County officials discussed the matter at the court’s Nov. 13 session, agreeing to urge the county attorney to push for a settlement or mediation in a case that began in 2016 when three individuals charged with misdemeanors filed a suit alleging the county violates the equal protection and due process clauses of the U.S. Constitution by unfairly jailing those who cannot afford to pay cash bail.
In February the 5th U.S. Circuit Court of Appeals upheld U.S. District Judge Lee Rosenthal’s April 2017 ruling in the case that the county’s practices were unfair, but the appeals court suggested a modification by which defendants unable to afford bail would receive a hearing within 48 hours. The matter has not yet been resolved, county officials said.
First Assistant County Attorney Robert Soard said in an email following the meeting the county attorney was directed by Commissioners Court to attempt a settlement or mediation in what is known as the O'Donnell case based on the U.S. 5th Circuit Court of Appeals opinion.
Allan Van Fleet, a lawyer representing Darrell Jordan, one of 16 Harris County Criminal Court of Law judges named as defendants in the suit, spoke at the meeting to say Rosenthal had stayed further proceedings on the case the morning of Nov. 13 until Feb. 1 to give the involved parties time to settle it. Van Fleet said the plaintiffs had originally asked for additional discovery, or fact-finding, at the morning’s hearing, but withdrew the request in light of major leadership changes afoot both in Commissioners Court and in the county criminal courts. Of the 16 criminal court judges named as defendants in the O'Donnell case, 14 were not re-elected in the Nov. 6 election. The suit also names Harris County and the sheriff’s office as defendants.
Van Fleet asked commissioners if they would consider staying the proceeding in the U.S. 5th Circuit Court of Appeals, where the county appealed Rosenthal’s 2017 ruling.
“I am tossing it up to this court to consider whether it would be appropriate at this stage to put a stay on those proceedings, stop the hemorrhaging of money, and give the new occupants of the judgeship and of this court an opportunity to try to settle this by Feb. 1 when judge Rosenthal has ordered us back into court,” Van Fleet said.
Judge Ed Emmett, who noted that he will be presiding over only two more sessions of Commissioners Court, said the county has expressed a willingness to settle but said the plaintiffs have not accepted it.
“I’m going to leave this up to the county attorney,” Emmett said.
Emmett will leave his position of 11 years Jan. 1 when Judge-elect Lina Hidalgo, who defeated him in the Nov. 6 election, will take the county reins.
“Everyone agrees that no one should be put in jail simply because they can’t afford bail. We all agreed to that,” Emmett said. “This circuit ruled there were some tweaks that needed to be made, particularly to help the sheriff, so I understand this for what it was—a political game until after the election. But now the county attorney and new officials and judges can sort this out. … We tried to settle, make no bones about that.”