A lawsuit claiming the Dallas County bail system is discriminatory and violates the U.S. Constitution has finally reached the U.S. Supreme Court, where justices have begun the process to determine whether to hear the case. The earliest they could make that decision is December.
D Magazine learned of the progress from the October 3 Dallas County Commissioners Court agenda, which had the item set for discussion in executive session. The challenge is now in the petition stage at the U.S. Supreme Court. But the lawsuit has been winding its way through the courts for nearly six years.
In January 2018, Shannon Daves was arrested on misdemeanor theft charges. Daves, who was 47 at the time of her arrest, was homeless and unemployed. She is also a transgender woman, and was kept in solitary confinement in the men’s unit of the jail for days. She could not afford to post the $500 bond.
Daves would join five other misdemeanor and felony defendants held in the Dallas County Jail in a federal class-action lawsuit filed against the county and several judges by three organizations—the American Civil Liberties Union (ACLU), Civil Rights Corps, and Texas Fair Defense Project. That suit claimed that the county’s bail system was unconstitutional and discriminated against indigent defendants by holding them in jail much longer than defendants with similar charges who could afford bail.
At the time the suit was filed, the ACLU alleged that 70 percent of the 5,000 inmates at the Dallas County Jail were still imprisoned only because they could not afford to pay their bond.
A judge can set two types of bonds. A personal recognizance bond requires no cash payment and the defendant must give his or her word that they’ll return for the trial. But advocates say it’s rarely used, and judges instead frequently use a bond schedule that dictates a pre-set amount based on the offense in question. As a result, they say, low-risk, indigent defendants stay in jail.
In 2020, two years after the suit was filed, Shawn Shinneman wrote in D Magazine that the appellate process had been slow going. “It’s conceivable that an appeals process that stretched to the Supreme Court could go on three or four more years,” he wrote then.
That same year, the Fifth Circuit Court of Appeals would rule that the case should not have appeared in federal court, saying that the suit sought to force a revision in state law by federal decree. Supreme Court precedent, the court said, “requires federal courts to abstain from revising state bail bond procedures on behalf of those being criminally prosecuted when state procedures allow the accused adequate opportunities to raise their federal claims.”
In 2021, Texas Supreme Court Chief Justice Nathan Hecht was blunt in his assessment of the state’s bail system.
“It’s important. The current system is illegal. It’s against the law. It violates the law. Three federal courts have found it illegal,” he said. “And a federal appellate court affirmed it. This is not a law that we can say, ’Wouldn’t it be good to improve things?’ We need to quit breaking the law.”
Dallas County Judge Clay Jenkins and Dallas County District Attorney John Creuzot have advocated for bail reform for some time.
At one point, there was a thought the Texas Legislature would take up the matter and render the case moot. In 2021, Gov. Greg Abbott signed the Damon Allen Act, which prohibits the release of violent offenders on a personal bond. The Courthouse News Service reported that prohibition ironically would not have kept the police officer the bill is named after alive—his alleged murderer had the means to post bail.
The bill required the state to develop training courses on setting bail for magistrate judges. It also called for the Texas Office of Court Administration to create a “public safety report system” to provide magistrates with more information about the defendant that could inform the amount of the bond. It didn’t provide funding for those things, though. Allen Place, of the Texas Criminal Defense Lawyers Association, said that poor Texans accused of crimes will still sit in jail.
“Individuals without cash money to make bail but who are otherwise good candidates for a personal bond will remain in jail awaiting their court date,” Place said.
In other words, the Damon Allen Act did nothing to address the claims expressed in the Dallas County defendants’ suit.
In the latest regular legislative session, bail reform was nowhere to be found on the raft of bills that were voted on.
After lingering in the appellate system for several years, however, it seems that things might be moving. In an executive session last week, the Dallas County Commissioners Court was due to consult on the case. While executive sessions are closed to the public, court documents combined with insight from Daniel Geyser, who heads the U.S. Supreme Court litigation for the law firm Haynes & Boone, spells out the status of the challenge.
At this point, Geyser says the Court is deciding whether it should grant a review and resolve the case on the merits. This doesn’t mean that the court will take up the case, and even if it does, it will be next summer before it rules.
“The court’s docket is (nearly) entirely discretionary—meaning it has absolute discretion to grant or deny a case for any reason at all, and the court rarely explains the basis for its decision,” Geyser said.
There are still several steps in the process before the case would be heard by SCOTUS. If a justice takes notice of this petition, they can order Dallas County to file a brief explaining why the high court shouldn’t review the case.
“As the docket reflects, that’s exactly what happened here,” Geyser said.
The petition was distributed by the clerk’s office on September 13 for an October 6 conference, which is the technical term for when the justices “discuss the case and vote to grant or deny review,” Geyser said. The court has a schedule it follows to determine when a case is distributed and the conference in which it will be discussed. The court called for a response on September 25 and set October 25 as the deadline, but Geyser said it’s not uncommon for the high court to grant an extension of 30 days or longer.
But once the county files, the case will be distributed to the justices for an upcoming conference, but not for at least 14 days. The six plaintiffs can then file a reply before the case returns to the justices for review.
When will we know if SCOTUS takes on the suit? If the county files its response on October 25, then it will go to the justices on November 8, for the December 1 conference. If the court denies the review, it will likely be released on the next Monday.If the court decides to grant a review, it will reset it for a second discussion at the next conference.
“The court does this to further vet the case and make sure it doesn’t suffer from any defects—jurisdictional, procedural, factual, or otherwise—that would interfere with its ability to decide the case,” Geyser says.
In short, it’s likely that the court will give an answer on whether it will grant or deny the review by early December or January, depending on whether the county asks for an extension.
If the review is granted, both parties will file briefings, and the case will be argued before the court.
“Most December grants are argued in March or April, and most January grants are argued in April,” Geyser said. A decision would come by the end of June or first week of July, before the Court recesses for the summer.
If the review is denied, the court won’t hear the case, and the Fifth Circuit’s decision will stand. That means that once again, bail reform will be in the hands of legislators, who likely won’t take it up until the next regular legislative session in 2025, at the earliest.
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Bethany Erickson
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Bethany Erickson is the senior digital editor for D Magazine. She's written about real estate, education policy, the stock market, and crime throughout her career, and sometimes all at the same time. She hates lima beans and 5 a.m. and takes SAT practice tests for fun.
