Opposition Brief — Richards v. Alberti

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No. 92-1648

IN THE

SUPREME COURT OF THE UNITED STATES

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,

vs.

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

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

Individually and on behalf of all others similarly situated,

Inmate Respondents,

and

JON LINDSAY, HARRIS COUNTY JUDGE; EL FRANCO LEE, JIM

FONTENO, STEVE RADACK, JERRY EVERSOLE, Harris County

Commissioners; JOHNNY KLEVENHAGEN, Harris County Sheriff,

County Respondents.

On Petition for Certioran to the United States Court of Appeals for the

Fifth Circuit

COUNTY RESPONDENTS' BRIEF IN OPPOSITION

LISA S. RICE

Counsel of Record

HAROLD M. STREICHER

Assistant County Attorney

Attorneys for County Respondents

MIKE DRISCOLL 1001 Preston, Suite 634

Harris County Altorney Houston, Texas 77002

__ Of Counsel — oe —____ (713) 755-7110

QUESTIONS PRESENTED

Respondents Harris County Judge Jon Lindsay, Harris

County Commissioners El Franco Lee, Jim Fonteno, Steve

Radack and Jerry Eversole ("County Respondents") do not concur

with Petitioners’ statement of “Questions Presented." County

Respondents urge that the following constitutes an accurate

presentation of the substantive questions presented by Petitioners

in their Petition for Writ of Certiorari:

l. Whether a federal district court is authorized to fashion

a remedy upon finding violations of constitutional rights?

2. Whether the Eleventh Amendment shields state officials

who act contrary to the United States Constitution from

prospective injunctive relief ordered by a federal district court

because of ancillary costs.

3. Whether a federal district court can rely on the

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

remedy.

4. Whether a federal district court abuses its discretion by

refusing to abstain when state law is clear and important

constitutional rights are at issue.

TABLE OF CONTENTS

Page

Questions Presented

errr rrr? Teer eee ee eT ee Oe ee rk ee i Bee a i

Table of Contents

WETTTTTTELTTCICCCTICL TEL Te ii

Table of Citations

eececeeoeeeeeeeeoeeeeeeeeseeseeeeeeeeeseeeeeeeeeeeesesd lv

Opinions Below

Jurisdiction

ToT errr rreecrrreiecer rr ce ee ee re J

Texas Constitutional and Statutory Provisions Omitted by

State Defendants

TTT CT TTL eT TTT CTT ee ee ee 3

Statement of the Case

TCT E CCRT CTO CRC LCL ORCL ee ee eee 4

Summary of the Argument

TCT TTC CTT TCCR LETT Tree ee kee ee 15

Reasons for Denying the Writ

Terre CCT eT eee CT Ee ee eee 16

iii

[. This Court Denied Certiorari Last Year

When Presented With Each Of The Issues

And Arguments Raised By State

Defendants In The Instant Petition.

Ee es es ee ee ee ee ee ee

IT. The Fifth Circuit's Alberti IJ Opinioa

Does Not Conflict With This Court's

Decisions Or With The Decisions Of

Other United States Courts Of Appeals

Deciding These Same Or Similar Matters

eres fe heey eRe teu ee ee oe ee Se 28 ee

lil. The Fifth Circuit's Absention And

Certification Holdings Do Not Depart

From The Accepted And Usual Course Of

Judicial Proceedings.

IV. Wilson v. Seiter Issue

it aes eee Cee eS eeseeseececaaneoqeenere”"*

V. State Defendants’ Failure To Accurately

Present The Lower Courts’ Factual

Findings And Legal Holdings

re, tee ee Ree ee ee ee ee ee ees

Conclusion

I ee Cee Oe ee ee ee eee ees

TABLE OF CITATIONS

Cases Cited:

Alberti v. Sheriff of Harris County,

937 F.2d 984 (Sth Cir. 1991) (Alberti 1)

ccc cee. 3,4,5,6,7,8,9,12,13,14,15,16,19,20,21,25,27

Alberti v. Sheriff of Harris County,

978 F.2d 893 (Sth Cir. 1992) (Alberti II)

pe ee ee eesesecereseseece 2,3,14,15,16,17,19,20,25,27

Benjamin v. Malcolm,

803 F.2d 46 (2d Cir. 1986), cert. denied sub nom,

Cuomo v. Koehler, 480 U.S. 910 107 S. Ct. 1358,

94 L. Ed. 2d 528 (1987)

Brotherhood of Locomotive Fireman & Enginemen v. Bangor &

Aroostook Railroad Co.,

389 U.S. 327, 88 S. Ct. 437, 19 L.Ed.2d 560

(1967)

: aay Oe ee 6b ee Se SO ee Ok Oe ew a ee ee eae Oe ee 4

Burford v. Sun Oil Co.,

319 U.S. 315, 63 S. Ct. 1098 (1943)

Torcrertercere er rrr er TCE CTT CEE UTEP CLC rreUrrTtleTT Te 24

Bush v. Viterna,

795 F.2d 1203 (Sth Cir. 1986)

rere rrr eee eee Ce eT eT Ee eT ee ee eee 5,6,19

City of Houston v. Hill,

482 U.S. 451. 107 S. Ct. 2502, 96 L.Ed.2d 398

(1987)

POPPE TS TEC OL EEE Eee TT ECE Te TT eT ee ee 21

Colorado River Water Conservation District v. United States,

424 U.S. 800, 96 S. Ct. 1236, 47 L.Ed.2d 483

(1976)

er er re er re te ere Ek ea 21

County of Allegheny v. Frank Mashuda Co.,

360 U.S. 185. 79 S. Ct. 1060, 311 L.Ed.2d 1163

(1959)

a en ee ene ee re PE re re ee 22

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

(126th Judicial District Court, Travis County,

Texas)

Oe TP ne Eee? C5 PI RR mo nate NE 10,

Duncan v. Poythress,

657 F.2d 691 (Sth Cir. 1981), cert. dism'd, 459 |

S. 1012. 103 S. Ct. 368, 74 L. Ed 2d 504

a es re ara eA aN ear ee ee ae a ae se a ee ee 23

Edelman v. Jordan,

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

PE a ee ee rer Le ee re ae Ee Ly, 2U

209 U.S. 123, 28 S. Ct. 44!, 52 L. Ed. 2d 714

Fidelity St. Life Ins. Co. v. First Nat. Bank & Trust,

510 F.2d 272 (Sth Cir. 1975), cert. denied, 423

U.S. 864 (1975)

TERRELL CECE CARLA CLEC UCLE CULT LTC TT TLC CTT Te 22

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

336 U.S. 271, 69 S. Ct. 535, 93 L. Ed. 2d 672

(1949)

PCCoSO RAE EHO HEHEHE SOEHREKL OOK O OHO DOTS DAKO R08 Se Kee 25

Harman v. Forssenius,

380 U.S. 528, 85 S. Ct. 1177, 14 L.Ed.2d 50

(1965)

POO CORERTHHHREHEO FOE HOECHCOCKOODO SCHOO OO OR O66 Eb HH 8 22

Harris County, Texas et al. v. State of Texas,

(126th Judicial District Travis County, Tex.)

TEREREPELECEEEEELEEELELUEELELELETeee ee 10,11,13,24

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

312 U.S. 183, 61 S.Ct. 513, 85 L.Ed. 725 (1941)

Se PRSODOTH TH UEHREHREROCROEH ODODE OC OODCEH OSS ROSES 22

Jenkins v. Missouri,

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

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

L. Ed. 2d 662 (1974)

TEETER ECRTTACL URC EL TTC CUT eT Te 20

Kelley v. Metropolitan County Board of Education,

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

U.S. 1206 (1988)

reer re rrr rrr. Tee eT Tee ee eT Ce ee Ce 18,19,20

vil

Mangum Co. v. Coty,

262 U.S. 159 (1923)

A ee a eS a Se 6 eee. 60S OSs O88 Ee SO OS'S ESOS 88 OP Oe Re

Milliken v. Bradley,

433 U.S. 267, 97 S. Ct. 2749, 53 L.Ed.2d 745

(1977)

ree e a ee ea ee a ee Ce ee ee ee ee el

New Orleans Public Service v. Council of New Orleans,

491 U.S. 350, 109 S. Ct. 506, 105 L.Ed.2d 298

(1989)

oe a he ee Se 6 6 6 OSS OS OSS 86 H664659:0 9:99 2 97 OT ORS Ae

Nissan Motor Corp. v. Harding,

739 F.2d 1005 (Sth Cir. 1984)

- ob ee SSO SES SOARS SESS VCOECCECVSP OA COBRA eon eee eeweY

Pennhurst State School & Hospital v. Halderman,

465 U.S. 89, 104 S. Ct. 900, 97 L. Ed. 2d 67

(1984)

“a es oe se ee er a ae Ce eee eee ee ea ee Oe ee

Rhodes v. Chapman,

452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59

(1981)

ca aa ee ee ee oe eh Se Ow S808 60.66 8S. 9 9 8 0.2 O39 9.29.9 9 oe?

Richards v. Lindsay, et al.,

112 S.Ct. 1994, 18 L.Ed.2d 590 (1992)

viil

Ruiz v. Estelle,

679 F.2d 1115 (Sth Cir.), modified in part on

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

denied, 460 U.S. 1042, 103 S.Ct. 1438, 75

L.Ed.2d 795 (1983)

Cee eae ba Eee Oe a ee 6 ee ed ee ee ee eee Ve nuee

Ruiz v. Lynaugh,

811 F.2d 856 (Sth Cir. 1987)

Serer rT CLE CCC CLEC ETC CE CL CCLESCL CCE Ler eee 30

Stewart v. Winter,

669 F.2d 328 (Sth Cir. 1982)

SCR SRSESHSSCSESHCHE CORES SC OCC ROCED ECOSOC ROR SO OH DOR 6,20,27

Tarrant County Commissioners Court v. Markham,

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

Tate v. Frey,

735 F.2d 986 (6th Cir. 1984)

*e © # © @ © @& © © — * ©—h*#%—hUh%mhUcr}HmhUCUMOrhUCrhhCrOhCUCUrhhUCUrhhUCUrhhCUlCUrhClCrhCUCrhCrhCUCrhC MhCr MLC MhC—< UCC hUrhUlUrhUCUrhlCUrhlCUrhCUc OhlUCUrhUCUrhUCUrhUrhlUm 5

Williams v. Edwards,

547 F.2d 1206 (Sth Cir. 1977)

Wilson v. Seiter,

111 S. Ct. 2321, 115 L.Ed.2d 271 (1991)

.olee a ae Oe OSA ee a Oe Oe ee ee a ees esa

Zablocki v. Redhail.

434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d 618

(1978)

Statutes Cited:

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

recodified at Tex. Gov't Code Ann § 499.006

(Vernon 1990), recodified at Tex. Govt Code

Ann. § 500.006 (Vernon Supp. 1992)

ee eee mae rr ae ee ee ee ee ee ee 3

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

Supp. 1992)

nab ab uh eRe eee h EEE SS EAORE ESN SECRETE E CR OTEORYS 3

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

formerly Tex. Rev. Civ. Stat. Ann 4413(401) §

1 .Q2(a)

lex. Gov't Code § 494.001(a) (Vernon 1990)

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

formerly Tex. Gov't Code Ann § 494.004

(Vernon 1990

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

Tex. Gov't Code §§ 499.123 & 499.125 (Vernon Supp

99?

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

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

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

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

TEEEEPEPELERELELETERELELE EEE LEE EEE EEE 3

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

TEPEREPEREEEPEEEEERELEEEEEEELELE EEE EEE 3

United States Constitution Cited:

Eighth Amendment

POPS SEER SHSHSHeHeSSEESHEHHSEESEHSESHESEHSEEEES 29,27, 149

Eleventh Amendment

TWEMERERELELELTEETEEEERERELELELELE LETTE 17

Fourteenth Amendment

Pe eeSeeeeeseesseneseeeessesseseseessesesesesesese 4,3

Other Authority Cited:

R. Stern, E. Gressman & S. Shapiro, SUPREME COURT

PRACTICE (6th ed. 1986)

APPENDIX

Appendix A--Findings of Fact and Conclusions of Law

Dated November 26, 1990--The County of Nueces

v. Texas Board of Corrections

500666866505 660605 65 654600850560046046896060865046008868 la

Appendix B--Judgment Dated August 22, 1990--The

County of Nueces v. Texas Board of Correction

WETTTEEETCTULECTLULEL LILLE 17a

Appendix C-Peremptory Writ of Mandamus Dated

August 22, 1990--The County of Nueces v. Texas

Board of Corrections

WUTTTTTETELIECTELELE LLL 24a

Appendix D--Letter Decision Dated May 31, 1990--T7he

County of Nueces v. Texas Board of Corrections

WTeTeTTTTTTETTTCC LITTLE 28a

Appendix E-Letter Decision Dated November 21, 1989-

The County of Nueces v. Texas Board of

Corrections

PORE REESEHEESEESESSES ESSA EHEHESES EE REHRESERES 34a

Appendix F--Letter Decision Dated August 24, 1989--7he

County of Nueces v. Texas Board of Corrections

TTUTUCTTTOTCTT TTT TCC ELL LEILA 52a

Appendix G-Final Judgment Filed August 2, 1991-

Harris County v. The State of Texas

Appendix H--Peremptory Writ of Mandamus Filed August

2. 1991--Harris County v. The State of Texas

65a

Appendix I--Supplemental Complaint Dated September 15

1989--Alberti v. Johnny Klevenhagen

a tA

Appendix J--Third Party Complaint Filed January 13,

1989--Alberti v. Sheriff of Harris County (Without

Exhibits)

TULLE EeCLACLT eee eee 19a

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

States Court of Appeals for the Fifth Circuit

TErELerte ete ELe EAE ELe eae CULT Lae eTees e 89a

Appendix L--Additional Constitutional and Statutory

Provisions Involved in Alberti

SHORES SHEKHAR ESHSORESHEEKSESESRERRO OE HE OREO ONES jla

Appendix M--State Defendants’ Motion to Defer

Proceedings on First Petition for Writ of

Certiorari

CRS HS SSSR AHST ESOS R HOS HR SHOREmROSO RECHT EESSEEOOS 97a

No. 92-1648

IN THE

SUPREME COURT OF THE UNITED STATES

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,

1 AWRENCE R. ALBERTI, JIMMY E. COLLINS, HENRY

C. LANGER, JOSE J. PINA, Il, PAT REED, WESLEY

SELLERS, Individually and on behalf of all others similarly

situated,

Inmate Respondents,

and

JON LINDSAY, HARRIS COUNTY JUDGE; EL FRANCO

LEE, JIM FONTENO, STEVE RADACK, JERRY

EVERSOLE, Harris County Commissioners; JOHNNY

KLEVENHAGEN, Harris County Sheriff,

County Respondents.

On Petition for Certioran

To the United States Court of Appeals

For the Fifth Circuit

COUNTY RESPONDENTS' BRIEF IN OPPOSITION

County Respondents (hereinafter “County Defendants”)

respectfully request that this Court deny Petitioners’ (hereinafte:

"State Defendants”) Petition for Writ of Certiorari, which seeks

review of the Fifth Circuit's opinion in Alberti v. Sheriff of

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

curiam) (Alberti li)

OPINIONS BELOW

State Defendants’ summary of the opinions rendered

below mischaracterizes the underlying district court and Fifth

Circuit orders as orders requiring state officials to "compensate"

Harris County l Rather, these orders found State Defendants

lable for present and continuing violations of Inmate

Respondents’ (hereinafter “Inmate Plaintiffs") constitutional

rights through state officials’ continuing refusal to accept Inmate

Plaintiffs into the State's penitentiary system

State Defendants’ summary of opinions below fails to

include the state court opinions upon which the United States

District Court for the Southern District of Texas partially based

its prospective injunctive remedial relief, and upon which the

Fifth Circuit affirmed that relief.

in County Defendants’ Appendices A-H.

These opinions are included

I State Defendants’ Apr. 12, 1993 Petition for Wnt of Certioran

hereinafter “State Defendants’ Petition II") at 2; State Defendants’ Jan. 17

1992 Petauion for Wnt of Certioran at 1 (S.Ct. No. 91-1202) (hereinafter “State

Defendants’ first petition” or “State Defendants’ Petition I") at 1 The

Appendix filed with State Defendants’ Petition II is referenced as “State

Defendants’ Appendix II". The Appendix filed with State Defendants’ Petition

lis referenced as “State Defendants’ Appendix I"

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

wuer alia, require that convicted felons shall be imprisoned in the Texas

Department of Cmnmuinal Justice's Institutional Division (hereinafter “TDCJ-

ID"), the state's penitentiary system. TEX. PENAL CODE ANN. §12.31(a)

1992), TEX. PENAL CODE ANN. §12.32(a) (Vernon Supp

Yermor Supp

JURISDICTION

Through the instant Petition for Writ of Certiorar, State

Defendants are essentially seeking to obtain a redetermination of

a substantially similar (and for the most part identical) Petition

for Certiorari filed by them and denied by this Court last year in

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

(Sth Cir. 1991) (Alberti 1), cert. denied sub nom., Richards v

Lindsay, 112 S.Ct. 1994 (1992)

TEXAS CONSTITUTIONAL AND STATUTORY

PROVISIONS OMITTED BY STATE DEFENDANTS

State Defendants’ list of “Constitutional and Statutory

Provisions Involved" misdirects this Court's attention to

irrelevant statutes, rather than citing the statutory provisions

which the courts relied upon in finding that State Defendants

violated their state and constitutional duty to accept convicted

felons sentenced to imprisonment into TDCJ-ID 3

1992): TEx. PENAL CODE ANN. §12.331a) (Vernon 1974); TEX PENAL CODE

ANN. §12.34(a) (Vernon Supp. 1992); TEX. PENAL CODE ANN $12.42

Vernon 1974 & Supp. 1992); Tex. CRIM. PROC. CODE ANN. art. 42 09 §§1-4

Vernon Supp. 1992); TEx. REV. Civ. STAT. ANN. art 6166r (in effect from

1927 - August 31, 1989) (recodified at TEx. Gov'T CODE ANN $499 006

Vernon 1990) and later recodified at TEx. Gov'T CODE ANN. §500.006

Vernon Supp. 1992)); Tex. Gov'T CODE ANN. §493.001 Vernon Supp. 1992)

formerly TEX. REV. CIV. STAT. ANN. 4413(401) $1 02(a)); TEX. Gov'T CODE

ANN. §494.001(a) (Vernon Supp. 1992) (formerly TEX. Gov'T CODE ANN

8) 494 001(a) (Vernon 1990)); TEX. Gov'T CODE ANN. §495 004 Vernon

Supp. 1992) (formerly TEx. Gov'T CODE ANN. §494 004 Vernon 1990)

These statutes are attached as County Defendants Appendix L

- Seen. 2 & County Defendants’ Appendix L

STATEMENT OF THE CASE

County Defendants adopt the factual and procedural

history set forth in Alberti 1, which is substantially accurate.4

State Defendants’ Petition is rife with misstatements of the facts,

procedural history and law relating to this case. Even after the

Fifth Circuit's opinion in Alberti I memorialized several

instances where State Defendants mischaracterized the holdings

of the United States District Court for the Southern District of

Texas in this case,> State Defendants continue to mischaracterize

the nature of this suit, as well as the actions taken by the district

court, by the Fifth Circuit and by this Court.

For example, State Defendants admit that this Court

denied certiorari last year in this same case on the same issues

involving the same parties, then attempt to explain away their

refiling of the same rehashed petition by stating that it "is now

ripe for review” and that their previous petition was “filed as a

precautionary measure” and “could well have been judged

premature”. This Court, however, did not find State

Defendants’ first petition to be premature. Instead, this Court

denied State Defendants’ motion to defer consideration of their

first petition and denied certiorari on the merits in Richards v.

Lindsay, 112 S.Ct. 1994 (1992).?

4 See Alberti I, 937 F.2d at 986-992 [State Defendants’ Appendix II at

C1-C12, C15, C20-C21).

s See e.g., Alberti 1, 937 F.2d at 1001 & n. 8 [State Defendants’

Appendix II at C28-C29 & n. 8).

b See State Defendants’ Petition I] at 4-5 & n. 1 (citing, Brotherhood of

Locomotive Fireman & Enginemen v. Bangor & Aroostook Railroad Co., 389

U.S. 327, 328, 88 S.Ct. 437, 438, 19 L.Ed.2d 560 (1967)).

7 Compare, Brotherhood of Locomotive Fireman & Enginemen, 88

S.Ct. at 438 (wherein this Court explicitly found that case was not ripe for

review when denying certioran)

In addition, the opening paragraph of State Defendants’

"Statement of the Case” (in State Defendants’ Petitions I and II)

took three words used by the Fifth Circuit in its Alberti ] opinion

out of context and thereby misstated the very foundation of the

Fifth Circuit's Alberti J and Alberti II opinions. According to

State Defendants’ Petitions:

This controversy swirls around whether Texas

prison officials and the Governor of Texas

(hereinafter "State Defendants") bore any

liability, especially financial liability, for felons

sentenced to the state prison system but confined

and maintained in the Harris County jail. State

Defendants do not dispute the Fifth Circuit's

analysis that this is “exclusively” a state law

issue and that it presented a “hard question” for

the court.8

Contrary to State Defendants’ representations, the Fifth

Circuit did not find that State Defendants’ liability "exclusively"

presented a state law issue which in turn presented a “hard

question” for the court. Drawing from the Fifth Circuit's

decision in Bush v. Viterna, Judge Patrick Higginbotham

outlined the three-pronged analysis undertaken by the Fifth

Circuit when enforcing constitutional standards under 42 U.S.C.

§ 1983:

Whenever a plaintiff alleges a cause of action

under §1983, a federal court must ask three

questions. First, is a federal secured right

8 State Defendants’ Petition II at 4 (emphasis in Petuon) (cuing Alberti

1, 937 F.2d at 994) (State Defendants Appendix II at C15), Id. at 7, 9, 16, 19,

21: State Defendants’ Petition I at 3, 4, 14, 17 & 18-19

involved .... Second, was the alleged deprivation

of the right accomplished by state action?

Finally, who is the state actor responsible for the

violation? Unlike the first two questions, the

third question turns exclusively on state law ....

The hard question in this appeal is the third

question, the issue of who is liable for the

conditions in the county's jails.?

State Defendants’ representations raise the Pennhurst!©

specter while ignoring the first two questions outlined by the

Fifth Circuit, ignoring the Fifth Circuit's analysis of their

liability for deprivations of Inmate Plaintiffs’ federal

constitutional rights under Stewart v. Winter, Benjamin v.

Malcolm, and Tate v. Frey, and ignoring the Fifth Circuit's

explicit rejection of their contention that their duties only arose

pursuant to state law. 11

On virtually every page of their instant petition (as in

their first petition), State Defendants wrongly attempt to portray

Alberti as a “fiscal dispute” between two governmental entities,

rather than a case in which they were found directly liable for

9 Alberti 1, 937 F.2d at 994 (emphasis added in part) [State

Defendants’ Appendix II at C15] (citing, Bush v. Viterna, 795 F.2d 1203, 1209

(Sth Cir. 1986))

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

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

I Alberti 1, 937 F.2d at 993-997 [State Defendants’ Appendix II at C14-

C22] (citing, Stewart v. Winter, 669 F.2d 328 (Sth Cir. 1982); Benjamin v.

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

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

735 F.2d 986 (6th Cir. 1984)). Compare, State Defendants’ Petition II at 4;

State Defendants’ Petition | at 3-4

continuing violations of Inmate Plaintiffs’ Eighth Amendment

rights. The Fifth Circuit succinctly rejected this misleading

"fiscal" argument in Alberti /, stating:

The state also makes a general federalism

argument, suggesting that “[a] federal court has

no jurisdiction (no power) to act as arbiter

between different levels of a State's government

that are in dispute.’ Again, this argument

mischaracterizes the action; the state is

responsible for a federal constitutional

violation. 2

Alberti is neither a suit seeking the recovery of monetary

damages, nor a suit between different levels of state government,

nor a suit based upon State Defendants’ violations of state

law.!5 Instead, this is a class action civil rights case filed in

1972 under 42 U.S.C. §1983 and the Eighth and Fourteenth

Amendments by pretrial and convicted misdemeanants and felons

incarcerated in the Harris County jail facilities, contesting the

conditions of their confinement.

In February, 1987, County Defendants filed a motion for

Final Judgment in Alberti, urging that they were in compliance

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

of confinement in the jail facilities were constitutional. After

reviewing the facilities, court-appointed monitors determined

that "as of June 1, 1987, the County's facilities were five percent

12 Alberti I, 937 F.2d at 1001-02 n. 8 [State Defendants’ Appendix II at

C29-C30 n. 8]

13 Compare, State Defendants’ Petition II at i, 2, 4-9, 1417 & 20; State

Defendants’ Petition I at i, 1, 3-6, 10, 11, 14 & 24. The sheer number of

misstatements made in State Defendants’ “Statement of the Case,” as well as

the balance of their Petition, has forced County Defendants to address them in

Section “V"

over capacity “4 Citing County Defendants’ renovation of their

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

downtown jail, and design of a Criminal Justice Center, the

4lberti monitors stated, "[u]nlike most jurisdictions around the

country prodded to reform by judicial intervention, the

defendants are not content to rest on their laurels until the next

crisis emerges, but instead have moved aggressively and

efficiently to anticipate future needs."!5

monitors, “[w]hile the task is not yet complete, the distance

According to the

already covered [by County Defendants] is vast, and a finish line

is discernible “16

Since September, 1987, however, State Defendants have

refused to timely accept convicted felons ready for transfer

(hereinafter “prison-ready felons") into the state prison system,

thereby causing severe overcrowding in the Harris County Jail

facilities. In 1989, Inmate Plaintiffs and County Defendants

joined State Defendants (in their official capacities) as

Defendants and Third Party Defendants in the Alberti case,

seeking to enjoin State Defendants to remove all prison-ready

felons from the Harris County Jail facilities, and to continue

thereafter to remove them.!7 Contrary to State Defendants’

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

IS Id. at 80-81

16 Id. at 92

17 State Defendants complain that the Inmate Plaintiffs sued them after

the second tnal on liability. State Defendants’ Petition II at 7n. 2. In Alberti /,

the Fifth Circuit rejected this claim, noting that State Defendants were parties

to the action (Third Party Defendants) during the liability trials, that they failed

to explain how thei tnal strategy would have differed had they been

Defendants, and that they failed to demonstrate prejudice and error. Alberti I,

937 F.2d at 1003 [State Defendants’ Appendix II at C33; State Defendants

Appendix | at A39}. State Defendants did not raise this complaint in their first

attempts to suggest otherwise, neither Inmate Plaintiffs nor

County Defendants sought any monetary relief from State

Defendants. 18

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

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

1989 Findings of Fact and Conclusions of Law, finding that

State Defendants caused and were responsible for the

overcrowding in the Harris County Jail facilities--the essential

element in its finding that the jail facilities were unconstitutional

In particular, the district court held that "extreme overcrowding

is the primary cause of the conditions of confinement listed

below that inmates must endure at the Harris County Jail

facilities." that State Defendants “caused the overcrowding crisis

in the Harris County Jail facilities," that the jail “conditions are

cruel and unusual in violation of Plaintiffs’ Eighth and

Fourteenth Amendment -ights,” that State Derendants' “refusal

to accept convicted felons ready for transfer to TDC has caused

those inmates to suffer cruel and unusual punishment in the

Harris County Jail facilities," that State Defendants’ “refusal to

accept all convicted felons ready for transfer from the jail

prevented County Defendants from fuily complying with this

Court's orders,” and that the herd conditions in the jail

facilities had reached crisis proportions a

Thereafter. the district court issued injunctive remedial

orders at issue in State Defendants’ first petition, requiring both

County Defendants and State Defendants to limit the numbers of

petition for certioran seeking discretionary review of Alberti ] and thus waived

18 County Defendants’ Appendix I & J

19 State Defendants’ Appendix II at Y4, Y! Y21 & Y22; State

Defendants’ Appendix I at X4, X17 X22

(

county and state prisoners in the Harris County Jail facilities 20

The details of any necessary reductions in prisoner populations

made by County Defendants and State Defendants pursuant to

the order were left to the defendants’ discretion. The order set

caps on both the “county” and “state” prisoner populations in the

jail, ordered the transfers of prison ready felons to other county

jail facilities if either population exceeded the cap, and imposed

liability for the ancillary costs of those transfers upon the party

(either State or County) exceeding its cap 21 The remedial

orders thus gave State Defendants a choice of limiting the

prison-ready population within the Harris County Jail facilities

to 1,575 prison-ready felons, taking any steps consistent with

state law or federal court orders to reduce the prison-ready felon

population, or paying the ancillary costs of housing prison-ready

felons above their cap in other Texas county detention

facilities. 24 Recognizing that County Defendants and State

Defendants, as well as many other Texas counties, were

litigating the duty and reimbursement issues in state court, the

district court noted that its costs assessment was tentative and

preliminary and would be finalized contingent on the outcome of

pending litigation 23

In Nueces County v. Texas Board of Corrections and

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

20 When citing the distnct court's February 7, 1991 injunctive remedial

order, State Defendants wrongly infer that they alone bore the burden of any

transfers of pmson-ready felons to other county jail facilities. State Defendants

Petmion II at 7; State Defendants’ Petition I at 5

21 State Defendants’ Appendix II at U6-U7, State Defendants’ Appendix

at R6-R?7

-- State Defendants’ Appendix II at U6-U8; State Defendants’ Appendix

at KORE

State Defendants’ Appendix II at U7, State Defendants’ Appendix | at

arguments State Defendants make in the instant petition (and

well as in their first petition), and held that State Defendants had

, duty to accept prison-ready felons under state law or pay for

their upkee> in the county jails Given State Defendants

failure to timely accept their prison-ready felons into the state s

penitentiaries, the state district courts ordered them to take their

prisoners or to reimburse the counties for housing prison-ready

felons. After final judgment had been entered in these state

lawsuits. the State Defendants compelled the county litigants to

settle their lawsuits, thereby precluding state appellate review of

those judgments. In House Rill 93. the State Legislature

essentially codified the state court reimbursement holdings and

adopted the Alberti district court s transfer remedy. Pursuant to

this statute, State Defendants are required to reimburse Texas

sounties for the costs of housing the state's prison ready felons

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

ready felons to other county jail facilities, given ywvercrowded

onditions 25

24 See orders entered in Civil Action No 452 071. County of Nueces

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

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

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

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

Markham, 719 $.W.2d 872, 874-75 (Tex. App -Fort Worth, writ denied

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

1s that the State of Texas farls to meet its obligations to incarcerate convicted

felons because of the state's settlement agreement in the well known Ruwz case

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

operated on the books’ by T DC and appears to meet the state's obligations

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

state budget. The second pnson system is icss visible to the public cye, Dut 'f

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

have been committed to T D C by state courts are forced to languish wn jails of

the vanous counties throughout the state, because of the state's failure to accent

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

house convicted felons who have been committed to TDC for relatively iong

oenods of time ~

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

in Alberti 1, which consisted of several consolidated appeals.7°

In Alberti I, the Fifth Circuit held, inter alia, that State

Defendants could not disclaim responsibility for violations of

Inmate Plaintiffs’ Eighth Amendment rights in the Harris County

Jail facilities by refusing to accept those who were committed by

law to confinement in TDCJ-ID.27 Upon examination of the

record, the Fifth Circuit observed that "[w]je would, by

necessity, affirm a finding that the state was deliberately

indifferent. Indeed, such a finding on this record would be

- Tex. Gov't. Code Ann. §§499.123 & 499.125 (Vernon Supp. 1992)

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

(Alberti 1) (State Defendants’ Appendix II at C; State Defendants’ Appendix I at

A). The consolidated appeals related to County Defendants’ and State

Defendants’ appeals of the district court's September 25, 1989 Findings of Fact

and Conclusions of Law (State Defendants' Appendix II at Y; State

Defendants’ Appendix I at X); County Defendants’ appeal of the district court's

October 23, 1989 order denying their motion to amend or supplement the

September 25, 1989 Findings and Conclusions or for a New Trial (State

Defendants’ Appendix II at X; State Defendants’ Appendix I at W); County

Defendants’ and State Defendants’ appeals of the district court's April 5, 1990,

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

orders (State Defendants’ Appendix II at S$, U, V & W; State Defendants’

Appendix I at P, R, U & V); County Defendants’ appeals of the Ruiz Court's

February 7, 1991 and March 15, 1991 advisory opinions (State Defendants

Appendix Il at R & T; State Defendants' Appendix I at Q & S), State

Defendants’ appeal of the district court's April 22, 1991 and November 19,

1990 remedial orders (State Defendants’ Appendix II at Q; State Defendants’

Appendix I at O & T) and State Defendants’ Petition for Wnt of Mandamus,

Motion to Stay the district court's May 28, 1991 Order and Motion to Stay

and/or Petition for Writ of Prohibition, filed in the Fifth Circuit on or about

March 5, 1991, June 5, 1991 and July 25, 1991. The orders found at State

Defendants’ Appendix II at E-I and J-P and State Defendants’ Appendix | at

D-N were not part of the consolidated appeal decided on July 25, 1991

27 See generally, Alberti 1, 937 F.2d at 985-1004 [State Defendants

Appendix Il at C]}

virtually unassailable."2° The Fifth Circuit, however, found

that “[i]n 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

overcrowding has been ‘ inordinate.'"*? Given this Court's

intervening decision in Wilson v. Seiter, 111 S.Ct. 2321, 115

L.Ed.2d 271 (1991), the Fifth Circuit remanded Alberti J for a

determination of whether the State Defendants and County

Defendants had acted with deliberate indifference.>”

On August 7, 1991, on remand of Alberti I, the district

court issued findings of fact, determining 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

conditions constitutes deliberate indifference as required by

Seiter “31

On October 22, 1991, the Fifth Circuit denied State

Defendants’ Petition for panel rehearing of Alberti 1, finding that

neither House Bill 93 nor the settlement of Harris County v.

State of Texas changed the legal relationship between the state

and counties in such a manner as to require it to reconsider its

earlier opinion or the district court's reimbursements made to

Harris County.>?

28 Alberti 1, 937 F.2d at 1000 [State Defendants’ Appendix II at C26]

29 Id

30 Alberti 1. 937 F.2d 984, 986, 993, 1000 [State Defendants’ Appendix

ll at C1-C2, C13, C-34.]

31 State Defendants’ Appendix II at O

32 See generally, State Defendants Appendix II at D; State Defendants’

Appendix I at B

On January 17, 1992, State Defendants filed a Petition

for Writ of Certiorari relating to Alberti 7, raising substantially

similar (and, in most respects, identical) questions and

arguments which they now seek to reincarnate through State

Defendants’ Petition II. State Defendants also filed a motion to

defer proceedings on their first petition pending the Fifth

Circuit's resolution of appeals relating to the remand of Alberti

] 33

On May 18, 1992, this Court denied State Defendants’

first Petition for Writ of Certiorari, as well as their motion to

defer consideration of State Defendants’ first Petition in

Richards v. Lindsay, 112 §.Ct. 1994 (1992) 34 Accordingly,

this Court found each of State Defendants’ arguments to be ripe

last year when it denied State Defendants’ first Petition for Writ

of Certiorari on the merits

On November 20, 1992, on appeal after remand of

Alberti 1, the Fifth Circuit affirmed the district court's ee

of deliberate indifference in a per curiam opinion in Alberti Il. S

In Alberti II, the Fifth Circuit emphasized that the State

Defendants knew that their refusal to accept prison-ready felons

33 See, State Defendants’ January 17, 1992 “Motion to Defer

Proceedings on Petition for Wnt of Certioran Pending Decision in Alberti \

Sheriff of Harris County v. Richards et al., No. 91-2946, 91-6062, 91-6206,"

which was filed in conjunction with State Defendants’ Petition I (S.Ct. No. 91

1202). {County Defendants’ Appendix M]

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

1991) (Alberti l), cert. denied sub nom., Richards v. Lindsay, ___ U.S

_, 112 $.Ct. 1994, 18 L.Ed.2d 590 (1992)

See Alberti v. Sheriff of Harris County, 978 F.2d 893 (Sth Cir. 1992)

(Alberni Il) (per cunam) [State Defendants’ Appendix II at A]

was causing severe overcrowding in the Harris County jail

facilities, but elected to refuse to accept prison-ready felons to

solve their own overcrowding problems. Citing its Alberti /

opinion, the Fifth Circuit rejected State Defendants’ complaint

that their duty toward prison-ready felons was “uncertain” 36

On the other hand, the Fifth Circuit found that the record

“evidence[d] * 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."~" Given the County's operation of its jail

Over constitutional capacity for some time, the Fifth Circuit

found that the district court's finding of deliberate indifference as

to County Defendants was not clearly erroneous 38 On January

13, 1993, the Fifth Circuit denied State Defendants’ petition for

rehearing and suggestion of rehearing en banc of Alberti I/ 39

On April 12, 1993, State Defendants filed the instant Petition for

Writ of Certiorari

SUMMARY OF THE ARGUMENT

State Defendants request this Court to serve as a

“Super-appellate” court, reviewing well-settled legal principles

and factual findings which have been decided adversely to them

This case should not be reviewed on certiorari because each

issue and argument now advanced by State Defendants was

rejected by this Court last year in Richards v. Lindsay. 112 §.Ct

36 Alberti ll, 978 F.2d at 894-95 [State Defendants Appendix II at A3

A4]

Alberti Il, 978 F.2d at 895 [State Defendants’ Appendix [I at AS]

38 Alberti I], 978 F.2d at 895-96 [State Defendants’ Appendix [I at AS

See [State Defendants’ Appendix II at B]

1994 (1992), because the Fifth Circuit's Alberti I] opinion

affirms factual findings made by the district court and raises no

issues Of national importance, because there are no conflicting

circuit court opinions commanding reconciliation by this Court,

and because State Defendants have failed to present their petition

for certiorari with accuracy in violation of Rule 14.5

REASONS FOR DENYING THE WRIT

THIS COURT DENIED CERTIORARI LAST YEAR

WHEN PRESENTED WITH EACH OF THE ISSUES AND

ARGUMENTS RAISED BY STATE DEFENDANTS IN THE

INSTANT PETITION.

State Defendants inappropriately ask this Court to act as

a “super-appellate” court in reviewing factual findings of

deliberate indifference which were affirmed by the Fifth Circuit

in Alberti IJ. Discretionary jurisdiction is “not conferred upon

this Court merely to give the defeated party in the Circuit Court

of Appeals another hearing."4

Each legal issue presented in State Defendants’ instant

petition was reviewed by this Court last year in conjunction with

Alberti 1, when this Court denied State Defendants’ Petition for

Writ of Certiorari in Richards v. Lindsay, 112 S.Ct. 1994

1992). The instant petition essentially reproduces each issue

and argument found in State Defendants’ first Petition for Writ

»f Certiorari in a blatant attempt to obtain a rehearing of the

denial of their first petition. In so doing, State Defendants

4 Magnum Co. v. Coty, 262 US. 159, 163 (1923); R. Stem, E

Gressman & S Shapiro, SUPREME COURT PRACTICE 190 & n. 8 (6th ed. 1986)

-———™

he Supreme Court is not, and never has been, pmmaniy concerned with

n of errors in lower court decisions.") (citations omitted)

attempt to make an end run around the well established doctrine

favoring the finality of litigation.4!

iI.

THE FIFTH CIRCUIT'S ALBERTI II OPINION

DOES NOT CONFLICT WITH THIS COURT'S

DECISIONS OR WITH THE DECISIONS OF OTHER

UNITED STATES COURTS OF APPEALS DECIDING

THESE SAME OR SIMILAR MATTERS.

State Defendants' Pennhurst and Eleventh Amendment

arguments are neither novel nor substantial, and have been

ewer” addressed previously by this Court in this and other

cases.44 It is well-settled that federal district courts have broad

discretion in imposing injunctive remedial relief with attendant

ancillary costs against state officials when vindicating

constitutional rights. 44 Upon finding that State Defendants

violated Inmate Plaintiffs’ Eighth Amendment rights, the district

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

remedial order to adjudicate the wrong “4

See, eg, $Ct R (rule against successive petitions for

rehearing)

42 State Defendants’ Petition [I regurgitates identical Pennhurst and

Eleventh Amendment claims made last year in their first Petition for Wnt of

Certioran Compare, State Defendants’ Petition II at i, 15-20: State

Defendants’ Petition I at i, 13-18

43 Milliken v. Bradley, 433 U.S. 267, 97 §$ Ct. 2749, 53

(1977); Edebnan v. Jordan, 415 U.S. 651, 668, 94 S$.Ct. 1347, 13 3

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

714 (1908)

44 In Ruiz v. Estelle, the same State Defendants in charge of the Texas

prison system argued that they were enutled to Eleventh Amendment immunity

from suit The Fifth Circuit rejected the State's Eleventh Amendment

ummunity claums, holding that the “Board members are responsible as

TDC

individuals, in the same manner as the Director of 7 for any vidiauion of

State Defendants argue, as they did in their first petition,

that certiorar! should be granted because Alberti conflicts with

the Sixth Circuit's opinion in Kelley v. Metropolitan County

1 &

R — ~¢ a —s

HSOarda ( Pauudc ail

No such conflict exists. Kellev is

patently inapplicable to the factual and legal issues raised in

In Kelley, the Metropolitan County Board of Education

sued state officials seeking recovery of costs previously incurred

n a school desegregation case where the relief sought by the

Plaintifts-<iesegregation--had been fully implemented. In Kelley,

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

officials are not doing anything wrong; they have been joined

solely to permit one sometime constitutional wrongdoer to

recover monetary compensation from another "46 In Alberti,

however, the Inmate Plaintiffs and County Defendants have not

sought the imposition of any monetary damages against the State

Defendants, nor have such damages been assessed.

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

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

currently a participant in any constitutional violation "48 in

onstitubonal mghts caused by their management.” Ruiz v. Estelle, 679 F.2d

Sth Cur.), modified in part on other grounds, 688 F.2d 266 (Sth

cert denied, 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795

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

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

= Kelley, $36 F.2d at 990

. County Defendants’ Appendix at! & J

& Kelicy, 836 F 24 at 995. According to the Sixth Circuit, "[W]e have

scarcnec © recorc of this case in vain for any demonstration that the

A/herti, in contrast. the district court held that State Defendants

were directly and currently causing continuing deprivations of

Inmate Plaintiffs’ Eighth Amendment rights. State Defendants

Kelley argument ignores the fact that the district court found that

State Defendants were present constitutional violators, who had

caused and were continuing to cause the unconstitutionally

overcrowded conditions in the Harris County Jail facilities

through their refusal to accept prison-ready felons into the state's

penitentiary system, ignores the fact that the prison-ready felon

population continued to grow, making it virtually impossible for

the County Defendants to remedy the overcrowding in these

facilities and hence provide constitutional conditions of

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

court gave State Defendants the choice of either limiting the

prison-ready population in the jail facilities or expending the

ancillary costs associated with transferring those in excess of

their cap to other county detention facilities

Since State Defendants are “responsible for prison-read

felons,” Judge Higginbotham easily distinguished Pennhurst

Bush, and Kelley, observing, in part

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

integration of metropolitan Nashville's schools has been wrongfully umpeded

by anything the state has done, or has failed to do, in the 1970s or 1980s. The

mere fact that Tennessee was a constituuonal wrongdoer onor to 1956 does not

mean that it was still a constitutional wrongdoer when the distnct court entered

its order 30 years later * Kelley, 336 F 2d at 993-94

49 See State Defendants Appendix [I at T & Y,; State Defendants

Appendix [at S & X :

established a federal constitutional violation, and

the state is a responsible party. The required

payments are thus “a necessary consequence of

compliance in the future with a substantive

federal question determination.’ . . . Kelley,

cited extensively by the state, is distinguishable--

the order remedying the violation in Kelley ran

Only against the county, and the state was not a

current constitutional violator, yet the county

sought reimbursement from the state for the

costs of the remedial order.>4

Indeed, the Fifth Circuit's Alberti /] and J// opinions

follow three cases "involv[ing] essentially identical situations” as

presented in Alberti, including the Sixth Circuit's Tate v. Frey

decision, the Second Circuit's Benjamin v. Malcolm decision

(wherein certiorari was denied), and the Fifth Circuit's Stewart

v. Winter decision. l There is, therefore, no conflict between

the Fifth and Sixth Circuits, or any other circuit.

50 Alberti 1, 937 F.2d at 1001-02 & nn. 7-8 (citations omitted) [State

Defendants’ Appendix II at C-29; State Defendants’ Appendix I at A34-A35]

(cuing 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, 836 F.2d at 990-94).

Sl Alberti 1, 937 F.2d at 994-97, 1001 (citing Stewart v. Winter, 669

F.2d 328 (Sth Cir. 1982); Benjamin v. Malcolm, 803 F.2d 46 (2d Cir. 1986),

cert. denied sub nom, Cuomo v. Koehler, 480 U.S. 910, 107 S. Ct. 1358, 94

L.Ed.2d 528 (1987); Tate v. Frey, 735 F.2d 986 (6th Cir. 1984) (per curiam))

[State Defendants’ Appendix II at C14-C22, C28-c29; State Defendants’

Appendix I at A19-A22, A34-A35

Il.

THE FIFTH CIRCUIT'S ABSTENTION AND

CERTIFICATION HOLDINGS DO NOT DEPART FROM

THE ACCEPTED AND USUAL COURSE OF JUDICIAL

PROCEEDINGS.

State Defendants’ Petition for Writ of Certiorari simply

renews the same abstention and certification arguments rejected

by the Fifth Circuit in Alberti J, and rejected by this Court when

denying certiorari on State Defendants’ first petition in 1992.

During the Fifth Circuit's consideration of Alberti I,

State Defendants argued that the district court should have

abstained from ordering them to pay for the housing of

prison-ready felons transferred to other Texas county jail

facilities pending the ultimate resolution of the state litigation.»

In each case, the state district court found that State Defendants

have a clear, mandatory, nondiscretionary duty to take and make

provision for prison-ready felons within a reasonable time after

they are sentenced to the state penitentiary or to pay for their

upkeep in Texas county jail facilities.> Thereafter, the parties

Settled the litigation. Given the resolution of these cases, State

Defendants’ argument is moot.

Notwithstanding the mootness of State Defendants’

argument, State Defendants’ abstention and certification

52 See Alberti 1, 937 F.2d at 1002 [State Defendants’ Appendix II at

C30; State Defendants’ Appendix I at A35).

53 See County Defendants’ Appendix at A-H. State Defendants argue

that since they settled these cases before a state appellate court reviewed these

decisions, the state court pronouncement should be given no weight in the

federal proceedings. However, this Court has recognized that tnal court

interpretations constitute a ruling on a question of state law which is binding on

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

2514, 96 L.Ed.2d 398 (1987). Therefore, there was no necessity to abstain

until a state appellate court had an opportunity to rule. Jd

arguments wrongly attempt to elevate matters of discretion to

mandatory requirements. The Fifth Circuit's Alberti opinions

present no departure from settled principles which grant

discretion to the lower courts in deciding whether to postpone or

decline jurisdiction under the abstention doctrine.>4 This Court

has admonished that abstention should only be used in

extraordinary and narrow circumstances where it would clearly

serve an important countervailing interest.>> Abstention is the

exception, not the rule 56 After determining that none of the

abstention theories fit the facts of Alberti, the Fifth Circuit found

that the district court "simply adopted the approach of the only

state court to have decided the issue pending a decision by a

«$7

higher state court

S4 Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 1181, 14

Ed 2d SO (1965). “If the state statute in question, although never interpreted

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

unnecessary or substanually modify the federal constitutional question, it 1s the

duty of the federal court to exercise its properly invoked junsdiction ... Thus,

recognition of the role of state courts as the final expositors of state law

implies no disregard for the pmmacy of the federal judiciary in deciding

questions of federal law ° “ Harman, 85 S.Ct. at 1182 (citations omitted)

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

060, 1063, 3 L.Ed.2d 1163 (1959)

Colorado River Water Conservanon District v. United States, 424

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

57 Alberti 1, 937 F.2d at 1002 [State Defendants’ Appendix II at C30;

State Defendants Appendix I at A35-A36]. While an appeal with a supersedeas

Stays the execuuon of the judgment, it does not, until and unless reversed,

detract from its decisiveness and finality. See e.g., Huron Holding Corp. v

Lincoin Mine Operating Co., 312 U.S. 183, 61 S.Ct. 513, 85 L.Ed. 725

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

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

"Federal abstention presupposes the availability of an

alternative state forum which can afford full and fair relief "9%

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

where delay might significantly impair constitutional rights,

abstention is inappropriate.» State Defendants erroneously

characterize this case as simply a dispute between County

Defendants and State Defendants.” On the contrary, the dispute

resolved by the lower courts’ orders is between the Inmate

Plaintiffs and State Defendants and is based upon federal

constitutional law. In the present case, abstention would have

vitiated Inmate Plaintiffs’ federal constitutional claims against

State Defendants. Furthermore, abstention would have prevented

an adjudication of State Defendants’ liability, leaving County

Defendants strictly liable for State Defendants’ breach of their

federal constitutional duties. To impose a remedy against one

defendant without ascertaining the respective liabilities of all

defendants would have been contrary to established principles of

jurisprudence and would have contravened fundamental concepts

of due process, fairness and justice

State Defendants urge that the district court's injunctive

remedial orders “undermined” House Bill 2335's allocation

formula by “de facto giving Harris County additional beds above

its allocation formula.”®! State Defendants fail to mention

however, that the allocation formula specifically provided for the

dedication of additional beds to counties with overcrowded jails

58 d 100

(quoting, Duncan v. Poythress, 657 F 24 691, 696 n. 5 (Sth Cir. 1981). cert

dism'd, 459 U.S. 1012, 103 S Ct. 5368, 74 L_Ed.2d 504 (1982

—)

} =

()

t 2

Nissan Motor Corp. v Harding, 739 F

s . a _—

59 Nissan Motor Corp 39 F 2d at 1010-11 (citations omitted

60 E.g., State Defendants’ Petition [I at +5, 15, 20: State Defendants

Petition I at 19-20

State Defendants’ Petition [I at 24: State Defendants Petition | at 7!

State Defendants also contend that the orders removed Harris

County's financial burden of supporting inmates sentenced to

State prison in excess of Harris County's allocation.® In Harris

County v. State of Texas, the state district court not only found

that House Bill 2335 and its allocation formula in no way

relieved or excused State Defendants’ financial liability for

prison-ready felons, but also held that State Defendants

cee? used ad valorem tax money collected by

Harris County.”~ Even assuming arguendo, if there were a

complex state regulatory scheme for sentencing and housing

convicted felons, Burford would not require abstention. ©4 No

doctrine requires abstention merely because resolution of a

federal question may result in the overturning of a state

policy.®5

State Defendants argue that, given "the settlement of the

State court lawsuits and the accompanying changes in state law,”

certification may be the most appropriate course now to resolve

any remaining dispute about their duties.°© Certification is not

mandated but is discretionary and provides no basis for this

Court's review. Furthermore, State Defendants cannot seek

certification of their duties under House Bill 93 inasmuch as they

failed to do so in the district court or in the Fifth Circuit.

62 State Defendants’ Petition II at 24; State Defendants’ Petition I at

See, e.g., County Respondent's Appendix G at 53a.

64 New Orleans Public Service v. Council of New Orleans, 491 U.S

350, 109 S.Ct. 2506, 2514, 105 L.Ed.2d 298 (1989) (citing Burford v. Sun Oil

Co., 319 U.S. 315, 63 S.Ct. 1098 (1943))

65 Zablocki v. Redhail, 434 U.S. 374, 98 S.Ct. 673, 678 n. 5, 54

L.Ed.2d 618 (1978)

66 State Defendants’ Petition II at 25.

Finally, State Defendants cannot now ask for the Texas Supreme

Court's determination of issues which would have occurred in

the natural course of the state court litigation (but which State

Defendants deliberately avoided through settlement of those

lawsuits).

IV.

WILSON V. SEITER

This Court should deny State Defendants’ application for

certiorari on the Wilson v. Seiter issue because State Defendants

are presenting the same issue upon which this Court denied

certiorari last year, because State Defendants essentially ask this

Court to serve as a fact-finder and because State Defendants

misstate the record and holdings relating to this issue.

State Defendants ask this Court to redecide factual issues

which were decided adversely to them in the district court and

on appeal in Alberti IJ. This Court is a “court of law . . . rather

than a court for correction of errors in fact finding, [and] cannot

undertake to review concurrent findings of fact by two courts

below in the absence of a very obvious and exceptional showing

of error."©7

State Defendants’ arguments misrepresent the Alberti

record and misstate the lower courts’ holdings. State Defendants

claimed, in their first Petition for Writ of Certiorari, that nothing

in the Alberti record suggested that they knew about the

conditions in the Harris County Jail facilities prior to September,

1989.9 State Defendants now argue that there was no evidence

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

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

68 State Defendants’ Petition | at 23-24

of the culpable mental state required under Wilson v. Seiter.©?

These arguments ignore the fact that State Defendants’ counsel

acknowledged in open court during trial that the conditions of

confinement in the Harris County Jail facilities were

unconstitutional.’2 Without even attempting a foray into the

Alberti testimony and exhibits, including testimony from the

State's witnesses clearly establishing State Defendants’

knowledge of severely overcrowded conditions in the Harris

County jail facilities and concomitant- refusal to accept prison-

ready felons into TDCJ-ID, the Alberti pleadings themselves

reveal that State Defendants knew about the conditions of

confinement faced by the State's prison-ready felons in October,

1988, when the Harris County Sheriff sent letters to State

Defendant James Lynaugh which pleaded for removal from the

jail of the State's convicted felons, and deliberately instituted

policies calculated to backlog prison-ready felons in the Harris

County jails. 71 Thus, under Rhodes v. Chapman, which "turned

on the objective component of an Eighth Amendment claim (was

the deprivation sufficiently serious?), [rather] than the subjective

component (did the officials act with a sufficiently culpable state

«72

of mind?), State Defendants were liable for violations of the

inmate Plaintiffs’ Eighth Amendment rights.

Although State Defendants were admittedly sued in their

Official rather than individual capacities, they argue that their

69 State Defendants’ Petition II at 26

70 See e.g., State Defendants’ Appendix Il at Y17 & Y21

iM See e.g., County Defendants’ Petition I at 20 (including other

citauions)

72 Wilson, 111 S.Ct. at 2324 (citing, Rhodes v. Chapman, 452 U.S

337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981)); Alberti J, 937 F.2d at 998

nn a .

"duties" were not clearly established. 79 State Defendants

misstate the “duties” at issue in Alberti, arguing that they had no

supervisory responsibility over local jails and no duty to inspect

or fix the Harris County Jail facilities.’4 The Alberti record

clearly shows that State Defendants’ liability was not grounded

upon any duty to oversee and "police" the conditions in the

Harris County Jail facilities. Instead, the lower courts found

that State Defendants, who have primary responsibility for

confining convicted felons, could not shed their constitutional

obligations to those felons by choosing to leave their prison-

ready felons in overcrowded county jails.

STATE DEFENDANTS' FAILURE TO

ACCURATELY PRESENT THE LOWER COURTS'

FACTUAL FINDINGS AND LEGAL HOLDINGS

“The failure of a petitioner to present with accuracy,

brevity, and clearness whatever is essential to a ready and

adequate understanding of the points requiring consideration will

be a sufficient reason for denying the Petition." 76 County

Defendants are constrained to catalog the most blatant

73 State Defendants’ Petition II at 26-27. The Fifth Circuit summarily

rejected this argument, finding that the doctnne is applicable only as a defense

to the individual liability of persons. Alberti 1], 978 F.2d at 895 (citation

omitted)

74 State Defendants’ Petition I] at 28 & n. 27

75 Alberti Il, 978 F.2d at 895-96; Alberti 1, 937 F.2d at 994-96, 1001

(citing, Benjamin, 803 F.2d at 46, 51; Tate, 735 F.2d at 986, Stewart, 669

F.2d at 332 [State Defendants’ Appendix Il at C28-C29; State Defendants’

Appendix I at A.]; State Defendants’ Appendix II at Y28-Y29

76 See, S.Ct. R. 14.5

misstatements made by State Defendants made in violation of

this Court's rules

State Defendants state that the Texas Legislature, on

"three occasions, failed to pass bills to compensate Texas

counties for holding convicted felons."77 They failed to note,

however, that these bills never made it to the floor of the

Legislature. 78 State Defendants urge that “state law is explicit

and abundantly clear that the state prison system has a duty to

accept inmates ‘only’ pursuant to former TEX. REV. CIV. STAT.

ANN. art. 6166a-4 ..."7? The statute does not state this

proposition, and the state court has ruled that Article 6166a-4,

the allocation formula, . not change State Defendants’ duties

owed to convicted felons.

State Defendants represent that House Bill 2335's

“primary purpose was to establish a system of financial

incentives and disincentives directed at controlling front-end

population pressures by providing state financing for sentencing

alternatives while at the same time forcing local governments to

fund the cost of their own transfereligible inmates. “81 Neither

House Bill 2335, nor its legislative history, supports the

highlighted portion of this proposition. 82

State Defendants’ Petition II at 10; State Defendants’ Petition I at 6

78 Alberti 1, 937 F.2d at 997-98 n. 5; State Defendants’ Appendix II at

C-22 n. 5; State Defendants’ Appendix I at A27.

79 State Defendants’ Petition ti at 11; State Defendants’ Petition I at 7

(emphasis in Petition).

80 County Defendants’ Appendix I & II at A-H

81 State Defendants’ Petition II at 11-12; State Defendants’ Petition I at 8

emphasis added)

82 See County Defendants’ Appendix at A-H

In support of their arguments, State Defendants cite a

Special Master's report which has not been adopted by the

district court, and which is not properly part of the record in this

Court.83 State Defendants state that they have built or funded a

grand total of 72,849 beds since 1984. These numbers are

misleading, including the gross number of beds “funded” (and

thus not actually existing even today) and including those beds

which were actually taken off-line in accordance with State

Defendants’ “depopulation agreements" made in Ruiz, another

case. They fail to acknowledge that they provided a net increase

of only three prison beds in the state's penitentiary between 1982

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

1982 and 1991

Contrary to State Defendants’ contentions, neither the

legislative history of House Bill 93 nor the settlements of the

State cases indicated that the State was liable for prisoner

transfers only after October 1, 1991 84

State Defendants argue that they should be held to the

standard of “maiicious or sadistic” intent under Wilson v. Seiter

because of Ruiz “requirements” 85 State Defendants fail to note

that capacity requirements were self-imposed by stipulation (and

not by any short-term emergency where prison officials were

required to act “in haste [and] under pressure”), that they have

83 State Defendants’ Petition I] at 12-13 & n. 9: State Defendants

Petition I at 8 & n. 7. State Defendants also cite a transcmpt of remarks which

is not properly before this Court. State Defendants’ Petition II at 13 n. 10 & 16

n. 14; State Defendants’ Petition | at 14

84 Compare, State Defendants’ Petition II at 14-15; State Defendants

Petition I at 10

85 State Defendants’ Petition II at 26-27 n. 26

disregarded open invitations from the Fifth Circuit to seek

modification of their Ruiz cap, and that their previous efforts to

modify that cap included only one attempt in 1986, a year after

they signed their overcrowding stipulation agreement in Ruiz 86

These and other misstatements and inaccuracies require summary

denial of State Defendants’ Petition

CONCLUSION

While every case involving the deprivation of

constitutional rights is important, State Defendants have failed to

establish any special and important reasons for this Court to

grant certiorari in their second attempt in as many years to

obtain this Court's review of the same issues in this case

County Defendants therefore ask this Court to deny State

Defendants’ second Petition for Writ of Certiorari. Pursuant to

)

Rules 49 and $0, County Defendants also ask this Court t

award them the attorneys’ fees and double costs incurred in

responding to State Defendants’ second Petition for Writ of

Sertiorari

Respectfully submitted,

LISA S. RICE

Counsel of Record

HAROLD M. STREICHER

Assistant County Attorneys

Attorneys for County Respondents

MIKE DRISCOLL

Country Attorney

Of Counsel

56 See, Alberti 1, 937 F.2d at 998 & n. 6; Ruiz v. Lynaugh, 811 F.2d

Appendix A

APPENDIX A -- FINDINGS OF FACT AND

CONCLUSIONS OF LAW DATED NOVEMBER 26, 1990

I11& COUNTY OF NUECES v. TEXAS BOARD OF

CORRECTIONS

IN THE DISTRICT COURT

TRAVIS COUNTY, TEXAS

250th JUDICIAL DISTRICT

NO. 452.071

THE COUNTY OF NUECES. TEXAS

Relator

TEXAS BOARD OF CORRECTIONS CHARLES T

TERRELL; JERRY H HODGE; F STEPHEN

HENDRIX

AN B

DERALYN DAVIS; JAMES ELLER; DENNIS R

JOE V. LAMANTIA, JR.; ROBERT MANN: ALI

POLUNSKY; JAMES A. LYNAUGH

. = — .

Ke ‘DO ndaerus

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above captioned cause came on for trial before the

Court without a jury in se

judgment was rendered

Intervenors (the Counties)

October 2-5, 1989 on

defense; on April 30-May

veral proceedings

in favor of

Detendants/Respondents

Partial summary

Plaintiff/Relator and

Evidentiary hearings were held on

impossibility

2, 1990 on Sonstitutes a

wnat

Appendix A

reasonable amount of time after sentencing for the State to take

its prisoners or to begin compensating the Counties and what

constitutes reasonable compensation per prisoner day when the

State does not take the prisoners; and on August 8, 1990 on

whether the amount of time and compensation found to be

reasonable prior to the adoption — of the allocation formula on

March 2, 1990 pursuant to House Bill 2335 was reasonable

thereafter. All parties were present through their attorneys at all

trial proceedings. After considering the pleadings, the evidence,

the argument and briefs from counsel, the Court in response to a

request from the State makes its findings of fact and conclusions

ot law as follows

FINDINGS OF FACT

This cause was commenced by Nueces County seeking a

writ of mandamus to compel the Texas Board of Corrections; the

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

Lynaugh, Executive Director of the Texas Department of

Corrections, to take and to make provision for prisoners

sentenced to confinement in the State penitentiary ("State

prisoners”) who were being held in the county jail (or in the jail

of another entity under contract).

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

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

Lubbock, Tarrant, Travis and Victoria intervened (these counties

together with Nueces County are referred to as “Counties").

3 The Counties demanded that Respondents carry out their

duty to take prisoners within a reasonable time after sentencing

to confinement in the State penitentiary and the Counties’

demands were refused

Appendix A

4 The Counties continue to hold state prisoners in their jails

or in the jails of other entities under contract

5 During the pendency of these proceedings, the Texas

Board of Corrections and the Texas Department of Corrections

were replaced by successors

6 The Texas Board of Criminal Justice is the successor to

the Texas Board of Corrections and the Texas Department of

Criminal Justice is the successor agency to the Texas Department

of Corrections

7 The State prison system is now operated by the

Institutional Division of the Texas Department of Criminal

Justice

8 All the members of the former Board of Corrections were

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

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

Executive Director of the successor agency, the Texas

Department of Criminal Justice

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

Executive Director of the Texas Department of Criminal Justice

and the Director of the Institutional Division of the Texas

Department of Crimina! Justice along with the respective Board,

Department, and Division are Respondents in this action

(Respondents are hereafter jointly referred to as "TDC.”

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

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

Parties to protect their interests

Appendix A

11 The Crowding Stipulation in Ruiz v. Lvynaugh, Civil

Action No. H-78-987 (S.D. Tex.) (hereinafter “Ruiz”) represents

a Settlement agreement entered by the State which, among other

things, limits the State penitentiary inmate population.

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

duty to take State prisoners within a reasonable time after the

prisoners are sentenced to serve a term in the State penitentiary

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

make provision for convicted felons are available to TDC

including: a) contracting with private vendors, local

governmental entities such as counties, or the federal

government; b) use of the Prison Management Act, furtoughs,

and good conduct time to control prison population

administratively; c) seeking reasonable modification of the

crowding stipulation in Ruiz in good faith; and/or d) use of

appropriated funds or seeking additional funds to perform this

nondiscretionary obligation.

14. TDC has not compensated the Counties for holding State

prisoners that TDC should have taken.

15. A demand by the Counties for payment of compensation

from TDC for holding State prisoners would have been futile.

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

be reasonable compensation to the Counties for carrying out the

mandatory duty on which TDC had defaulted.

Appendix A

17 TDC refused to set an amount of reasonable compensation

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

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

without a jury

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

it considered to be a reasonable amount of time after sentencing

for TDC to take its prisoners or to begin compensating the

Counties that are providing for the prisoners because of the

TDC's default

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

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

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

without a jury

20. The reasonable value of the services provided by the

Counties in holding State prisoners that TDC should have taken

is $40.00 per prisoner per day .

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

the reasonable value of services provided in holding State

prisoners would be an incentive to TDC to continue to impose

its mandatory duty by default on the Counties which are

unwilling and unauthorized to accept that duty

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

either take the State prisoners or begin compensating the

Counties who hold the prisoners because of the TDC's default is

seven days

Appendix A

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

State prisoners caused a backlog of State prisoners in the

Counties’ jails or in facilities with which the Counties contracted

and made it futile for the Counties to timely prepare transfer

paperwork and present prisoners to TDC for admission to the

State penitentiary.

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

Scheduled Admissions Policy allocated to the Counties a portion

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

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

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

(Vernon Supp. 1990) allocates to the Counties a portion of the

total capacity available in TDC's prison facilities.

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

to compensate the Counties for the period from September 28,

1987 through February 28, 1990 is as follows:

Bexar 403,750

Collin 77,318

Dallas 848,740

E] Paso 220,367

Galveston . 86,038

Hidalgo 63,013

Hunt 20,717

Appendix A

Lubbock

Nueces

Tarrant

Travis

Victoria

170,987

4,621

27. The aggregate amount of compensation owed by TDC to

the Counties for the period from September 28, 1987 through

February 28, 1990 is as follows:

Bexar

Collin

Dallas

El Paso

Galveston

Hidalgo

Hunt

Lubbock

Nueces

$ 16,150,000

3,092,720

33,949 600

8,814,680

3,441,520

2,520,520

828,680

3,687,920

4ppendix A

Tarrant 15,080,840

Travis 6.839.480

Victoria 184.840

28 The number of prisoner days and amounts of

compensation listed in these findings do not include any

prisoners (a) returned to county jail on bench warrants awaiting

further proceedings, (b) awaiting trial in state court on the

remainder of multiple charges, (c) placed in county jail pursuant

to blue warrants prior to parole revocation proceedings, (d)

being held on federal detainers awaiting trial in federal court,

and (e) pending appeal of sentences of ten years or less who have

not exercised their right to be transferred to the State

penitentiary immediately upon sentencing.

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

day period from sentencing for compensation to accrue are

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

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

following effect: a) detrimentally affected the provision of local

law enforcement services; b) diluted any deterrent effect that

felony convictions might otherwise have on persons on whom

prison terms are imposed by state judges and juries because their

Sentences are not being carried out with reasonable dispatch and

certainty; and c) further eroded public confidence in Texas’

criminal justice system

3] The Counties’ records regarding the number of State

prisoners backlogged and the amount of time such prisoners

were held in county jails and summaries of such records were

Appendix A

examined by TDC's expert auditors from Price Waterhouse, and

the number of prisoner days contained in these findings is

onsistent with the calculations made by Price Waterhouse for

12 A conservative estimate of the cost to TDC if TDC had

taken actual physical custody of the State prisoners involved in

this action is at least between $37.00 and $47.00

per prisoner

per day

43 The Crowding Stipulation which is the consent agreement

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

out therein has been modified on several occasions pursuant to

TDC's good faith requests for modification

34 TDC's request for modification in Ruiz v. Lynaugh, 811

F.2d 856 (Sth Cir. 1987), with regard to use of the Fort Wolters

substandard facilities was not a reasonable request because of the

serious deficiencies in those facilities

35. TDC has taken a proactive role in requesting additional

funds to comply with the agreements and orders in Ruiz v

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

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

State prisoners, TDC has not requested funds to provide for

these State prisoners

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

judicata, collateral estoppel, and issue preciusion defenses do

not reach the issue of TDC’s duty to take State prisoners or to

compensate the Counties for holding State prisoners

10a

Appendix A

38. A proposed amendment to Title 108, Revised Civil

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

Department of Corrections was not required to accept an inmate

if such acceptance would cause the Texas Department of

Corrections to exceed ninety-five percent of its capacity was

rejected by the 71st Legislature.

39. The only documents required under article 42.09 of the

Code of Criminal Procedure prepared after judgment and

sentencing are the standardized felony judgment form and the

Statement of facts form which is required only if the standardized

felony judgment form has not been modified to include citation

to the Penal Code or other provision under which the convicted

felon was sentenced to serve a term in the State penitentiary.

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

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

penitentiary, can be completed in five minutes or less.

41. All other documents provided pursuant to article 42.09 of

the Code of Criminal Procedure including the offense report,

indictment, arrest record, change of venue statement, and

criminal history are prepared prior to judgment and sentencing

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

Code of Criminal Procedure is submitted to TDC prior to

prisoners’ transfer to the Institutional Division of the Texas

Department of Criminal Justice, the paperwork is not reviewed

or officially accepted until the prisoners are actually physically

accepted by TDC at the Diagnostic Unit of the Institutional

Division of the Texas Department of Criminal Justice.

lla

Appendix A

43. Some of the alternatives available to TDC to take and

make provisions for State prisoners are politically unpopular.

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

sometimes amounted to approximately one-fourth of all

convicted felons, was created by TDC's refusal to carry out its

mandatory duty.

CONCLUSIONS OF LAW

This mandamus action is not precluded or otherwise

barred by sovereign immunity.

2 A mandamus action to compel TDC to carry out its

mandatory duty is not a suit against the State.

3. Adequate ie¢iief can be granted in this case without the

joinder of all Texas counties and all State prisoners in county

jails.

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

to take and make provision for State prisoners in the categories

involved in this case within a reasonable time after they are

sentenced to confinement in the State penitentiary.

5. The Counties-having established that TDC has a

mandatory duty to take and make provision for such prisoners

within a reasonable time, that the Counties have demanded that

TDC perform its mandatory duty, and that TDC has refused

their demands — have established the necessary elements for the

granting of a writ of mandamus.

12a

Appendix A

6 The burden of proof to establish impossibility or any other

detense Ww On yi

TDC has not established impossibility or any other

detense to the issuance of a writ of mandamus

& Neither TDC's Scheduled Admissions Policy, — the

Crowding Stipulation, nor any order issued in Ruiz preempts,

modifies or nullifies TDC's State law duty to make provisions

tor the sentenced felons involved in this case nor prohibits the

granting of mandamus

9 The Counties have no adequate remedy at law other than

this mandamus action

10 TDC has authority to plan for prison population pressures

and to carry Out its mandatory duty to take and to make

provision for convicted felons through various means

Means available to TDC to carry out its mandatory duty to

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

transferring funds between fiscal years and appropriations for

various programs administered, supervised and operated by the

Texas Department of Criminal Justice and the Texas Board of

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

or the federal government to care for prisoners sentenced to the

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

Management Act, furloughs, or good conduct time.

l2 The political unpopularity of some of the alternatives

available to TDC to carry out their mandatory duty does not

make it impossible for TDC to utilize these or other alternatives

? nert wweTYr hat 4 **%

‘ wi | sal

13a

Appendix A

13 Counties are authorized to act only pursuant to statutory

or constitutional provisions directly imposing duties on counties

or necessarily implied in order to carry out such constitutionally

or Statutorily imposed duties

14 No statutory or constitutional provisions or other law

transfers to the Counties TDC's mandatory duty to take and to

make provisions for the categories of prisoners involved in this

ase

15 Th¢ has a lear. mandatory. nondis regi mary duty tO

make provisions for the proper care, treatment, feeding

lothing, and management of the prisoners involved in this case

16 Inherent in and integral to TDC's duty to accept and to

make provisions for the care and management of the prisoners

involved in this action is the financial responsibility for the

arrying out of TDC’'s duty

17 TDC's default in performing its duty to make provisions

for the care and management the prisoners in 2d in this

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

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

services provided by the Counties in holding State prisoners that

TDC should have taker

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

mandated by this Court because TDC has tailed to take the

prisoners or to be financially responsibie for them when it has a

clear, mandatory, nondiscretionary duty to do so

l4a

Appendix A

0 A writ of mandamus may issue against TDC to raise

revenue to carry out its mandatory duty even though exactly how

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

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

venus

D1 TDC must seek and obtain or raise the revenues necessary

to carry Out its mandatory duty and to compensate the Counties

when the Counties are required to hold State prisoners because

of TDC's default

An effective judgment and peremptory writ of mandamus

in this action require the inclusion of provisions ordering TD¢

compensate the Counties when they are holding State

prisoners because of TDC's default in carrying out its mandatory

duty to make provisions for such prisoners

action iS a mandamus action is not an action for

damages sounding in contract or tort

- The compensation awarded in this case is incident to this

mandamus action and is not an award of damages

3 Res judicata, collateral estoppel, or issue preclusion do

not bar this action or constitute a defense to the issuance of a

udgment and peremptory writ of mandamus against TDC in this

mandamus action

2¢ here, as in the instant case, a demand for performance

f a mandatory duty would be futile the usual requirement for a

formal demand and refusal may be dispensed with in a

iSa

Appendix A

sew |

TDC's duty to take and make provisions for the categories

Of prisoners involved in this action continues after the adoption

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

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

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

paperwork required to accompany prisoners transferred to the

State penitentiary does not relieve TDC of its mandatory duty to

make provisions for such prisoners within a reasonable time after

their sentencing to terms in the State penitentiary because

preparation and presentation of such paperwork would have been

futile

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

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

or transfer TDC's mandatory duty to the Counties

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

the reasonable value of the services the Conse have provided

in holding State prisoners that TDC should have taken

3] The measure of what constitutes a reasonable time for

TDC to either take the prisoners or compensate the Counties

holding the prisoners because of TDC's default is the amount of

time it would reasonably take to perform the task of preparing

the transfer paperwork and arranging for the transportation of

the prisoners if TDC were accepting the prisoners

32 The paperwork requirements authorized by article 42.09

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

duty to carry out judgments sentencing prisoners to the State

penitentiary but rather create procedural and administrative

16a

Appendix A

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

actually physically transported and transferred to the State

penitentiary

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

that State prisoners are held by the Counties pending parole

revocation hearings, trial on other offenses, appeals of sentences

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

transferred to the State penitentiary immediately upon

sentencing, or dispositions of matters for which such prisoners

are being held at the request of federal law enforcement

authorities.

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

Counties for holding such prisoners continues after March 2,

1990, as well as before that date.

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

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

(Vernon Supp. 1980)

36. TDC is liable for costs of suit.

Signed this 26th day of November, 1990.

s/ Josepn H. Hart

JOSEPH H. HART

Judge Presiding

Travis County, Texas

17a

Appendix B

APPENDIX B — JUDGMENT DATED AUGUST 22, 1990 —

THE COUNTY OF NUECES v. TEXAS BOARD OF

CORRECTIONS

No. 452,071

IN THE DISTRICT COURT, TRAVIS COUNTY, TEXAS

250TH JUDICIAL DISTRICT

THE COUNTY OF NUECES, TEXAS,

Relator,

TEXAS BOARD OF CORRECTIONS; CHARLES T

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

DERALYN DAVIS; JAMES ELLER; DENNIS R. HENDRIX:

JOE V. LAMANTIA, JR.; ROBERT MANN; ALLAN B

POLUNSKY; JAMES A. LYNAUGH,

Respondents

JUDGMENT

The above entitled cause came on for hearing before this

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

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

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

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

appeared through their attorneys, and Respondents, Texas Board

18a

Appendix B

of Criminal Justice (successor to the Texas Board of

Corrections), Charles T. Terrell, Jerry H. Hodge, F. L

Stephens, Ben Gallant, Jr., James Eller, Pedro Diaz, Jr., Mamie

Proctor, Robert Mann, Allan B. Polunsky, members of the

Texas Board of Criminal Justice, James A. Lynaugh, Executive

Director of the Texas Department of Criminal Justice, and James

A. Collins, Director of the Institutional Division of the Texas

Department of Criminal Justice, appeared through their attorney.

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

granted partial summary judgment finding that Respondents had

a mandatory, non-discretionary duty to take custody of prisoners

sentenced by a trial court to the custody of Texas Department of

Corrections ("TDC") or to its successor agency, the Texas

Department of Criminal Justice ("TDCJ").

After presentation of testimony, evidence and argument of

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

found that Respondents had not established legal impossibility o1

any other defense that would prevent issuance of a writ of

mandamus. The Court also found that Respondents must

reasonably compensate Relator and Intervenor Counties (the

"Counties") for holding such prisoners if Respondents failed to

take custody of such prisoners within a reasonable time.

After presentation cof testimony, evidence and argument of

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

what constitutes reasonable compensation and a reasonable time

take prisoners, the Court found that Respondents shall

compensate Relator and Intervenor Counties for holding

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

prisoner sentenced to the custody of the TDC or its successor

agency, TDCJ; and further found that the compensation owed by

19a

Appendix B

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

date of the judgment and sentence of the court ordering

confinement in the TDC or TDCJ. The evidence regarding the

number of days that such prisoners were held in the Counties’

jails after sentencing for the period beginning September 28,

1987 up to and including February 28, 1990 was uncontrovered

by the parties

The Court has further found that Respondents’ adoption

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

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

Supp. 1990) does not alter or shift to the Counties the

Respondents’ duty to take prisoners sentenced to the custody of

the TDC or TDCJ, or to compensate the Counties for holding

such prisoners

After presentation of further testimony, evidence and

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

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

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

allocation formula, the Court found that after the adoption of the

allocation formula Respondents shaljl compensate Relator and

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

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

Successor agency, TDCJ; and further found that the

compensation owed by the Respondents for post allocation

formula periods should begin to accrue seven (7) days after the

date of the judgment; and sentence of the court ordering

confinement in the TDC or TDCJ

ACCORDINGLY, the Court is of the opinion that

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

20a

Appendix B

Writ of Mandamus should be issued to compel Respondents to

perform said duty.

IT IS, THEREFORE, ORDERED:

1. That a preemptory Writ of Mandamus issue

directing and commanding Respondents, Texas Board of

Criminal Justice, Charles T. Terrell, Jerry H. Hodge, F. L.

Stephens, Ben Gallant, James Eller, Mamie Proctor,-Robert

Mann, Allan B. Polunsky, James A. Lynaugh, and James

A. Collins to cause the Texas Department of Criminal

Justice to provide for the care and custody of all prisoners

sentenced by a court of competent jurisdiction to the TDCJ

or to its predecessor, the TDC, or to compensate the

Counties at a rate of Forty Dollars ($40.00) per day for

each such prisoner held in the Counties’ jails (including

prisoners held in facilities with which the Counties have

contracted) and to raise any revenue necessary to pay such

compensation.

2. That Respondents’ duty to provide for the care and

custody of prisoners sentenced to the TDC) or to its

predecessor, TDC, or to pay compensation to the Counties

for holding such prisoners, shall begin seven (7) calendar

days after issuance of judgment sentencing and committing

such prisoners to the TDCJ, or to its predecessor, the TDC.

3. That Respondents shall pay to the Counties the

following amounts as the aggregate amount of compensation

due to each County for all periods beginning September 28,

1987 up to and including February 28, 1990, for holding

prisoners that were Respondents’ responsibility under this

Judgment:

Nueces

Bexar $16,150,000

Collin $ 3,092,720

Dallas $33,949,600 _

El Paso $ 8,814,680

Galveston $ 3,441,520

Hidalgo $ 2,520,520

Hunt $ 828,680

Lubbock $ 3,687,920

Tarrant $ 15,080,840

Travis $ 6,839,480

Victoria $ 184,840

$ 5,730,640

4. That Respondents shall pay to the Counties

compensation in accordance with this Judgment for

prisoners held by the Counties on or after March 1, 1990,

that are the responsibility of Respondents. In computing the

prisoner days for which compensation is owed from

Respondents to the Counties, the Counties shall exclude

days during which prisoners have elected, to the extent

permitted by law, to remain in county jail; and days that

22a

Appendix B

prisoners are confined in county jail awaiting resolution of

other judicial proceedings (e.g., persons on bench warrants

or who are subject to detainer) prior to transfer to the TDCJ

or its predecessor, the TDC

S. That the Counties shall submit invoices to

Respondents for payment of compensation for prisoners

held by the Counties on or after March 1, 1990 (including

prisoners held in facilities with which the Counties have

contracted), for which Respondents are responsible under

this Judgment, to ether with copies of the judgments of

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

that correspond to the prisoners covered by the invoices

6. That the Counties’ invoices for compensation for

the period from and after March 1, 1990 to the date of entry

ot this Judgment, shall be presented to Respondents by each

County by submitting the invoice to the Director of the

Texas Department of Criminal Justice by the last day of the

month following the month in which this Judgment is

entered Thereafter, the Counties’ invoices for

compensation shall be presented by each County to

Respondents by submitting the invoice to the Director of the

Texas Department of Criminal Justice by the last day of the

month following the month in which compensation to the

County accrues under this Judgment.

That the Judgment hereby rendered shall bear

interest in accordance with Tex. Rev. Civ. Stat. Ann. art.

5069-1.05 (Vernon Supp. 1990) at the rate of ten percent

10%) trom the date of judgment until paid.

8. That costs of suit be taxed against Respondents.

23a

Appendix B

[Tl IS FURTHER ORDERED that Respondents shall not by

this Judgment be relieved of carrying out their obligations under

any Other relevant order issued by a court of competent

jurisdiction, including the agreed orders Respondents have

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

however, that Respondents shall not be precluded from seeking

modifications to such orders

[his Judgment should not be considered to contain findings

of facts or conclusions of law

SIGNED this 22nd Day of August, 1990

s/ Joseph H. Hart

JOSEPH H. HART, Judge

126th Judicial District Court

Travis County, Texas

APPROVED AS TO FORM

HONORABLE JIM MATTOX

ATTORNEY GENERAL OF TEXAS

By:

MICHAEL P. HODGE

Assistant Attorney General

Chief, Enforcement Division

State Bar No. 09754000

Texas Attorney General's Oftice

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463-2080

24a

Appendix C

APPENDIX C — PEREMPTORY WRIT OF MANDAMUS

DATED AUGUST 22, 1990 - THE COUNTY OF NUECES v.

TEXAS BOARD OF CORRECTIONS

NO. 452,071

IN THE DISTRICT COURT, TRAVIS COUNTY, TEXAS

250TH JUDICIAL DISTRICT

THE COUNTY OF NUECES, TEXAS,

Relator,

VS.

TEXAS BOARD OF CORRECTIONS; CHARLES T.

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

DERALYN DAVIS; JAMES ELLER; DENNIS R. HENDRIX;

JOE V. LAMANTIA, JR.; ROBERT MANN; ALLAN B.

POLUNSKY; JAMES A. LYNAUGH,

Respondents.

PEREMPTORY WRIT OF MANDAMUS

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

granted partial summary judgment in the above numbered and

styled cause finding the Respondents, Texas Board of Criminal

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

Gallant, Jr., James Eller, Pedro Diaz, Jr., Mamie Proctor,

Robert Mann, Allan B. Polunsky, James A. Lynaugh, and James

A. Collins have a mandatory, nondiscretionary duty to take

25a

Appendix C

custody of inmates sentenced by a trial court to the custody of

Texas Department of Corrections or its successor agency Texas

Department of Criminal Justice.

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

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

Court further found that Respondents had not established legal

impossibility or any of the defenses that would preclude issuance

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

reimburse the Relator Nueces County, Texas and Intervenors

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

Lubbock, Tarrant, Travis, and Victoria Counties, Texas

("Counties") by paying them reasonable compensation in the

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

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

The compensation should begin to accrue seven days after

the date of the judgment and sentence of the court ordering

confinement in the Texas Department of Corrections, or the

successor agency, the Texas Department of Criminal Justice.

Respondents have a duty to take all actions necessary to

obtain funds required to pay such amounts of compensation.

The Counties have demanded that Respondents perform

their duty to take inmates and Respondents have unjustly refused

and still refuse to take or make provisions for the inmates.

Respondents show by their acts of refusal to perform the

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

Counties to issue formal demands for compensation and this

Court dispenses with the need for a formal demand and refusal.

26a

Appendix C

The Respondents’ failure to fulfill their duty as outlined

above has resulted in manifest injury to the Counties.

Therefore, this Court commands Respondents to provide

for the care and custody of all prisoners sentenced by a court of

competent jurisdiction to the Texas Department of Crimina’

Justice or its predecessor the Texas Department of Corrections,

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

such prisoner held in the Counties’ jails (including prisoners

held in facilities with which the Counties have contracted) after

seven days from the date of judgment and sentence.

This Court further commands Respondents to pay to the

Counties the aggregate amount of compensation at the rate of

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

including February 28, 1990, for holding prisoners (including

prisoners held in facilities with which the Counties have

contracted) that Respondents failed to provide for under

Respondents’ duty to provide for the care and custody of all

persons sentenced by a court of competent jurisdiction to the

Texas Department of Criminal Justice or its predecessor the

Texas Department of Corrections and to continue paying

amounts that become due until such time as Respondents carry

out their duty as outlined above. The aggregate amounts due

each County are:

Nueces $ 5,730,640

Bexar $ 16,150,000

Collin $ 3,092,720

Dallas $33,949 600

Appendix C

El Paso $ 8,814,680

Galveston $ 3,441,520

Hidalgo $ 2,520,520

Hunt $ 828,680

Lubbock $ 3,687,920

Tarrant $ 15,080,840

Travis $ 6,839,480

~ Victoria $ 184,840

Further, this Court commands Respondents to take all

action necessary to obtain funds to pay reasonable compensation

You are hereby further commanded to make return to this

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

County Courthouse, stating how you have executed or what you

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

this writ.

Signed this 22nd day of August, 1990

s/ Joseph H. Hart

Joseph H. Hart, Judge

126th Judicial District Court

Travis County, Texas

28a

Appendix D

APPENDIX D — LETTER DECISION DATED MAY 31,

1990 -- THE COUNTY OF NUECES v. TEXAS BOARD OF

CORRECTIONS

SEAL OF THE STATE OF TEXAS

JOSEPH H. HART

District Judge

126th Judicial District Court

P.O. BOX 1748

AUSTIN, TEXAS 78767

May 31, 1990

Ms. Ann Clarke Snell °

BICKERSTAFF, HEATH & SMILEY

San Jacinto Center +

Suite 1800 -

98 San Jacinto Blvd.

Austin, Texas 78701-4039

Mr. Carlos Valdez

County Attorney

Nueces County Courthouse

901 Leopard, Room 206

Corpus Christi, Texas 78401-3680

29a

Appendix D

Mr. Robert Ozer

Assistant Attorney General

Chief, Class Action Section

Mr. John Worley

Assistant Attorney General

Enforcement Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

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

Board of Corrections, et al

Dear Counsel:

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

counties had proven all elements necessary for the issuance of a

writ of mandamus to take prisoners committed to TDC and that

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

a mandamus would also issue requiring TDC to reimburse the

counties the reasonable amounts for the care, treatment, feeding,

clothing and management of the inmates that the State should

have taken and to raise the revenues required to pay such

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

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

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

statutorily required allocation formula had not yet taken effect,

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

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

effective, and the question is now ripe for decision.

The question remaining in the November 21, 1989 letter

was whether prisoners which were not taken by the state because

of the formula could be considered as “committed to the county

30a

Appendix D

jails by lawful authority" [Local Gov't Code Ann. 351.041(a)

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

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

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

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

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

1990)] and the allocation formula cannot be read to require the

counties to pay for the prisoners which have been committed to

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

take by default.

I have outlined below generally the reasons for my

decision. Again, this letter should not be considered findings of

fact or conclusions of law nor is it intended to preclude other

findings or conclusions not expressed in the letter.

The statutes by which prisoners are sentenced to TDC are

clear and unambiguous. They clearly provide that individuals

convicted of felonies “shall be punished by confinement” in TDC

and that TDC shall transport the prisoners to the state

penitentiary. Tex. Penal Code Ann. 12.31-12.34 (Vernon

1988): Tex. Crim. Proc. Code Ann. art. 42.09 (Vernon 1988);

Tex. Rev. Civ. Stat. Ann. art. 6166r (Vernon Supp. 1989).

On the other hand, article 6466a-4, on which the state

relies, is ambiguous at best. Insofar as the responsibility for

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

formula which “allocates. . .to each county. . . the number of

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

sufficient capacity is available.” It neither expressly relieves the

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

that duty on the counties. Only by inference can such an

interpretation be reached. If article 6166a-4 is interpreted as

31a

Appendix D

TDC requests, however, this ambiguous statute will have the

following effects:

5 H.B. 2335 which places the "primary responsibility” for

the confinement, supervision and rehabilitation of felons on the

Texas Department of Criminal Justice will be rendered

meaningless. Act of June 15, 1989, Ch. 785, art. 1, 1.02, 1989

Tex. Sess. Law Serv. 3471 (Vernon) (H.B. 2335).

2. The statutes cited above which unambiguously require that

TDC confine felons will, in effect, be repealed

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

TDC will be meaningless.

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

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

Texas Constitution. Conversely, the State will be relieved of

duties clearly placed on it by statute.

5. The taxpayers of the affected counties will have to

Shoulder a tremendous financial burden which under the

unambiguous statutes should be borne by the whole state.

Governor Clements has stated:

It is totally wrong to house state prisoners in

county jails.

Convicted felons should serve their sentences

behind prison walls—not in crowded county

jails at local taxpayer expense.

32a

Appendix D

Clements, Message from the Governor, 1

Texas Criminal Justice Intelligence, No. 3

(June/July 1988). (Emphasis added)

Even according to the state's figures based on incremental

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

are several times higher.

Had the legislature wished to have such a profound effect

on the criminal justice system and the taxpayers of the affected

counties, it could have done so with clear, unambiguous

language. For example, one part of H.B. 2335 explicitly allows

"a period of detention in a county jail” for convicted felons.

Tex. Crim. Proc. Code Ann. art. 42.12, 12 (Vernon Supp.

1990).

Furthermore, as mentioned in the letter decision of

November 21, 1989, an attempt was made to enact a statute to

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

relieve it from financial responsibility. A proposed amendment

to article 6166a-3 would have stated specifically that TDC was

"not required to accept an inmate for confinement if accepting

will cause the department to exceed 95°0 of its capacity... ".

The legislature failed to pass the proposed amendment; I will not

by judicial construction perform an act which the legislature

itself rejected.

The defendant is asking that I manufacture from the

ambiguously worded article 6166a4 precisely what the legislature

failed to enact. The statutes clearly placing the responsibility on

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

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

Civ. App.-Amarillo 1930) aff'd 144 S.W. 2d 885 (Tex.

33a

Appendix D

Comm'n App. 1940, opinion adopted). The repeal of clear, long

standing statutes should not arise by implication. Sutherland,

Statutory Construction, 23.10 (4th Ed. 1984).

I hold, therefore, that article 6166a4 does not relieve the

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

the counties. The addition of the allocation formula does nothing

more than control the administrative process of allocating

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

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

the counties continues after March 2, 1990.

Thank you

Very truly yours,

S/ Joseph H. Hart

JOSEPH H. HART

Judge, 126th District Court

Travis County, Texas

34a

Appendix E

APPENDIX E — LETTER DECISION DATED NOVEMBER

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

CORRECTIONS

SEAL OF THE STATE OF TEXAS

JOSEPH H. HART

District Judge

126th Judicial District Court

P.O. BOX 1748

AUSTIN, TEXAS 78767

November 21, 1989

Ms. Ann Clarke Snell

BICKERSTAFF, HEATH & SMILEY

San Jacinto Center

Suite 1800

98 San Jacinto Blvd.

Austin, Texas 787014039

Mr. Carlos Valdez

County Attorney

Nueces County Courthouse

901 Leopard, Room 206

Corpus Christi, Texas 78401-3680

35a

Appendix E

Mr. Robert Ozer

Assistant Attorney General

Chief, Class Action Section

Mr. John Worley

Assistant Attorney General

Enforcement Division

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

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

Board of Corrections, et al

Dear Counsel

Based on the evidence, authorities and briefs submitted

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

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

letter should not be considered formal facts or conclusions of

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

which may support the decision.

Question Presented

The ultimate question involved in this case is whether or

not 4 mandamus should issue either to compel TDC to take

convicted felons being housed by the counties or to pay for the

costs of care and maintenance of such felons, or both.

1. “TDC” will be used to refer to the respondents Texas Board of

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

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

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

intervening counties will be referred to as “Counties.”

36a

Appendix E

Elements

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

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

inmates, the Counties must have demanded that TDC perform

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

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

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

discretionary duty to take the inmates:

l The Penal Code states that individuals convicted of

felonies “shall be punished by confinement in the Texas

Department of Corrections” for various periods. Tex. Penal

Code Ann. 12.31-12.34 (Vernon 1988) (Emphasis added).

2 Under the Code of. Criminal Procedure a convicted felon

must be transferred to TDC, under certain ascertainable

conditions, when his sentence is pronounced. Tex. Crim. Proc.

Code Ann. art. 42.09 (Vernon 1988); Ex Parte Rodriguez, 597

S.W. 2d 771 (Tex. Crim. App. 1980).

3 Article 6166r states that the “director [of TDC] shall make

Suitable provisions . . . for the safe transportation of prisoners

from counties where sentenced fo the State penitentiary. ... “

Tex. Rev. Civ Stat. Ann. art 6166r (Vernon Supp. 1989).

(Emphasis a‘tded)

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

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

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

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

(Emphasis added)

374

Appendix E

I have also ruled that the Counties have demanded that

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

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

satisfied the elements for the granting of a mandamus

Mootness

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

this case has been rendered moot. I have previously overruled

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

were the removal of the word “speedy” as a modifier of

“transportation” from art. 6166r and the requirement that a

formula should be developed in the future for allocating

admissions from the counties to the TDC until a sufficient

Capacity 1s available

The removal of the word “speedy” results only in the

implication of a “reasonable” time in which to perform the

transportation. Sutherland, Statutory Construction, 55.03 (4th

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

devised or implemented; its impact on TDC's responsibilities

after it does take effect is not ripe for decision. The questiou of

TDC's past and current duties prior to the implementation of the

allocation formula is before me and is not moot

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

from the obligation to confine TDC ready pnsoners. Had the legislature wanted

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

proposed amendment to art 6166a-3 “relating to duty of the state to house

felons” stated that the “Texas Department of Corrections 1s not required to

accept an inmate for confinement in the department if accepting will cause the

38a

Appendix E

Impossibility

The remaining question, and that addressed in the hearing

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

by TDC that were ready for transfer from the counties is

impossible. This was an affirmative defense expressly raised by

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

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

l. Burden of Proof

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

burden of proving impossibility would be on TDC. TDC

proceeded at the trial on the question as though it did have the

burden. TDC has now cited King v. Guerra, 1 S.W. 2d 373

(Tex. Civ. App. -San Antonio 1927, writ ref'd), for the

proposition that the party seeking a mandamus has the burden to

negative every fact that would have authorized defendant to

refuse to take action. I do not believe that King, if it is still the

law, applies to this case. King involved the denial by the Board

of Commissioners of San Antonio of an application for the

issuance of a permit authorizing the relator to construct and

department to exceed 95% of its capacity ...." That amendment was deleted. If

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

intent was not expressed in any enacted legislation and must be inferred. There

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

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

public statutes of long standing. If legislators are to make such fundamental

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

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

by umplication. Sutherland, at § 23.10.

39a

Appendix E

operate an undertaking establishment. In reaching its decision,

the board had to weigh various factors involving the public

health and welfare. The only question involved was "the validity

of the discretionary act." Id. at 377 (Emphasis added). The

essence of the ruling on burden of proof was that the board did

not have the burden of proving the existence of the various

factors it considered in denying the application. The matters in

question were not actually affirmative defenses. Here, on- the

other hand, there is no discretion involved in determining the

duty to take the prisioners. Prisoners have been convicted of

crimes which require TDC to take charge of them. The

affirmative defense has been raised that it is impossible to take

them.

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

in the following authorities:

55 C.J.S. "Mandamus" 325 (1948):

“The burden of proof is on respondent to prove matters set

up in defense...."

53 Am. Jur. 2d "Mandamus" 466 (1970):

"Where, however, the right and the duty appear, the

burden of proving matter set up by way of excuse for failure to

act, or of justifying such failure to act, rests upon the respondent

or defendant. And if the petitioner makes out a prima facie case

for the issuance of the writ, the burden of refuting it is on the

respondent."

One author on the subject has summarized the law as

follows:

40a

Appendix E

"The conduct of the trial in mandamus differs in no

respect from the trial of any civil action, the burden of proof

being governed by the general rule that the party holding the

affirmative of the issue must establish his allegations by 4

preponderance of the evidence. The burden of establishing a

clear legal right to the relief sought is therefore primarily on

relator. [MJatter in avoidance alleged in the return, if denied by

relator, must be proved by respondent.

"Following the general rule, affirmative averments in the

answer, as fraud, are upon respondent to prove.” Ferris, The

Law of Extraordinary Legal Remedies, 304-306 (1926).

Texas cases more in point than King have followed the

position in the authorities set out above. In City of Beaumont v.

Stephenson, 107 S.W. 2d 915, 917 (Tex. Civ. App.~—Beaumont

1937, writ dism'd) a mandamus was sought against the city to

require it to pay a draft. The city alleged that relator did not

show that the city had available funds sufficient to pay the draft.

The Court held that "this point was one of defense to be pleaded

and supported by proof by [respondents].”

In Simpson v. Williams Rural High School District, 153

S.W. 2d 852, 855 (Tex. Civ. App.—Amarillo 1941, writ ref'd) a

mandamus was sought to order the school board to sign and affix

the corporate seal of the school district to bonds to allow

payment on interest coupons. The obligation represented by the

interest coupons was valid. Respondent sought to defeat the

mandamus based on fraud and false representations. The Court

placed the burden of proof of affirmative defenses on

respondent:

4la

Appendix E

In order for the appellees to defeat appellant's suit

because of false representations, it was necessary

for them to show that the appellant or his agent

made representations which were false, were as to

material facts, were made with the intent and design

to induce appellees to refund the interest coupons

and that such representations were relied upon by

them. The testimony wholely fails to establish the

elements constituting fraud based on_ false

representations.

Like the fraud in Simpson, impossibility is also an

affirmative defense for which I hold respondent has the burden

of proof.

a Proof of impossibility

The question remaining is whether or not respondent has

met its burden and proven impossibility. I hold that it has not.

I have already held that the Crowding Stipulation in Ruiz

v. Lynaugh, Civil Action No. H-78-987 (S.D. Tex.), which

requires a 95°% population cap in TDC does not in itself make

compliance with a writ of mandamus an impossibility. Other

than a modification of the Crowding Stipulation, there are

various measures that could be taken by TDC to take the

prisioners from the counties. I do not believe that a

preponderance of the evidence indicates that these other

measures cannot be used. While each alone may not allow TDC

to take all the prisioners from the counties, that does not mean

that in combination all or part of the prisoners could not be

removed from the county jails. Such other methods include

42a

Appendix E

contracting with private vendors, the federal government, and

local governments and greater use of the Prison Management

Act, [Tex. Rev. Civ. Stat. Ann. art 61840 (Vernon Supp.

1984)], furloughs, and good time.

Some of the measures would be costly; some are perceived

to be politically unpopular. These factors, however, do not make

the carrying out of TDC's mandatory duty impossible. Funds

appear to be available within the existing appropriation bill,

pursuant to several riders, including riders 8, 45, 56 and 57.

Further, statutory authority exists for contracting with counties

and private vendors and with the federal government. Texas

Gov't. Code Ann. §§ 494.001, 494.021 and § 494.022.

(Vernon Supp. 1989).

TDC has argued that the counties could make greater use

of diversionary programs called for in H.B. 2335. However, the

possible use of the diversionary programs at the local level does

not relieve TDC of any duty to take the prisioners nor does it

create an impossibility.

I find, therefore, that TDC has not met its burden of

showing impossibility.

Mandamus to Take

All elements for the issuance of a mandamus having been

proven by the counties, and TDC having failed to prove by a

preponderance of the evidence that it would be impossible to

take the prisoners, the mandamus will issue requiring TDC to

take the state ready prisoners within a reasonable time. As I have

held previously, while there may be some limited flexibility as to

43a

Appendix E

when prisoners are to be accepted, I hold that Texas statutes do

not vest discretion in TDC to delay accepting state-ready inmates

on the basis of relative overcrowding at state and local facilities.

Ayres v. Coughlin, 72 N.Y. 2d 346, 530 N.E. 2d 373, 533

N.Y.S. 2d 849 (1988). That is, the fact of overcrowding will not

be considered relevant to the question of what is a reasonable

time to receive prisoners.

Mandamus to Reimburse or Pay

The Counties have also sought a mandamus for TDC to

pay or reimburse them for the costs of housing prisoners that are

TDC ready. As held above, TDC does have an obligation to take

the prisioners. Therefore, normally the prisoners would be

transported to and confined in TDC. Tex. Penal Code Ann.

12.31-12.34; Texas Crim. Proc. Code Ann. art. 42.09; art.

6166r.

Had TDC met its statutory obligations and confined the

felons in TDC, then the financial burden would clearly be on

TDC. Article 6166g provides that the Texas Board of

Corrections and the directcr:

shall be responsible for... the proper care,

treatment, feeding, clothing and management of the

prisoners confined therein.

Tex. Rev. Civ. Stat. Ann. art. 6166g (Vernon 1970).

Questions have previously arisen as to whether or not

prisoners who are in the legal, but not physical custody of TDC,

Similar to the situation in this case, could be considered

"confined therein" within the meaning of article 6166g. Attorney

444

Appendix E

General opinions have discussed the comparative responsibility

between counties and TDC in such situations, for example, for

medical costs where a TDC prisoner was in a county jail

awaiting hearing on a violation of parole conditions [Tex. Att'y

Gen. Op. No. JM-743(1987)] or in the county jail from TDC on

a bench warrant [Tex. Att'y Gen. Op. No. JM-730 (1987)]. The

Attorney General considered article 6166g along with article

104.002(a) [Tex. Crim. Proc. Code Ann. art. 104.002(a)

(Vernon 1988)] which states that a county is liable for expenses

incurred in the safe keeping of prisoners confined in the county

jail. He concluded that “confined therein" meant the physical

presence of the prisoner in TDC was necessary before TDC,

rather than the counties, would be liable for the prisoners’

expenses.»

However, Opinion Nos. JM-730 and JM-743 must be

construed in light of art. $116 (Vernon 1987) [now Tex. Local

Gov't Code Ann. § 351.041(a) (Vernon 1988)], as was done in

Att'y Gen. Op. No. JM-615 (1987). Article 5116 states that the

sheriff shall safely keep in jail “all prisoners committed thereto

by lawful authority, subject to the order of the proper court... "

(Emphasis added). In other words, as long as TDC prisoners are

committed to a county jail under lawful authority, the county is

responsible for their care, even though they may be in the legal

3. Article 6166g has been changed and is now art. 492.001(a) of the

Government Code. The phrase “prisoners confined therein” has been dropped

and replaced by “inmates.” A question could arise, therefore, as to whether it

is still necessary that prisoners be physically confined in TDC for TDC to be

responsible for their care. I will interpret the phrase “prisoners confined

therein” to be synonymous with the word “inmates” for purposes of this

decision.

45a

Appendix E

custody of TDC. In the situations described in Opinion Nos.

JM-615, JM-730 and JM-743, TDC prisoners were required to

be in the county jails by law (thereby complying with art. 5116):

therefore, the counties were liable for expenses for care of the

prisoners under art. 104.002 of the Code of Criminal Procedure.

Here, however, the situation is completely different. The

prisoners have been committed to the custody of TDC by the

trial courts. They are in the county jails not under lawful

authority, such as under a bench warrant or for a parole

violation hearing, but by default. The admissions policy used by

TDC violates its statutory duty to take prisoners and, therefore,

can not be considered lawful authority. The question is,

therefore, as follows: Can TDC merely by defaulting on its

obligations and by refusing to take the prisoners (so that they are

not physically “confined therein") shift the burden and cost of

housing and caring for the TDC-ready prisoners to the taxpayers

of the counties where those prisoners are being housed (although

not “under lawful authority")?

I hold that it cannot and that responsibility for the proper

care, treatment, feeding, clothing and management of the TDC-

ready prisoners is on the state, not the Counties.4

4. Under art. 5115.1, § 11 (Vernon 1987) [Now Tex. Gov't. Code

Ann. § 511.012 (Vernon 1989)] and Attorney General Opinion MW-398

(1981) the Commission on Jail Standards can require a county to accept

prisoners from another county's jail that does not comply with minimum jail

standards. The statute requires that the county of the non-complying jail bear

the costs of transportation and maintenance of the prisoners. It is interesting

that the state is willing to require non complying counties to reimburse other

counties who cover for their deficiencies while the state is not itself willing to

46a

Appendix E

Where a county incurs costs as a result of performing the

public obligation of another public entity, the other entity may,

be required to reimburse the performing county. Orange County

v. Cow Bayou Canal Co., 143 S.W. 963 (Tex. Civ. App.--

Galveston 1912, no writ). The primary responsibility for

confinement of felons is expressly placed on TDC. H.B. 2335,

art. 1, § 1.02(a). Where a governmental body refuses to

appropriate or pay when it has the clear, statutory duty to do so,

payment may be mandated by the district court. Vondy v.

Commissioners of Uvalde County, 620 S.W. 2d 104 (Tex. 1981)

(mandamus against County Commissioners to set a reasonable

salary for the constable).> Where an amount is owed that is not

fixed, the county still may be mandamused to calculate a

reasonable amount, even if it may require an additional decision

by the respondent as to what is reasonable. Jd. at 109.

Where the funds to pay may not be available, a mandamus

may issue against a governmental authority to “raise revenue"

even though exactly how the revenue is to be raised may be left

up to the authority and even though the authority may have to

look to third parties as a source for the revenue. Hawthorne v.

do the same when counties cover for the state's own non-compliance with

federal standards.

5. Another basis for the holding in Vondy was the inherent power of

the court to protect and preserve the proper administration of the judicial

system. This ground is arguably present here, as judicially ordered sentences

could not be carned out without means to incarcerate as required by law, i.e.

without confinement in TDC. I do not base my decision on the inherent power

of the judiciary, however.

47a

Appendix E

La-Man Constructors, Inc., 672 S.W. 2d 255 (Tex. App.—

Beaumont 1984, no writ). In addition, a mandamus may issue to

pay an amount owed if and when funds are lawfully available or

when the voters approve an appropriate tax levy. Coulson v.

Harris County MUD No. 29, 678 S.W. 2d 726 (Tex. App.--

Houston [14 Dist] 1984, writ ref'd n.r.e.). Courts may dispense

with a formal demand for payment and refusal where the

respondent shows, as it does here, that such a demand would be

futile, see, e.g., City of Austin v. Cahill, 99 Tex. 172, 88 S.W.

542, 545 (1905) or where the respondent has neglected and

refused to perform its ministerial duty, as TDC has done in

refusing to take the prisoners. Lake L. B. J. MUD v. Coulson,

771 S.W. 2d 145, 156 (Tex. App.—Austin 1988), aff'd in part

and rev'd in part on other grounds, 32 Tex. Sup. Ct. J. 442,

447 (June 10, 1989) (The Supreme Court affirmed the holding of

the Court of Appeals that the Texas Water Code does not

authorize the issuance of a mandamus to collect a judgment debt

created by the same judgment.)

An interpretation of article 6166g [now Government Code

§ 492.001(a)] that the TDC could refuse to be financially

responsible whenever it wished and for whatever reason so long

as the inmates were not physically confined in TDC would

render § 492.001(a) and TDC's duty to care for inmates

meaningless. Cf. Vondy, 620 S.W. 2d at 109.

Therefore, I hold, that a mandamus will issue requiring

TDC to pay the reasonable costs that the Counties have incurred

in the care, treatment, feeding, clothing and management of the

inmates, and to raise the revenue to pay such costs.

48a

Appendix E

I do not decide at this point what amount should be paid

(Vondy) or from what sources such funds should come

(Hawthorne). The determination of the amount of the reasonable

costs will initially be left to TDC. I urge TDC and the Counties

to confer together to resolve this issue. The source of the funds,

is a decision to be made by TDC.

A holding that TDC is financially responsible does not

mean that it is relieved of the statutory duty to house TDC-ready

prisoners. It means only that if by default TDC refuses to do so

and the counties shoulder the responsibility where TDC has

failed, then the counties must be reimbursed.

Conclusion

I would like to conclude this letter decision with a passage

from a recent opinion by Justice Keltner in Tarrant County

Commissioner's Court, et al. v. Markham, No. 2-89-097-CV

(Tex. App.--Ft. Worth, September 28, 1989, n.w.h.) (not yet

reported). While the opinion deals with Tarrant County jail

overcrowding, the following passage is otherwise completely

applicable to this case:

All the parties admit that [the counties’ jails] are

over-crowded. Much of this blame is due to the

failure of the State of Texas to meet its obligations

to house inmates who have been committed to the

Texas Department of Corrections (T.D.C.) by the

order of state courts. See Tex. Code Crim. Proc.

Ann. art. 42.09 (Vernon Supp. 1989).

49a

Appendix E

The sad truth is that the State of Texas fails to meet

its obligations to incarcerate convicted felons

because of the state's settlement agreement in the

well-known Ruiz v. Estelle, 679 F.2d 1115 (5th Cir.

1982). By its settlement, the State of Texas made

several agreements regarding the incarceration of

inmates, including an agreement to limit the inmate

population incarcerated in T.D.C. In order to meet

its obligations under the Ruiz settlement, the state

has adopted a policy of refusing to accept inmates

from county jails, committed to T.D.C., as is the

State's obligation under law.

The unhappy result is that there are two prison

Systems in Texas. One is operated "on the books”

by T.D.C. and appears to meet the state's

obligations under Ruiz. This prison system is

financed by the State of Texas out of the state

budget. The second Texas prison system is less

visible to the public eye; but it exists in increasingly

overcrowded county jails. In this system, inmates

who have been committed to T.D.C. by state

courts, are forced to languish in jails of the various

counties throughout the state, because of the state's

failure to accept the inmates committed to T.D.C.

As a result, this second system is not financed out

of the state's budget. Instead, these inmates

committed to the T.D.C. are incarcerated at the cost

of the various counties throughout Texas.

The costs of these efforts are being borne by. . .

County taxpayers for a function which is properly

that of the State of Texas.

50a

Appendix E

This holding is not (as suggested by TDC) an attempt by

the court to substitute jts own plan for dealing with prison over-

crowding for the plan of the Legislature adopted in H.B. 2335.

It is purely a determination that under the statutes as they

now exist TDC has not been relieved of its responsibility to take

felons committed to its custody. If the Legislature wishes to

relieve TDC of that responsiblity, perhaps it may do so, but it

must do so expressly. Until that time, TDC must comply with its

obligation to take the prisoners or reimburse counties for

housing and caring for them on its behalf.

This decision does not reach the question of the effect of

the allocation formula on TDC's duty to take the prisoners or

reimburse the Counties. The allocation formula required under

art. 6166a4 has not yet taken effect; therefore, the question is

not before me. Will TDC's refusal to take prisoners from

Counties pursuant to the statutorily mandated formula mean that

the prisoners will be "committed" to the county jails "by lawful

authority."? If so, will TDC then be relieved of its financial

obligations under the reasoning expressed-in Attorney General

Opinion Nos. JM-615, 730 and 743? These, and possibly other

questions are not now ripe for decision and will not be reached

until they are.

I request that counsel for the Counties prepare a draft of a

judgment in line with this decision and submit it to me for

signature after approval as to form by opposing counsel.

Thank you.

JHH/jw

Sla

Appendix E

Very truly yours,

s/ Joseph H. Hart

JOSEPH H. HART

Judge, 126th District Court

Travis County, Texas

cc: Mr John Dickson

Travis County District Clerk

§2a

Appendix F

APPENDIX F — LETTER DECISION DATED AUGUST 24,

1989 — THE COUNTY OF NUECES v. TEXAS BOARD OF

CORRECTIONS

SEAL OF THE STATE OF TEXAS

JOSEPH H. HART

District Judge

126th Judicial District Court

P.O. BOX 1748

AUSTIN, TEXAS 78767

August 24, 1989

Mr. Carlos Valdez

County Attorney

Nueces County Courthouse

901 Leopard, Room 206

Corpus Christi, Texas 78401-3680

Mr. Robert Ozer

Assistant Attorney General

Chief, Class Action Section

Enforcement Division

P.Q. Box 12548, Capitol Station

Austin, Texas 78711-2548

S3a

Appendix F

Mr. Steve Bickerstaff

Ms. Anne Clark Snell

BICKERSTAFF, HEATH & SMILEY

San Jacinto Center

Suite 1800

98 San Jacinto Blvd

Austin, Texas 78701-4039

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

Board of Corrections, et al

Dear Counsel:

I have decided that the suggestion of mootness filed by

defendant should be denied. I request that Mr. Valdez prepare a

draft of an order in line with this decision and submit it to me

for signature after approval as to form by other counsel.

As things now stand, we will proceed with the hearing on

October 2, 1989 at 9:00 a.m. on the question of impossibility.

Please try to stipulate to as many uncontested facts as possible so

as to reduce unnecessary in-court testimony. Also, please let us

know your current estimates of length of time for the hearing.

Thank you

54a

Appendix F

Very truly yours,

s/ Joseph H. Hart

JOSEPH H. HART

Judge, 126th District Court

Travis County, Texas

JHH/jw

Mr. John Dickson

Travis County District Clerk

we ee

55a

Appendix G

APPENDIX G — FINAL JUDGMENT FILED AUGUST 2,

1991 - HARRIS COUNTY v. THE STATE OF TEXAS

No. 475,468

IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS

126TH JUDICIAL DISTRICT

HARRIS COUNTY, TEXAS

Plaintiff/Relator

VS.

THE STATE OF TEXAS; ANN RICHARDS, GOVERNOR OF

THE STATE OF TEXAS; TEXAS DEPARTMENT OF

CRIMINAL JUSTICE; JAMES LYNAUGH, DIRECTOR;

TEXAS BOARD OF CRIMINAL JUSTICE; CHARLES T.

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

GALLANT. JR.; JAMES ELLER; MAIME MOORE

PROCTOR: ROBERT MANN; AND ALLAN B. POLUNSKY;,

AS MEMBERS OF THE TEXAS BOARD OF CRIMINAL

JUSTICE

Defendants/Respondents

FINAL JUDGMENT

BE IT REMEMBERED that on the 20th day of May,

1991, the above entitled and numbered cause came on for

hearing before this Court, and Plaintiff/Relator Harris County

S6a

Appendix G

appeared by and through its attorney of record, and I[ntervenor

Montgomery County appeared by and through its attorney of

record, and Defendants/Respondents The State of Texas; Ann

Richards, Governor of the State of Texas; Texas Department of

Criminal Justice; James Lynaugh, Director; Texas Board of

Criminal Justice; Charles T. Terrell; Jerry H. Hodge; F. L.

Stephens; Ben Gallant, Jr.; James Eller; Maime Moore Proctor;

Robert Mann; and Allan B. Polunsky; as members of the Texas

Board of Criminal Justice, appeared by and through their

attorneys of record

By an order signed April 25, 1991, this Honorable Court

granted partial summary judgment in favor of Plaintiff/Relator

Harris County, and Intervenor Montgomery County against

Detendants/Respondents, finding and holding that

Detendants/Respondents were and are liable to Plaintiff/Relator

and Intervenor for the cost of caring for, housing, incarcerating

and transporting TDC ready convicted felons both in the past

and in the future; and that Defendants/Respondents non-

discretionary, mandatory and ministerial duty to house, care for,

incarcerate and transport such convicted felons was not and is

not in any way relieved or excused or in any way imposed upon

any other entity by virtue of House Bill 2335 and/or Article

6166a4, V.A.C.S., and/or the allocation formula, 37 TAC

152.3, nor were Defendants/Respondents in any way excused

from financial liability and responsibility for such convicted

felons, nor was such financial liability and responsibility

imposed upon any other entity; and that by virtue of its

scheduled admissions policy and allocation formula the

Defendants/Respondents have enjoyed the use and benefit of ad

valorem tax money collected by Harris County and Montgomery

County by using such ad valorem tax money to carry out

Defendants/Respondents non-discretionary, mandatory and

Appendix G

ministerial duties in violation of the Constitution of the State of

Texas; and that by doing so Defendants/Respondents have

deprived Plaintiff/Relator Harris County and Intervenor

Montgomery County of the use of their ad valorem tax revenues

for county purposes; and that Plaintiff/Relator Harris County and

Intervenor Montgomery County are entitled to a writ of

mandamus ordering the Defendants/Respondents to reimburse

and compensate Harris County and Montgomery County for

carrying Out Defendants/Respondents mandatory,

non-discretionary and ministerial duties and responsibilities by

housing, caring for, incarcerating and transporting convicted

felons both in the past and in the future.

The issue of liability having been determined by the

court's summary judgment of April 25, 1991 as aforesaid, on the

20th day of May, 1991, a jury having been previously

demanded, and a jury consisting of twelve good and lawful

jurors having been duly impaneled, the case proceeded to trial on

the issue of damages.

At the conclusion of the evidence, the court submitted the

case to the jury on questions. The jury did retire to deliberate its

verdict. and returned into open court the following verdict and

answers to the following questions.

"STATE PRISONER” means prisoners sentenced to

the state penitentiary.

"PRISONER DAY” means each day or a part of a

day that a state prisoner is held in a county jail, but

does not include days spent in a county jail by a

state prisoner who (1) is returned to county jail on a

bench warrant and is awaiting further proceedings,

58a

Appendix G

(2) is awaiting trial in state court on the remainder

of multiple charges; (3) is awaiting a_ parole

revocation hearing; (4) is being held on federal

detainers awaiting trial in federal court; and (5) is

awaiting a pending appeal of a sentence of ten years

or less and who has not exercised his or her right to

be transferred to the state penitentiary immediately

upon sentencing

QUESTION NO. I

For each state prisoner, how many prisoner days

after sentencing would be reasonable for the state to

accept State prisoners?

In answering this question, you may consider only

the following elements and none others.

a. The reasonable amount of time after sentencing

that it would take the counties to prepare the paper

work required for transfer to the state, if the state

were not restricting admissions of state prisoners.

b. The reasonable amount of time that it would take

to arrange for transportation of such prisoners to the

state, if the state were not restricting admissions of

State prisoners

Answer by indicating the number of days for each

county

Answer

59a

Appendix G

HARRIS COUNTY 5 days

MONTGOMERY COUNTY 7 days

QUESTION NO

Between September 28, 1987 and April 30, 1991,

how many prisoner days, if any, did the counties

hold state prisoners?

Do not include in your answer the time you have

found in answer to question number one to be

reasonable for the state to accept state prisoners

Answer by giving the total number of prisoner days,

if any, for each county

Answer

HARRIS COUNTY 2,310,214 days

MONTGOMERY COUNTY 65,256 days

QUESTION NO. 3

What is the reasonable value per prisoner day, if

any, of the services provided by the counties in

holding state prisoners?

Answer in dollars and cents, if any, for each

county.

60a

Appendix G

Answer

HARRIS COUNTY $21.34

MONTGOMERY COUNTY $17.31

Thereafter, said verdict was duly received in open court

and ordered filed, and the Court being of the opinion that

judgment herein should be rendered in accordance with its

summary judgment of April 25, 1991 and the aforesaid verdict

of the jury, it is the opinion of this court that judgment should be

rendered in favor of Plaintiff/Relator Harris County and

Intervenor Montgomery County and that a writ of mandamus

should be issued to compel Defendants/Respondents to perform

their nondiscretionary, mandatory and ministerial duty, it is

therefore

ORDERED, ADJUDGED and DECREED:

1. That a pre-emptory writ of mandamus issue directing

and commanding Defendants/Respondents The State of Texas;

Ann Richards, Governor of the State of Texas; Texas

Department of Criminal Justice; James Lynaugh, Director;

Texas Board of Criminal Justice; Charles T. Terrell; Jerry H.

Hodge; F. L. Stephens; Ben Gallant, Jr.; James Eller; Maime

Moore Proctor; Robert Mann; and Allan B. Polunsky; as

members of the Texas Board of Criminal Justice to cause the

Texas Department of Criminal Justice to provide for the care and

custody of all prisoners sentenced by a court of competent

jurisdiction to the Institutional Division of the Texas Department

of Criminal Justice or to its predecessor, the Texas Department

of Corrections, or to compensate Plaintiff/Relator Harris County

at a rate of $21.34 per day and Intervenor Montgomery County

6la

Appendix G

at a rate of $17.31 per day for each such prisoner held in Harris

County's or Montgomery County's jails and to raise any revenue

necessary to pay such compensation.

2. That Defendants/Respondents’ duty to provide for the

care and custody of prisoners sentenced to the Institutional

Division of the Texas Department of Criminal Justice or to its

predecessor, the Texas Department of Corrections, or to pay

compensation to Harris County and Montgomery County for

holding such prisoners shall begin five calendar days after

issuance of judgment sentencing and committing such prisoners

to the Texas Department of Criminal 3ustice, or to its

predecessor the Texas Department of Corrections in Harris

County, and seven days after issuance of such judgment in

Montgomery County.

3. That Defendants/Respondents shall pay to Harris

County $49,299,966.76 and to Montgomery County

$1.129.581.36 as the aggregate amount of compensation due to

Harris County and Montgomery County for the period beginning

September 28, 1987 up to and including April 30, 1991 for

holding prisoners that were Defendants/Respondents'

responsibility under this judgment.

4. That Defendants/Respondents shall pay to Harris

County and Montgomery County compensation in accordance

with this judgment for prisoners held by each county on or after

May l, 1991 that are the responsibility of

Defendants/Respondents. In computing the prisoner days for

which compensation is owed from Defendants/Respondents to

Harris County and Montgomery County, the county shall

exclude days spent in the county jail by a prisoner who (1) Is

returned to county jail on a bench warrant and is awaiting

(Da

Appendix G

further proceedings, (2) 1s awanting trial in state court on the

remainder of multiple charges: (4) is) awaiting a= parole

revocation hearing: (4) is being held on. federal detainers

awarting trial in federal court; and (5) ts awaiting a pending

ippeal of a sentence of ten years or less and who has not

exercised his or her right to be transferred to the state

tentiary immediately upon sentencing

a Harris County and Montgomery shall submit

nvoices ti Detendants/Respondents for payment of

‘OMpensation for prisoners held by the counties on or after May

11 ‘

199 tor which Defendants/Respondents are responsible

under this judgment

6 That Harms County's and Montgornery County's

nvoices for compensation for the period from and after May 1,

991 to the date of entry of this judgment shall be presented to

Detendants’Respondents by each county by submitting the

invoice to the Director of the Texas Department of Criminal

Justice by the last day of the month following the month in

which this judgment is entered. Thereafter, the counties’

nvoices for compensation shall be presented by each county to

Defendants/Respondents by submitting the invoice to the

Director of the Texas Department of Criminal Justice by the last

day of the month following the month in which compensation to

the county accrues under this judgment.

That a constructive trust is hereby imposed on all

tunds now and hereafter found, deposited and/or on deposit in

tne State treasury for the purposes of satisfying this judgment

and reimbursing Harris County and Montgomery County for

ng, caring for, imcarcerating and transporting state

isoners Doth in the past and in the future.

+ th A , b ro .

Pha he iudegrr er herehy ndered ai | eal

idgment interest in accordance with Tex Rev. Civ. Stat. Ann

art S969 | 5 f Jernon Supp 1999) at th > rat . ()F, - ~r no

date of judgment until paid

9 That the judgment herehy rend red shall bear pr

indgment interest in ac erordance with [ex Re J f 1, Stat Anr art

- f lad ‘ c favs c ’ . 7

659-1 05 (Vernon Supp. 1990) at the rate of 10°o from June 6

1990 through the clate the iudgment iS signed

10 That all costs of court be taxed = against

Defendants/Respondents

ft is further ORDERED that Defendants Respondents shai

not by this judgment be relieved of carrying out thei

under any other relevant order issued by a court of competent

jurisdiction, including the agreed orders Defendants/Respondents

have entered into in Ruiz v. Lynaugh, No. 78-087-CA, provicea

_ ] = > yo —_

however, that Defendants/Respondents shail ne 2 precluded

from seeking modifications to such orders

SIGNED this 2nd day of August, 1991

¢ cann arr

> Joseoh A fads

JOSEPH H. HART

JUDGE, 126TH JUDICIAL

DISTRICT COURT

TRAVIS COUNTY. TEXAS

64a

Appendix G

APPROVED AND ENTRY REQUESTED:

MIKE DRISCOLL

Harris County Attorney

By Frank Sanders

FRANK SANDERS, SBN 17588500

Assistant County Attorney

1001 Preston, Suite 634

Houston, Texas 77002

(713) 221-7961

Fax # (713) 225-8924

ATTORNEYS FOR PLAINTIFF/RELATOR

HARRIS COUNTY, TEXAS

D. C. JIM DOZIER

Montgomery County Attorney

By Steve McKeithen

STEVE McKEITHEN, SBN 13700550

Assistant County Attorney

301 North Main St., Suite 300

Conroe, Texas 77301

(409) 539-7828

ATTORNEYS FOR INTERVENOR

MONTGOMERY COUNTY, TEXAS

65a

Appendix H

APPENDIX H — PEREMPTORY WRIT OF MANDAMUS

FILED AUGUST 2, 1991 -- HARRIS COUNTY v. THE STATE

OF TEXAS

IN THE DISTRICT COURT OF TRAVIS COUNTY, TEXAS

126TH JUDICIAL DISTRICT

NO. 475,468

HARRIS COUNTY, TEXAS

Plaintiff/Relator

THE STATE OF TEXAS; ANN RICHARDS, GOVERNOR OF

THE STATE OF TEXAS; TEXAS DEPARTMENT OF

CRIMINAL JUSTICE; JAMES LYNAUGH, DIRECTOR;

TEXAS BOARD OF CRIMINAL JUSTICE; CHARLES T.

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

GALLANT, JR.; JAMES ELLER; MAIME MOORE

PROCTOR; ROBERT MANN; AND ALLAN B. POLUNSKY;

AS MEMBERS OF THE TEXAS BOARD OF CRIMINAL

JUSTICE

Defendants/Respondents

PEREMPTORY WRIT OF MANDAMUS

On April 25, 1991, this Court granted partial summary

judgment in the above numbered and styled cause finding the

66a

Appendix H

Respondents, The State of Texas; Ann Richards, Governor of

the State of Texas, Texas Department of Criminal Justice; James

Lynaugh, Director; Texas Board of Criminal Justice; Charles T.

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

Eller; Maime Moore Proctor; Robert Mann; and Allan B.

Polunsky; as members of the Texas Board of Criminal Justice

have a ministerial, mandatory, nondiscretionary duty to take

custody of inmates sentenced by a trial court to the custody of

Texas Department of Corrections or its successor agency Texas

Department of Criminal Justice.

This Court further found that Respondents had not

established legal impossibility or any of the defenses that would

preclude issuance of a writ of mandamus and that pursuant to a

jury verdict returned May 30, 1991, Respondents have a duty to

reimburse the Relator Harris County, Texas and the Intervenor

Montgomery County, Texas ("Counties") by paying reasonable

compensation in the amount of $21.34 as to Harris County and

$17.31 as to Montgomery County per day for the care,

treatment, feeding, clothing and management of the inmates that

the State should have taken. The compensation should begin to

accrue five days in the case of Harris County and accrue seven

days in the case of Montgomery County after the date of the

judgment and sentence of the court ordering confinement in the

Texas Department of Criminal Justice. Respondents have a duty

to take all actions necessary to obtain funds required to pay such

amounts of compensation.

The Counties have demanded that Respondents perform

their duty to take inmates and Respondents have unjustly refused

and still refuse to take or make provisions for the inmates.

67a

Appendix H

Respondents show by their acts of refusal to perform the

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

Counties to issue formal demands for compensation and this

Court dispenses with the need for a formal demand and refusal.

The Respondents’ failure to fulfill their duty as outlined

above has resulted in manifest injury to the Counties.

Therefore, this Court commands Respondents to provide

for the care and custody of all prisoners sentenced by a court of

competent jurisdiction to the Texas Department of Criminal

Justice or its predecessor the Texas Department of Corrections,

or to compensate the Counties at-the rate of $21.34 as to Harris

County and $17.31 as to Montgomery County per day for each

such prisoner held in the Counties’ jails after five days from the

date of judgment and sentence in the case of Harris County and

after seven days from the date of judgment and sentence in the

case of Montgomery County.

This Court further commands Respondents to pay to the

Counties the aggregate amount of compensation at the rate of

$21.34 per day as to Harris County and $17.31 per day as to

Montgomery County which has accrued for all periods up to and

including April 30, 1991, for holding prisoners that Respondents

failed to provide for under Respondents’ duty to provide for the

care and custody of all persons sentenced by a court of

competent jurisdiction to the Texas Department of Criminal

Justice or its predecessor the Texas Department of Corrections

and to continue paying amounts that become due until such time

as Respondents carry out their duty as outlined above. The

aggregate amounts due each County are:

HR ]

Harris $49 990 066 76

$1,129. 581.46

ver, this Court commands Respondents to take all

You are hereby further commanded to make return to this

ore this Court on November 4. 1991 at the Travis

County Courthouse, stating how you have executed or what you

n compliance to this writ and have you then and there

IGNED this 2nd dav of Aupust. 1991

s Joseph H. Hart

JOSEPH H. HART, JUDGI

6th Judicial District Court

Travis County. Texas

WILLIAM P. CLEMENTS; JAMES LYNAUGH, CH ARLES

T. TERRELL: BEN J. GALLANT, ALLAN BRUC

APPENDIX I

Appendix |

SUPPLEMENTAL COMPLAINT DATED

SEPTEMBER 15, 1989 — ALBERTI v. JOHNNY

KLE VENHAGEN

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO H-72- 1094

LAWRENCE R. ALBERTI, ET Al

JOHNNY KLEVENHAGEN, ET AL

and

POLUNSKY: JAMES M. ELLER; F. L RYyY

STEPHENS; MAMIE MOORE PROCTOR ROBERT MA

JERRY H. HODGES; HENRY B. KEENE. Rl BEN

TORRES, CHRIS A. MEALY, WINONA W MILES, JA

H. GRANBERRY, WENDELL A. ODOM AND THE STATE

OF TEXAS

70a

Appendix I

SUPPLEMENTAL COMPLAINT

LAWRENCE R. ALBERTI, et al., and the class composed of all

persons in the Harris County who are under the custodianship of

the Harris County Sheriff, respectfully allege as follows

ADDITIONAL DEFENDANTS

WILLIAM P. CLEMENTS is the Governor of the State of

Texas. He is sued in his official capacity

JAMES LYNAUGH is the Director of the Texas

Department of Corrections. He is sued in his official capacity.

CHARLES T. TERRELL is of the Texas Board of

Criminal Justice. He is sued in his official capacity.

BEN GALLANT is a board member on the Texas Board

of Criminal Justice. He is sued in his official capacity.

MAMIE MOORE PROCTOR is a board member of the

Texas Board of Criminal Justice. He is sued in his official

capacity.

ALLAN BRUCE POLUNSKY is a board member on the

Texas Board of Criminal Justice. He is sued in his official

capacity.

JAMES M. ELLER is a board member of the Texas

Board of Criminal Justice. He is sued in his official capacity.

Appendix |

F. L. "STEVE" STEPHENS is a board member of the

Texas Board of Criminal Justice. He is sued in his official

capacity

ROBERT MANN is a board member of the Texas Board

of Criminal Justice. He is sued in his official capacity

JERRY H. HODGES is a board member of the Texas

Board of Criminal Justice. He is sued in his official capacity.

HENRY B. KEENE is the Chairman of the Texas Board

of Pardons and Paroles. He is sued in his official capacity.

RUBEN M. TORRES is the Vice Chairman of the Texas

Board of Pardons and Paroles. He is sued in his official capacity.

CHRIS A. MEALY is a board member of the Texas

Board of Pardons and Paroles. He is sued in his official capacity.

WINONA W. MILES is a board member of the Texas

Board of Pardons and Paroles. He is sued in his official capacity.

JAMES H. GRANBERRY is a board member of the

Texas Board of Pardons and Paroles. He is sued in his official

capacity.

WENDELL A. ODOM is a board member of the Texas

Board of Pardons and Paroles. He is sued in his official capacity

THE STATE OF TEXAS is a sovereign state with

ultimate responsibility for the care and custody of convicted

felons.

lida

Appendix |

JURISDICTION

The Court has continuing jurisdiction over this matter and

the County of Defendants by virtue of the Consent Judgment

entered in this civil action on February 4, 1975. Additionally the

Court has jurisdiction over the State of Texas Defendants by

virtue of 42 U.S.C. § 1983, 28 U.S.C. §§ 1331 and 1343, and

the All Writs Act, 28 U.S.C. § 1651.

III.

EVENTS OCCURRING SINCE ENTRY OF THE CONSENT

JUDGMENT

On February 4, 1975, Plaintiffs and the County

Defendants executed and the Court approved a Consent

Judgment, whereby the County Defendants agreed to reduce the

overcrowding in the Harris County Jail. Through this consent

Judgment and a December 16, 1975, Memorandum and Opinion,

Alberti v. Klevenhagen, 406 F. Supp. 649 (S.D. Tex. 1975), the

Court retained jurisdiction to enter any interim orders necessary

to effectuate compliance with the Consent Judgment and has

monitored such compliance, entering other remedial orders.

On April 28, 1987, the Court appointed a Special Master

and two Monitors ("the Monitors") to oversee the County

Defendants’ compliance efforts. Alberti v. Klevenhagen, 660 F.

Supp. 605 (S.D. Tex. 1987). On December 17, 1987, the Court

entered an Order which directed the Monitors to assess the

overcrowding problem in the Jail. On September 12, 1988, the

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Appendix |

Monitors filed their Findings of Fact and Recommendations,

determining that:

The Jail is dangerously overcrowded. All systems

are impossibly stressed, including food service,

programming, elevators, recreation, classification,

maintenance, visiting, supplies of clothing and

bedding, security, medical care and mental health

services. So far these stressed systems have not

broken down completely under the population

pressures, but the Monitors believe that there is no

elasticity left in the institution and its service

systems.

The Monitors have recommended (Monitors'

Recommendations on Population April 11, 1989) that the Court,

within 30 days from entry of the order impose a maximum

capacity on the Harris County jail is an overall population of

7,000 inmates with no more than 1,000 housed in the Detention

Center; within 90 days of the entry of the Courts’ Order,

reducing the total inmate population to 6,400, with no more than

900 being housed in the Detention Center; within 180 days, of

the entry of the Courts’ Order, reducing the total population of

Harris County facilities to 5,800, with no more than 810 being

housed in the Detention Center; within 270 days, reduce the total

inmate population of Harris County facilities to 5,200, with no

more than 810 being housed in the Detention Center; with

completion of the new jail, or in any case no later than June 1,

1991, the defendant must reduce the population of all of their

facilities to 100 percent of their design capacity of 8,732 (3,505

for the Jail, 810 for the Detention Center, 417 for the 301

Building; 4,000 for the new jail) by June 1, 1991. Moreover in

open Court on September 13, 1989, at a hearing where

Appendix |

constitutionality was at issue, the Attorney General of Texas

appearing on behalf of the State of Texas judicially conceded that

the living conditions at the Harris County Jail including

overcrowding are so egregious as to be in violation of the United

States Constitution. Likewise on September 12, 1989, in open

Court at the same hearing, the County Attorney appearing on

behalf of Defendant Klevenhagen conceded that the living

conditions at the Harris County Jail including overcrowding are

sO egregious as to be in violation of the United States

Constitution

INVOLVEMENT OF THE STATE DEFENDANTS

Despite its statutory

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