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Analysis- In the last few years, there have been proposals for bail reform across the United States. In some states, when the reform sought at the state legislature did not appear likely, litigation was initiated to attempt to force reforms. In Texas, litigation was initiated in Harris County entitled ODonnell v. Harris County alleging that misdemeanor bail practices violated procedural due process. Even though jugdes normally cannot be sued under 42 USC 1983, the plaintiffs argued that county court judges were acting as county policy makers when they adopted a bail schedule. The district court agreed and refused to dismiss the case. Additionally, the trial court denied a motion to dismiss based upon the doctrine of abstention. Thereafter, the district court held that Harris County's misdemeanor practices violated the constitution and entered a preliminary injunction. The injunction was reversed. (ODonnell I). The district court entered a second prelimianary injunciton and it was stayed by the Fifth Circuit before the case was settled. (ODonnell II).
Thereafter, a new lawsuit was filed in Dallas County federal court entitled Daves v. Dallas County. This case sought to take the ruling in ODonnell regarding misdemeanor judges and to extend it to district court judges. The Dallas district courty agreed and extended the ODonnell ruling to the district court judges.
This is where the tide turned in this litigation. In the initial appeal before the three judge panel in Daves, the judges refused to extend the ODonnell opinion that misdemenaor judges were county policy makers when they adopted a bail schedule. Additionally, the panel made a comment that they were bound to follow the ODonnell opinion regarding the misdemenaor judges, but might have come to a different conclusion otherwise.
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