In a ruling issued on February 14, 2018, the Fifth Circuit Court of Appeals found there is reasonable evidence that the Harris County bail procedures are constitutionally deficient and that plaintiffs will likely succeed, but vacated the district court’s injunction as overbroad and sent the case back to be modified. The appeals court also ruled that the Harris County Sheriff could not be sued under 42 U.S.C. § 1983.


This case began on May 19, 2016, when a 22-year-old Harris County detainee, Miranda Lynn O’Donnell, and other plaintiff, filed a § 1983 class action lawsuit against Harris County Judges, the Sheriff, and bail Hearing Officers alleging that the county’s bail system for indigent misdemeanor arrestees violated Texas’s statutory and constitutional law as well as the equal protection and due process clauses of the Fourteenth Amendment of the U.S. Constitution.


Federal Injunction Issued Against Harris County, Bail System


The plaintiffs in the lawsuit promptly moved for a preliminary injunction and the County moved for summary judgment. U.S. District Court Judge Lee H. Rosenthal conducted eight days of evidentiary hearings between August and November of 2016. The judge issued her final ruling on December 16, 2016 which made significant factual and legal conclusions, most of which the Fifth Circuit upheld. The most prominent conclusions made by Judge Rosenthal in her 120-page ruling were spelled out in the February 14th ruling by the Fifth Circuit:


  • Bail in Texas is either secured or unsecured.
  • Secured bail requires an arrestee to post bail with his or her own money or through a third party such as a bail bondsman who generally charge a minimum 10% non-refundable fee for putting up the bail.
  • Unsecured bail allows an arrestee to be released without posting bond.
  • Nonfinancial conditions may be attached to both secured and unsecured bail.
  • The basic framework of bail in Texas is governed the Code of Criminal Procedure and local rules set up by County Judges.
  • Following an arrest, the prosecutor submits a secured bail amount established by a bond schedule set by County Judges.
  • Formal bonds are set by either Hearing Officers or County Judges; however, most often it is the Hearing Officer who initially sets the amount of bail.
  • Initial bail is generally set at an arrestee’s probable cause hearing which, by law, must be held within 24 hours.
  • County Judges review the Hearing Officer’s initial bail amount and may adjust the amount at a “Next Business Day” hearing.
  • By law, both Hearing Officers and County are proscribed from automatically applying a bail schedule to a given arrestee. Instead, the law requires an “individualized review” based on five enumerated factors, including an arrestee’s ability to pay, the offense, and community safety.
  • Local bail schedule rules are not mandatory.
  • Hearing Officers and County Judges sometimes receive input from Pretrial Services after its interview with the arrestee which may calculate an arrestee’s flight and safety risks based on a point system, and may make specific recommendations about bail.


Gross Inefficiencies, Violations of Due Process and Equal Protection


These factual and legal requirements notwithstanding, the Fifth Circuit pointed out:


“…the district court found that, in practice, County procedures were dictated by an unwritten custom and practice that was marred by gross inefficiencies, did not achieve any individualized assessment in setting bail, and was incompetent to do so. The district court noted that the statutorily mandated probable cause hearing (where bail is usually set) frequently does not

occur within 24 hours of arrest. The hearings last seconds, and rarely more than a few minutes. Arrestees are instructed not to speak, and are not offered any opportunity to submit evidence of relative ability to post bond at the scheduled amount.


“The [district] court found that the results of this flawed procedural framework demonstrate the lack of individualized assessments when officials set bail. County officials ‘impose the scheduled bail amounts on a secured basis about 90 percent of the time. When [they] do change the bail amount, it is often to conform the amount to what is in the bail schedule.’ The court further found that, when Pretrial Services recommends release on personal bonds, Hearing Officers reject the suggestion 66% of the time. Because less than 10% of misdemeanor arrestees are assigned an unsecured personal bond, some amount of upfront payment is required for release in the vast majority of cases.


“The court also found that the ‘Next Business Day’ hearing before a County Judge fails to provide a meaningful review of the Hearing Officer’s bail determinations. Arrestees routinely must wait days for their hearings. County Judges adjust bail amounts or grant unsecured bonds in less than 1% of cases, Furthermore, prosecutors routinely offer time-served plea bargains at the hearing, and arrestees are under immense pressure to accept the plea deals or else remain incarcerated for days or weeks until they are appointed a lawyer.


“The district court further noted the various ways in which the imposition of secured bail specifically targets poor arrestees. For example, under the County’s risk assessment point system used by Pretrial Services, poverty indicators (such as not owning a car) receive the same point value as prior criminal violations or prior failures to appear in court. Thus, an arrestee’s impoverishment increased the likelihood he or she would need to pay to be released.”


Cash Bail System is Shakedown Racket, Penalizes Indigent


We have railed against the Texas bail system in numerous posts (here, here, here, here, and here). Most county bail systems are borderline criminal shakedown rackets set up and fueled by the bail bond industry, and allowed to practice its dirty business by judges whose campaigns are funded by these bail bondsmen.


In most cases, the cash bail system fails to serve any purpose.  One of the primary purposes of secured cash bail is to assure the defendant’s appearance at trial.  After reviewing reams of empirical data, the district court pointed to just the opposite: the “release on secured financial conditions does not assure better rates of appearance or of law-abiding conduct before trial compared to release on unsecured bonds or nonfinancial conditions of supervision.”


The Fifth Circuit remanded the case back to Judge Rosenthal with this basic instruction:


“The fundamental source of constitutional deficiency in the due process and equal protection analyses is the same: the County’s mechanical application of the secured bail schedule without regard for individual arrestee’s personal circumstances. Thus, the equitable remedy to cure the constitutional infirmities arising under both clauses is the same: the County must implement the constitutionally-necessary procedures to engage in a case-by-case evaluation of a given arrestee’s circumstances, taking into account the various factors required by Texas state law (only one of which is ability to pay). These procedures are: notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker.”


Change Must Come to Harris County Bail System


These new procedural due process safeguards will not set well with either the Hearing Officers or County Judges who must now perform their constitutionally required duties. Prosecutors will not be happy because they will not have an in-jail system to pressure guilty pleas out of indigent defendants. And bail bondsmen will not be happy because the new procedures should result in more unsecured bonds and significantly lower bail amounts in secured bonds.


Criminal defense attorneys, on the other hand, will hold up the Constitution and the Fifth Circuit ruling as a reminder to those resistant to due process change.