# Opposition Brief — Richards v. Alberti > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2332%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1993 - **Citation:** 509 U.S. 905 ## Text 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 i 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. ii 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 iv 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 LT 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 vi 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— 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 6 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 7 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" 8 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 9 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 it 18 County Defendants’ Appendix I & J 19 State Defendants’ Appendix II at Y4, Y! Y21 & Y22; State Defendants’ Appendix I at X4, X17 X22 10 ( 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 23 State Defendants’ Appendix II at U7, State Defendants’ Appendix | at 1] 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 24 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 ~ 12 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]} 13 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) 38 See Alberti v. Sheriff of Harris County, 978 F.2d 893 (Sth Cir. 1992) (Alberni Il) (per cunam) [State Defendants’ Appendix II at A] 1 5 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] 16 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 I. 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) 17 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 4] LA = 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 q 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-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 5 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 21 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) 23 "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 LA © —) A } = () 4 Oo Qo he 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 61 State Defendants’ Petition [I at 24: State Defendants Petition | at 7! 24 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. 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 26 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 . 27 "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. V. 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 ee 28 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 77 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 29 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 30 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 la 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 S 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). 7 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 34 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 4a 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 6a 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 7a 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 Qa 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 rp 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 y 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. ee 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 r 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 ah damages sounding in contract or tort 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 em 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 . On Necessary to oht anal funds © 1) wreason ible compensation 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. 79 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 73a 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 4a 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 IV INVOLVEMENT OF THE STATE DEFENDANTS Despite its statutory responsibility to accept convicted felons into its facilities, TEX. CODE CRIM. PROC. ANN. art. 42.09; TEX. PENAL CODE §§ 12.32 - 12.34; Todd v. State, 598 F.2d 286, 292 (Tex. Crim. App. 1980), the State of Texas by and through its officials has refused to accept its prisoners presently incarcerated in the Harris County Jail. William Clements, Governor of the State of Texas, is empowered to invoke the Prison Management Act by “certify[ing] that an emergency overcrowding situation exists, and ... order{ing] the director [of TDC] to credit not more than 90 days of administrative good time to all eligible inmates." TEX. REV. CIV. STAT. ANN. art. 61840. He has, however, taken no steps to invoke the Act and alleviate TDC's overcrowding, which in turn would reduce the numbers held in the Harris County Jail. 75a Appendix I James Lynaugh, Director of the Texas Department of Corrections; Charles T. Terrell, of the Texas Board of Criminal Justice; Ben J. Gallant; Allan Bruce Polunsky, James M. Eller, F. L. "Steve" Stephens, Mamie Moore Proctor, Robert Mann and Jerry H. Hodges, Board Members on the Texas Board of Criminal Justice, are vested with the exclusive management and control of TDC. TEX. REV. CIV. STAT. ANN. art. 6166q. Furthermore, these individuals, acting in their official capacities, are responsible for “mak{ing] suitable provisions and regulations for the safe and speedy transportation of prisoners from counties where sentenced to the State penitentiary by the sheriffs of such respective counties if such sheriffs are willing to perform such services . ." TEX. REV. CIV. STAT ANN art. 6166r Henry B. Keene, Chairman of the Texas Board of Pardons and Paroles, Ruben M. Torres, Chris A. Mealy, Winona W Miles, James H. Granberry, Wendell A. Odom, Board Members on the Texas Board of Pardons and Paroles are vested with the exclusive authority to administer the provisions of the Adult Probation, Parole, and Mandatory Supervision Law, Tex. Crim. Proc. Ann. art. 42.12 and to determine which prisoners shall be paroled from TDC, the conditions of their parole and mandatory supervision including the degree and intensity of supervision a prisoner released on parole or released to mandatory supervision should receive. Although a substantial number of persons currently incarcerated in the Harris County Jail are convicted felons who are eligible for parole, their paroles are being delayed because of the lack of prompt processing by the Texas Board of Pardons and Paroles. 76a Appendix | Convicted felony jail inmates are denied the same consideration for good time and trustee time as inmates transterred to the penitentiary (Institutional Division). Inmates in jail are not given credit for good time presented through the Prison Management Act. Jail inmates who are jail trustees are not awarded additional trustee time credits that they would earn if they had been transferred to the penitentiary. Awarding good time and trustee time based upon whether a person is sent by the Sheriff to the penitentiary (Institutional Division) is an unreasonable classification and constitutes a violation of the equal protection clause of the fourteenth amendment. V CONSTITUTIONAL BASIS The foregoing actions by the Rule 19 defendants have cause plaintiffs to suffer deprivations of the rights secure by the fourteenth amendment (due process and equal protection) and the eighth amendment (cruel and unusual punishment) and their participation is necessary to achieve complete relief. WHEREFORE, Plaintiffs pray that the above-named State officials be cited to appear and that upon final hearing of this matter, the Court entered such Orders as are appropriate to eliminate the unconstitutional conditions that exist at the Harris County Jail facilities and to effectuate full compliance with the Consent Judgment entered by this Court on February 4, 1975. Plaintiffs further pray for such other and further relief, including reasonable attorneys fees and costs, to which Plaintiffs may show themselves justly entitled T7a Appendix | Respectfully submitted, s/ James T. Oitzinger JAMES T. OITZINGER Fed. Adm. No. 6298 1932 Wroxton Houston, Texas 77005 (713) 524-4237 ATTORNEY IN CHARGE FOR PLAINTIFFS STUART M. NELKIN Fed. Adm. No. 4089 P.O. Box 25303 5417 Chaucer Houston, Texas 77265 (713) 526-4500 CO-COUNSEL FOR PLAINTIFF s/ Gerald M. Birnberg GERALD M. BIRNBERG By James Ojitzinger, with permission Admissions 1.D. No. 2120 6671 Southwest Freeway, Suite 303 Houston, Texas 77074 (713) 981-9595 CO-COUNSEL FOR PLAINTIFF 78a Appendix | CERTIFICATE OF SERVICE I hereby certify that on the 15th day of September, 1989, a true and correct copy of the foregoing Plaintiffs’ Supplemental Complaint was served upon the following counsel of record by Hand Delivery in the courtroom of Judge James DeAnda: Mr. Harold Streicher Assistant County Attorney 1001 Preston, Suite 634 Houston, Texas 77002 Mr. Roderick Lawrence Assistant County Attorney 1001 Preston, Suite 634 Houston, Texas 77002 Ms. Lisa Rice Assistant County Attorney 1001 Preston, Suite 634 Houston, Texas 77002 Mr. Robert Ozer Assistant Attorney General Supreme Court Building P.Q. Box 12548 Capitol Station Austin, Texas 78711 s/ James T. Oitzinger JAMES T. OITZINGER WILLIAM P. CLEMENTS; JAMES LYNAUGH; CHARLES TERRELL: DERALYN R. DAVIS; JOSEPH V. LAMANTIA: ALLAN BRUCE POLUNSKY; JAMES M. ELLER: F.L. "STEVE" STEPHENS, DENNIS R. HENDRIX; ROBERT MANN: JERRY H. HODGES (each in his or her : # 79a Appendix J APPENDIX J — THIRD PARTY COMPLAINT FILED JANUARY 13, 1989 — ALBERTI v. SHERIFF OF HARRIS COUNTY (WITHOUT EXHIBITS) IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION CIVIL ACTION NO. 72-H-1094 LAWRENCE R. ALBERTI, ET AL., Plaintiffs vs THE SHERIFF OF HARRIS COUNTY, ET AL., VS. official capacity). THE SHERIFF OF HARRIS COUNTY, TEXAS, and HARRIS COUNTY, TEXAS, by and through its COMMISSIONERS COURT, DEFENDANTS and THIRD PARTY PLAINTIFFS THIRD PARTY COMPLAINT 80a Appendix J ~ herein, complaining of William F. Clements, Governor of the State of Texas; James Lynaugh, Director of the Texas Department of Corrections; Charles T. Terrell, Chairman of the Texas Board of Corrections; Deralyn R. Davis, Joseph V Lamantia, Allan Bruce Polunsky, James M. Eller, F.L. “Steve” Stephens, Dennis R. Hendrix, Robert Mann and Jerry H Hodges, Board Members on the Texas Board of Corrections, each in his or her official capacity, respectfully allege as follows I. Parties Johnny Klevenhagen is the SHERIFF OF HARRIS COUNTY, TEXAS, and a defendant in the underlying action filed pursuant to 42 U.S.C.A. § 1983 (West 1981) 2 HARRIS COUNTY, TEXAS, a political subdivision of the State, Jon Lindsay, the HARRIS COUNTY JUDGE, and Harris County Commissioners E.A. Lyons, Jim Fonteno, El Franco Lee and Steve Radack, all of whom are members of the HARRIS COUNTY COMMISSIONERS COURT, which is the governing body of Harris County, Texas, are defendants in the underlying action filed pursuant to 42 U.S.C.A_ § 1983 (West 1981) 3 WILLIAM P. CLEMENTS is the Governor of the State of Texas, and may be served by mail at P.O. Box 12428, State Capitol, Austin, Texas 78711 4 JAMES LYNAUGH is the Director of the Texas Department of Corrections and may be served by mail at P.O Box 99, Huntsville, Texas 77340 8la Appendix J 5 CHARLES T. TERRELL is the Chairman of the Texas Board of Corrections and may be served by mail at P.O. Box 35948, Dallas, Texas 75235. 6 DERALYN R. DAVIS is a board member on the Texas Board of Corrections and may be served by mail at P.O. Box 15126. Fort Worth, Texas 76110 7 JOSEPH V. LAMANTIA is a board member on the Texas Board of Corrections and may be served by mail at P.O. Box 1003, Weslaco, Texas 78596 8 ALLAN BRUCE POLUNSKY is a board member on the Texas Board of Corrections and may be served by mail at | Forum 16th Floor, 8000 Interstate Highway 10 West, San Antonio, Texas 78230, 9 JAMES M. ELLER is a board member on the Texas Board of Corrections and may be served by mail at P.O. Box GJ, College Station, Texas 77841. 10. F.L. "STEVE" STEPHENS is a board member on the Texas Board of Corrections and may be served by mail at P.O. Box 5581, San Angelo, Texas 76902. 11. DENNIS R. HENDRIX is a board member on the Texas Board of Corrections and may be served by mail at P.O. Box 2521, Houston, Texas 77252. 12. ROBERT MANN is a board member on the Texas Board of Corrections and may be served by mail at P.O. Box 8436, Waco, Texas 76714. 82a Appendix J 13 JERRY H. HODGES is a board member on the Texas Board of Corrections and may be served by mail at 25 Medical Drive. Amarillo. Texas 79106 Il. JURISDICTION 14 The Court has jurisdiction pursuant to 42 U.S.C. § 1343(3) (West Supp. 1988) 15 Additionally, the Court has pendent jurisdiction of the claims against the Third Party Defendants in the Third Party Complaint arises out of the matters alleged in the Original Complaint filed in this cause Il. CAUSE OF ACTION 16. On August 14, 1972, Plaintiffs filed a Complaint against Defendants, contending, inter alia, that the overcrowded conditions existing in the Harris County Jail violated their constitutional rights. See Exhibit A. On February 4, 1975, the parties executed and the Court approved a Consent Judgment, where by Defendants agreed to reduce the overcrowding in the Harris County Jail. See Exhibit B. Through this Consent Judgment and a December 16, 1975 Memorandum and Opinion, Alberti v. Klevenhagen, 406 F.Supp. 649 (S.D. Tex. 1975), the Court retained jurisdiction to enter any interim orders necessary to effectuate compliance, entering other remedial orders. See Exhibit B at 5. 17. On April 28, 1987, the Court appointed Special Master and two Monitors ("the Monitors") to oversee the Defendants’ compliance efforts. Alberti v. Klevenhagen, 660 F.Supp. 605 (S.D. Tex. 1987). On December 17, 1987, the Court entered an problem in the Jail See Exhibit C at 26 Texas. not the Defendants, caused and was responsible for 83a Appendix J Order which directed the Monitors to assess the overcrowd 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 current overcrowding dilemma It should be re-emphasized in the strongest of terms that Harris County has addressed its responsibilities fully and well. The culprit here is the State of Texas which has failed to provide adequate constitutional housing for its offender population and has gotten away so far with simply exporting the results of its failure to the counties. The anomalous result is that while the State is subject to a 95 percent cap by one federal district court, one of its subdivisions is being pushed to demand permission of another federal district court to overpopulate its facilities limitlessly ing shies On September 12, 1988, the Monitors filed their Findings of Fact and Recommendations, determining that The Monitors stressed that the State of the 84a Appendix J See Exhibit C at 28 (emphasis added) The Monitors recommended that the Court impose a ceiling capacity on the Harris County Jail, reducing its overall population to 120 percent of total design capacity within 60 days of the entry of the Court's Order; to 110 percent of total design capacity by the time the 301 San Jacinto Jail's renovation has been completed; and to 9S percent of total design capacity by June 1, 1991. See Exhibit C at 29 18 On November 8, 1988, the Court entered an Order requiring the SHERIFF to transport and deliver to the Texas Department of Corrections ("TDC") at least 290 “convicted felons ready for transfer to TDC” per week each week beginning December 5S, 1988, finding that [Diangerously overcrowded conditions exist in the Harris County correctional facilities [that] have been exacerbated substantially, if not caused primarily or solely, by the failure ot TDC to receive convicted telons ready for transfer to the TDC in sufficient numbers and in a sufficiently timely manner to alleviate the overcrowded and dangerous conditions which exist within Harris County correctional facilities. The Court also finds that such circumstances have interfered substantially with the defendants’ efforts to achieve compliance with the terms and mandates of the original consent decree and subsequent orders in this case. The court further finds that because of the _ severe overcrowding conditions presently existing in the Harris County detention facilities, the Sheriff should not be housing convicted felons ready for transfer to the TDC in Harris County correctional facilities for Appendix J any period of time longer than minimally and reasonably required to complete the paperwork relating to such persons and effectuate their transportation and delivery to TDC. See Exhibit D at 4 - 5, 6 19. Despite its statutory responsibility to accept convicted felons into its facilities, TEX. CODE CRIM. PROC. ANN. art. 42.09 (West Supp. 1988); TEX. PENAL CODE §§ 12.32 12.34 (West 1974 & Supp. 1988); Todd v. State, 598 F.2d 286, 292 (Tex. Crim. App. 1980), and contrary to the Court's remedial Order concerning Plaintiffs’ adjudicated constitutional rights, the State, by and through its officials, has refused to accept its prisoners, stating that “the Texas Department of Corrections will not accept prisoners from Harris County, or any other county of the State of Texas, above the number allocated pursuant to the scheduled admissions policy.” See Exhibit E 20. Given this refusal, and without statutory authority to simply release TDC ready felons, see TEX. CODE CRIM PROC. ANN. 42.09 (West Supp. 1988), the SHERIFF and HARRIS COUNTY cannot achieve compliance with the Court's November 8, 1988, Order and protect PLAINTIFFS’ adjudicated rights without joining THIRD PARTY DEFENDANTS and securing injunctive relief against them. On December 12, 1988, the Sheriff reported his inability to achieve compliance with the Court's Orders. See Exhibit F 2) William P. Clements, Governor of the State of Texas: Department a5 ~~ 77 James Lynaugh, Director of the T Corrections: Charles T. Terrell, Chairman of the Texas Board Corrections; Deralyn R. Davis, Joseph V. Lamantia, Allan 86a Appendix J Bruce Polunsky, James Eller, F.L. “Steve Stephens, Dennis R. Hendrix, Robert Mann and Jerry H. Hodges, Board Members on the Texas Board of Corrections, are liable to THIRD PARTY PLAINTIFFS for THIRD PARTY PLAINTIFFS’ inability to comply with the Court's November 8, 1988 Order, which found that dangerously overcrowded conditions exist in the Harris County Jail. See Exhibit D at 4 - S. 22. William Clements, Governor of the State of Texas, is empowered to invoke the Prison Management Act by "certify[ing] that an emergency overcrowding situation exists, and ... order{ing] the director [of TDC] to credit not more than 90 days of administrative good time to all eligible inmates.” TEX. REV. CIV. STAT. ANN. art. 61840 (West Supp. 1988). He has, however, taken no steps to invoke the Act and alleviate TDC's overcrowding, which in turn would reduce the numbers held in the Harris County Jail. 23. James Lynaugh, Director of the Texas Department of Corrections; Charles T. Terrell, Chairman of the Texas Board of Corrections; Deralyn R. Davis, Joseph V. Lamantia, Allan Bruce Polunsky, James M. Eller,-F.L. "Steve" Stephens, Dennis R. Hendrix, Robert Mann and Jerry H. Hodges, Board Members on the Texas Board of Corrections, are vested with the exclusive management and control of TDC. TEX. REV. CIV. STAT. ANN. art. 6166g (West 1970). Furthermore, these individuals, acting in their official capacities, are responsible for “mak[ing] Suitable provision and regulations for the safe and speedy transportation of prisoners from counties where sentenced to the State penitentiary by the sheriffs of such respective counties if such sheriffs are willing to perform such services. . . " TEX. REV. CIV. STAT. ANN. art. 6166r (West 1970). Notwithstanding the fact that the Sheriff has demonstrated his Appendix J willingness to perform such services, see Exhibit F, THIRD PARTY DEFENDANTS have failed to make such provisions and regulations, and in fact have established a transfer system which balances their population by forcing the Harris County Jail to become a State penitentiary. 24. By reason of the THIRD PARTY DEFENDANTS’ failure to accept their prisoners as required by state law, the THIRD PARTY DEFENDANTS are liable to the THIRD PARTY PLAINTIFFS, who cannot achieve compliance with the Court's Orders and protect PLAINTIFFS' adjudicated constitut [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2332%3A4. Public record. Not legal advice.