Fifth Circuit Shines Light on Road to Texas Bail Reform

Bail Reform Fifth Circuit Court of Appeals

Texas has a bail problem, but it is not what is portrayed in the news. The issue is how to process large groups of people efficiently and cost effectively through the jails of our largest counties. Historically, this has been done through the use of individual magistration and bail schedules. The reason for this is that the cost of individually magistrating every person arrested in our largest urban areas is costly.

Reformers have advocated for alternatives to bail schedules that would also allow for the quick release of large numbers of defendants. These groups have focused on risk assessment tools and simple release. However, the reality of these alternatives have never gotten close to their expectations.


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Scientific studies have now caught up with the proposed use of risk assessments, concluding that they should not be a part of criminal justice reform. A recent article updated this past December by authors from Harvard University and the University of Massachusetts noted that the widely-used risk assessment tool from Arnold Ventures contained a gender bias.

In fact, risk assessments have been falling out of favor since at least 2019 when some of the largest digital companies in the world issued a joint statement concluding that they had been rushed into use without sufficient study. Companies including Google and Amazon argued that while certain algorithms were effective at predicting what a group will do, the same algorithms were terrible at predicting the same for individuals.

Some reformers have suggested that a risk assessment tool should not make final decisions, but instead, should be used as just one more piece of information for a magistrate to review. Unwittingly, in so doing, reformers are actually calling for a mandate to provide individual magistration, which does not achieve the relief sought for the largest counties. Instead, their “solution” actually causes chaos because the largest counties lack the time and resources to provide individual magistration.


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Other reformers have advocated for another alternative. This proposal involves the simple release of certain classes of defendants, either on no-bond or on artificially-low PR (personal recognizance or free) bonds. These measures were implemented in New York state at the start of 2020 and were such an abysmal failure that the state legislature repealed wholesale portions of them even in the midst of the COVID-19 pandemic. Some police officers noted that they spent considerable time rearresting the same individuals each day, only to have them released before the paperwork could be completed.

It was in this environment that the United States Court of Appeals for the Fifth Circuit released its opinion in the case of Daves v. Dallas County, which addressed Texas’ bail procedures. In Daves, the Fifth Circuit addressed the procedural requirements that must be in place when using bail schedules. The decision is important because it made key distinctions between county court judges and district court judges, while hinting that it might have come to a different conclusion regarding county judges if not for the prior Fifth Circuit precedent in the case of ODonnell v. Harris County.

The opinion also slammed the door on many of the plaintiffs’ arguments. Further, the Daves decision provides a pathway for jurisdictions to reassess the time-tested use of bail schedules to allow for the efficient and orderly release of large groups of people from the county jails of Texas’ biggest counties and to comply with the federal constitution’s procedural due process requirements.

Daves v. Dallas County represents the fourth opinion handed down by the Fifth Circuit regarding the use of bail schedules in Texas. The roots of these decisions dates back to 1978’s Pugh v. Rainwater, which recognized that the use of a bail schedule provided for the speedy and convenient release for those who have no difficulty in meeting its requirements.


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The Fifth Circuit also addressed these issues in a series of three decisions arising from a 2016 lawsuit entitled ODonnell v. Harris County which involved the Texas pretrial bail process and its use of a bail schedule.

In ODonnell I, plaintiffs filed suit after they were arrested alleging that Harris County did not have any procedures in place that would allow poor individuals to ask for deviations from its bail schedule. In fact, according to the existing procedures, defendants were told not to talk at their original hearing because their comments could be used against them later. The trial court agreed that Harris County did not provide any means to protect the poor. Using heightened scrutiny, the trial court required that most misdemeanor defendants be released on a PR bond. The Fifth Circuit reversed the preliminary injunction holding that the trial court’s order essentially precluded the use of private bail and was overly broad. The Court of Appeals also noted that the issue involved a lack of procedures to protect the poor. Therefore, the Court of Appeals determined that the remedy should focus on providing procedures. Also, the Fifth Circuit set out a suggested preliminary injunction to be considered on remand.

In ODonnell II, the trial court issued an amended preliminary injunction which exceeded the scope of the suggested language of the Fifth Circuit. The trial court judges appealed and sought a stay of these new portions of the order. A motion’s panel agreed and issued a stay of the language added by the trial court. The stay also held that once the procedures were put in place, any further review would revert to a rational basis review which would most likely ensure a finding that the procedures satisfied constitutional requirements.

ODonnell III took place after an election in which the defendant judges in the litigation were replaced by new judges who campaigned on the promise to settle with the plaintiffs. In ODonnell III, the new judges filed a motion to vacate the court’s opinion in ODonnell II. The motion was denied and the court held that ODonnell II remained the most recent statement of the law on bail from the Fifth Circuit.

Against this backdrop arose the suit in Daves, which contains factual differences from the ODonnell cases. In the former, plaintiffs sued the district court (felony) and county court (misdemeanor) judges, whereas in the latter, plaintiffs sued only the Harris County Court-at-Law judges. In addition, the plaintiffs in Daves alleged that the use of private surety bail violated substantive due process.

In Dallas County, the magistrates setting bail used a schedule as a starting point for making a determination of bail. The trial court held that the bail process lacked procedures to allow the poor to ask for deviations from the scheduled amounts. In Daves, the trial court issued the model injunction proposed by the Fifth Circuit in ODonnell I. Additionally, the Daves trial court made two new holdings: (1) that the district court judges were county policy makers, like the county court-at-law judges in ODonnell I; and (2) the trial court denied the plaintiffs’ claims of substantive due process. Accordingly, the heart of the case focused on these two issues before the Fifth Circuit.

On the issue of district court judges, the Fifth Circuit disagreed with the conclusion of the trial court that they were acting as county policy makers. The opinion concluded that district court judges were state actors. The Court of Appeals recognized that some district court jurisdictions in Texas fall within a single county, while others cover multiple counties. The Fifth Circuit concluded that it was not rational to consider a district court located only in one county to be acting on behalf of the county in setting policy, while multi-district courts taking the same action would be state actors. Therefore, the court ruled that the trial court erred and held that district court judges were state actors when making decisions on bail.

Next, the Court of Appeals reviewed whether the plaintiffs could sue the district court judges as state actors rather than county actors as held by the trial court — a matter that turned on allegations presented by the plaintiffs. The complaint sought an injunction to stop the allegedly rigid application of a bail schedule, but not its overall enforcement.

The court noted that district court judges did not have sufficient connection to the bail process to enforce the bail schedule, and that on its face, the schedule specified it was only a recommendation. Therefore, it was held that the plaintiffs lacked standing to sue the district court judges. The plaintiffs also failed to show a sufficient connection between the district court judges and enforcement of the felony bail schedule to allow them to sue. Lastly, the Fifth Circuit held that the district court judges were not proper parties. It is important to note that the appellate court stated that without the previous decisions in ODonnell I, the Court of Appeals might have come to a different conclusion regarding the issue of the county court-at-law judges.

Regarding the magistrates, the Court of Appeals held that they also were state actors for purposes of setting bail because they were appointed by district court judges. But unlike the district court judges, the appellate court held that the plaintiffs had established a sufficient connection between the magistrates and the enforcement of the felony bail schedule to satisfy Ex parte Young. Therefore, the magistrates could be sued.

Next, the Fifth Circuit took up the issue of substantive due process, addressing whether private surety bail is unconstitutional on its face. The plaintiffs argued that any use of a bail schedule violated substantive due process when faced with a claim of poverty. They further argued that this was a matter not addressed in ODonnell I or was dicta and not binding. The plaintiffs also contended that the decision in ODonnell II was not binding on the Court of Appeals because it was from a motion’s panel decision.

The Court of Appeals rejected these arguments. It held that the statements in ODonnell I were not dicta and statements against substantive due process were a part of the reasoning as to why the preliminary injunction went too far. The court also held that it agreed with the panel decision in ODonnell II, elevating it to a full determination by the court. The Fifth Circuit also affirmed that it would not disregard it because it was issued by a motion’s panel. Further, the appellate court held that the trial court was correct in dismissing the plaintiff’s claims of substantive due process.

The Daves and ODonnell opinions present a number of conclusions for setting bail in Texas. They include:

  • Bail schedules are constitutional and provide for the speedy and convenient release of those who have no difficulty in meeting its requirements.
  • Without procedures in place to give the poor an opportunity to ask for a deviation from the scheduled bail amount, federal courts will apply intermediate scrutiny. In Odonnell I, there was essentially no opportunity for the poor to ask for a deviation from the bail schedule.
  • With procedural protections in place, appellate review reverts to a rational basis review. This is the lowest review applied by the courts and under this review, procedures will most likely be upheld.
  • Contrary to the arguments of plaintiffs for the past four years, the federal constitution does not require release, but instead requires a robust hearing process.

The Fifth Circuit’s opinion in Daves v. Dallas County has provided needed clarity in the area of pretrial bail in Texas. It appears that the law of the appellate court is close to being settled. (There is one remaining case pending from Galveston County that will address one other issue regarding pretrial bail.)

It has been said, “When the path reveals itself, follow it.” The Fifth Circuit has wisely set forth a path to return to the use of bail schedules. This will allow individuals to post a bond pursuant to a scheduled amount, while leaving the remaining individuals to appear before a magistrate. The magistrate can then use the precious resources of the county to determine what discretion, if any, should be given to the remaining defendants.

The question now is whether Texas and its urban counties will follow the path that has been laid out for them.

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