § 1983 challenge to the conditions of New York City

jails, the city moved to join the state of New York as a third-

party defendant. The city contended that the overcrowding in its

jails resulted from the state's failure to accept convicted felons as

required by state statute:

C-17

When a sentence of imprisonment is pro-

nounced, or when the sentence consists of a fine

and the court has directed that the defendant be

imprisoned until it is satisfied, the defendant

must forthwith be committed to the custody of

the appropriate public servant and detained until

the sentence is complied with.

N.Y. Criminal Procedure Law § 430.20. The district court

granted the city's motion and directed the state to accept felons

within 48 hours from the completion of transfer processing

On appeal, the Second Circuit rejected the state's Pennhurst

argument and affirmed the order joining the state. Its opinion

echoes of Stewart:

[P]risoners whom [the state] refuses promptly to

accept into its prisons are not those of some

other state, county, or planet, but its own

prisoners who have been convicted by New

York State courts of New York felonies. The

State cannot therefore wash its hands of its

federal constitutional responsibility for the

detention conditions of such prisoners because

they are temporarily housed in City facilities or

because a New York statute requires the State

to accept them "forthwith."

Id. at 51 (emphasis in original).

In Jate, after county inmates brought a § 1983 challenge to the

conditions in Jefferson County jails, the county filed a third-party

complaint against the state of Kentucky. The state had adopted a

“controlled intake policy" pursuant to a consent decree in

litigation involving its own prisons, and in accordance with the

policy, refused to timely accept felons in the county's jails

awaiting transfer to state prisons. After finding that the over-

crowded conditions in the county's jails were caused in part by

the state's policy, the district court issued an order directing state

Officials to reduce the number of felons in the county's jails by

transferring felons to a state prison within thirty days of

sentencing.

C-18

On appeal, the state argued that the district court erred in

allowing the third-party complaint. The Sixth Circuit affirmed,

finding a "substantive basis" for the claim in a state statute:

When an indeterminate term [1 year or more] of

imprisonment is imposed, the court shall commit

the defendant to the custody of the bureau of

corrections for the term of his sentence and until

released in accordance with the law.

Kentucky Revised Statute § 532.100. An accompanying

commentary states that § 532.100 "assures that felony offenders,

once convicted and sentenced to imprisonment, shall be

delivered to the Department of Corrections, with the specific

place of incarceration to be left to the Department." As the case

involved a preliminary injunction, the Sixth Circuit reviewed the

district court only for abuse of discretion. But the Sixth Circuit

rejected the state's Pennhurst argument, affirming the district

court's finding that the state was partly responsible for the

unconstitutional conditions in the county's jails.

The state's attempt to distinguish Benjamin is without merit. The

state argues that the result in Benjamin turned partly on the fact

that New York's refusal to accept convicted felons made it

"impossible for the city to comply with the district court's

judgment against it in the plaintiffs’ favor." The state then cites

Badgley v. Vareles, 729 F.2d 894, 901 (2d Cir. 1984) for the

proposition that, if complete relief can be obtained from the

county, then there is no right to an order against the state. The

real difference between Benjamin and Badgley, however, was

that in Badgley New York was not adjudicated a constitutional

violator. See Benjamin, 803 F.2d at 52.

The state's reliance on Bush is thus misplaced unless the Texas

scheme is significantly different from the schemes in Mississippi,

New York, and Kentucky. In its September 25 findings of fact

and conclusions of law, the Alberti court reasoned that the state

was jointly liable for the unconstitutional conditions in the

county's jails because, although the sheriff is the keeper of the

jail, the state is responsible for the confinement of convicted

felons under Tex.Pen.Code §§ 12.31-12.34 and Tex. Code Crim.

Pro. Art. 42.09. Before the 1989 amendments, continued the

court, the transfer of convicted felons was governed by the

interplay between Tex. Code Crim. Pro. Art. 42.09 and

Tex.Gov. Code § 499.006--§§ 1 and 4 of Art. 42.09 envisioned

C-19

"at least a temporary stay at the jail when a felon does not appeal

his conviction or when a felon appeals his conviction but his

sentence is for a term of ten years or less," while § 499.006

provided for a “safe and speedy” transfer to a state facility.3

3 The relevant Texas provisions are as follows:

1. Tex.Pen.Code Ch. 12 (punishments) §§ 12.31-12.34

(ordinary felony punishments):

(Footnote continued on next page)

(Footnote continued from previous page)

These provisions state that individuals adjudged guilty of

a capital felony, first-degree felony, second-degree felony, or third-

degree felony “shall be punished by confinement in the Texas

Department of Corrections."

2. Tex.Rev.Civ.Stat. Art. 4413(401) (Department of Criminal

Justice) § 1.02 (responsibilities):

This provision states that the Department of Criminal

Justice has “primary responsibility for (1) the confinement,

supervision, and rehabilitation of felons.”

3. Tex.Code Crim Pro. Ch 42 (judgment and sentence) Art.

42.09 (commencement of sentence, delivery to place of

confinement):

Section 1 states that, except as otherwise provided, the

defendant “shall be delivered to jail or to the Department of

Corrections when his sentence to imprisonment is announced.” If

the defendant is convicted of a felony and sentenced more than ten

years, and he gives notice of appeal, § 3 states that he “shall be

transferred to the Department of Corrections on a commitment

pending a mandate from the court of appeals or the Court of

Criminal Appeals." If on the other hand, he is convicted of a felony

and sentenced less than ten years, and he gives notice of appeal, §

4 states that he shall only be transferred to the Department of

Corrections upon his request. See Ex parte Rodriguez, 597 S.W.2d

771 (Tex.Cr.App. 1980). None of the provisions specify the proper

course absent an appeal. Finally, § 8 states that the Department of

Corrections “shall not take a defendant into custody" until it

receives specified documents from the county.

4. Tex.Code Crim.Pro. Ch. 104 (certain expenses paid by

State and county) Art. 104.002 (expenses for prisoners):

C-20

Although the 1989 amendments deleted the requirement of a

"speedy" transfer and authorized the adoption of the scheduled

admissions policy, the A/berti court concluded that the

amendments did not relieve the state of its responsibility for the

confinement of convicted felons:

The State of Texas is free to allocate the admis-

sions of felons into the penitentiary in virtually

any manner it chooses so long as the allocation

does not result in the cruel and unusual

punishment of inmates. However, when it

becomes clear that convicted felons are being

This provision states that "a county is liable for all

expenses incurred in the safekeeping of prisoners confined in the

county jail or kept under guard by the county.” It also provides for

inter-county (but not state-county) reimbursements.

(Footnote continued on next page)

(Footnote continued from: previous page)

3 Tex.Gov.Code Ch. 494 (Texas Department of

Corrections—contracts).

Adopted as part of the 1989 amendments, this chapter

authorizes the Board of Corrections to contract with a private

vendor or a county commissioners court for jail space. See E

494.001. A private vendor or county under contract with the Board

has no authority to compute parole or release dates, award good

time, approve furloughs, or reclassify inmates. See § 494.004.

6. Tex.Gov.Code Ch. 499 (miscellaneous matters) Arr.

499.006 (transportation of inmates):

Before its 1989 amendment, this provision stated that the

director of the Board of Corrections “shall adopt rules to provide

for the safe and speedy transfer of inmates from the counties in

which inmates are sentenced to the department." Now, the pro-

vision states that the director “shall make suitable provision and

regulations for the safe transportation or prisoners from counties

where sentenced to the State penitentiary.”

: Tex.Local Gov.Code Ch. 351 (jails and law enforcement)

§ 351.041 (sheriff):

This provision makes the sheriff of each county “the

keeper of the county jail.” :

C-21

confined in conditions that violate the Eighth

Amendment, the relevant inquiry becomes who is

responsible for those inmates. Fortunately, H.B.

2335 [the 1989 amendatory act] provides a clear

answer to this inquiry. Section 1.02(a)1)

provides, "The department [TDCJ, formerly

TDC] is the state agency with primary

responsibility for . . . the confinement,

supervision, and rehabilitation of felons." Thus,

the fact that the State of Texas has "virtually

complete freedom to decide who will be

responsible" for the confinement of felons

provides no shield from liability for the State

Defendants in this case because state law clearly

places the primary responsibility for the

confinement of felons upon them. See Bush v.

Viterna, 795 F.2d 1203, 1209 (Sth Cir. 1986).

The Alberti court's reasoning is consistent with that of the only

State court to have addressed the issue. After the 1989

amendments, Nueces County and Harris County both filed suit

in Travis County, contending that the state still had the

responsibility either to promptly remove ready-felons or to

reimburse the counties for the costs of their housing. In both

cases, the state court ruled for the county on the merits; one case

is now on appeal, and the other still before the district court on

damages issues. County of Nueces v. Texas Board of

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

Judicial Dist. of Texas 1991); Harris County v. State of Texas,

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

Texas, pending).4 Since our task, as set forth in Bush, is to

4 The reasoning of the state court is best laid out in a letter from the

judge to the parties dated May 31, 1990. The court reasoned that the

Statutory provisions placing responsibility for felons with the state were

quite clear. Tex.Pen.Code §§ 12.31-12.34; Tex.Crim.Pro.Code Art. 42.09:

Tex.Gov.Code § 499.006. On the other hand, the provision cited by the

State, the scheduled admissions policy, was ambiguous. "It neither expressly

relieves the state of the duty to take and confine felons nor expressly

(Footnote continued on next page)

(Footnote continued from previous page)

places that duty on the counties." The court was also influenced by the

awkward effects that i:rits opinion , the state's interpretation would have

C-22

decide who is liable for the violation under state lay, we find it

appropniate to defer to the state courts on the issue.

1. H.B. 2335 which places “primary responsibility” for the

confinement, supervision and rehabilitation of felons on the Texas

Department of Criminal Justice will be rendered meaningless.

[citations omitted]

YF The statutes cited above which unambiguously require

that TDC confine felons will, in effect, be repealed.

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

TDC will be meaningless.

4. New duties will be placed on the counties which they have

never had before possibly in violation of Article 5, § 18(b) of the

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

clearly placed on it by statute.

5. The taxpayers of the affected counties will have to

shoulder a tremendous financial burden which under the

unambiguous statutes should be borne by the whole state.

The court also noted that a bill relieving the state of financial responsibility

for felons left in county jails was introduced, but failed to pass.

As the county points out, the state is a party to both County of

Nueces and Harris County.

‘ We find no merit in several related arguments urged by the state.

For example, the state argues that, under the supremacy clause, “any such

state law duty to accept inmates more speedily (if it ever existed) must give

way to orders entered by the federal district court in Ruiz." The Alberti

obligation arises from the Eighth Amendment. The consent decree in Ruiz

must give way to its demands. At any rate, the Alberti court specifically

found that the state “could have complied with the requirements of the Ruiz

decree without refusing to accept prisoners."

The state also makes several intent arguments. First, the state

points out that “the Very Legislature that passed § 1.02 [stating that the

state has “primary responsibility” for felons} failed to emact any

appropriations that would enable State Defendants to assume responsibility

for the care or treatment of convicted felons in local jails." This argument

fails to explain the contemporaneous passage of Tex.Gov.Code § 494.001,

authorizing the state to contract for jail space with private vendors or

counties. Second, the state contends that the Legislature rejected three bills

to compensate states for holding ready-felons. But, as the county points out,

these “proposed” bills never even reached the floor for a vote.

C-23

2. The deliberate indifference requirement.

[5] Our conclusion that state law imposes responsibilities on

both the state and the county does not end our inquiry. At the

time of the liability hearings before the Alberti court, the focus

of the parties and the court was on the objective conditions of

confinement in the county's jails. See Rhodes v. Chapman, 452

U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); Hutto v.

Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978).

This circuit had earlier held that "unlike ‘conduct that does not

purport to be punishment at all' as was involved in Gamble and

Whitley, the Court has not made intent an element of a cause of

action alleging unconstitutional conditions of confinement."

Gillespie v. Crawford, 833 F.2d 47, 50 (Sth Cir. 1987) (quoting

Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084, 89

L.Ed.2d 251 (1986)), vacated on other grounds, 858 F.2d 1101

(Sth Cir. 1988). Both the county and the state expressly

conceded that excessive overcrowding rendered the conditions

of confinement in the county's jails unconstitutional, and each

attempted to persuade the court that the other should shoulder

full responsibility.

While this appeal was pending, however, the Supreme Court

held that prison conditions rise to the level of cruel and unusual

punishment only when they are a product of state indifference. In

Wilson v. Seiter, US. __, __, 111 S.Ct. 2321, 2325, 115

L.Ed.2d 271 (1991), the Court identified the source of this

subjective requirement as "the Eighth Amendment itself. which

bans only cruel and unusual punishment. If the pain inflicted is

not formally meted out as punishment by the statute or the

sentencing judge, some mental element must be attributed to the

inflicting officer before it can qualify." In prison conditions

cases, like Alberti, the requisite intent is "deliberate indifference"

as articulated by the Court in Estelle v. Gamble, 429 U.S. 97, 97

S.Ct. 285, 50 L.Ed.2d 251 (1976). Jd __ US. at, Ill

S.Ct. at 2326.6

6 In Seiter, the Supreme Court stated that, in emergency situations,

the requisite intent rises to “acting ‘maliciously and sadistically for the

purpose of causing harm." Seifer, _ US. at __, 111 S.Ct. at 2321. The

state argues that we should apply this higher standard because of a

purported clash between the state's responsibility to ready-felons in the

county's jails and its responsibilities under the Ruiz decree. We think it

Clear, however, that the Court was concerned with short-term emergenties ~

C-24

The deliberate indifference requirement of Seiter and Estelle is

not wholly separate from the objective requirement of Rhodes.

In Seiter, the Court explained that the "long duration of a cruel

prison condition may make it easier to establish knowledge and

hence some form of intent." Jd at _, 111 S.Ct. at 2325.

Several lower courts, cited in Seiter, have found deliberate indif-

ference where prison officials were aware of objectively cruel

conditions but failed to remedy them. See Cortes-Quinones v.

Jiminez-Nettleship, 842 F.2d 556, 560 (1st Cir. 1988); Morgan

v. District of Columbia, 824 F.2d 1049, 1063 (D.C. Cir. 1987).

In Alberti, there is little doubt that both the county and the state

knew that the conditions of confinement in the county's jails

deprived the inmates of basic needs. The county's jails had been

under the continuing jurisdiction of the A/berti court since 1975,

the monitors’ reports became increasingly strident after mid-

1988, and both the county and the state expressly admitted that

he conditions of confinement were objectively unconstitutional

during the liability hearings.

In deciding whether the county and the state were deliberately

indifferent to the needs of the plaintiffs, however, we must also

consider any relevant constraints. As Justice Scaztia explained,

"whether [conduct] can be characterized as ‘wanton’ depends

upon the constraints facing the official." Seer, |US.at__,

111 S.Ct. at 2326. LaFaut v. Smith, 834 F.2d 389 (4th Cir.

1987), written by former Justice Powell and cited extensively in

Seiter, is instructive. In LaFaut, a paraplegic prisoner alleged

that prison Officials had denied him adequate toilet facilities and

necessary physical therapy in violation of the Eighth

Amendment. In reviewing the district court's findings, Justice

Powell noted that, although LaFaut specifically informed prison

officials that his toilet facilities were inadequate, they made no

attempt to modify the facilities for two months and, when their

initial attempt failed, waited another month before transferring

LaFaut to a cell with adequate facilities. Similarly, although

LaFaut repeatedly requested physical therapy and official

medical reports confirmed the need for therapy, he waited two

months for minimal motion therapy and eight months for a

transfer to a institution with adequate therapy.

where prison Officials must act "in haste, [and] under pressure." /d. (quoting

Whitley v. Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 1084, 89 L.E.d2d 251

(1986).

C-25

Justice Powell concluded that. because there was no reason for

the delays, the prison officials had been deliberately indifferent to

LaFaut's needs:

There is nothing in the record before us ... to

justify the inordinate delays in accommodating

appellant's needs in light of the practicality and

availability of various solutions. Prison officials

should not ignore the basic needs of handicapped

individuals or postpone addressing those needs

out of mere convenience or apathy. As appellee

Hambrick was the responsible official in —-

of Butner, and she was fully advised both of the

inhumane conditions of appellant's confinement

and the failure to provide him with needed

therapy we concluded that her neglect

constituted "deliberate indifference" and

therefore violated the Eighth Amendment.

Id. at 394.

The state contends that its actions were not deliberately

indifferent but instead necessitated by the Ruiz decree and the

over-crowding problems in its own prisons. However, the

Alberti court specifically found that:

State Defendants could have complied with the

requirements of the Ruiz decree without refusing

to accept prisoners. Federal authority did not

require them to refuse to accept inmates from

county jails. The most obvious alternative would

have been to timely build new prison facilities.

The Court described other alternatives [such as

contracts with other suitable facilities or early

releases as authorized by the Texas Prison

Management Act, Tex.Rev.Stat.Ann. Art.

61840] in its May 12, 1989 Memorandum and

Order.

There is no doubt that the relevant state officials knew that

ready-felons were being backlogged despite the objectively cruel

conditions in the county's jails. Yet the state chose to leave them

in the jails. This is strong if not compelling evidence of deliberate

indifference to the plight of these ready-felons, and it is only

accented by the alternatives available to the state. As found by

C-26

the A/berti monitors, the state's management of ready-felons in

Harris County "in essence . . . ignore[d] those state prisoners. . .

_" Significantly, the state could have housed prisoners in a

variety of ways. Even housing them under corditions of a

military bootcamp would not touch the Eighth Amendment.

Indeed, a tent city would be far superior to the conditions in the

county's jails. The state cannot turn away from the use of such

common sense solutions by pointing to the Ruiz decree. The

district court explicitly found that the decree was no

impediment; and in any event, the Ruiz decree could not legally

impede such plain responses, at least to the extent its constraints

were not themselves required by the Constitution.

Nor does this record offer substantial evidence that the state's

actions were constrained by legislative refusal to fund the only

means by which the state could have relieved the county. Before

Seiter, it was well established in this circuit that "inadequate

funding will not excuse the perpetuation of unconstitutional

conditions of confinement." Smith v. Sullivan, 611 F.2d 1039,

1044 (Sth Cir. 1980); see also Gates v. Collier, 501 F.2d 1291,

1319-20 (Sth Cir. 1974). Other circuits have found deliberate

indifference over allegations of inadequate funding. See Jones v.

Johnson, 781 F.2d 769, 771 (9th Cir. 1986); Ancata v. Prison

Health Services, Inc., 769 F.2d 700, 705 (11th Cir. 1985),

Wellman v. Faulkner, 715 F.2d 269, 274 (7th Cir. 1983). The

issue is assured currency by the intent requirement of Seiter and

that opinion's leave of it. See Seiter, _ US. at 111 S.Ct.

at 2326. We need not address the issue here in the absence of

findings pointing the finger at the legislature. In short, however,

this record leaves us skeptical of the assertion that a recalcitrant

legislature was the culprit.

We would, by necessity, affirm a finding that the state was

deliberately indifferent. Indeed, such a finding on this record

would be virtually unassailable. There is understandably no such

finding, however, because deliberate indifference was not an

issue when the Alberti court ruled. As strong as the case is, we

are reluctant to conclude that a finding of deliberate indifference

is compelled as a matter of law. Factfinding is a province of the

district court. We therefore remand for the appropriate findings

and leave to the district court the decision to take any further

evidence.

[6] The county also argues that its actions’ were not

deliberately indifferent after Seiter. Again, there is no finding,

C-27

but here the record offers some evidence of arguably formidable

constraints. The A/berti court noted in its September 25 findings

of fact and conclusions of law that, until the state began refusing

ready-felons, "it appeared that a spirit of cooperation between

Plaintiffs and County Defendants would eventually led to full

compliance with all Court orders with a minimum of direct

judicial intervention." In June of 1987, the opr fs jails were

only five percent over capacity, and the number o ready-felons

in the county's jails had regularly fluctuated between 100 and

200 for several years. Upon the state's decision to backlog

ready-felons, their numbers quickly jumped to 512 in September

of 1987, 798 in December of 1987, 2100 in December of 1988,

and 3420, or 45% of the total population of 8086, by the time of

the liability hearing in August of 1989.

In light of the increase in the population of ready-felons over

such a short period of time, we cannot conclude from the record

as it now stands that the county has deliberately ignored the

needs of its inmates or that its delay in accommodating the over-

crowding has been "inordinate." LaFaut, 834 F.2d at 394. By

contrast, any increase in the population of state prisoners,

including ready-felons, was expressly contemplated by the state.

The 95% “crowding stipulation" in Ruiz, signed by the state,

provides that:

The parties further acknowledge that certain

conditions and eventualities are within the

contemplation of the parties. These include the

possibility that TDC may experience a

substantial increase or decrease in its population.

See Ruiz v. Lynaugh, 811 F.2d 856 (5th Cir. 1987).

While the huge jump in the population of ready-felons might

weigh against a finding of deliberate indifference, other facts

could weigh in favor of such a finding. For example, the Alberti

court found problems with the jails’ plumbing, ventilation, fire

safety, supplies, food service, and medical care. The Alberti

court also found that the constitutional capacity of the county's

jails equalled their designed capacity and that "[e]ven if all TDC-

ready prisoners were removed from the jail, the population

would still exceed design capacity by approximately 400

inmates." The 1975 consent decree could also factor into“the

county's liability. We thus remand for the appropnate finding

C-28

and, again, leave to the Alberti court whether it will conduct

further hearings or consider additional evidence.

[7] Although we do not decide the liability question, one

remaining issue is relevant to the remand. The county argues

that the Alberti court erred in equating the constitutional

capacity of its jails with their design capacity. But, in its

September 25 findings of facts and conclusions of law, the court

expressly recognized its obligation to consider the “totality of

the conditions." And its findings contemplate a number of

factors in addition to design capacity--the fact that thousands of

inmates were sleeping on the floors, the physical design of the

cellblocks, the inability of the staff to control the inmates, the

increase in disciplinary violations, plumbing problems, poor

ventilation, the absence of a sprinkler system or a second means

of egress in the event of a fire, supply shortages, insufficient

food service, inadequate medical care, and the outbreak of a

pneumococcal infection. Im sum, then, the finding was not clearly

erroneous.

il Remedial issues:

[8] The state's attacks on the remedial orders are all

jurisdictional. First, the state argues that the orders violate the

Eleventh Amendment because they enforce state law against the

state, citing Pennhurst State School and Hospital v. Halderman,

465 U.S. 89, 104 S.Ct. 900, 97 L.Ed.2d 67 (1984), Bush v.

Viterna, 795 F.2d 1203 (Sth Cir. 1986), and Kelley v. Bd. of

Educ. of Nashville and Davidson County, 836 F.2d 986 (6th

Cir. 1987). The state contends that the county is fully

responsible for the conditions in its jails and that any duty the

state might have to promptly remove ready-felons arises only

under state law. While we agree with the state's premise, we

reject its assumption that its duties arise only under state law. As

discussed above, in Stewart, 669 F.2d at 333, a case involving a

challenge to overcrowded conditions in Mississippi county jails,

this court found the state partially responsible for the

unconstitutional conditions because "state officials cannot shed

their constitutional obligations by putting state prisoners in

county jails." Accord Benjamin, 803 F.2d at 46; Tate, 735 F.2d

at 986. Although Stewart predated Pennhurst, both Benjamin

and Jate rejected Pennhurst arguments in identical situations. As

reasoned by the Second Circuit:

C-29

This argument [Pennhurst] must be rejected,

however, for the reason that the prisoners whom

[the state] refuses promptly to accept into its

prisons are not those of some other state,

country, or planet, but its own prisoners who

have been convicted by New York state courts

of New York felonies. The State cannot there-

fore wash its hands of its federal constitutiona!

responsibility for the detention conditions of

such prisoners because they are temporarily

housed in City facilities or because a New York

Statute requires the State to accept them

"forthwith."

Benjamin, 803 F.2d at 51 (emphasis in original). In sum,

because the state is responsible for ready-felons, Pennhurst.

Bush, and Kelley, are distinguishable. ’

[9] The state also urges that the orders violate the Eleventh

Amendment because they exact monetary rather than

prospective relief. Like the Pennhurst argument, however, this

contention mischaracterizes the orders--the plaintiffs established

a federal constitutional violation, and the state is a responsible

party. The required payments are thus "a necessary consequence

of compliance in the future with a substantive federal question

determination." Edelman v. Jordan, 415 U.S. 651, 668, 94 S.Ct.

1347, 1358, 39 L.Ed.2d 662 (1974); see also Milliken v.

Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977);

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

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

on other grounds, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662

(1974). Kelley, cited extensively by the state, is distinguishable--

the order remedying the violation in Kelley ran only against the

county, and the state was not a current constitutional violator,

yet the county sought reimbursement from the state for the costs

of the remedial order. See Kelley, 836 F.2d at 990-94. 8

7 In Kelley, cited extensively by the state, Tennessee was not a

present constitutional violator when the order against it was entered. See

Kelley, 836 F.2d at 989-90, 993-94.

8 The state also makes a general federalism argument, suggesting

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

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

this argument mischaracterizes the action: the state is responsible for a

[10] Finally, the state argues that the Alberti court should

have abstained from ordering it to pay for the housing of ready-

felons in other county's jails pending the ultimate resolution of

the state litigation, discussed above. Couniy of Nueces v. Texas

Board of Corrections, No. 452,071 (Dist. Ct. of Travis County,

126th Judicial Dist. of Texas 1991); Harris County v. State of

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

Dist. of Texas, pending). But none of the abstention theories

cited quite fit the facts of Alberti. The Alberti court has already

decided the federal issue; the state issue implicates only the

remedy. Moreover, in resolving the state issue, the A/berti court

simply adopted the approach of the only state court to have

decided the issue pending a decision by a higher state court. See

County of Nueces, No. 452,071 (holding that the state must

compensate the county $40 per day for each ready-felon left in

the county's jails more than seven days after sentencing). °

In sum, the 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." The issue, then,

is whether the state or the county should pay for the housing of

ready-felons in other county jails pending the resolution of the

State litigation. If the state is found liable on remand, plaintiffs

are entitled to their long-awaited remedy. The state's arguments

seem to assume that the county should pay all housing costs

until the state courts decide otherwise. But the presumption is

baseless. Assuming the findings of state liability, the A/berti

court chose the best available course in modeling relief on

County of Nueces.

Because the liability findings against the county are far more

problematic, we do not address the remedial issues raised by the

county.

D. Procedural issues:

federal constitutional violation. Unless the plaintiff were to be left with no

remedy, the Alberti court had to apportion liability between the state and

county. The relevant federal question, then, is the Eighth Amendment issue;

the dispute between the state and the county implicates only the remedy.

C-31

l. The jurisdiction of the Alberti court to

unilaterally impose the February 7 order.

[11] The state does not argue, as it did in an earlier request

for mandamus, that the February 7 order violates our Opinion in

In re Clements, 881 F.2d 145 (5th Cir. 1989). Instead, the state

contends that the Alberti court was without jurisdiction to

unilaterally impose the order because, in its September 25

findings of fact and conclusions of law, the Alberti court trans-

ferred both the county's third-party complaint and the plaintiff's

complaint against the state to the Ruiz court. In Jn re Clements,

we transferred to the Ruiz court

so much of the relief portion of the third-party

complaint as seeks an injunction ordering our

individual petitioners (in their official capacities)

to receive or take prisoners into TDC

confinement or to otherwise take action in the

Operation or management of TDC-operated con-

finement facilities.

In re Clements, 881 F.2d at 154. The September 25 transfer by

the Alberti court was arguably broader than required by /n re

Clements, upon finding the state liable, the A/berti court

ORDERED that County Defendants’ third-party

complaint and Plaintiffs’ supplemental complaint

are TRANSFERRED to the Honorable William

Wayne Justice for proceedings in accordance

with the mandamus opinion of the Fifth Circuit

of Appeals entered in this case.

The Alberti court retreated in its February 7 order, however.

where it stated:

None of the remedial measures encompassed in

this order affect the population cap imposed on

TDCJ institutions as a result of the various

orders and agreements in the Ruiz case, nor do

they require the supersedence of the statutorily-

based allocation formula adopted by the State

defendants to protect the integrity of the Ruiz

orders and agreements.

x

C-32

As evidenced by his separate February 7 Ruiz opinion, Judge

Justice disagreed.

The cases cited by the state involve inter-district transfers. The

plaintiffs contend that an intra-district transfer, by contrast, does

not divest the transferor of jurisdiction. They point to the fact

that both the Alberti and the Ruiz courts are a party of the

Southern District of Texas and conclude that Judge DeAnda had

the jurisdiction to impose the remedy regardless of the transfer.

"Jurisdiction is lodged in a court, not in a person." /n re Brown,

346 F.2d 903, 910 (Sth Cir. 1965).

We need not address the distinction urged by the plaintiffs

because we read the transfer order by the Alberti court to

transfer only limited jurisdiction to the Ruiz court; the later joint

hearings and joint orders reflect an intent to share jurisdiction

over the third-party complaint and supplement complaint rather

than to transfer jurisdiction entirely. In Jn re Clements, we

suggested that "minor or indirect" effects on the state's prison

system were within the sphere of Alberti, and in addition, saved

to Alberti “plaintiffs' several motions in that case for orders

establishing a limit or ‘cap’ on the number of inmates confined in

the Harns County jail facilities (either as a whole or as to

individual units)." /n re Clements, 881 F.2d at 153. These

reservations suggest that the February 7 order fell within the

realm reserved to the Alberti court. Reading /n re Clements to

preclude an Alberti order with any effect on the state would

leave the Alberti court powerless to remedy the overcrowding in

the county's jails, since ready-felons account for such a large

percentage of the jails' population.

2. Procedural due process.

The state also makes a general due process argument, suggesting

that the Alberti court erred in issuing the February 7 order

without a hearing. Given the large number of hearings held in

Alberti, it is difficult to take this argument seriously. At any rate,

it is clear from the record that the order was the direct product

of a hearing held on October 22, 1990. The ordering schedule

for the October 22 hearing specifically announced that one of its

purposes was to consider “the utilization of facilities in nearby

counties which may have available jail space."

3. The order of relief against the Texas Board of

Pardons and Paroles.

C-33

The state next argues that the Alberti court erred in

ordering relief against the Texas Board of Pardons and Paroles

because the Board was not named a party to the action. The

State emphasizes that, under Texas law, the Board is an

independent agency. See Tex.Const. Art. IV § 11; Tex.Code

Crim.Pro. Art. 42.18 § 1. In 1989, however, the Texas

Legislature abolished the Board and transferred its duties to the

Department of Criminal Justice, successor to the Department of

Corrections. See Tex.Gen. & Special Laws 1989, Reg. Sess.,

Ch. 785 § 1.20. Because the Board of Pardons and Paroles is

now part of the Department of Criminal Justice, we find no

error.

4 The supplemental complaint.

Finally, the state argues that the Alberti court erred in allowing

the plaintiffs to file a supplemental complaint against the state

after the liability trials. As the county and plaintiffs point out,

however, the state was a party to the action, a third-party

defendant, during the trial. The state contends that its trial

Strategy would have been different had it been an actual

defendant, but it does not explain why. Because the state has not

sufficiently demonstrated prejudice, we find no error.

S. Pending motions.

On April 23, 1991, the Alberti court entered an order continuing

its February 27 order in effect through September 15, 1991. The

State moved to vacate the order, and the Alberti court denied the

motion on May 1, 1991. On May 9, 1991, the state noticed its

appeal of the April 23 order and moved this court to consolidate

its appeals. The plaintiffs joined the motion to consolidate the

appeals, but the county moved the Alberti court to vacate the

Apnil 23 order on May 10, 1991, and argued that its motion to

vacate rendered the state's appeal of the Apnil 23 order

premature. On May 20, 1991, the county conceded that its

motion to vacate was untimely under Fed.R.CivP. $9(b),

noticed its own appeal of the April 23 order, and requested that

this court consolidate the appeals. Both the state and the county

filed additional notices of appeal after the Alberti court denied

the county's motion to vacate on June 4, 1991.

On May 28, 1991, the Alberti court entered an order requiring

the sate to deposit an additional $1,000.000 with its registry by

C-34

June 10, 1991. The state moved to vacate the order on June 3,

1991, demanding an answer by June 4, 1991. On June 5, 1991,

when the Alberti court failed to "promptly" respond to the

motion to vacate, the state moved this court to stay the order,

arguing that the A/berti court had "effectively" denied its motion

to vacate. The state also noticed its appeal of the May 28 order

and moved this court to consolidate its appeals. The county

opposed the stay, arguing that the state's motion presented the

very same issues rejected by this court when we denied the

state's motion to stay the February 7 order.

We grant both motions to consolidate the appeals and adopt the

briefs already filed. Finally, we grant the motion of the state to

consolidate its latest appeal filed on July 10, 1991, and its most

recent petition for wnt of prohibition docketed under cause

number 91-2801 with the above referenced appeals, and to

adopt the briefs on file.

In sum, we remand the case for the limited purpose of allowing

the district court to enter findings regarding the issue of

deliberate indifference, now required by Seiter. We leave to the

discretion of the district court whether to take additional

evidence or conduct any further proceedings in that court

regarding this issue. We stay the orders of the district court

which are the subject of this appeal, pending the district court's

findings regarding deliberate indifference. The stay will abide the

district court's findings on the issue, vacating automatically, and

without the need of a further order of this court should the

district court find that the state was deliberately indifferent.

REMANDED.

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Lawrence R. ALBERTI, et al.,

Plaintiffs-Appellees,

V.

The SHERIFF OF HARRIS COUNTY,

TEXAS, et al., Defendants-Third Party

Plaintiffs-Appellants, Appellees,

In re Ann RICHARDS, the Governor

of Texas, et al., Third Party

Defendants-Appellants.

Nos. 90-2441, 90-6034, 91-2274

91-2801, 91-2946 & 91-6101.

Appeals From the United States District Court for the Southern

District of Texas

ORDER DENYING PETITION FOR WRIT OF

PROHIBITION AND STAY

AND PETITION FOR REHEARING

Before REAVLEY, HIGGINBOTHAM and DUHE, Circuit

Judges.

BY THE COURT:

The State of Texas has petitioned for panel rehearing and

has also requested that we order the district court not to

a

a

D-2

disburse $2,000,000 deposited by the state in the registry of the

court

The state argues that the legislature, by enacting H.B

93, and the parties by their settlement agreement, have changed

the legal relationship between the state and counties in ways that

require reconsideration of our earlier opinion and warrant a stay ,

of any disbursal below. We are unpersuaded and deny both the

application for stay or writ of prohibition and petition for

rehearing |

First, we are not persuaded that the Texas Legislature

attempted to speak to the historical relationship between the

State and its counties in the handling of prisoners. The state

argues that H.B. 93 made clear that the duty owed to the

counties that we found was, in fact, never owed. The state

points to the statutory language that: "The legislature declares

that until September 1, 1995 the institutional division shal!

continue to perform its duty to accept inmates only as provided

by the allocation formula established under § 499.071." H.B. 93,

§ 11.02 (emphasis supplied). The argument continues that this

language "makes clear" that Texas counties have always had the

duty to house prisoners contracted for by the state in this suit;

that H.B. 93 is a legislative ratification of the Texas Department

of Criminal Justice's interpretation of its and the county's

liability

H.B. 93 also provided, however, that the counties were

to continue to perform their duty to confine and maintain

inmates at the county's own expense until the date the inmate is

accepted into the institutional division, unless the state suits

were settled by written agreement. So, the word continue could

descnbe a time from August 29 forward, or it could describe a

legislative view of both current and past legal relationships.

The state also points to certain legislative history; that

the legislation which failed in the first called session provided for

the payment of costs of transferring inmates to other facilities

D-3

from February 7, 1991. That legislation failed when the Senate

refused to concur. Relatedly, the state points out that there ware

no appropniations for paying the costs of transfers made before

those ordered by the Jails Standards Commission after October

|, 1991. The sum of these events, the state argues, is that the

legislature did not intend that the state would pay for “earlier

debt.” And, of course, the state says we should not meddle,

because to do so would step hard on principles of federalism

We find this argument unpersuasive

The federal court orders addressing the liability of the

State for certain county prisoners were a lion in the street when

the Texas Legislature addressed the problem in August 1991. An

effort by the state to undo those orders by a declaration of state

law or otherwise would have presented its own set of problems

Under these circumstances, we are persuaded that if the Texas

Legislature had intended the actions now claimed for it by the

state's lawyers, it would have said 50 in clear language. We are

not persuaded that the legislature would have left such a large

undertaking to inference and innuendo. The same is true for the

later "settlement", conspicuous for its silence over the

obligations of the state for costs incurred before August 29,

199]

The petition for writ of prohibition, stay and panel

rehearing are DENIED

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCER ALBERTI, et al. §

Plaintiffs. §

§

. § CA NOH-72-1094

§

SHERIFF OF HARRIS COUNTY, §

et al., §

Defendants §

§

ORDER

Pending are Plaintiffs’ Motion for Emergency

Supplemental Relief and State Defendants’ Motion to Modify

Final Order or to Stay Imposition of Fines. The Court has

reviewed the pleadings and responses filed and has heard oral

argument presented by counsel for all parties. State Defendants

argue that they have made a good-faith effort to meet the March

31 deadline established in the September 29, 1992 Final Order,

and the Court recognizes and applauds the activity undertaken

by them in the last six months. State Defendants concede,

however, that they have no plan which would alleviate the

overcrowding in Harris County jail facilities before the end of

1993 and no recommendations regarding the overcrowding

problem between now and that time.

The current conditions at the Harris County jail are

barbaric and cannot be tolerated another eight or nine months.

Inmates are sleeping on floors with backed-up sewage, are riding

in dangerous elevators, and are being exposed to tuberculosis

E-2

and other diseases. Upon release, former inmates are exposing

the general public in Harris and surrounding counties to highly-

communicable diseases. As stated by the Monitors in their most

recent findings of fact, "any extension of these conditions in the

name of economy entails grave risks to the health and security of

inmates and staff in the Jail, and to the broader community

beyond the Jail."

The statistics, both total population and ratio of TDCJ-

ready felons to total population, are staggering and continue to

rise at an alarming rate. It is estimated that by 1998, the

statewide backlog of TDCJ-ready felons housed in county

facilities will exceed 35,000 inmates. Eighty percent of these

will likely be housed in Harris County. The Harris County Jail

Facility will eventually house more TDCJ inmates than almost

any TDCJ facility. These TDCJ-ready felons are State inmates,

and the citizens of Harris County should not be required to bear

the health and financial burden of the State's responsibility to

house its convicted felons.

Because of the egregious conditions caused by drastic

overcrowding, caused in turn by the State's inability to accept its

own prisoners, as well as the alarming rate of population growth

at the Harris County facilities, the Court cannot and will not

modify or stay the March 31, 1993 deadline.

For purposes of clarification, however, the Court notes

that the provision in the September 29 order relating to a "fine"

is more properly described as a sanction to be paid into the

Court's Registry for appropriate use pursuant to orders of this

Court to alleviate, as much as possible given the extreme

overcrowding, the conditions at the Harris County facilities.

Based upon the foregoing and for the reasons stated

orally by the Court at the conclusion of today's hearing, it is

ORDERED that Plaintiffs’ Motion for Emergency

Supplemental Relief is DENIED, and

E-3

ORDERED that State Defendants’ Motion to Modify

Final Order or, In the Alternative, to Stay Imposition of Fines is

DENIED, except that the September 29 Final Order is clarified

to reflect that the "fine" is more appropriately deemed a

monetary sanction to be deposited into the Court's Registry for

use in attempting to alleviate overcrowding and the resulting

conditions at the Harris County Jail Facilities.

SIGNED this 23rd day of March, 1993, at Houston,

Texas

/s/

NORMAN BLACK

Chief Judge

En

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI, et al... §

Plaintiff. §

§

VS § C.A. NO. 72-H-1094

§

SHERIFF OF HARRIS COUNTY, §

et al. §

Defendants §

ORDER

IT IS HEREBY ORDERED that County

Defendants' Fifth Motion to Require State Defendants to

Deposit Funds is GRANTED, and it is further

ORDERED that State Defendants shall deposit into

the Court's Registry, Account #72-1074-2, on or before

December 4, 1992 the sum of $5,899,874 25. and it is further

ORDERED that within ten (10) calendar days of

the deposit by State Defendants as directed herein, the Clerk

Shall issue a check drawn on the Court's Registry to Harris

County, Texas, in the amount of $5,899.874.25 together with

any and all interest accrued thereon and shall send said check to

Harris County, Texas

c/o Harris County Attorney's Office

1001 Preston, Suite 634

Houston, Texas 77002

(713) 755-7164

SIGNED this 23rd day of November, 1992, at

Houston, Texas

NORMAN W. BLACK

CHIEF JUDGE

APPENDIX G

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI, et al., §

Plaintiffs. §

§

- § C.A. NO H-72-1094

§

SHERIFF OF HARRIS COUNTY, §

et al, §

Defendants §

§

FINAL ORDE)

In accordance with the memorandum opinion

signed this day, it is hereby

ORDERED

as follows

(1) The County Defendants shall implement the

Proposed Joint Plan. The full expense of all programs therein

except those discussed in the memorandum opinion as falling

within the traditional role of County detention facilities shall be

paid by the State Defendants. The expense for these traditional

County programs shall be paid by the County Defendants

(2) The Monitors’ Tentative Findings of Fact filed in

June 1992 are adopted in their entirety as the findings of the

Court

G-2

(3) The County Defendants shall, at their own

expense

(a) Submit within 90 days of entry of this

order for the review and approval of the Court a plan that will

either bring the County Defendants into full compliance with the

9-9-7 provision of the Consent Decree or provide, through some

alternative plan, sufficient staff to meet the _ security,

classification, transportation, and other needs of all of the

County's detention facilities, such plan to include funding

arrangements and a schedule for implementation; and

(b) Submit within 30 days of entry of this

order for the review and approval of the Court a comprehensive

written medical plan; and

(c) Submit within 30 days of entry of this

order for the review and approval of the Court a written plan for

the immediate repair of the Central Jail ventilation system

("HVAC system"), together with definite arrangements for

funding those repairs and an expedited renovation schedule; and

(d) Submit within 30 days of entry of this

order evidence that the County Defendants have an adequate

number of mattresses such that each inmate is provided with a

mattress; thereafter, a fine of $50 per day per inmate shall be

paid to the Court by the County Defendants for each inmate

having to sleep on the floor without a mattress; and

(e) Submit within 90 days of entry of this

order evidence that the kitchen equipment deficiencies described

in the findings of fact have been remedied.

(4) The consent decree is modified to provide for a

constitutional capacity for the Harris County Jail facility of 9800

inmates, 112.5% of design capacity. Specific population caps

for each unit are as follows: 701 Building - 4500 inmates; 1301

Building - 3950 inmates; 301 Building - 475 inmates; and

G-3

Detention Center - 875 inmates. The population of the Harris

County Jail facility shall be reduced to this new cap by no later

than March 31, 1993. The State Defendants shall pay to the

Court a fine of $50.00 per inmate over the cap per day after

March 31, 1993 that the population in the Harris County facility

exceeds 9800 inmates

(5) Except as set forth in this order, the consent

decree and all subsequent remedial orders are vacated.

(6) The Monitors’ Fees incurred from February 1,

1989 shall be taxed ninety percent (90%) to the State

Defendants and ten percent (10%) to the County Defendants.

County Defendants shall submit within 14 days an affidavit

memonializing those fees

(7) The Court shall retain jurisdiction to resolve

requests for attorneys fees and to ensure compliance with this

final order

THIS IS A FINAL ORDER.

SIGNED this 29th day of September, 1992

/s/

JAMES DEANDA

Chief Judge

United States District Court

APPENDIX H

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI, et al.

Plaintiffs,

CA NO. H-72-1094

SHERIFF OF HARRIS COUNTY,

et al,

Defendants

ANN RICHARDS. et al.,

Defendants

Or? CO? WO? OP? 60D OD OO? OO) LO) OO? Om

MEMORANDUM OPINION

Pursuant to Court Order the Defendants have filed a

Proposed Joint Remedial Plan to correct constitutional

deficiencies in the county jail facilities. Thereafter, the Special

Master submitted his most recent periodic report, including

findings, to which the Defendants have responded. The County

Defendants have petitioned that the Monitor's fees and expenses

be taxed against the State Defendants and the Court will now

address these matters.

PRESENT INMATE POPULATION

The population of the Harris County Jail Facility

continues to grow at an alarming rate. There are currently

14,500 Harns County and TDCJ-ready inmates in the Harns

County facilities including those housed in outlying counties. As

of September 21, 1992, the population of the main jail was 6,455

compared to a design capacity of 3,505. There were some 1800

female inmates in Harris County. Perhaps the most significant

statistic, however, is that 53% of the Harris County Jail Facility

population is TDCJ-ready. The Court finds that the refusal of

the State to accept its inmates is the principal cause of the

current population crisis

DEFENDANTS' PROPOSED JOINT REMEDIAL PLAN

As the Court directed, the State and County Defendants

submitted a Proposed Joint Plan addressing the problem of

overcrowding at the Harris County Jail Facility. In the past,

Defendants’ focus on assessing or avoiding blame rather than on

resolving immediate and long-term problems has been counter-

productive. Defendants note that this Plan, however, is the

result of "a surprising and encouraging spirit of cooperation."

The Court agrees. The current jail dilemma is the product of

gross neglect and deliberate indifference to both then existing

and readily predictable prison conditions of the predecessors of

present state officials

Several positive steps are contemplated by the state to

alleviate unconstitutional conditions including:

(1) Acceleration of the review of alleged parole

violations to reduce the time parolees spend in county jails

awaiting determination; and

(2) Including in the allocation of prison space to the

various counties, consideration of an inmate's risk to society. By

this means a county having prisoners convicted of violent crimes

might be allocated prison space originally designated for a

county holding nonviolent offenders.

The Court recommends that the state consider

developing a system of releasing parolees that would be

equitable to the law abiding citizenry and more effective and

compatible with the goal of the parole system--rehabilitation

with appropriate assistance and monitoring. Saturating densely

populated metropolitan areas with the vast bulk of parolees is

not the answer. Undeniably high recidivism rates among

parolees under parole policies now in vogue have substantial

impact on jail populations. A more even distribution of the risk

of parole release under these circumstances will result in an

increased statewide awareness and appreciation of the problems

visited upon large metropolitan counties with a concomitant

effect on the State Legislature

STATE SENTENCES

The State Defendants and the Special Master have

previously identified a preference of Harris County Judges for

sentencing convicted felons to incarceration in the prison system

Understanding that rampant criminal activity is both a serious

problem and a major political issue, the reality in Texas is that

the prison system is nothing more than a revolving door. Each

convicted felon sentenced to incarceration by the District Judges

of Harris County results invariably in the expedited release of

another convicted felon within the system. It is important to

understand there is little control over which inmates must be

released to make room for the new arrival. The released inmate

may be someone who potentially posed a much greater risk to

society than the newly sentenced inmate. However, the

sentences imposed by the State District Judges in Harris County

are within the legal limits established by the State Legislature

Consequently, having created the sanctions available to and

utilized by State District Judges, the State must also provide the

resources to carry out those sanctions

Another immediate threat to society is posed by the

potential release of inmates infected with tuberculosis, a highly

infectious disease that has become a major public health problem

in the nation’s jails and prisons. Infected inmates leaving through

the prison system's revolving door to make room for the new

arrivals will carry the disease with them :o be spread throughout

the community. The State's failure to meet its obligation to

house convicted felons and the State District Court judges’

refusal to give adequate consideration to alternative sentencing

methods creates still another hazard to the citizenry.

EXPENSES OF IMPLEMENTATION OF THE JOINT PLAN

The defendants were unable to agree upon a fair

distribution of the expenses involved in undertaking the various

remedial programs described in the Plan. The Court finds that

the primary responsibility, and therefore the primary financial

burden, falls on the State. As the Court has previously noted,

the County Defendants were approaching compliance with the

orders of this Court until the State Defendants abdicated their

responsibility for receiving convicted felons, leaving the inmates

in the county jails indefinitely. It was at that point that the jail

population began to soar.

This conduct on the part of the State will continue to

result in unconstitutional overcrowding unless the State begins

to identify, implement and fund necessary changes to its prison

system. The parties’ joint projection forecasts that by September

1995, the number of TDCJ-ready inmates in the Harris County

Jail Facility will be 11,683, almost double the number of Harris

County inmates in the facility. Harris County would house

approximately 85% of the total 13,752 state-wide backlog of

TDCJ-ready inmates, and would house more convicted felons

than most TDCJ facilities.

Then, as now, the majority of problems identified by the

Monitor at the Harris County facility result from the large

number of TDCJ inmates which the State will not receive. For

example, the extensive educational and vocational programs

recommended by the Monitor are not constitutionally required in

a traditional County detention facility where inmates are

typically released in a relatively short time. Because the conduct

of the State Defendants has converted the Harris County Jail

into a major facility for convicted felons, such programs become

more important. The County should not, however, be forced to

bear the expense of educating and providing job-training to the

inmates which are TDCJ-ready but which the State will not

accept .

Though the State Defendants repeatedly raise the

provisions of House Bill 93 as evidence of their good faith

efforts to address the serious overcrowding problems, the State

has not utilized the primary remedies set forth in the legislation

in a manner that will give adequate relief to the Harris County

jail. The Court finds that the primary responsibility for the

overcrowding crisis in the Harris County Jail Facility lies with

the State Defendants who have the power and the ability through

legislation to act to resolve the situation. The State has declined

to do so. The Court will order that the provisions of the

Proposed Joint Remedial Plan be implemented fully. The

County will continue to fulfill its traditional role of providing a

short-term detention facility and will implement at its expense

pre-trial bond review, review of the practices and procedures

associated with the processing of cases and inmates, review of

felony bail practices, and recommendations to expedite PPT/PIA

referrals and review of federal prisoners, undocumented aliens,

and other categories of inmates in the jail facilities. The State

must begin to accept its role of providing prison facilities for

convicted felons and is ordered to provide funding for all other

aspects of the Plan

MONITORS' FINDINGS OF FACT

The monitors have submitted proposed findings of fact,

to which the parties have filed written objections. Having

reviewed the proposed findings and the objections, the Court

determines that the findings are proper and should be adopted in

their entirety

CONSENT DECREE

The Court notes that notwithstanding encouragement

from the Special Master to seek modification of the previously

entered consent decree, the County Defendants have failed to

move to modify. The Court also finds, however, that certain

issues covered by the consent decree are now neither necessary

nor desirable. Consequently, the Court in its final order will, sua

sponte, modify the consent decree to eliminate all issues and

requirements except as follows. Because the State Defendants

were not parties to the consent decree, these remedial matters

shall be at the expense of the County Defendants.

The County Defendants, while hiring extraordinary

numbers of new employees, continue to be in non-compliance

with the 9-9-7 staffing requirements of the consent decree. The

Court finds that adequate staffing is mandatory to ensure

compliance with the requirements of the United States

Constitution. As a result, the final order shall require that the

County Defendants, within 90 days of entry of that order, either

reach full compliance with the 9-9-7 provision of the consent

decree or present an alternative plan for approval by the Court

Secondly, while the Court notes that the County

Defendants have obtained certification of their medical facilities,

the Court will require that the County submit within 90 days of

entry of the final order a written medical plan

The area which causes the most concern to the Court is

the ventilation problem. This problem presents significant health

risks to the entire population of Harris County and the

surrounding areas, and it must be addressed immediately

Therefore, the County Defendants will be required to submit

within 30 days of entry of the final order a written plan for the

immediate repair of the Central Jail ventilation system, together

with definite arrangements for funding those repairs and an

expedited renovation schedule

The Court is also concerned that the County Defendants

are not providing mattresses to some inmates who are required

to sleep on the floor. While a bed may not be constitutionally

required, forcing inmates to sleep on the bare floor without a

mattress indicates a willful disregard of minimum constitutional

standards. As a result, the final order will also require the

County Defendants to obtain within thirty days a sufficient

number of mattresses such that each inmate will be provided a

mattress.

Finally, the Court finds that the condition of the kitchen

equipment in the Harris County facilities, particularly the Central

Jail, presents a significant health risk. Consequently, the final

order will also require upgrading of the kitchen equipment

deficiencies within 90 days.

CONSTITUTIONAL CAPACITY

The Court has also reviewed the capacity limitations

from the consent decree and finds that they should be modified

Based upon the evidence presented in connection with the 701

Building, the Court believes that the Harris County facility can

be maintained at a constitutional capacity of 112.5% of design

capacity. The final order shall require that the population of the

Harris County Jail facilities be at 9800 inmates, or 112.5% of

design capacity, by March 31, 1993. The specific breakdown by

facility is as follows: 701 Building - 4500 inmates; 1301 Building

- 3950 inmates; 301 Building - 475 inmates; Detention Center -

875 inmates.

Additionally, because the Court has found that the

population explosion in Harris County is primarily the result of

the refusal of the State Defendants to accept TDCJ-ready

inmates, the State Defendants shall pay to the Court a fine of

$50 per person per day after March 31, 1993 that the population

in the Harris County facilities exceeds the new cap

ALLOCATION OF MONITORS' FEES

As previously stated discussed above, the Court finds

that the primary cause of the overcrowding crisis in the Harris

County Jail Facility is the State's refusal to accept its TDCJ-

ready inmates. The Court does not, however, completely

absolve the County Defendants from all responsibility.

Accordingly, the monitors’ fees incurred from February 1, 1989,

the first month following the joinder of the State Defendants as

parties to this suit, shall be allocated ninety percent (90%) to the

State Defendants and ten percent (10%) to the County

Defendants

CONCLUSION

Based upon the foregoing, the State Defendants shall

bear the expense of all programs in the Proposed Joint Plan

except those discussed above as falling within the traditional role

of County detention facilities. The expense for those traditional

County functions shall be borne by the County Defendants.

Additionally, the Tentative Findings of the Monitors are

adopted in their entirety as findings of fact. The consent decree

shall be modified as discussed above, including a new

constitutional capacity cap of 112.5% of design capacity.

Should the new cap not be met by March 31, 1993, the State

Defendants shall be required to pay to the Court the fine

previously noted

The Monitors' fees incurred from February 1, 1989 shall

be apportioned 90% to the State Defendants and 10% to the

County Defendants. The County Defendants shall be required to

submit within 14 days an affidavit memorializing those fees.

The Court would note that its decision to require the

State Defendants to bear primary responsibility for financing the

Proposed Joint Plan and to pay a fine for excess inmates in the

Harns County Jail Facilities after March 31, 1993 is not

particularly satisfying. But early or accelerated release of

prisoners is not the answer here nor should it be until all other

means of seeking compliance are exhausted. The Court,

however, finds that it is the State Defendants who control the

legislative mechanism for relieving the overcrowding problem

and allocating the cost of that remedy. Unfortunately, the

previous attempts by the state legislature to address these issues

have been inadequate. Until such time as the legislature enacts a

proper remedy and cost allocation, the federal court has no

alternative but to rule on the case before it.

A final order consistent with this memorandum opinion

shall be issued this day.

SIGNED this 29th day of September, 1992.

/s/

Judge DeAnda

Chief Judge

United States District Court

APPENDIX I

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI, ET AL.,

Plaintiffs,

VS

THE SHERIFF OF HARRIS COUNTY,

TEXAS, ET AL.,

Defendants/

Third Party Plaintiffs,

VS

os

>

.os

72-H-1094

ANN RICHARDS, ET AL.,

Defendants/ §

Third Party Defendants. §

ORDER

BE IT REMEMBERED that on this date came on to be

considered the COUNTY DEFENDANTS' Motion to Withdraw

$3,000,000 and All Accrued Interest on Deposit in the Court's

Registry, and for Expedited Consideration, said $3,000,000

having been deposited by the State Defendants on December 17,

1991, and the Court, after considering the motion filed herein, is

of the opinion that the COUNTY DEFENDANTS' motion

should be granted:

It is hereby ORDERED, ADJUDGED and DECREED

that the COUNTY DEFENDANTS' Motion to Withdraw

$3,000,000 and All Accrued Interest on Deposit in the Court's

Registry, for the housing of and caring for prisoners ready for

transfer to TDCJ-ID, all of whom were transferred in

accordance with this Court's Orders, is hereby approved and

GRANTED

The Court ORDERS that the Clerk shall issue a check

drawn on the Court's Registry to HARRIS COUNTY, TEXAS,

in the amount of $3,000,000 together with all the accrued

interest thereon, and release the check to

Harns County, Texas

c/o Harns County Attorney's Office

Attention: Harold M. Streicher

1001 Preston, Suite 634

Houston, Texas 77002

(713) 221-7164

SIGNED this the 20th day of February, 1992

———

JAMES DEANDA

CHIEF JUDGE,

UNITED STATES DISTRICT

COURT

APPENDIX J

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI. §

et al, §

Plaintiffs, §

§

Vv § CIVIL ACTION

§ NO. H-72-1094

SHERIFF OF HARRIS §

COUNTY, et al., 8

Defendants §

ORDER

This case is before the Court on County Defendants’

motion to extend the September 11, 1991 order and motion that

the state defendants be required to deposit additional funds into

the Court's registry. State Defendants have filed a written

response to the motions. Because certain events outside the

Court's control have delayed the entry of a permanent remedial

decree as contemplated by the September 11 order, it is hereby

ORDERED

that the Court's order of September 11, 1991 is extended until

altered by a subsequent permanent remedial order or other order

of the Court. The Court notes that, pending a permanent

remedial decree, its prior holding that the constitutional capacity

of the jail facility is its design capacity continues in effect,

establishing a current constitutional capacity of the Harris

County jail facility at 8,698

IT IS FURTHER ORDERED that the State Defendants

shall deposit into the registry of the Court, fund 4:72cv1094-02.

on or before December 16, 1991, the sum of three million

dollars ($3,000,000.00) from which the County Defendants shall

be authorized to pay up to $40.00 per day for each prison-ready

felon transferred from the Harris County Jail Facilities to other

Texas County detention facilities.

SIGNED this 25th day of November, 1991

/s/

Chief Judge

United States District Court

APPENDIX K

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI,

ET AL.,

Plaintiffs,

VS

§

§

§

§

§

§

THE SHERIFF OF HARRIS §

COUNTY, TEXAS, ET AL., §

Defendants/ §

Third Party Plaintiffs, §

§

VS § CIVIL ACTION

§ NO. 72-H-1094

§

§

§

8

§

ANN RICHARDS, ET AL.,

Defendants/

Third-Party Defendants

ORDER

BE IT REMEMBERED that on this date came on to be

heard COUNTY DEFENDANTS' Motion to Withdraw

$2,000,000 and all accrued interest from the Court Registry, and

for Expedited Consideration, said $2,000,000 having been

deposited by the State Defendants on September 30, 1991, and

the Court, after considering the motion filed herein, is of the

opinion that the COUNTY DEFENDANTS' motion should be

granted:

It is hereby ORDERED, ADJUDGED and DECREED

that the COUNTY DEFENDANTS' Motion to Withdraw

$2,000,000 and all Accrued Interest from the Court Registry, for

the housing of and caring for pnsoners ready for transfer to

TDCJ-ID, all of whom were transferred in accordance with this

Court's Orders, 1s hereby approved and GRANTED

The Court ORDERS that the Clerk shall issue a check

drawn on the Court's Registry to HARRIS COUNTY, TEXAS,

in the amount of $2,000,000, together with all accrued interest

thereon, and release the check to

Hams County, Texas

c/o Harns County Attorney's Office

Attention: Harold M. Streicher

1001 Preston, Suite 634

Houston, Texas 77002

(713) 221-7164

SIGNED this the 25th day of October, 199]

__Is/

JAMES DeANDA

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

APPENDIX L

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI. §

ET AL, §

§

Plaintiffs. §

§

VS § CIVIL ACTION

E NO. H-72-1094

§

THE SHERIFF OF HARRIS §

COUNTY, TEXAS: ET AL, §

§

Defendants/ §

Third Party Plaintiffs, §

§

VS §

§

ANN RICHARDS: ET AL. §

§

Defendants/ §

Third-Party Defendants §

RDER

This case is before the Court on county defendants’

second motion to require state defendants to deposit additional

funds into the Court registry. The Court, after considering the

motion filed herein, is of the opinion that the county defendants’

motion should be granted. Accordingly, it is hereby

ORDERED that the county defendants’ second motion to

require state defendants to deposit additional funds into the

Court registry is GRANTED, and state defendants are hereby

ORDERED to deposit $2,000,000.00 into the Court

registry on or before September 30, 1991, from which the

county defendants shall be authorized to pay up to $40.00 per

diem for each prison-ready felon transferred from the Harris

County Jail Facilities to other Texas county detention facilities.

SIGNED this the 13th day of September, 1991, at

Houston, Texas.

/s/

JAMES DeANDA

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

LAWRENCE R. ALBERTI,

ET AL.,

VS

THE SHERIFF OF HARRIS

COUNTY, TEXAS, ET AL.,

APPENDIX M

HOUSTON DIVISION

Plaintiffs,

Defendants/

Third Party Plaintiffs,

VS

ANN RICHARDS, ET AL.,

Defendants/

Third-Party Defendants

BE IT REMEMBERED that on this date came on to be

considered COUNTY DEFENDANTS' Motion to Withdraw

$1,000,000.00 and all accrued interest from the Court Registry,

and for expedited Consideration, said $1,000,000.00 having

been deposited by the State Defendants on August 12, 1991, and

the Court, after considering the motion filed herein, if of the

opinion that the COUNTY DEFENDANTS' motion should be

granted:

It is hereby ORDERED, ADJUDGED and DECREED

that the COUNTY DEFENDANTS' Motion to Withdraw

CIVIL ACTION

NO. 72-H-1094

M-2

$1,000,000 00 and all accrued interest from the Court Registry,

for the housing and caring for prisoners ready for transfer to

DCJ-ID, all of whom were transferred in accordance with this

Court's Orders, is hereby approved and GRANTED

The Court ORDERS that the Clerk shall issue a check

drawn on the Court's Registry to HARRIS COUNTY, TEXAS,

in the amount of $1,000,000.00, together with all accrued

interest, on STATE DEFENDANTS' deposits of $750,000.00

and $1,000,000 00 into the Registry of the Court, and release

the check to

Harris County, Texas

c/o Harns County Attorney's Office

Attention’ Harold M. Streicher

1001 Preston, Suite 634

Houston, Texas 77002

(713) 221-7164

SIGNED this the 13th day of September, 1991

ee eee

JAMES DeANDA

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

APPENDIX N

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI.

ET AL.

Plaintiffs,

VS

§

8

§

§

§

§

THE SHERIFF OF HARRIS §

COUNTY, TEXAS, ET AL., §

Defendants/ §

Third Party Plaintiffs, §

8

§

8

§

§

8

§

8

§ CIVIL ACTION

NO. 72-H-1094

ANN RICHARDS, ET AL...

Defendants/

Third-Party Defendants

BE IT REMEMBERED that on this date came on to be

considered COUNTY DEFENDANTS' Motion to Withdraw

$750,000.00 from the Court Registry, and the Court, after

considering the motion filed herein, is of the opinion that the

COUNTY DEFENDANTS' motion should be granted

It is hereby ORDERED, ADJUDGED and DECREED

that the COUNTY DEFENDANTS' Motion to Withdraw

$750,000.00 from the Court Registry, for the housing and caring

for prisoners ready for transfer to TDCJ-ID, all of whom were

N-2

transferred in accordance with this Court's Orders, is hereby

approved and GRANTED.

The Court ORDERS that the Clerk shall issue a check

drawn on the Court's Registry to HARRIS COUNTY, TEXAS,

in the amount of $750,000.00, and release the check to

Harns County, Texas

c/o Harris County Attorney's Office

Attention: Harold M. Streicher

1001 Preston, Suite 634

Houston, Texas 77002

(713) 221-7164

SIGNED this the 7th day of August, 1991

/s/

JAMES DeANDA

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

APPENDIX O

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI, §

et al., §

Plaintiffs, §

§

§ CIVIL ACTION

§ NO. H-72-1094

§

SHERIFF OF HARRIS §

COUNTY, et al., §

§

§

Defendants

FINDINGS OF FACT AND ORDER

This case is before the Court on remand from the United

States Court of Appeals for the Fifth Circuit for findings regard-

ing the issue of deliberate indifference on the part of the State

and/or County defendants as now required under Wilson v.

Seiter, US. , 59 U.S.L.W. 4671 (June 17, 1991).

Because of the emergency nature of the current overcrowding

and medical conditions in the Harris County jail facilities, the

Court considers it imperative that these findings be made immed-

iately. Consequently, having reviewed the record in this case, the

Supreme Court opinion in Wilson v. Seiter, and the July 25,

1991 opinion of the Fifth Circuit, the Court finds that the State

defendants' and, to a much lesser degree, the County defendants'

awareness of the extremely cruel conditions in the county

facilities and their failure to take steps to remedy those condi-

tions constitutes deliberate indifference as required by Seiter.

The Court notes however, that the new County jail facility is

scheduled to open next month. Once that facility becomes

operational, the Court will revisit the issue of whether the

Q-2

County defendants have any continuing liability in this case or

whether they have taken all possible steps to correct the

overcrowding and medical care problems in the Harris County

jail system

In accordance with the July 25 opinion of the Fifth

Circuit, all pnor orders of this Court which were previously

stayed pending appeal are again in full force and effect upon

entry of this order. Therefore, State defendants are directed to

deposit within 48 hours of receipt of this order one million

dollars ($1,000,000.00) into the Registry of the Court, fund

4:72cv1094-02. Additionally, the data and reports required by

the Court's order of July 8, 1991 are due on or before August

12. As previously ordered by the Court, the parties are

admonished that timely compliance with prior orders of the

Court 1s imperative

IT IS SO ORDERED

SIGNED this 7th day of August, 1991

/s/ James DeAnda

Chief Judge

United States District Court

APPENDIX P

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI, §

et al., 8

Plaintiffs, 9

y § CIVIL ACTION

§ NO. H-72-1094

SHERIFF OF HARRIS 8

COUNTY, et al., 8

Q

Defendants §

ORDER

In accordance with the orders of this Court entered

February 7, 1991, March 15, 1991 and April 23, 1991, it 1s

hereby

ORDERED

that the State Defendants shall deposit into the registry of the

Court, fund 4:72cv1094-02, on or before June 10, 1991, the sum

of one million dollars ($1,000,000.00) from which the County

Defendants shall be authorized to pay up to $40.00 per day for

each prison-ready felon transferred from the Harris County Jail

Facilities to other Texas County detention facilities

SIGNED this 28th day of May, 1991

S/

JAMES DEANDA

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

APPENDIX Q

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R ALBERTI. §

ETAL. §

9

Plaintiffs. 8

g

VS § CIVIL ACTION

§ NO. H-72-1094

§

SHERIFF OF HARRIS §

COUNTY, TEXAS. ET AL. §

8

Defendants. 8

VS .

ts)

WILLIAM P. CLEMENTS: S

ET AL. .

Third-Party Defendants §

ORDER

The Court's current remedial order of February 7, 1991

as modified on March 15, 1991. remains in effect only until May

1, 1991, also the date on which oral argument is scheduled

before the United States Court of Appeals for the Fifth Circuit

on the various petitions and appeals filed in this case So that the

appellate court may know the intended course of this Court's

continued remedy, it is important that the next order be issued

promptly

Q-2

As of April 15, 1991, the population of the Harris

County detention facilities was 7,565, or 1,265 over the cap

imposed in the February 7, 1991 Order. The State defendants

deposited $750,000.00 in the Registry of the Court on April 2,

1991. Since then, the County defendants have transferred only

250 convicted felons ready for transfer to the Institutional

Division of the Texas Department of Criminal Justice (TDCJ-

ID) to other county jails. Another 120 prisoners are scheduled

for transfer during the week of April 15, 1991, but it is

reportedly unlikely that the County defendants will be able to

transfer more than 360 prisoners by the end of April, leaving the

total population some 1,200 prisoners over the cap at the

expiration of the current order on Apnil 30, 1991. The County

defendants, thus, have failed to comply with the terms of the

February 7, 1991 Order, as amended on March 15, 1991

The County defendants cite the difficulties of completing

legal and financial arrangements for the ordered transfers,

especially in light of the uncertainty over funding which was not

resolved until April 1, 1991, and report that they are ready to

transfer up to 1,500 prisoners in May, if required to do so

It is necessary to repeat the warnings contained in the

Court's March 15, 1991 Order. When that order was issued, the

overall population of the Harris County detention facilities stood

at 7,376, or 157 percent of their design capacity; now, it is at

7,565, or 161 percent of the design capacity. This present total

exceeds by 1,565 that number of prisoners the Alberti monitor

and the State defendants’ expert testified could be managed

safely and securely for even a limited period of time. These

population figures are approaching crisis proportions. As noted

on March 15, 1991: "We are talking here about life and death,

and the most fundamental nights of the plaintiff class." The

danger to the plaintiffs has grown, not diminished, over the past

two months

In the meantime, the State appellate court has not yet

decided pending litigation over the allocation of responsibility

Q-3

and costs for the maintenance of felons ready for transfer to

TDCJ-ID in county detention facilities, nor has the State

legislature dealt definitively with that issue. At the same time.

the Fifth Circuit is now reviewing the various pending petitions

and appeals in this case

In accordance with the foregoing, it is ORDERED

That the remedial decree entered in this case on

February 7, 1991, as modified on March 15,

1991, shall remain in effect until September 15,

1991. The State defendants shal! be required to

deposit in the Registry of the Alberti Court addi-

tional deposits when the Court is notified by the

County defendants that the original $750,000.00

deposited by the State defendants on April 2,

1991 is exhausted, unless the Fifth Circuit directs

otherwise after its consideration cf the parties’

petitions and appeals

2 As before, the Court specifically retains

jurisdiction over this matter

SIGNED this 22nd day of Apnil, 1991, at Houston,

Texas

/s/

JAMES DeANDA

CHIEF JUDGE

UNITED STATES DISTRICT COURT

APPENDIX R

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI,

et al,

Plaintiffs,

V

§

§

§

§

§

8

SHERIFF OF HARRIS §

COUNTY, TEXAS, et al., § Civil Action

§ No. 72-H-1094

Defendants, and Third- §

Party Plaintiffs, §

8

§

§

§

8

S

Vv

WILLIAM P. CLEMENTS,

et al.,

Third-Party Defendants

MEMORANDUM OPINION

On February 7, 1991, the Honorable James DeAnda.

Chief Judge of the United States District Court for the Southern

District of Texas, as the sitting judge in this action, entered an

order, part of which directed the State third-party defendants to

deposit in the registry of the Alberti court $750,000.00, to be

used to pay the costs of detaining in other county detention

facilities some of Harris County's overflow inmates who have

been sentenced to the Texas Department of Criminal Justice -

Institutional Division. In response to that order, the State

defendants filed its motion to vacate or to stay the order,

directing its motion both to Judge DeAnda and to myself, as the

sitting judge in Ruiz v. Estelle, 503 F Supp. 1265 (S.D. Tex

1980), affd in part and vacated in part, 679 F.2d 1115, amended

in part, 688 F 2d 266 (Sth Cir 1982), cert. denied, 460 US

1042 (1983) |

As I explained in the memorandum opinion I filed

contemporaneously with Judge De Anda’s February 7 Order, |

did not join with that portion of the order relating to the deposit

of $750,000.00, for two reasons. First, I noted that I had not

been directed to any portion of the record, developed before

Judge DeAnda in Alberti, which relates to whether or how an

order requiring the State to pay $750,000.00 into the court re-

gistry will affect the State's ability to comply with the orders

entered in Ruiz. Without an appropmiate reference to the record

in that respect, I could not determine whether that specific party

of the relief ordered would fall within the category of matters

ansing out of the Alberti litigation which the Fifth Circuit, in In

re Clements, transferred to the Ruiz court. Second, I explained

that if the question whether Texas law requires the State to bear

the costs of confining some of Harns County's overflow

Institutional Division-ready inmates were placed before me, my

understanding of principles of abstention would lead me to

refrain from ruling on it

In regard to the pending motion of the State defendants, I should

make two observations. First, because I did not join in entering

the order to which the State's motion is addressed, I cannot

properly grant the relief the State defendants now seek. See

Gallimore v. Missoun Pac. R. Co., 635 F.2d 1165, 1171-72 (Sth

Cir. 1981). Second, with regard to the question whether or how

requinng the State to pay $750,000.00 into the registry of the

Alberti court would affect the State's ability to comply with

Ruiz, I take note of the excerpts from the testimony in Alberti of

David McNutt, Assistant Director for Budget and Managing

Services for the Institutional Division of the Texas Department

of Cnminal Justice, attached as exhibit D to the State's motion,

, After the Governor of the State of Texas, the Director of

the Texas Department of Corrections, the members of the Texas Board of

Correcuons, and the State of Texas were made third-party defendants in the

Alberu action, the Court of Appeals for the Fifth Circuit directed the

transfer to the Ruiz court of "so much of the relief portion of the third-party

complaint jin Alberti] as seeks an injunction ordering [the State defendants]

lo receive or take prisoners into TDC confinement or to otherwise take

acuon in the operation or management of TDC-operated confinement

faciliues.” In re Clements, 881 F.2d 145, 154 (Sth Cir. 1989) (emphasis in

Original)

R-3

which 1s incorporated herein by reference. After consideration of

that testimony, I conclude that the State's ability to comply with

the orders entered in Ruiz will be endangered by the requirement

that it pay $750,000.00, and possibly more, for the detention of

some of Harris County's overflow Institutional Division-ready

inmates. To be specific, I find that this aspect of the relief

ordered against the State defendants likely will adversely affect

their ability to operate and manage TDCJ-operated confinement

facilities in such manner as to comply with the Ruiz decree. |

would note that I do not find any other aspect of the relief Judge

DeAnda has directed in the February 7 order to conflict in any

way with the provisions of the Ruiz decree

SIGNED this 15th day of March, 1991

| /s/

William Wayne Justice

United States District Judge

LAWRENCE R. ALBERTI,

ET AL.,

VS

JOHNNY KLEVENHAGEN;

ET AL.,

Defendants

APPENDIX S

.

§

§

§

8

§

§

§

§

§

§

§

ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION

NO. H-72-1094

The State defendants in this case have sought to vacate

or stay the Court's remedial order signed February 7, 1991,

while the plaintiffs and the County defendants seek a number of

modifications to the same order.

The State's motion to vacate or stay the order is

DENIED. According to the most recent statistics provided by

the County defendants to the parties and the Court, the

population of Harris County detention facilities on Monday,

March 11, 1991, was at 7,376 prisoners or 157 percent of the

design capacity of those facilities. This number exceeds by 1,376

the number of prisoners the Alberti monitors and the State

defendants’ own witness testified could be managed safely and

securely for even a limited period of time. These population

figures are beginning to approach these numbers that led to the

outbreak of a respiratory, pneumococcal epidemic that struck

down dozens of inmates and claimed two lives in mid-1989. We

S-2

are talking here about life and death, and the most fundamental

rights of the plaintiff class

The February 7, 1991 order carefully refrained from

actions with a direct and substantial effect on the Texas prison

system. In In re Clements, the Fifth Circuit transferred to the

Ruiz court only "so much of the remedy portion of the Alberti

third-party action as seeks to enjoin them to receive or take

prisoners into TDC confinement (or to otherwise take action in

the operation or management of TDC-operated confinement

facilities)." 881 F.2d 145, 153 (Sth Cir. 1989). A requirement

that the State defendants provide funds to underwrite tentatively

the transfer of felons to other county jails represents no depar-

ture from the Fifth Circuit's directive. As understood by this

Court, the Fifth Circuit did not immunize the State defendants

from contributing in any form to the remediation of unconsti-

tutional conditions for which they have been found liable.

This Court's February 7, 1991 order did not impose final

responsibility on the State for the cost of any transfers required

pursuant to the Order. Rather, that Order expressly recognized

that the allocation of responsibility and costs for the maintenance

of felons ready for transfer to the Institutional Division of the

Texas Department of Criminal Justice (TDCJ-{D) was an issue

in litigation currently pending in the State courts and that the

outcome of that litigation will determine any appropriate final

accounting for these costs in this case. That the February 7,

1991 order included a preliminary assessment at all was due to

the fact that other Texas counties could not be expected to re-

ceive felons ready for transfer to TDCJ-ID from Harris County

without advance payment. Representatives of the Sheriff's

Department have testified that counties contacted by the County

defendants refused to consider any transfers from Harris County

without the promise of immediate payment. There is, then, no

issue of abstention here, nor, ultimately, are Eleventh Amend-

ment and Pennhurst principles raised by the Court's February 7,

1991 order, which, while seeking to address immediate and

critical constitutional deficiencies, left to State courts any final

accounting. Given all of these circumstances, it is hard to

identify another case in which the burden of suffering irreparable

and substantial harm rests more clearly on the party opposed to

the movant. The State defendants’ motion to delay further the

relief of unconstitutional conditions in Harris County detention

facilities is DENIED.

In response to the motions of the plaintiffs and the

County defendants, the following modifications to the February

7, 1991 order are adopted:

3

9

~

reads

Paragraph | of that order is amended to read:

This remedial decree supersedes all previous

remedial orders in this case that conflict with the

terms of this order, and shall remain in effect until

May 1, 1991.

Paragraph 2 of the February 7, 1991 order which

The overall population of Harris County deten-

tion facilities shall be reduced to 6,300 within 45

days of the entry of this order. Within that overall

cap, the County population shall not exceed

4,725, or 75 percent of the overall population,

and shall include convicted felons not ready for

transfer to TDCJ-ID and parole violators. The

population of convicted felons in Harris County

detention facilities ready for transfer to TDCJ-ID

Shall not exceed 1,575, or 25 percent of the

overall population.

is amended to read as follows:

The overall population of Harris County deten-

tion facilities shall be reduced to 6,300 within 45

days of the entry of this order. Within that overall

S-4

cap, the County population shall not exceed

4,725, or 75 percent of the overall population,

and shall include convicted felons not ready for

transfer to TDCJ-ID and parole violators. The

population of convicted felons in Harns County

detention facilities ready for transfer to TDCJ-ID

shall not exceed 1,575, or 25 percent of the over-

all population. In any event, the total population

of Harris County detention facilities shall not

exceed 6,300 for more than seven consecutive

days without triggering the transfer provisions of

this order.

3. That portion of paragraph 3 of the February 7, 1991

order which reads:

If necessary to meet the overall population cap of

6,300 described in paragraph 2, above, the Sheriff

of Harris County shall transfer prisoners ready for

transfer to TDCJ-ID with sentences of from five

to no more than 15 years in groups of 25 inmates

to other Texas County detention facilities iden-

tified and selected by the Sheriff.

is amended to read as follows:

If necessary to meet the overall population cap of

6,300 described in paragraph 2, above, the Shenff

of Harris County shall transfer prisoners ready for

transfer to TDCJ-ID with sentences of five or

more years to such other Texas County detention

facilities that meet the minimum standard of the

Texas Commission on Jail Standards and are

identified and selected by the Sheriff. Transfers

made pursuant to this provision shall be

conducted once weekly.

S-5

4. That portion of paragraph 4 of the February 7, 1991

order which reads:

The County defendants shall file a bond for

$750,000.00 with the Registry of the Alberti

Court by March 20, 1991 in the event that the

State defendants prevail on the issue of cost

allocation in the pending State litigation.

is amended to read as follows:

The County defendants shall file with the

Registry of the Alberti Court by March 20, 1991

a resolution adopted and passed by the

Commissioners Court of Harris County that the

County "is financially able to and has adequate

resources from which to pay $750,000.00 in the

event State defendants ultimately prevail on the

issue of cost allocation."

5. Paragraph 6 of the February 7, 1991 order is

amended to read as follows:

The County defendants shall staff and occupy the

new boot camp at the Detention Center in

Humble by May 1, 1991 and the residential

probation program in the 701 Building by

September 1, 1991.

All other modifications sought by the parties to the

February 7, 1991 order are DENIED.

Texas.

SIGNED this 15th day of March, 1991, at Houston.

_ 4

JAMES DeANDA

CHIEF JUDGE

UNITED STATES DISTRICT

COURT

APPENDIX T

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

LAWRENCE R. ALBERTI,

et al.,

Plaintiffs.

"

SHERIFF OF HARRIS

COUNTY, TEXAS, et al., Civil Action

Defendants, and Third- No. 72-H-1094

Plaintiffs,

WILLIAM P. CLEMENTS,

et al.,

Third-Party Defendants

MEMORANDUM OPINION

I wnite separately to clarify my relationship to the relief

set forth in the order entered contemporaneously herewith by the

Hon. James DeAnda, Chief Judge of the United States District

Court for the Southern District of Texas, as the sitting judge in

Lawrence R. Alberti, et al. v. the Sheriff of Harris County,

Texas, et al., civil action No. 72-H-1094, with which I have only

one point of disagreement

My connection with the Alberti litigation arises from my

position as sitting judge in Ruiz v. Estelle, 503 F.Supp. 1265

(S.D. Tex. 1980), affd in part and vacated in part, 679 F.2d

1115, amended in part, 688 F.2d 266 (Sth Cir. 1982), cert.

denied, 460 U.S. 1042 (1983). After the Governor of the State

T-2

of Texas, the Director of the Texas Department of Corrections,

the members of the Texas Board of Corrections, and the State of

Texas were made third-party defendants in the Alberti action,

the Court of Appeals for the Fifth Circuit directed the transfer to

the Ruiz court of "so much of the relief portion of the third-party

complaint [in Alberti] as seeks an injunction ordering [the state

defendants] to receive or take prisoners into TDC confinement

or to otherwise take action in the operation or management of

TDC-operated confinement facilities." In re Clements, 881 F.2d

145, 154 (Sth Cir. 1989) (emphasis in original).

While the relief Judge DeAnda now orders clearly is

within the scope of Alberti, one aspect of the order seemingly

falls within the category of matters within the purview of the

Ruiz court. After directing the transfer to other county detention

facilities of some of Harris County's overflow inmates who have

been sentenced to the Texas Department of Criminal Justice -

Institutional Division, Judge DeAnda directs that "[t]he State

defendants shall deposit in the Registry of the Alberti court

$750,000.00 by March 20, 1991, from which ithe County

defendants shall be authorized to pay $40.00 per diem for each

transferred inmate." ‘I have not been directed to any portion of

the evidence in Alberti which relates to whether or how an order

requiring the State to pay $750,000.00 into the court registry

will affect the State's ability to comply with the orders entered in

Ruiz. Without an appropriate record in that respect, I cannot

agree to that specific part of the relief ordered.

I also would note that if the question whether Texas law

requires the State to bear the costs of confining some of Harris

County's overflow Institutional Division-ready inmates were

placed before me, my understanding of principles of abstention

would lead me to refrain from ruling on it. The issue underlying

the cost question is the relative responsibilities of the state and

the counties for Institutional Division-ready detainees. The

matter plainly is one of substantial public concern. Furthermore,

developments in the law of Texas relating to the issue indicate

that the question is an unsettled one.

First of these developments is Tex.Rev.Civ.Stat.Ann. art

6166a-4 (Vernon 1991), which became effective March 20,

1990, and which directs the Texas Board of Criminal Justice to

establish a formula for allocating the number of inmates that

each Texas county can transfer to the Institutional Division each

week. The statute requires the Board to consider factors which

"shall include but are not limited to:"

(1) the percentage of prison admissions for the entire

State that were used by the county or counties in the preceding

12 months;

(2) the percentage of the state's violent index crime

that occurred in the county or counties in the preceding 12

months;

(3) the percentage of the state's total index crime that

occurred in the county or counties in the preceding 12 months;

(4) the percentage of the state's total arrests under

the Texas Controlled Substances Act that occurred in the county

or counties in the 12 preceding months;

(5S) the percentage of the state's population residing

in the county or counties; and

(6) the percentage of the state's total unemployment

in the county or counties.

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

The statute directs the Board to consider waiving the al-

location formula for a county "(1) that experiences a rapid in-

crease in persons convicted of felonies for reasons other than

traditional sentencing practices in the county; or (2) in which the

jail inmate population exceeds the approved capacity of the

county's jail facility, as established by the Commission on Jail

ee

T-4

Standards." Tex.Rev.Civ.Stat.Ann. art. 6166a-4(c). Such

modifications of the allocation formula are prohibited, however,

after November 30, 1990. Tex.Rev.Civ.Stat.Ann. art. 6166a-

4(e)

It seems plain that in setting a limit on the number of

prisoners each county can transfer to the Institutional Division,

the Texas legislature intended that the county remain responsible

for detaining those inmates it cannot transfer because it has filled

its weekly allocation. To make the state responsible for

Institutional Division-ready detainees in excess of a county's al-

location would render the allocation process meaningless

Similarly, in the present action, to require the state to pay the

cost of detaining Harris County's excess Institutional Division-

ready inmates in other county detention facilities would appear

to effectively override the allocation the Board of Criminal

Justice has established for Harris County in accordance with the

statute

The second development pertinent to the issue at hand,

of which I take judicial notice, is the decision in County of

Nueces, Texas v. Texas Board of Corrections, et al, No.

452,071 (Dist. Ct. of Travis County, 126th Judicial Dist. of

Texas) (Hart, J.). Construing Texas law before the enactment of

art. 6166a-4, the court held that the state has a duty to reimburse

counties for the costs incurred by detaining inmates who are

ready for transfer to the Institutional Division. See partial

summary judgments, filed April 18, 1989, and September 9,

1989. In a subsequent ruling, Judge Hart held that the enactment

of art. 6166a-4 did not affect his holding in the case. See

judgment, filed August 22, 1990. The court's decision currently

is On appeal before the Third Judicial District Court of Appeals

at Austin. Though not a party to the Nueces action, Harris

County has filed an action in the same court seeking the same

relief ordered in Nueces. Harris County v. State of Texas, et al.,

No. 475,468 (Dist. Ct. of Travis County, 126th Judicial Dist. of

Texas)

T-5

The third matter of importance for the question

presented here, of which I also take judicial notice, is the

introduction into the Texas House of Representatives of House

Bill 13, filed November 12, 1990, which would require the state

to reimburse counties for the costs a county incurs by confining

inmates who have been sentenced to the Institutional Division

Counties would be repaid not only such costs as they are

incurred in the future, but also the amounts expended from

September 1, 1989, until the date the act becomes effective

Thus, if enacted in its present form, the Bill would require the

State to reimburse Harris County for the costs at issue here.

Perhaps the most important consequence of the

introduction of House Bill 13 is that the question presented here

will be resolved in the very place it should be decided, the Texas

legislature. Its introduction also adds support to the conclusion

that Texas law does not at present require the state to pay the

cost of detaining a county's Institutional Division-ready

prisoners. At the very least, the state's duty to pay such costs is

not a settled matter of Texas law.

These three developments, taken together with other

considerations, suggest that the proper course for this court is to

abstain from deciding whether Texas law requires the state to

reimburse Harris County for costs incurred in confining

Institutional Division-ready inmates at other county detention

facilities. New Orleans Public Serv. v. Council of New Orleans,

109 S.Ct. 2506 (1989), contains recent teaching from the

Supreme Court concerning the circumstances in which

abstention is proper. After discussing the Court's decisions in

Burford v. Sun Oil Co,, 319 U.S. 315 (1943) and Alabama Pub

Serv. Comm'n v. Southern R. Co., 341 U.S. 341 (1951), Justice

Scalia, writing for seven members of the court, stated

From these cases, and others on which they

relied, we have distilled the principle now commonly

referred to as the "Burford doctrine.” Where timely and

adequate state review is available, a federal court sitting

T-6

in equity must decline to interfere with the proceedings

or orders of state administrative agencies: (1) when there

are ‘difficult questions of state law bearing on policy

problems of substantial public import whose importance

transcends the result in the case then at bar,’ or (2) where

the ‘exercise of federal review of the question in a case

and in similar cases would be disruptive of state efforts

to establish a coherent policy with respect to a matter of

substantial public concern' Colorado River Water

Conservation Dist. v. United States, 424 US 800, 814

(1976)

1OOUS at 2514

The question presented here falls squarely into the first

category in which the New Orleans Court would find Burford

type abstention proper To require the state to pay the cost of

detaining Harris County's excess Institutional Division-ready

inmates would "interfere with the proceedings or orders" of the

Texas Board of Cnminal Justice in establishing Harris County's

allocation of transfers to the Institutional Division, in accordance

with art 6166a-4 The issue presents a difficult question of

Texas law, and certainly is one that bears on a policy problem of

substantial public import whose importance transcends the result

in the case at bar, as to the legal point in contention here The

policy problem underlying the cost question presented here is the

relative responsibilities of the Institutional Division and the

counties for detention of Institutional Division-ready inmates in

excess of each county's allocation. While the issue whether the

state or Harms County should bear the costs of alternative deten-

tion for overflow Harris County prisoners obviously is

significant, it is less important than the underlying policy

problem, which has state-wide ramifications. |

, The second category of Burford-type abstention to which the New

Orleans opinion refers is that where repeated decisions by the lower federal

courts concerning a subject matter of public concern would frustrate state

efforts to establish a coherent policy with regard to that matter. See Burford

v_ Sun Oil, Co., supra, 319 U.S. at 326-31. The present action does not

In several cases, the Supreme Court has endorsed or

ordered abstention by the federal district court upon facts similar

to those presented here Kaiser Steel Corp. v. W. S. Ranch Co.,

391 US $93 (1968), involved claims concerning water use

which turned on the meaning of "public use" under the New

Mexico Constitution. The district court decided the claims, and

the Court of Appeals rejected a motion to stay the federal court's

action until the state law issues could be settled in a declaratory

judgment suit then pending in state court 391 US. at 593-94

The Supreme Court reversed, stating

The Court of Appeals erred in refusing to

stay its hand The state law issues which is

crucial in this case is one of vital concern in the

arid State of New Mexico, where water is one of

the most valuable natural resources. The issue.

moreover, is a truly novel one. The question will

eventually have to be resolved by the New

Mexico courts, and since a declaratory judgment

action is actually pending there, in all likelihood

that resolution will be forthcoming soon. Sound

judicial administration requires that the parties in

this case be given the benefit of the same rule of

law which will apply to all other businesses and

landowners concerned with the use of this vital

state resource

391 U.S. at 594

In Louisiana Power & Light Co. v. City of Thibodaux,

360 U.S. 25 (1959), as in the case at bar, conflicting indications

precisely fit this category, because actions like the one at bar are not likely

to frequently recur. On the other hand, rendering a decision here likely

would cause the same type of harm the Burford Court sought to avoid, that

is, it would disrupt the state's efforts to establish a coherent, state-wide

policy concerning the relationship between the Institutional Division and

the county jails

T-8

concerning a question of state law rendered the federal district

court unable to determine with confidence how the highest court

of the state would decide the issue before it. 360 U.S. at 30.

Because the matter, involving the law of eminent domain, was

one of substantial public concern

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