In the late 1960s and into the early 1970s, federal courts across the country suddenly faced an increasing number of lawsuits from state prisoners seeking application and/or adjudication of a wide range of new constitutional rights extended in a number of federal court decisions. These lawsuits quickly consumed federal judicial time and resources, prompting a need to curtail the flow of state litigation in federal courts.


In February 1971, the United States Supreme Court created what became known as the “Younger Abstention Doctrine.” This doctrine requires federal courts to abstain from either asserting or accepting jurisdiction over “federal constitutional claims that involve or call into question ongoing state proceedings.” The doctrine is triggered when the following three factors exist:


  1. There is an ongoing state proceeding;
  2. The claim raises important state issues; and
  3. The state proceedings provide an adequate opportunity to raise the federal constitutional claims.


In other words, a state criminal defendant cannot raise a challenge to a violation of a federal constitutional right in federal court when there are adequate remedies at the state level to address the alleged federal constitutional violation—such as excessive or unfair pretrial cash-bail practices that violate the Eighth Amendment to the U.S. Constitution.


The last decade has seen several lawsuits filed in federal courts nationwide challenging cash-bail practices at the local and state levels. One of those lawsuits originated in Harris County, Texas. That lawsuit resulted in U.S. District Court Judge Lee Rosenthal declaring in October 2017 that the county’s bail practices were unconstitutional and ordering the release of all misdemeanor defendants from the county jail.


Local officials appealed Judge Rosenthal’s ruling to the Fifth Circuit Court of Appeals. 


In February 2018, a three-judge panel of the court handed down a decision that became known as ODonnell I. That decision upheld most of the findings made by Judge Rosenthal.


Local officials sought a rehearing on ODonnell I. The petition for rehearing was granted on June 1, 2018 and the panel decision in ODonnell I was withdrawn. Two months later, on August 14, 2018, the Fifth Circuit issued a “remedial” decision that became known as ODonnell II that scaled back some of the constitutional relief granted in ODonnell I.


While the Harris County bail lawsuit was working its way through the courts, a similar lawsuit was filed in Dallas County challenging cash-bail practices similar to those in Harris County. 


That lawsuit also ended up before the Fifth Circuit, and on December 28, 2020, the court applied the same limited constitutional relief spelled out in ODonnell I and ODonnell II to the Dallas County bail lawsuit.


However, on February 21, 2021, the Fifth Circuit vacated its three-judge panel decision in the Dallas County case and ordered that the relief sought be decided by the court en banc.


While the Dallas County bail lawsuit was pending for its en banc hearing, the Texas Legislature in August 2021 enacted a “bail reform” measure called “S.B. 6” that adopted some of the ODonnell innovations but undercut those innovations with tighter, more restrictive cash-bail practices advocated by Gov. Greg Abbott.


The Fifth Circuit used this Abbott-driven new bail law as a way to remove itself from all Texas cash-bail lawsuits. 


On March 23, 2023, the Court issued its en banc ruling in the Dallas County case. That ruling effectively barred federal district courts from entertaining any lawsuits challenging bail practices in Texas under the Younger Abstention Doctrine when there is a state remedy for entertaining such lawsuits. 


Put simply, lawsuits challenging bail conditions in Texas must now be filed pretrial in the local state court system, not federal court.


To fully underscore this point, the Fifth Circuit, on June 21, 2023, issued a follow-up three-judge ruling in a Louisiana case that applied its Dallas County en banc decision to Louisiana bail lawsuits.


The Fifth Circuit, however, did issue a caveat in both the en banc Dallas County and Louisiana cases that if the state courts are unable or unwilling to entertain legitimate challenges to bail practices, the defendant can seek relief in the appropriate federal district court. 


That’s essentially where bail reform litigation stands today in Texas. Given historical rulings by the Texas Court of Criminal Appeals and the Texas Supreme Court on bail issues, it is not a bright horizon.