January 14, 2022

U.S. Fifth Circuit Court of Appeals 

Daves v. Dallas County 

No. 18-11368                1/7/22 


Are bail schedules created by statutory county judges and district judges unconstitutional? 


Without addressing the merits of the case, the en banc Court instead addressed threshold questions regarding standing and remanded the case to the district court to make detailed findings and conclusions regarding abstention (a federal court’s decision not to exercise jurisdiction over a case). Here, the plaintiffs lacked standing to sue the district and county judges, however, the Court reserved the issue for magistrate judges and the sheriff when the case returns on remand. Because the county and district judges established the bail schedule, they acted as officers of the state judicial system and could not create liability for the county. In addition, there was no evidence that the district and county judges should have predicted that magistrate judges would treat the schedules as binding. Read opinion

Concurrence (Higginson, J. joined in judgment to remand only by Dennis and Willett, J.J.): 

Because there has been no analysis of circumstances that may determine whether the federal court should decline to exercise jurisdiction (abstention), a federal court’s analysis should begin there. “Getting that analysis, threshold to reaching other difficult and outcome-determinative issues, is crucial to proper adjudication of those same issues, above all to avoid foreclosing avenues for vindicating the constitutional rights of pretrial detainees. By contrast, not remanding for threshold, first-time abstention inquiry hardens premature resolution of far-reaching issues the majority and dissent would reach, in this instance contracting constitutional guarantees federal courts should vindicate.” Read opinion

Dissent (Haynes, J., joined by Stewart, Graves, and Costa J.J.): 

There are no jurisdictional issues in this case. “The County Judges and the District Judges set policies that are, in practice, the alpha and the omega of bail decisions in Dallas County—and the Sheriff is the backstop that keeps Plaintiffs in jail under those policies. They are all, therefore, proper parties in a case seeking to stop the routine practice of keeping poor arrestees in jail simply because they are poor.” Regarding abstention, the parties did not brief it and therefore abandoned the argument. Even if the issue had been briefed, the Supreme Court’s precedent makes it clear that abstention is not appropriate because it is only triggered when “(1) interference with an ongoing state judicial proceeding (2) that implicate[s] important state interests and (3) that offers an adequate opportunity to raise constitutional challenges.” The first and third conditions are not met in this case. Read opinion.  


The majority takes great pains to emphasize that it is not issuing a decision on the merits, and the decision is clearly not on the merits. But don’t let that fool you. This is a very significant decision. The very complex decision deals with threshold federal issues of who are state or county officials, whether the plaintiffs have standing, and whether federal abstention applies. The most important thing that the majority opinion decided is that it reversed the federal district court’s holding that the county judges and district judges were acting for Dallas County (as opposed to the State). The federal district court was just following the court’s previous ODonnell opinions that first dealt with these bail issues in Harris County. Well, the majority overruled that part of ODonnell. The majority’s holding is important with regard to who can assert immunity from suit. That holding then leaves up for discussion who, if anyone, is the appropriate party to be successfully sued in the Section 1983 action and what effect this Dallas County decision will have on the Harris County case. There is certainly more to be decided, but this is a very important step in a very long and complicated process. In the next step, the federal district court will have to make findings related to abstention, and it will have to make findings as to what effect, if any, Senate Bill 6 has on the lawsuit. That bill is the comprehensive bail reform law, most of which has only taken effect recently and parts of which will not take effect until several more weeks.

Texas Courts of Appeals

Shuler v. State

Nos. 05-20-00386-CR & -00416                         1/11/22


Were a defendant’s fines and court fees properly assessed on his order of deferred adjudication when they were not orally pronounced?


Some fines and costs were proper and others were improper, as the State and defendant agreed, in part because the defendant’s offense occurred before the effective date of a bill that overhauled Texas’ fines and fees system. The court ruled on the different fines and costs as follows:

General fine

Fine of $1,500:                            Deleted because it was not orally pronounced

Local Gov’t Code §134.101 fees

Jury fee of $1,                             Deleted because §134.101 applies to offenses
$40 clerk’s fee,                           committed on or after 1/1/20, after defendant’s offense
$25 county records fee,
$10 courthouse security fee

Former CCA art. 102.0186 fee            

$100 child abuse prevention fee         Properly assessed under language of SB 346

Former CCA arts. 102.020(a)(1) & 102.020(a)(3)

$250 DNA fee                                           Properly assessed under language of SB 346

Local Gov’t Code §133.103(a)

Time payment fee of $25        Struck as the fee previously found unconstitutional
                                                       (Dulin v. State, 620 S.W.3d 129 (Tex. Crim. App. 2021))

Local Gov’t Code §133.102(a)(1)

Consolidated fees on conviction         Reduced from $185 to $133, because amendment
                                                                     authorizing increase not effective until 1/1/20


Even a cursory review of the court’s opinion reveals how complicated and fact-bound a decision like this can be. An important thing to note about this case is the trial judge’s failure to orally pronounce a fine. A defendant’s sentence must be orally pronounced in open court (and in the defendant’s presence), and a fine is part of the defendant’s sentence. A cost is not. As noted in the opinion, there have also been changes to many of the relevant statutes, and those changes may or may not apply to a case depending upon when the offense occurred or when the proceeding occurs. Hopefully, the Legislature will leave these statutes alone for a while in order to give court clerks time in which to incorporate all of the changes.

Texas Attorney General Opinion Request

RQ-0444-KP                   1/11/22


Can a merchant offer a theft deterrent course in lieu of arrest and prosecution, and if so, would this expose a merchant or educational provider to civil or criminal liability?

Requested by:

Representative DeWayne Burns, Chairman, House Committee on Agriculture and Livestock