There are now two lawsuits filed in the federal courts for the Southern District of Texas, Houston Division, involving the practices of detaining and releasing criminal defendants in the Harris County courts. The first suit, filed earlier this year, is an action by persons arrested in Harris County whose conditions of release were decided by a rigid bail schedule based solely upon the charged crime, their criminal history, and immigration status. Bail was set in dollar amounts, but there was no consideration of the defendants’ ability to pay. They were unrepresented by counsel and appeared by videoconference at a hearing before a magistrate and prosecutor. No determination of indigence occurred until they reached the court of jurisdiction. 
The defendants in that lawsuit are the Sheriff (who is responsible for their custody), the magistrates (who apply the bail schedule), and county criminal court judges (who approve the bail schedule for misdemeanors). Representing the plaintiffs are the Texas Fair Defense Project, Equal Justice Under Law, Civil Rights Corp, and Sussman Godfrey L.L.P. Harris County hired Gardere Wynne Sewell LLP, and paid for the judges to be individually represented by Winston & Strawn LLP. The case is before United States District Judge Lee Rosenthal. 
The premise of the lawsuit is that criminal defendants have the right to have their ability to pay, and their individual circumstances, considered before setting bail. A system that fails to do so denies them their rights to due process and equal protection under the Fourteenth Amendment to the United States Constitution. Similar lawsuits have prevailed, prior to a trial, in several other jurisdictions across the Country. Judge Rosenthal took the defendants’ motions to dismiss under advisement, but those present at the hearing thought her statements to the lawyers made dismissal seem unlikely. 
A second lawsuit, filed this week, was initiated by persons arrested by the Houston Police Department (HPD). Harris County has 100 law enforcement agencies, the largest being HPD. Currently, HPD brings arrested persons to one of their jails, where if they do not make bail, they are transferred to the Sheriff where they face the bail procedures described above in the first lawsuit. Texas law requires they make this appearance before the magistrate within 48 hours of arrest. The deadline is also constitutionally required. In many occasions, HPD has failed to meet this deadline, often because the Sheriff has asked them to wait until there was room in the Harris County Jail. 

The plaintiffs’ lawyers in this suit are also the Texas Fair Defense Project, Equal Justice Under Law, Civil Rights Corp, but the private firm is Kirkland & Ellis LLP. Although not named, Harris County has an interest in this lawsuit too. One potential outcome is for the City of Houston to settle and agree that they will either bring the defendants to the Sheriff within the deadline or release them. This will put an even greater strain on the County whose jail is at or near capacity.

To make it all more interesting, no Republican candidate won a countywide office in the recent election. The District Attorney and Sheriff will be Democrats on January 1, 2017. More than a third of the 22 felony judges are now Democrats and the only misdemeanor bench that was contested went to a Democrat. This trend may continue in two years when the rest of the misdemeanor judges face election. The incoming Sheriff has already provided an affidavit that he does not wish to contest the lawsuit. 

Update to Houston Lawsuits blog post: On December 16, 2016, USDJ Lee Rosenthal issued a 78-page opinion denying the defendants' motion to dismiss them as parties in their official capacities as Sheriff and county court judges. Although not a ruling on the merits, her statement of the facts and law does not bode well for the Harris County defendants.