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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

FRANCISCO DE LUNA and ELIZABETH DIAZ,
individually and on behalf of all others similarly
situated,
Plaintiffs,
v.
HIDALGO COUNTY, TEXAS; GUADALUPE
TREVINO, in his official capacity as Hidalgo
County Sheriff; MARY ALICE PALACIOS,
GILBERTO SAENZ, JESUS MORALES, BOBBY
CONTRERAS, ROSA E. TREVINO, LUIS
GARZA, ISMAEL OCHOA, CHARLIE
ESPINOZA, E. “SPEEDY” JACKSON, in their
official capacities as Hidalgo County Magistrates
and Justices of the Peace,

CLASS ACTION COMPLAINT

Civ.

Defendants.

PRELIMINARY STATEMENT
1.

This class action lawsuit challenges the routine practice in Hidalgo County, Texas

of jailing teens age seventeen and older in the adult county detention center—for days, weeks
and sometimes months—because of their inability to pay fines and costs associated with missing
school. In many cases, the teens’ failure to attend school occurred and was ticketed long before
they turned seventeen, the age when adult criminal responsibility attaches in Texas.
2.

Since January 2009, approximately 150 teens served time in Hidalgo County jail

that may be attributed to unpaid fines for failure to attend school or other school-related
misdemeanor offenses that are not supposed to be punishable by jail time. About 60 of these

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teens were jailed solely because of outstanding fines related to truancy and other school tickets,
and half spent more than a week in the county jail.
3.

The process by which many of these teens landed in jail spans excessive ticketing

of underage students by public school police, adjudication in Hidalgo County justice courts,
arrest by Hidalgo County peace officers, booking and processing by Hidalgo County Sheriff’s
Office staff, commitment to jail by a Hidalgo County magistrate, and finally incarceration in the
Hidalgo County Adult Detention Facility.
4.

While the legal claims in this case challenge the County’s consistent failure to

conduct indigency examinations prior to the confinement of individuals in jail to discharge
unpaid fines and costs, the broader context for these unconstitutional practices amplifies their
impact on children and families in Hidalgo County.
5.

Texas law permits and encourages the assessment of multiple fines of up to $500

per ticket against students for chronic failure to attend school. On information and belief,
between 2005 and 2009, the number of truancy or failure to attend school charges filed by Texas
schools increased by more than 40 percent, from about 85,000 to 120,000. Excessive ticketing
for school-related conduct can quickly amount to thousands of dollars in fines and places an
onerous burden on low-income families.
6.

The residents of Hidalgo County are among the poorest not just in Texas, but in

the entire United States. The median per capita income in the County is $9,899, and 45.1 percent
of children ages eighteen and under live in poverty.1
7.

Education rates in the county are similarly depressed. The three cities that

together comprise Hidalgo County—McAllen, Edinburg and Mission—were recently ranked 98th
1

U.S. Census Bureau, 2008 State and County Estimates, available at
http://www.census.gov/did/www/saipe/downloads/estmod08/est08ALL.xls.

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among the country’s largest 100 metropolitan areas based on the proportion of residents aged 25
and older with a bachelor’s degree.2 The rate of attrition in Hidalgo County high schools is 45
percent.3 Acute poverty in the region has been directly correlated to low education rates.
8.

The moniker “school to prison pipeline” refers to the process by which students

who manifest even minor behavioral issues at school or commit non-violent status offenses such
as truancy are adjudicated through a criminal or quasi-criminal process, leading to involvement
with the juvenile justice system, which in turn is a significant predictor of involvement with the
adult criminal justice system. Rather than increasing the likelihood that such students will
complete school and graduate, excessive ticketing for failure to attend school, and aggressive
enforcement of such tickets by courts, often drives students to drop out.4
9.

The Named Plaintiffs are two low-income, eighteen-year-old residents of Hidalgo

County whose trip through the pipeline ended in the Hidalgo County jail, where they were
incarcerated for several weeks due to their inability to pay accumulated fines assessed for their
truancy and school-related tickets.
10.

The Named Plaintiffs allege that the actions, inactions, customs and practices of

Hidalgo County magistrates and sheriff’s department staff in booking, processing, and
adjudicating individuals with outstanding fines and costs, and in committing them to jail to
discharge those debts, violates both the equal protection and due process guarantees of the

2

Brookings Inst. Metro. Policy Program, State of Metropolitan America: On the Front Lines of Demographic
Transformation 108 (2010), available at
http://www.brookings.edu/~/media/Files/Programs/Metro/state_of_metro_america/metro_america_report.pdf.
3

Annie E. Casey Found., Kids Count Data Center: Profile for Hidalgo County, available at
http://datacenter.kidscount.org/data/bystate/stateprofile.aspx?state=TX&loc=6622 (last visited July 22, 2010).
.
4
For background and data on the pipeline in Texas, see Texas Appleseed’s Texas’ School-to-Prison Pipeline:
Drop-Out to Incarceration – The Impact of School Discipline and Zero Tolerance, available at
http://www.texasappleseed.net/index.php?option=com_content&view=category&layout=blog&id=27&Itemid=265.

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Fourteenth Amendment to the United States Constitution. The Named Plaintiffs bring this action
pursuant to 42 U.S.C. § 1983 to enjoin those unconstitutional practices on behalf of similarly
situated persons, and to seek compensation for their own emotional injury.
JURISDICTION AND VENUE
11.

This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §

1331 because this action arises under the Constitution and laws of the United States, and
pursuant to 28 U.S.C. §§ 1343(a)(3) and (4) because this action seeks to redress the deprivation,
under color of state law, of Plaintiffs’ civil rights and to recover damages and secure equitable or
other relief for the violation of those rights.
12.

This Court has jurisdiction to grant declaratory relief pursuant to 28 U.S.C. §§

2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.
13.

This Court has jurisdiction to grant injunctive relief pursuant to Rule 65 of the

Federal Rules of Civil Procedure.
14.

Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) because

one or more Defendants reside in this district and because a substantial part of the events or
omissions giving rise to Plaintiffs’ claims occurred in this district.
PARTIES
I.

Named Plaintiffs
15.

Plaintiff Francisco De Luna is eighteen years old and lives in McAllen, Texas.

Francisco was jailed in the Hidalgo County Adult Detention Facility for 18 days in January 2010
because of his inability to pay over $10,000 in fines assessed on more than 20 tickets for failure
to attend school and other school-related rule violations dating back to 2005, when he was
thirteen years old. He would have remained in jail for over 100 days if the public defender had

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not noticed Francisco’s case in a random review of jail logs and prepared a writ for his release.
Although not currently enrolled, Francisco has not graduated from high school and has a
statutory right to attend public school in Texas until the age of 21.
16.

Plaintiff Elizabeth Diaz is eighteen years old and lives in Edinburg, Texas.

Elizabeth was jailed in the Hidalgo County Adult Detention Facility for 18 days in FebruaryMarch 2010 because of her inability to pay over $1,600 in fines assessed on three tickets for
failure to attend school dating back to 2006, when Elizabeth was fourteen years old. Elizabeth is
enrolled in Johnny G. Economedes High School and hopes to graduate in December 2010.
II.

Defendants
17.

Defendant Hidalgo County, a county in south Texas with a population of

approximately 750,000, is a corporate and political entity organized pursuant to the Texas Local
Government Code. Hidalgo County is a “person” for the purposes of 42 U.S.C. § 1983.
18.

Defendant Hidalgo County Sheriff Guadalupe Trevino is the keeper of the

county jail and the legal custodian of all individuals in the custody of the Hidalgo County
Sheriff’s Office (HCSO). He supervises, oversees and is ultimately responsible for sheriff’s
department officers and administrative staff who process, book and detain individuals at the
county jail pursuant to court orders. Defendant Trevino’s compensation is paid by the County.
19.

Defendant Hidalgo County Magistrates and Justices of the Peace—Mary Alice

Palacios, Gilberto Saenz, Jesus Morales, Bobby Contreras, Rosa E. Trevino, Luis Garza, Ismael
Ochoa, Charlie Espinoza, and E. “Speedy” Jackson—serve as Magistrates at the Hidalgo County
jail on a rotating basis, performing arraignments and issuing process necessary to authorize the
confinement of individuals at the jail. Justice of the peace compensation is paid by the County.

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20.

The policies, practices, and conditions described herein result from specific

decisions, policies, or customs of Defendants. Each Defendant has actual or constructive
knowledge of the policies, practices, and conditions alleged here. Each Defendant has acted, and
continues to act, under color of state law with respect to all matters alleged here. All individual
Defendants are sued in their official capacities.
FACTS GIVING RISE TO CLAIMS FOR RELIEF
I.

Legal Consequences of Missing School in Hidalgo County
A.

“Truancy” Is Different From “Failure to Attend School”

21.

Chronic absence from school constitutes both the civil offense of “truancy” under

the Texas Family Code, and the criminal offense of “failure to attend school” under the Texas
Education Code (TEC). “Truancy” and “failure to attend school” are defined identically: as
missing ten or more days or parts of days within a six-month period in the same school year, or
three or more days or parts of days in a four-week period. While the definitions are the same, the
consequences and procedural protections attached to each charge are quite different.
22.

Only children under the age of seventeen may be charged with truancy under the

Family Code, and the charge is handled by the juvenile court. A truancy charge is assigned the
lowest-level sanction in the Family Code—no fine may be imposed, and the court may require
counseling or community service, or simply provide assistance. A child charged with truancy is
entitled to a court-appointed lawyer if indigent, and even a waiver of counsel requires the
presence of an attorney.
23.

Individuals of all ages who are required to attend public school may be charged

with failure to attend school, a Class C misdemeanor punishable by a fine of up to $500 but not
confinement in jail. When filed in county, justice or municipal courts, the adjudication of a

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charge of failure to attend school is governed by the Code of Criminal Procedure (CCP). There
is no statutory entitlement to appointed counsel for indigent defendants charged with
misdemeanors that are not supposed to be punishable by jail time. As a result, indigent teens
charged with failure to attend school who are adjudicated by justice courts are not afforded
counsel.
24.

The Education Code gives school districts the option to either refer a student to

juvenile court for truancy, or to file a complaint for failure to attend school against the student in
county, justice or municipal court. School districts also have discretion to direct their complaints
for failure to attend school and other school-related complaints to specific county, justice or
municipal courts for adjudication.
B.

The Pipeline from ECISD to Judge Mary Alice Palacios’s Court

25.

On information and belief, school districts in Hidalgo County file charges of

failure to attend school in justice courts at vastly higher rates than they refer students to juvenile
court for truancy, with the result being that the county’s justice courts are the primary forum for
adjudicating the issue of chronic school absences.
26.

On information and belief, Judge Mary Alice Palacios—Hidalgo County Justice

of the Peace, Precinct No. 4, Place 2—handles thousands of school-related misdemeanor charges
each year, including the great majority of the county’s failure to attend school charges and all
charges filed by Edinburg Consolidated Independent School District (ECISD). ECISD is the
county’s largest school district by far, with over 30,000 students.
27.

Palacios’s disproportionate share of failure to attend school filings in Hidalgo

County has been noted in the press, criticized by the criminal district attorney, and considered by
the County Judge and Commissioners’ Court.

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28.

In 2008, Hidalgo County entered into interlocal cooperation agreements with the

City of Edinburg and four public school districts in the county for the specific purpose of
accommodating Judge Palacios’s needs for additional space for court hearings, and for clerks and
juvenile case managers to manage her exploding school-related docket. In addition to ECISD,
the Hidalgo, Donna, and Edcouch-Elsa independent school districts are parties to such
agreements with the Hidalgo County and Edinburg. None of the other nine justices of the peace
in Hidalgo County are the subject of interlocal agreements related to school-initiated
misdemeanor charges.
29.

The interlocal agreement between Hidalgo County and ECISD provides that

ECISD will provide two full-time clerks, one truancy secretary and two case managers to staff
Judge Palacios’s office “to assist in managing truancy cases from the District.” ECISD pays the
salaries and benefits of these additional staff, while the county provides supervision related to the
truancy docket in Judge Palacios’s court. The interlocal agreements between Hidalgo County
and the other school districts provide two additional clerks to Palacios’s office under similar
terms.
30.

The interlocal agreement with ECISD provides that all fines related to charges of

failure to attend school shall be split evenly between the County and the school district where the
child attends school.
31.

Because of the County’s cooperation with ECISD and other school districts in

directing their truancy charges to Palacios and facilitating her expanding docket, many thousands
of children in Hidalgo County have been processed by her court. The vast majority of the teens
and young adults who are jailed in Hidalgo County for unpaid fines associated with failure to
attend school or other school-related offenses are processed by Palacios’s court.

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II.

Adjudication of Failure to Attend School Charges in Judge Palacios’s Court
32.

In presiding over proceedings involving failure to attend school, justice courts

have many options at their disposal other than fines to punish teens and put them on a path
toward better attendance and success at school. A justice of the peace can require the teen to
perform community service or attend special programs designed to teach life skills or vocational
training, or can order the suspension of the teen’s driver’s license or permit.
33.

Consistent with its general powers, a justice court may also suspend sentencing

and defer final disposition of failure to attend school charges for up to six months while the
defendant completes various requirements. If the teen complies with the requirements, the
charge must be dismissed; if they do not, the court must notify the defendant clearly in writing of
that failure.
34.

If judgment is entered and a sentence imposed, the justice court has discretion to

reduce the amount of the fine, permit payment in installments, or waive the fine entirely upon a
finding that the teen and her family are too poor to pay.
35.

Finally, under certain circumstances, the justice court may transfer a teen with

multiple failure to attend school charges to the juvenile court for processing and supervision.
36.

On information and belief, Judge Palacios does not utilize the range of options

available to her to fairly and efficiently resolve charges of failure to attend school, either through
deferred adjudication and dismissal, or judgment and sentencing.
37.

Plea documents, waivers, and other critical paperwork related to final disposition

are missing from Palacios’s court records with respect to many charges. In addition, Palacios’s
court frequently sends required notice to the wrong address, although the correct address is
reflected in other court documents or public records.

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38.

On information and belief, poor record-keeping and notice practices by Palacios’s

staff cause confusion among teens and their parents about when, how, and whether charges have
been resolved. Many teens and their parents make numerous visits to Palacios’s court, missing
valuable days of work and school, without resolving their underlying charges, or without being
aware that they have failed to do so
39.

On information and belief, Palacios’s court consistently fails to provide children

and parents with written notice, as required by statute, of their obligation to update the court in
writing if their address should change while their charges remain pending.
40.

On information and belief, after transferring an individual’s failure to attend

school charges to Hidalgo County juvenile court, Palacios and the juvenile court fail to share
essential information about the disposition of those charges, which often remain pending in
Palacios’s court.
41.

As a result of the practices described above, individuals whose failure to attend

school charges were adjudicated by Palacios often carry numerous pending charges, sometimes
dating back several years, when they reach their seventeenth birthday. This situation can lead to
unexpectedly harsh consequences for the teen.
42.

A person under seventeen may not be confined for failure to pay all or part of a

fine or costs imposed for the conviction of a fine-only offense. Additionally, an adult generally
may not be confined for offenses based on conduct alleged to have occurred before his or her
seventeenth birthday.
43.

However, if a charge based on underage conduct remains unadjudicated and

pending before a justice court after an individual turns seventeen, the court may issue a Notice of

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Continuing Obligation to Appear (NCOA) pursuant to CCP Art. 45.060, ordering the
individual’s appearance at a designated time, place and date to answer the charge.
44.

Failure to appear at the hearing set in the NCOA is a Class C misdemeanor

committed by an adult, so prosecution for that offense is governed by adult laws respecting
issuance of an arrest warrant and imposition of a fine up to $500. It is an affirmative defense to
prosecution for this offense that the individual did not receive the NCOA or was not informed of
his or her obligation to keep the court informed of any address changes.
45.

Palacios’s court is vigilant and aggressive about sending out NCOA notices for all

pending charges as soon as a child turns seventeen. Her court sends a single notice listing all
charges deemed to be unresolved by her staff and setting one appearance to answer all charges.
If that appearance is missed, Palacios immediately issues arrest warrants on all the pending
charges based on juvenile conduct.
46.

On information and belief, many NCOA notices from Palacios’s court are sent to

the wrong address and/or list charges that the teen and her parent were under the impression had
been resolved—either in juvenile court or by Palacios. As a result, the NCOA process is like a
ticking time bomb for some teens, who are unaware as they reach adulthood that they may owe
thousands of dollars in unpaid fines related to old school tickets.
47.

Many such teens have been confined at Hidalgo County jail because of their

inability to pay those fines.
III.

Commitment to Hidalgo County Jail for Unpaid Fines
48.

The jailing of indigent persons for non-payment of court-assessed fines is

contrary to both Texas statute and the United States Constitution. Texas law requires courts to
make a written determination at a hearing that a defendant is not indigent and has not made a

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good faith effort to discharge the outstanding debt through payment or community service, prior
to committing that individual to jail for non-payment.
49.

Notwithstanding this clear statutory and constitutional dictate, Hidalgo County

maintains a consistent practice of jailing individuals who are too poor to immediately pay their
outstanding fines, without giving them the option of community service or alternate payment
arrangements.
50.

The jailing of indigent persons for non-payment of fines creates a risk to low-

income persons of all ages in Hidalgo County, though teens carrying thousands of dollars in fines
associated with truancy or other school-related conduct are particularly vulnerable to this
practice. Seventeen- and eighteen-year-olds from poor families rarely have income sufficient to
pay the multiple truancy fines that can result from over-aggressive school ticketing.
51.

Hidalgo County Sheriff’s Office (HCSO) administrative staff process and book

defendants upon arrival at the county jail in accordance with well-established practices and
procedures that are ultimately controlled, directed and supervised on a daily basis by Sheriff
Trevino.
52.

Part of the booking process entails a search of electronic offender records to

obtain information on all open warrants, prior convictions, and outstanding fines and costs
associated with that defendant.
53.

On information and belief, if documents or information related to open warrants

or prior convictions is needed by the HCSO staff to complete the booking process, HCSO staff
request such materials from staff at the originating court or other county departments.

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54.

On information and belief, prior to arraignment before a county Magistrate,

administrative staff will calculate the total amount in fines and costs owed by the defendant,
including any additional costs associated with the defendant’s arrest and transportation to the jail.
55.

By long-standing policy or custom, Hidalgo County utilizes a discharge rate of

$100 per day in jail for defendants to “pay off” outstanding fines and costs. By statute, the
minimum such discharge rate is $50 per 24-hour period.
56.

Hidalgo County’s nine justices of the peace serve as Magistrates on a rotating

basis, performing arraignments and issuing other process at the county jail. On information and
belief, arraignments and hearings at the jail are performed in a courtroom where the Magistrate
appears via an electronic broadcast system.
57.

At a typical arraignment before the on-duty Magistrate, ten or more defendants

are brought in handcuffed to each other and wearing jail clothes. Very little time is allotted to
each defendant. On information and belief, defendants with unpaid fines and costs associated
with open warrants or prior convictions are not processed at a separate hearing, but are handled
as their name is called by the Magistrate.
58.

On information and belief, after any necessary pleas are taken on pending

charges, the Magistrate informs the defendant of any unpaid fines and costs and asks if the
defendant is able to pay the amount owed.
59.

If the defendant responds that he or she is not able to pay the outstanding fines or

costs, the Magistrate informs the defendant of the number of days that would need to be served
to discharge the unpaid debt, as calculated by HCSO staff.
60.

The defendant is then committed to jail for the amount of time necessary to

discharge the outstanding fines and costs. The Magistrate signs a Class “C” commitment order

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commanding the sheriff to commit the defendant to the Hidalgo County jail “to be released upon
remaining in custody for the time required by law to satisfy the amount of such fines and
costs…”
61.

On information and belief, Hidalgo County Magistrates consistently fail to inquire

about the defendant’s financial resources or income, or elicit any information relevant to his or
her ability to pay the outstanding fines or costs, before committing the defendant to jail for nonpayment of fines and costs.
62.

On information and belief, defendants are not asked to complete a questionnaire

under oath concerning their financial resources before being committed to jail for non-payment
of fines and costs.
63.

On information and belief, before committing the defendant to jail for non-

payment of fines and costs, Hidalgo County Magistrates consistently fail to make a written
determination that a defendant is not indigent and has not made a good faith effort to discharge
his or her fines through payment or community service, as required by CCP Art. 45.046.
64.

On information and belief, Hidalgo County Magistrates consistently fail to offer

defendants the option of community service as a means of discharging their fines and costs,
pursuant to CCP Art. 45.049.
65.

On information and belief, Hidalgo County Magistrates consistently fail to offer

defendants the option of paying their fines and costs in installments, or discharging their debt
through other means.
66.

On information and belief, bond is not available for individuals with unpaid fines

and costs associated with prior convictions for failure to attend school, even if the individual was
unaware of the prior conviction when she was taken into custody.

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67.

If a defendant has been sentenced to a period of incarceration, continued

confinement after the sentence is completed is necessary to discharge unpaid fines and costs. On
information and belief, as each fine is discharged by days served—e.g., six days for $583—
HCSO staff fill out a discharge slip for that particular offense.
68.

Sheriff Trevino and the Hidalgo County justices of the peace who serve as

Magistrates are all aware of the county’s long-standing administrative policies and practices with
respect to the jailing of individuals for non-payment of fines and costs, including but not limited
to the jailing of low-income teens for non-payment of truancy fines; and each of the individual
Defendants acquiesces in carrying out those policies and practices.
69.

Hidalgo County’s electronic record system, Able Term, does not clearly reveal

how many individuals at any given time are confined in the county jail for the purpose of
discharging unpaid fines and costs, generally or with respect to specific charges such as failure to
attend school. However, an approximate number can be inferred from a combination of factors,
such as type of offense, court of origin, and length of confinement in jail.
70.

Based on approximately 14 months of electronic jail records showing individuals

incarcerated in Hidalgo County jail with open warrants for failure to attend school from January
2009 to March 2010, at least 149 individuals during that time period served jail time that may be
attributed to school-related tickets. At least 60 of these individuals were jailed with only truancy
or other school-initiated charges, or other fine-only misdemeanors on their records; of these
individuals, 50 percent were confined for more than a week.
71.

From January 2009 to March 2010, at least 31 teens aged seventeen, and 20 teens

aged eighteen were confined in Hidalgo County jail with nothing but fine-only offenses on their
records, primarily truancy charges. On information and belief, these numbers may understate the

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actual number of teens jailed for non-payment because the jail’s electronic records omit at least
one individual who was confined during this time period—Named Plaintiff Francisco De Luna.
72.

On information and belief, Able Term jail reports or jail logs—showing

individuals confined or recently processed, their arrest date, their date of birth, their charges, and
their court of origin—are periodically made available or are available upon request to different
county departments, such as the public defender’s office, the criminal district attorney’s office,
and the justice courts.
73.

It was by reviewing one of these jail logs that the County’s chief public defender

Jaime Gonzalez discovered that Francisco De Luna had been confined for several weeks at the
county jail for fine-only, school-related misdemeanor charges originating in Palacios’s court.
IV.

Named Plaintiffs and Proposed Class Representatives
A.

Francisco De Luna
i.

74.

Roles of ECISD and ECISD Police in pushing Francisco out of school
and into the criminal justice system

Francisco De Luna is eighteen years old and lives in McAllen with his mother

Elsa De Luna, his brother, his sister, and his sister’s four children. Francisco was born in
Hidalgo County and attended schools in the Edinburg Consolidated Independent School District
(ECISD) throughout his childhood.
75.

Francisco suffers from attention-deficit hyperactivity disorder (ADHD), a

condition causing inattention and impulsivity in children and adults. Francisco was first
diagnosed and prescribed medication for ADHD in 1999, when he was in third grade. Elsa De
Luna informed school officials of her son’s condition while he was still in elementary school,
and the school nurses gave Francisco his medication until he reached middle school. When he
began sixth grade at Harwell Middle School in the fall of 2003, the school refused to administer

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Francisco’s ADHD medication, which had to be taken after breakfast at around 10:00 a.m. Elsa
had to rely on Francisco to take his medication on his own, which was not always reliable.
Without his medication, Francisco found it difficult to focus at school, and his grades and
attendance suffered.
76.

On Christmas Eve 2004, when Francisco was thirteen, his father died

unexpectedly of a heart attack. Francisco’s father had supported the family as a barber, and with
his death the family’s finances became precarious. Elsa De Luna began to work longer hours as
an hourly employee in the home health care industry to support her family.
77.

Francisco incurred his first ticket at Harwell Middle School on April 7, 2005 for

“failure to comply.” The narrative attached to the ticket states that Francisco had displayed a
defiant attitude to school officials and “did not want to learn.” This purported violation of school
rules by a thirteen-year-old who had just lost his father was written up by an ECISD police
officer as a violation of TEC § 37.102 and a Class C misdemeanor.
78.

Over the next two and a half years, before he turned sixteen, ECISD police

ticketed Francisco a dozen times under TEC § 37.102 for rule violations such as wearing baggy
pants, using vulgar language, and refusing to follow directives. In addition, during this same
time period before his sixteenth birthday, Francisco received nine tickets from ECISD police and
school authorities for failure to attend school under TEC § 25.094. At no point did Francisco’s
actions threaten the safety of students or teaching staff, or constitute a criminal offense other than
failure to attend school.
79.

The Education Code was amended by the state legislature in 2007 to clarify that

only rule violations related to the operation and parking of vehicles on school property constitute
a criminal offense under TEC § 37.102. Four of Francisco’s rule violation tickets were issued

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after September 1, 2007, the effective date of the legislative changes to TEC § 37.102, meaning
that there was no statutory basis for those criminal charges or the fines assessed in connection
with those charges.
80.

On information and belief, despite having been informed of Francisco’s ADHD

diagnosis as early as 2000, over the next eight years, as Francisco increasingly struggled with
behavioral issues and academic progress in ways that could easily be attributed to his condition,
ECISD school officials never once sought to identify him as child with a behavioral disability or
to develop an individualized educational program that could meet his needs. Even though school
officials were aware of his father’s death, they did not offer counseling services or other support
to help Francisco cope with this loss.
81.

Rather, ECISD’s actions appear almost calculated to push Francisco out of the

school system. Starting in early 2007 when he was attending Harwell Middle School, school
officials began to repeatedly suspend Francisco to ECISD’s alternative education campus for 30
days or more at a stretch, for the same behavior and attendance issues that were causing him to
be ticketed.
82.

On information and belief, the social environment at ECISD’s Alternative

Education Academy (AEA) is disruptive to learning and actually tends to encourage criminal
activity and gang affiliation, especially in younger and more impressionable students. Francisco
grew to hate his time at the AEA, where he was bored and felt there was no real teaching. On
information and belief, Francisco received no academic credit for the more than three months he
spent at the AEA in 2007, seriously impairing his progress toward graduation.
83.

On two occasions, after being placed in the AEA and then being driven to drop

out of school in discouragement, Francisco attempted to re-enroll at Economedes High School,

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where he still had friends with whom he wanted to graduate. Both times he was sent back to the
AEA because he had not finished his placement there, according to school officials.
84.

After years of being ticketed repeatedly by school police officers, being

effectively excluded from the regular high school campus and any useful course of academic
instruction, and being provided no support whatsoever for his medical and behavioral issues,
Francisco finally stopped trying to attend school when he turned seventeen, in November 2008.
On December 2, 2008, ECISD filed one last complaint against Francisco for failure to attend
school.
ii.

85.

Adjudication of Francisco’s tickets in the Hidalgo County Justice Court
and Juvenile Court

All of Francisco’s tickets were initially referred for adjudication to Hidalgo

County Justice of the Peace Mary Alice Palacios. Francisco and his mother appeared before
Judge Palacios on several occasions in connection with his tickets. In addition, they came to
docket call as ordered at Palacios’s court at least two other times, with Elsa De Luna necessarily
taking the entire day off work; but Judge Palacios did not show up.
86.

On March 7, 2006 and again on November 16, 2006, Francisco and his mother

signed documents entitled “Explanation and Waiver of Rights” in Palacios’s court with respect
to two of his pending charges. The documents do not constitute valid waivers of the right to
appointed counsel with respect to Francisco’s subsequent incarceration for inability to pay fines
associated with these two charges.
87.

On February 26, 2007, Elsa De Luna signed a document agreeing to pay off one

ticket per month plus associated court costs for the next eleven months, or a monthly obligation
ranging from $257 to $383. Elsa remembers being terrified when she signed the document
because she did not know how she was going to pay the fines. She assumed she had no

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alternative but to sign. At this point, Elsa’s annual income for herself and two dependent
children was less than $20,000.
88.

During the course of 2007, however, all of Francisco’s pending charges were

transferred to the Hidalgo County Juvenile Court. Elsa understood this transfer to obviate her
need to pay the monthly fines to Palacios’s court.
89.

During the spring and summer of 2008, as a condition of resolving Francisco’s

pending charges, the juvenile court required him to perform community service, make progress
toward his GED, and complete six months of supervised probation, which entailed a 6:00 p.m.
curfew and several unannounced evening visits by a juvenile probation officer each month. On
information and belief, Francisco satisfied these conditions. He performed community service at
the University of Texas-Pan American, complied with the terms of his probation for six months,
and began studying for his GED in the summer of 2008. Both Francisco and his mother
remember signing or seeing juvenile court documents stating that Francisco was discharged of
the fines associated with his ECISD tickets.
90.

There are no documents in Francisco’s files at the justice court revealing the

disposition of his charges in the juvenile court after the charges were transferred in 2007.
91.

On December 17, 2008, one month after Francisco turned seventeen, Amanda

Zak, a truancy case manager in Palacios’s court, signed and issued a Notice of Continuing
Obligation to Appear (NCOA) with respect to 23 charges that the justice court deemed to be
open and unresolved. The NCOA ordered Francisco to appear before Palacios on January 19,
2009 in connection with all 23 charges or a warrant would be issued for his arrest. Although
there is no proof of service, the NCOA was apparently mailed to a residential address in
Edinburg, Texas with the zip code 78539. In January 2009, Francisco and his family lived at that

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address, but the U.S. post office zip code for their neighborhood had changed to 78542 in the
beginning of 2008.
92.

Francisco and his mother did not receive the NCOA.

93.

Francisco and his mother also never received written notice from the justice court,

as required by statute, informing them of their obligation to notify the court if their address
changed, and were never told of this obligation.
94.

Francisco did not appear on January 19, 2009 as ordered in the NCOA. On

January 21, 2009, Judge Palacios’s court staff prepared multiple arrest warrants for her signature,
one for each allegedly still-pending school-related charge based on underage conduct. However,
a complaint was not filed and a warrant was not issued based on the misdemeanor offense of
failing to appear as ordered on January 19, 2009—the one offense based on adult conduct that is
clearly authorized for adult prosecution by CCP Art. 45.060.
95.

The assessed fine plus court costs associated with each warrant now ranged from

$407 to $533. The total amount in fines for all Francisco’s charges was now over $10,000.
More than half that amount was based on school rule violations that today would be nonticketable infractions.
96.

Francisco and his mother received no communications from Palacios’s court after

Francisco’s charges were referred to juvenile court in 2007. Until he was arrested and jailed, he
was unaware that over 20 warrants had been issued for his arrest for non-payment of fines.
iii.

97.

Francisco’s commitment to jail by the Hidalgo County Sheriff’s Office
and Magistrate for inability to pay outstanding fines

On January 11, 2010 at approximately 1:00 a.m., a Hidalgo County sheriff’s

officer arrested Francisco and a friend for public intoxication as they emerged from a gas station

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convenience store in Edinburg, Texas. Public intoxication (PI) is a Class C misdemeanor, not
punishable by jail time.
98.

Francisco was booked and held overnight in county jail. The next morning he

was told that he could post $160 bail and would be released. He called his mother with this
news, and Elsa began to scrape together the bail money.
99.

Later that morning, Francisco was taken to a hearing where Hidalgo County

Justice of the Peace Rosa E. Trevino, the on-duty Magistrate that day, presided via an electronic
broadcast system. Francisco was wearing an orange jumpsuit and was handcuffed to at least
thirty other individuals. Security guards ringed the courtroom. Francisco remembers being
confused and intimidated by his surroundings.
100.

When his turn came, Judge Trevino informed Francisco in open court that in

addition to the PI charge, there were 24 open warrants on him for failure to attend school and
other school-related rule violations dating back several years. Francisco could not immediately
process this information since he believed all his ECISD tickets to have been discharged in 2008
through juvenile court.
101.

Trevino then asked Francisco how he wanted to plea. Francisco plead guilty,

understanding his plea to apply only to the PI charge.
102.

Trevino then told Francisco that he owed $11,140 in outstanding fines and asked

if he could pay it. Francisco said that he could not. He was not informed and did not understand
at that time that he would immediately be committed to jail for non-payment of fines.
103.

Trevino did not inquire into Francisco’s financial resources or income, or elicit

any other information relevant to his ability to pay the outstanding fines. Francisco was not
asked to complete a questionnaire under oath concerning his financial resources.

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104.

On information and belief, Trevino made no written determination that Francisco

was not indigent and had failed to make a good faith effort to discharge the fines through
payment or community service, as required by CCP Art. 45.046.
105.

Trevino did not offer Francisco the option of community service as a means of

discharging his fines, pursuant to CCP Art. 45.049.
106.

Trevino did not offer Francisco the option of paying his fines in installments, or

discharging his debt through other means.
107.

Trevino proceeded to sign and stamp 25 commitment orders, dated January 11,

2010, authorizing Francisco’s confinement in Hidalgo County jail “for the time required by law
to satisfy the amount of such fine and costs” as were assessed for each charge—including the 23
charges based on juvenile conduct identified in the NCOA, the last ECISD charge based on
absences from school just after Francisco turned seventeen, and the PI charge.
108.

Francisco’s jail records include a cover sheet time-stamped 2:37 a.m. on the

morning of his arrest, on which there is a hand-written list of all his open warrants and how
much jail time would be needed to discharge each fine at a rate of $100 per day. The total
number of days to be served is denoted as “132”. A release date of May 22, 2010 is also noted,
which is 132 days from Francisco’s arrest.
109.

Other than the hearing before Judge Trevino, no other hearing was conducted

about Francisco’s ability to pay outstanding fines prior to his commitment to jail for nonpayment.
110.

Francisco’s jail records include a document entitled “Hidalgo County Sheriffs

Department, Questions Regarding Attorney Information,” which appears to have been completed
by an officer at the jail after an oral dialogue with Francisco. In response to the question “Can

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you afford an attorney?,” Francisco responded “No”. In response to the question “Do you want a
Court Appointed Attorney?,” Francisco responded “Yes”.
111.

Francisco was not asked to furnish any additional information about his financial

resources or ability to afford an attorney.
112.

Francisco was not provided appointed counsel at the hearing before Judge

Trevino or at any other time immediately prior to his commitment to jail to discharge over
$11,000 in fines.
113.

At the time of his jailing, Francisco, a legal adult, was unemployed with no source

of income. Elsa De Luna’s annual salary at the time of Francisco’s jailing was approximately
$18,000.
114.

Francisco remained in Hidalgo County jail for eighteen days, sharing a large cell

with 24 adult men, including men who were there for serious felonies such drug distribution and
assault. Francisco was scared and disturbed by the experience.
115.

Francisco was released before serving the 132 days needed to discharge his fines

because of the intervention of Hidalgo County Public Defender Jaime Gonzalez, who noticed
Francisco’s confinement in a random review of jail logs. Gonzalez submitted a writ of habeas
corpus to County Court at Law Judge Rudolfo Gonzalez, seeking Francisco’s release. Judge
Gonzalez granted the writ on January 28, 2010 and discharged Francisco “from further illegal
confinement” from all his offenses.
116.

Francisco suffered psychological damage, humiliation, mental anguish, and

emotional injury as a result of his incarceration and the process through which he was jailed.
117.

Because of his confinement in jail, Francisco missed a long-scheduled

appointment at a barber college to interview for financial aid. Since his release, he continues to

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prepare to take his GED exam. Francisco now hopes to attend South Texas Vocational
Technical Institute to study to become a dental assistant.
B.

Elizabeth Diaz
i.

118.

Elizabeth’s ECISD ticketing for failure to attend school

Elizabeth Diaz is eighteen years old and lives in Edinburg with her sister and her

mother Adelita Hernandez. Elizabeth was born in Hidalgo County and attended schools in
ECISD throughout her childhood.
119.

Elizabeth suffers from arthritis, osteoporosis and fibromyalgia. She was

diagnosed with and prescribed multiple medications for these conditions at age ten and has taken
some form of medication for them ever since. The pain associated with these conditions as well
as necessary doctor’s appointments sometimes prevent Elizabeth from attending school.
120.

Elizabeth also suffers from ADHD and bipolar disorder. She began seeking

counseling for these conditions when she was about ten years old and was diagnosed at around
age fourteen. Elizabeth has been prescribed and continues to take multiple medications for these
conditions, as well. Both conditions sometimes make it difficult for Elizabeth to concentrate at
school. Necessary doctor’s appointments sometimes prevent her from attending school
altogether.
121.

Elizabeth’s mother told ECISD school officials or medical staff about all of

Elizabeth’s medical conditions soon after they were diagnosed. On information and belief,
ECISD school officials never sought to identify Elizabeth as child with a behavioral disability or
to develop an individualized educational program that could meet her needs.
122.

Elizabeth was ticketed twice for failure to attend school within a three-month

period in the fall of 2006, when she was fourteen years old and had just started attending high

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school at Edinburg North. Elizabeth was struggling with emotional issues at this time and
attributes her absences in part to such problems. Twice, she has voluntarily committed herself to
a behavioral health services program offered through ECISD schools for assistance with these
issues.
123.

Elizabeth received a third ticket for failure to attend school in February 2008,

while still at Edinburg North. Elizabeth’s attendance and performance in school improved
dramatically once she transferred from Edinburg North to Economedes High School in the fall of
2008.
124.

On many occasions, Elizabeth’s mother or her doctors would write notes to

excuse Elizabeth from school because of pain or medical appointments. After submitting the
notes to the front desk upon her return to school, Elizabeth was not informed whether the
excuses were properly recorded, accepted, or rejected as insufficient. She did not keep a copy of
the notes. Elizabeth and her mother believe that many of her absences from school that led to
her being ticketed should have been excused for medical reasons. There was no opportunity for
her to contest this at school before being ticketed and ordered to appear at the justice court.
ii.

125.

Adjudication of Elizabeth’s tickets in the Hidalgo County Justice Court
and Juvenile Court.

Elizabeth’s first three tickets were initially referred for adjudication to Hidalgo

County Justice of the Peace Mary Alice Palacios. Elizabeth and her mother appeared before
Judge Palacios on at least six different occasions in connection with these tickets. In addition,
they came to docket call as ordered at Palacios’s court at least one time, with Adelita Hernandez
necessarily taking the full day off from work; but Judge Palacios did not show up.
126.

On December 12, 2006 and again on March 4, 2008, Elizabeth and her mother

signed documents titled “Explanation and Waiver of Rights” in Palacios’s court with respect to

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two of her pending charges. The documents do not constitute valid waivers of the right to
appointed counsel with respect to Elizabeth’s subsequent incarceration for inability to pay fines
associated with these two charges.
127.

On information and belief, in 2008, Elizabeth’s pending charges were transferred

to the Hidalgo County Juvenile Court. The juvenile court required Elizabeth to perform about 60
hours of community service at the Boys and Girls Club in Edinburg and to comply with a term of
supervised probation. Elizabeth believes that she completed these requirements in 2008.
Additionally, because she did not receive any communications from Palacios’s court or the
juvenile court for more than a year after her supervised probation, Elizabeth believed that she
had been discharged of her pending charges.
128.

There are no documents in Elizabeth’s files at the justice court reflecting the

transfer to juvenile court or the status of her charges there.
129.

On January 27, 2009, soon after Elizabeth turned seventeen, Amanda Zak, a

truancy case manager in Palacios’s court, signed and issued a Notice of Continuing Obligation to
Appear (NCOA) with respect to three charges that the justice court deemed to be open and
unresolved. The NCOA ordered Elizabeth to appear before Palacios on February 23, 2009 in
connection with all three charges or a warrant would be issued for her arrest. Although there is
no proof of service, the NCOA was apparently mailed to a residential address in Edinburg, Texas
where Elizabeth and her mother did not reside.
130.

Elizabeth and her mother did not receive the NCOA.

131.

Prior to sending the NCOA, at least three communications sent by Palacios’s

court to Elizabeth and her mother at a different residential address had “returned to sender.”

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132.

In January 2009, Elizabeth and her mother lived at an Edinburg address where

they had resided since June 2008. On information and belief, the address had been listed in
Adelita Hernandez’s state driver’s license records and other state and county records beginning
in June 2008.
133.

Elizabeth and her mother never received written notice from the justice court, as

required by statute, informing them of their obligation to notify the court if their address
changed, and were never told of this obligation.
134.

Elizabeth did not appear on February 23, 2009 as ordered in the NCOA. That

same day, Judge Palacios’s court staff prepared multiple arrest warrants for her signature, one for
each allegedly still-pending failure to attend school charge based on underage conduct.
However, a complaint was not filed and a warrant was not issued based on the misdemeanor
offense of failing to appear as ordered on February 23, 2009—the one offense based on adult
conduct that is clearly authorized for adult prosecution by CCP Art. 45.060.
135.

The assessed fines plus court costs associated with each warrant were $533, $533,

and $537, respectively. The total in fines for all of Elizabeth’s charges was now over $1,600.
136.

On January 28, 2010, a fourth complaint of failure to attend school was filed

against Elizabeth by Information Resource Referral Assistance, Inc. (IRRA), the charter school
she was attending, based on absences occurring between October 2009 and January 2010. When
she appeared at truancy court on February 25, 2010 in connection with this last ticket, Elizabeth
was unaware that warrants had been issued for her arrest on the three earlier tickets.
iii.

137.

Elizabeth’s commitment to jail by the Hidalgo County Sheriff’s Office
and Magistrate for inability to pay outstanding fines

Elizabeth and her mother appeared at the municipal court building at noon on

February 25, 2010 after receiving a summons from Palacios’s truancy clerk James Johnson.

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Judge Palacios was not present. Marcella Cherry, a case manager from Palacios’s court, handled
the appearance.
138.

When Cherry called Elizabeth’s case, she immediately presented her with a

document entitled “Explanation/Waiver of Rights and Plea” in relation to the most recent charge,
which Elizabeth signed. This document does not constitute a valid waiver of the right to
appointed counsel with respect to Elizabeth’s subsequent incarceration for inability to pay fines
associated with her first three charges for failure to attend school.
139.

After presenting Elizabeth with this document, Cherry opened a file containing

the original tickets for Elizabeth’s three earlier charges. Cherry asked if Elizabeth was aware
that she had outstanding fines. Elizabeth was surprised and confused because she thought the
earlier charges had been resolved. Cherry asked if Elizabeth was able to pay the $1,603 in fines
she owed on the earlier charges. Elizabeth stated that she was not able to pay.
140.

Cherry then told Elizabeth to wait in a room outside the courtroom while Cherry

called the constable’s office to come and take Elizabeth to jail. Adelita Hernandez pleaded with
Cherry to let Elizabeth pay in installments or perform community service in lieu of serving jail
time. Although Elizabeth was permitted to perform community service to discharge the most
recent ticket, Cherry stated that the only options with respect to the earlier charges were
immediate payment or jail time.
141.

Hernandez asked Cherry how many days her daughter would need to serve to

discharge her fines. Cherry told her that Elizabeth would need to serve 16 days in jail. Elizabeth
eventually told her mother to leave, stating, “Mom, I don’t want you to see me in handcuffs.”

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142.

An officer from Hidalgo County Constable Precinct 4 came to the municipal court

building and arrested Elizabeth and took her to jail, where she was kept in a holding cell until
5:00 a.m. the next morning for processing and booking.
143.

The next morning when Hernandez called the jail to inquire about her daughter’s

status and whether she had received her medication in jail, the sheriff’s office employee with
whom she spoke told Hernandez that, with the addition of various costs, the amount owed was
significantly more than $1,603 and that Elizabeth would need to serve 18 days in jail to fully
discharge the fines.
144.

On the morning of February 26, 2010, Elizabeth was taken to a hearing where

Hidalgo County Justice of the Peace Bobby Contreras, the on-duty Magistrate that day, presided
via an electronic broadcast system. Elizabeth was handcuffed and in a jumpsuit. Contreras
addressed Elizabeth, read her charges, and informed her that bond was not available. Elizabeth
was not given an opportunity to speak.
145.

Contreras proceeded to sign and stamp three commitment orders, dated February

26, 2010, authorizing Elizabeth’s confinement in Hidalgo County jail “for the time required by
law to satisfy the amount of such fine and costs” as were assessed for her three failure to attend
school charges from 2006-2008. Each commitment order sentences Elizabeth to 6 full days in
jail.
146.

Contreras did not inquire into Elizabeth’s financial resources or income, or elicit

any other information relevant to her ability to pay the outstanding fines. Elizabeth was not
asked to complete a questionnaire under oath concerning her financial resources.

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147.

On information and belief, Contreras made no written determination that

Elizabeth was not indigent and had failed to make a good faith effort to discharge the fines
through payment or community service, as required by CCP Art. 45.046.
148.

Contreras did not offer Elizabeth the option of community service as a means of

discharging her first three fines, pursuant to CCP Art. 45.049.
149.

Contreras did not offer Elizabeth the option of paying her first three fines in

installments, or discharging her debt through other means.
150.

Other than the hearing before Judge Contreras, no other hearing was conducted

about Elizabeth’s ability to pay outstanding fines prior to her commitment to jail for nonpayment.
151.

Elizabeth’s jail records include a document entitled “Hidalgo County Sheriffs

Department, Questions Regarding Attorney Information,” which appears to have been completed
by an officer at the jail after an oral dialogue with Elizabeth. In response to the question “Can
you afford an attorney?,” Elizabeth responded “No”. In response to the question “Do you want a
Court Appointed Attorney?,” Elizabeth responded “Yes”.
152.

Elizabeth was not asked to furnish any additional information about her financial

resources or ability to afford an attorney.
153.

Elizabeth was not provided appointed counsel at the hearing before Judge

Contreras or at any other time immediately prior to her commitment to jail to discharge over
$1,600 in fines.
154.

At the time of her jailing, Elizabeth, a legal adult, was unemployed. Her only

source of income is Supplemental Security Income (SSI) benefits of approximately $5,600 per
year. Adelita Hernandez, who has been unable to work for medical reasons since 2007, also

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receives SSI benefits as her only source of income. At the time of Elizabeth’s jailing, Hernandez
received approximately $10,500 annually in SSI income.
155.

Elizabeth’s mother brought all of Elizabeth’s medications to the jail by the

evening of February 25, 2010 and told HCSO staff how to administer them. But Elizabeth did
not receive any of her necessary medications until March 5, 2010—a full week after she was
committed to jail. Elizabeth’s prescriptions require daily administration, except for her
methotrexate injections, which occur once per week.
156.

Elizabeth remained in Hidalgo County jail for eighteen days, sharing a large cell

with other adult women, including women who were there for murder, drug distribution,
prostitution, and human trafficking. Elizabeth was frightened and disturbed by the experience.
157.

Elizabeth suffered psychological damage, humiliation, mental anguish, and

emotional injury as a result of her incarceration and the process through which she was jailed.
158.

Elizabeth was released on March 14, 2010, the day before Edinburg schools

closed for spring break. On the following Monday, March 22, Elizabeth and her mother tried to
re-enroll Elizabeth at IRRA, the charter school she had been attending prior to being jailed.
However, because of her absence from school while she was in jail, IRRA had revoked her
enrollment for the remainder of the school year.
159.

The Texas Assessment of Knowledge and Skills (TAKS) tests were administered

at IRRA on Monday, March 1, 2010, while Elizabeth was in jail. Students are required to take
the TAKS tests before graduating from public high school in Texas. Elizabeth had planned to
graduate in August 2010 but now is unable to do so because she missed her TAKS tests and lost
credits from the spring semester because of her jailing.

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160.

Elizabeth is currently enrolled at Economedes High School and hopes to graduate

in December 2010. After graduation, she wants to attend South Texas College and then transfer
to University of Texas Pan-American to study law or business.
CLASS ACTION ALLEGATIONS
161.

Plaintiffs bring all declaratory and injunctive claims set forth in this Complaint on

their own behalf and on behalf of all similarly situated persons pursuant to Rules 23(a) and
23(b)(2) of the Federal Rules of Civil Procedure. Plaintiffs seek to represent the following class:
All individuals who have been or may in the future be adjudicated or processed
for commitment to jail for unpaid fines or costs, pursuant to the provisions of
Texas Code of Criminal Procedure Art. 45.046, while in the custody of the
Hidalgo County Sheriff’s Office.
162.

Members of the Proposed Class have been and may be subjected to violations of

their constitutional and statutory rights by all individual Defendants sued in their official
capacity, as described in this Complaint. The Named Plaintiffs represent members of the
Proposed Class in seeking declaratory and injunctive relief to eliminate Defendants’ actions,
policies and practices that deprive them of those rights.
163.

On information and belief, the Proposed Class is so numerous, and membership in

the class so fluid, that joinder of all members is impracticable.
164.

Common questions of law and fact exist as to all members of the Proposed Class.

These questions include but are not limited to: whether Defendant Magistrates consistently fail to
make a written determination as to indigency prior to committing an individual to jail for nonpayment of fines and costs; whether Defendant Magistrates consistently fail to offer indigent
defendants the options of paying their fines and costs in installments or discharging their debt

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through community service; whether Defendant Sheriff Trevino oversees and directs numerous
HCSO administrative staff and officers in processing and carrying out the commitment of
indigent persons to the county jail for non-payment of fines and costs; and whether Defendant
Hidalgo County maintains a custom or policy of confining individuals in jail for non-payment of
fines and costs without required factual determinations as to indigency.
165.

The Named Plaintiffs’ claims are typical of the claims of the members of the

Proposed Class, and the Named Plaintiffs and their counsel will fairly and adequately represent
the interests of the members of the Proposed Class.
166.

All Defendants have acted and refused to act on grounds generally applicable to

the members of the Proposed Class, such that final injunctive and declaratory relief is
appropriate with respect to the class as a whole.
167.

The injuries suffered by the Named Plaintiffs and the members of the Proposed

Class as a result of the policies and practices of all Defendants are capable of repetition, yet may
evade review, thereby rendering class relief appropriate.
FIRST CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF
Procedural Due Process: Confinement in Jail Due to Inability to Pay Fine
(Fourteenth Amendment to the U.S. Constitution)
168.

Plaintiffs incorporate paragraphs 1 through 167 as set forth above.

169.

This claim is brought on behalf of the Named Plaintiffs and the members of the

Proposed Class.
170.

By consistently failing, prior to committing an individual to jail for non-payment

of fines and costs, to make a factual determination that the individual is not indigent and has not
made a good faith effort to discharge his or her outstanding debt, Defendant Magistrates have
violated and continue to violate Plaintiffs’ right to due process of law, as guaranteed by the Due

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Process Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. §
1983.
171.

By consistently failing, prior to committing an individual to jail for non-payment

of fines and costs, to offer the individual alternatives to immediate incarceration such as
community service or an installment payment plan, Defendant Magistrates have violated and
continue to violate Plaintiffs’ right to due process of law, as guaranteed by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
172.

By supervising, controlling and directing Hidalgo County Sheriff’s Office

administrative staff and officers who process, book and ultimately confine individuals in the
Hidalgo County jail for non-payment of fines and costs without necessary indigency
examinations, Defendant Sheriff Trevino has violated and continues to violate Plaintiffs’ right to
due process of law, as guaranteed by the Due Process Clause of the Fourteenth Amendment to
the United States Constitution and 42 U.S.C. § 1983.
173.

All Defendants’ policies, practices, acts, and omissions in processing and

adjudicating individuals for commitment to the county jail for non-payment of fines and costs
without necessary indigency examinations and despite the inability of many such individuals to
pay their outstanding debt violate Plaintiffs’ right to due process of law, as guaranteed by the
Due Process Clause of the Fourteenth Amendment to the United States Constitution and 42
U.S.C. § 1983.
174.

All Defendants’ policies, practices, acts, and omissions place Plaintiffs at

continuing and foreseeable risk of being committed to Hidalgo County jail for non-payment of
fines and costs despite their inability to discharge such financial obligations.

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175.

Plaintiffs seek prospective injunctive relief because they have no plain, adequate

or complete remedy at law to prevent future injury caused by confinement in jail in violation of
their constitutional rights.
SECOND CLAIM FOR DECLARATORY AND INJUNCTIVE RELIEF
Equal Protection: Confinement in Jail Due to Inability to Pay Fine
(Fourteenth Amendment to the U.S. Constitution)
176.

Plaintiffs incorporate paragraphs 1 through 167 as set forth above.

177.

This claim is brought on behalf of the Named Plaintiffs and the members of the

Proposed Class.
178.

By consistently failing, prior to committing an individual to jail for non-payment

of fines and costs, to make a factual determination that the individual is not indigent and has not
made a good faith effort to discharge his or her outstanding debt, Defendant Magistrates have
violated and continue to violate Plaintiffs’ right to be free of discrimination based on economic
status, as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution and 42 U.S.C. § 1983.
179.

By consistently failing, prior to committing an individual to jail for non-payment

of fines and costs, to offer the individual alternatives to immediate incarceration such as
community service or an installment payment plan, Defendant Magistrates have violated and
continue to violate Plaintiffs’ right to be free of discrimination based on economic status, as
guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution and 42 U.S.C. § 1983.
180.

By supervising, controlling and directing Hidalgo County Sheriff’s Office

administrative staff and officers who process, book and ultimately confine individuals in the
Hidalgo County jail for non-payment of fines and costs without necessary indigency

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examinations, Defendant Sheriff Trevino has violated and continues to violate Plaintiffs’ right to
be free of discrimination based on economic status, as guaranteed by the Equal Protection Clause
of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.
181.

All Defendants’ policies, practices, acts, and omissions in processing and

adjudicating individuals for commitment to the county jail for non-payment of fines and costs
without necessary indigency examinations and despite the inability of many such individuals to
pay their outstanding debt violate Plaintiffs’ right to be free of discrimination based on economic
status, as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution and 42 U.S.C. § 1983.
182.

For all relevant purposes, all individuals processed for commitment to jail for

unpaid fines and costs in Hidalgo County are similarly situated with respect to their right to due
process of law. There exists no legitimate governmental reason to jail individuals who are
financially unable to pay outstanding fines and costs, while permitting individuals who have the
financial means to pay such fines and costs to avoid being jailed for the same offenses.
183.

All Defendants’ policies, practices, acts, and omissions place Plaintiffs at

continuing and foreseeable risk of being committed to Hidalgo County jail for non-payment of
fines and costs despite their inability to discharge such financial obligations.
184.

Plaintiffs seek prospective injunctive relief because they have no plain, adequate

or complete remedy at law to prevent future injury caused by confinement in jail in violation of
their constitutional rights.
DAMAGES CLAIM ON BEHALF OF NAMED PLAINTIFFS
Equal Protection and Procedural Due Process:
Confinement in Jail Due to Inability to Pay Fine
(Fourteenth Amendments to the U.S. Constitution)
185.

Plaintiffs incorporate paragraphs 1 through 167 as set forth above.

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186.

This claim is brought on behalf of the Named Plaintiffs.

187.

The policies, practices, acts, and omissions of Hidalgo County Sheriff’s Office

staff, Hidalgo County Magistrates and other Hidalgo County employees in processing and
adjudicating Francisco De Luna and Elizabeth Diaz for commitment to the county jail for nonpayment of fines and costs without necessary indigency examinations and despite the inability of
these individuals to pay their outstanding debt were carried out pursuant to an implicit or explicit
municipal policy or custom.
188.

The policies, practices, acts, and omissions of Hidalgo County Sheriff’s Office

staff, Hidalgo County Magistrates and other Hidalgo County employees in processing and
adjudicating Francisco De Luna and Elizabeth Diaz for commitment to the county jail for nonpayment of fines and costs without necessary indigency examinations and despite the inability of
these individuals to pay their outstanding debt violated their right to due process and their right
to be free of discrimination based on economic status, as guaranteed by the Due Process Clause
and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution
and 42 U.S.C. § 1983.
189.

As a proximate result of Defendant Hidalgo County’s policy or custom regarding

the commitment of individuals to jail for non-payment of fines and costs, Francisco De Luna and
Elizabeth Diaz have suffered psychological damage, humiliation, mental anguish, and emotional
injury. They seek compensatory damages to redress Defendant’s violations of their federal
constitutional rights.
DEMAND FOR JURY TRIAL
190.

The Named Plaintiffs respectfully demand a jury trial on their individual damages

claims.

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PRAYER FOR RELIEF
191.

Wherefore, Plaintiffs respectfully request that this Court grant the following

relief:
a. Issue an order certifying the Proposed Class and certify this case to proceed as a class
action pursuant to Rule 23(a) and (b)(2) of the Federal Rules of Civil Procedure;
b. Issue a judgment declaring that Defendants’ policies, practices, acts and omissions
described herein are unlawful and violate Plaintiffs’ rights under the Constitution and
laws of the United States;
c. Permanently enjoin Defendants, their subordinates, agents, employees, successors,
and all others acting in concert with them, from subjecting Plaintiffs to the
unconstitutional and unlawful practices described herein;
d.

Issue injunctive relief sufficient to reform those practices;

e. Award compensatory damages for humiliation, emotional distress and other injuries
sustained by the Named Plaintiffs;
f. Grant Plaintiffs their reasonable attorneys’ fees and costs pursuant to 42 U.S.C. §
1988; and
g. Grant such other and further relief as this Court deems just and proper.

Dated: July 26, 2010
Attorneys for Plaintiffs
s/ Lisa Graybill
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF TEXAS
Lisa Graybill (Attorney-in-Charge)
Legal Director

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Texas Bar No. 24054454
Southern District Bar No. 784838
Gouri Bhat
Texas Bar. No. 24071145
P.O. Box. 12905
Austin, Texas 78711
Tel: (512) 478-7300
Fax: (512) 478-7303
Michael A. Caddell
Texas Bar No. 03576700
Cynthia B. Chapman
Texas Bar. No. 007963339
Dana B. Levy
Texas Bar No. 24031869
Clay A Morton
Texas Bar No. 24056011
CADDELL & CHAPMAN
1331 Lamar St., Suite 1070
Houston, Texas 77010

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