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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

VALERIE GONZALES, and
MARIA SALAZAR, on behalf of themselves and
all others similarly situated,
Plaintiffs,

956
Civil Action No. 15-cv-________

v.
CITY OF AUSTIN,
Defendant.

CLASS ACTION COMPLAINT

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NATURE OF THE ACTION
1.

Plaintiffs in this case face the threat of jail solely because they cannot afford to

pay their debts. The City of Austin regularly jails people who are too poor to pay their fines and
fees for petty misdemeanors, such as traffic tickets, in violation of the Sixth and Fourteenth
Amendments to the United States Constitution. Specifically, the City jails people without
appointing an attorney to represent them and without asking whether they have the money to pay
their debt. Plaintiffs bring this class action to vindicate their constitutional rights to counsel, due
process, and equal protection.
2.

The City jails people through its operation of the Austin Municipal Court, which

has criminal jurisdiction limited to the least serious crimes punishable in the State of Texas. The
court assesses impoverished people exorbitant fines and fees, then arrests and jails people who
fall behind on their payments, violating their constitutional rights in the process. This practice
deprives people of their physical liberty, threatens the stability of their employment and housing,
and separates them from their children and families.
3.

Through this case, Plaintiffs seek to ensure only that the City provides basic

procedural protections before it jails people for failing to pay fines and fees for traffic tickets and
other petty misdemeanors. The City’s constitutionally deficient process results in the
imprisonment of hundreds of people each year. Plaintiffs seek an injunction prohibiting the City
from jailing people who are too poor to pay without the procedural protections guaranteed by the
Sixth and Fourteenth Amendments.
JURISDICTION AND VENUE
4.

This is a civil rights action arising under 42 U.S.C. § 1983, 28 U.S.C. § 2201 et

seq., and the Sixth and Fourteenth Amendments to the United States Constitution. This Court has

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jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and § 1343 (civil rights
jurisdiction).
5.

Venue in this district is proper under 28 U.S.C. § 1391(b)(1), because the City of

Austin resides in this district, and under § 1391(b)(2), because a substantial part of the events
giving rise to the Plaintiffs’ claims occurred in this district.
PARTIES
6.

Plaintiff Valerie Gonzales is a thirty-one-year-old mother who resides in Austin,

Texas. She lives near the federal poverty level. 1 She is at risk of being jailed, without an attorney
to defend her, due to her inability to pay her debt for traffic tickets.
7.

Plaintiff Maria Salazar is a thirty-year-old mother who resides in Austin, Texas.

She lives near the federal poverty level. She is at risk of being jailed, without an attorney to
defend her, due to her inability to pay her debt for traffic tickets.
8.

Defendant City of Austin is a municipality organized under the laws of the State

of Texas. The City of Austin has established the Austin Municipal Court as a department of the
City. The City of Austin may be served with process by serving the City Clerk, Mayor, Treasurer,
or Secretary at 301 W. 2nd Street, Austin, Texas 78701.

1

See Annual Update of the HHS Poverty Guidelines, 80 Fed. Reg. 3236 (Jan. 22, 2015),
available at https://www.federalregister.gov/articles/2015/01/22/2015-01120/annual-update-ofthe-hhs-poverty-guidelines - t-1. Each year, the U.S. Department of Health and Human Services
establishes the federal poverty guidelines based on the consumer price index for that year. The
federal poverty level is used to determine eligibility for governmental assistance. For example,
people who make up to 400% of the federal poverty level are eligible for health insurance tax
credits.

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FACTS
Valerie Gonzales
9.

Plaintiff Valerie Gonzales is a thirty-one-year-old mother and caretaker of five

disabled minor children. She lives with her children in Austin.
10.

The Austin Municipal Court jailed Ms. Gonzales for failure to pay her traffic

tickets in August 2015. At the time of her arrest and incarceration, Ms. Gonzales was
unemployed because the store where she worked had recently closed. She lived with her husband,
who earned approximately $2000 a month. Ms. Gonzales had been living near the poverty line
and in and out of homelessness. Even when Ms. Gonzales was working, her family had made at
most $36,000 a year to support a family of six, or 110% of the federal poverty level. They
received, and continue to receive, food stamps, Medicaid, and public assistance for housing.
11.

Over a period of nine years, the City of Austin gave Ms. Gonzales many tickets

including two tickets for speeding, two tickets for other minor traffic offenses, and twelve tickets
for offenses resulting from poverty, such as driving without a valid driver’s license, driving
without insurance, and failing to register her car. Ms. Gonzales and her husband did not have
enough money to pay these debts because of their modest income and the expenses necessary to
feed and shelter their family.
12.

Ms. Gonzales received many tickets because she could not pay for insurance or

current registration for her car. The Department of Public Safety also prohibited Ms. Gonzales
from obtaining a valid driver’s license due to her outstanding tickets. Nevertheless, Ms. Gonzales
had to keep driving to care for her family. She was stuck—she was repeatedly ticketed for
offenses such as driving without a valid license, but she was unable to obtain a valid license until
she paid off all of her traffic tickets.

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13.

On the evening of August 16, 2015, Ms. Gonzales was a passenger in a car

accident. Officers who responded to the scene arrested Ms. Gonzales because of outstanding
warrants on her traffic tickets.
14.

At the jail, the officers treated her as they would treat a dangerous mentally ill

person because she was crying as a result of the car accident. They handcuffed her, stripped her
naked, forced her to wear a mask over her face, and locked her alone in an observation cell. After
about thirty minutes, one guard concluded that this harsh treatment was unnecessary. Officers
then allowed Ms. Gonzales to dress and took her to a hospital to be checked for injuries from the
car accident. After Ms. Gonzales returned from the hospital, she waited more than twelve hours
to see an Austin Municipal Court judge.
15.

The judge told Ms. Gonzales that he would not accept any excuses for her failure

to pay the tickets. Ms. Gonzales tried to explain her financial situation, but the judge told her that
she would be sent to jail if she could not pay $1000 that day.
16.

The judge did not ask Ms. Gonzales about her income, her dependents, or other

factors bearing on her ability to pay. He did not inquire into Ms. Gonzales’s ability to complete
community service. He did not consider reducing the debts based on Ms. Gonzales’s ability to
pay.
17.

The judge stated that Ms. Gonzales would remain in jail for forty-five days. Upon

information and belief, the judge calculated this term on the basis of Ms. Gonzales’s debt, which
was more than $4500, and his assumption that the Travis County Sheriff would release Ms.
Gonzales after she “satisfied” $100 of the debt with each day in jail.
18.

At no point in Ms. Gonzales’s traffic ticket cases did the court inquire into her

ability to afford counsel, take any steps to appoint counsel, or obtain a knowing, voluntary, and

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intelligent waiver of Ms. Gonzales’s right to counsel. Ms. Gonzales cannot afford counsel. She
was not represented by counsel when she entered a plea on any one of her underlying traffic
tickets. She did not waive her right to counsel in any of those proceedings.
19.

Ms. Gonzales sat in jail for two days. On the third day, with the assistance of pro

bono counsel whom she obtained without any assistance from the court, Ms. Gonzales petitioned
the Austin Municipal Court for her release. Her counsel argued that she was unconstitutionally
incarcerated. Based on counsel’s motion, the court found Ms. Gonzales to be indigent and agreed
to release her with jail credit of $200 per day of jail time and an order to work off the remaining
debt by completing 395 hours of community service. The court did not reduce Ms. Gonzales’s
outstanding debt.
20.

After Ms. Gonzales was released, one of her sons, who is in elementary school

and severely disabled, had repeated and serious psychiatric issues at school. Ms. Gonzales was
called to the school nearly every day to manage her son’s behavior and take him to appointments
with his psychiatrist to adjust his medication.
21.

As a result of these repeated childcare issues, Ms. Gonzales lost her job. Her

husband also moved out of the house and stopped supporting the family. At the same time, Ms.
Gonzales’s oldest son stopped living with a cousin and moved back into her home.
22.

Ms. Gonzales and her five children spent a few weeks living on Social Security

income and occasional child support payments from the children’s father. She began a new job
the week of October 19, 2015, and she now earns approximately $2000 a month, an income that
leaves her household near the federal poverty level. Despite her best efforts, she does not make
enough money to pay the full amount of her debt to the Austin Municipal Court.

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23.

It would be a hardship for Ms. Gonzales to perform community service. Ms.

Gonzales called the court to attempt to negotiate a workable solution, but she was instructed to
simply perform the community service hours that she could. Court staff instructed Ms. Gonzales
that if she did not satisfy her community service obligation of 18 hours a month, the court would
eventually issue a warrant for her arrest. Ms. Gonzales is at risk of the Austin Municipal Court
issuing warrants, which she cannot afford to clear, and jailing her to “satisfy” her debts.
Maria Salazar
24.

Plaintiff Maria Salazar is a thirty-year-old mother and primary caretaker of her six

minor children. She lives with her children and her boyfriend in Austin.
25.

Ms. Salazar is seven months pregnant. She has been diagnosed with anemia

during pregnancy, and she is taking iron supplements.
26.

For the last four years, Ms. Salazar has been the sole caretaker for her six children.

She and her children receive public assistance for housing, food stamps, and Medicaid. Three of
her children receive child support, and in November, she expects that her other three children
will begin receiving child support.
27.

Ms. Salazar is not employed because she is the primary caretaker for her eighteen-

month-old twins, for whom she cannot afford child care. In the past, she has worked as a
manager for a commercial cleaning company. Despite her best efforts, she does not make enough
money to pay the full amount of her debt to the Austin Municipal Court.
28.

Since April 2015, Ms. Salazar’s boyfriend has been living with her and her

children. He is employed as a welder. Even with his support, Ms. Salazar’s household income is
near the federal poverty line. Ms. Salazar’s boyfriend also supports his two children, who do not
live with him.

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29.

Over a period of eleven years, the City of Austin gave Ms. Gonzales many tickets

including six for speeding and eight for offenses resulting from poverty, such as driving without
a valid driver’s license and driving without insurance. Ms. Salazar did not have enough money to
pay these debts because of her modest income and the expenses necessary to feed and shelter her
family.
30.

Ms. Salazar received many tickets because she could not pay to have the

suspension on her driver’s license lifted or pay for insurance. The Department of Public Safety
prohibited Ms. Salazar from obtaining a valid driver’s license due to her outstanding tickets.
Nevertheless, Ms. Salazar had to keep driving to care for her family. She was stuck—she was
repeatedly ticketed for offenses such as driving without a license and insurance, but she was
unable to obtain a license or afford insurance until she paid off all of her traffic tickets.
31.

In August 2015, a police officer pulled Ms. Salazar over. The officer ultimately

arrested her because of outstanding warrants from the unpaid tickets as well as a child support
hold. (The child support was an administrative mistake, and she later had the hold cleared.) Ms.
Salazar was five months pregnant at the time. She was taken to Travis County jail, where she
spent the night waiting to see an Austin Municipal Court judge, whom she saw the next morning.
32.

The judge told Ms. Salazar that he would order her to complete community

service to satisfy the debts on her ten tickets with outstanding warrants. He ordered Ms. Salazar
to complete a total of 336 hours of community service at 30 hours of community service a month,
with the first 30 hours due September 29, 2015. Ms. Salazar wanted to ask for a payment plan
because of the difficulties of completing community service due to her pregnancy and her
childcare responsibilities, but the judge did not give her a chance to do so.

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33.

The judge did not ask Ms. Salazar about her income, her dependents, or other

factors bearing on her ability to pay. He did not inquire into her ability to complete community
service. He did not consider reducing the debts based on Ms. Salazar’s ability to pay.
34.

As a result of the arrest in August 2015, the City again charged Ms. Salazar for

driving without a valid driver’s license. She has an upcoming court hearing for that charge.
35.

After Ms. Salazar was released from jail, she completed 50 hours of community

service. On or about September 29, 2015, when Ms. Salazar went to Austin Municipal Court and
turned in proof of the work she had completed, the clerk’s office employee at the window told
Ms. Salazar that she had more cases that would be coming into warrant status later that month.
He told her to come back the next week and talk to the judge presiding over a walk-in docket, in
order to have the judge add all of her other tickets to the community service order and clear them
all through community service.
36.

On October 5, 2015, Ms. Salazar returned to the Austin Municipal Court and

appeared for the walk-in docket. She told the judge that she needed to add the cause numbers
from her other tickets to her community service order, so that she could satisfy the debts in all of
her cases with community service. The judge added the remaining cause numbers and ordered
Ms. Salazar to complete an additional 25 hours of community service.
37.

Ms. Salazar was visibly pregnant during this court appearance. Ms. Salazar also

explicitly expressed her concern to the judge that she would not be able to complete her
community service requirements because she is expecting a baby in December 2015. The judge
told Ms. Salazar to mention the issue at her next court appearance for her newest charge of
driving without a valid license. He did not inquire into Ms. Salazar’s ability to pay or consider

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whether community service would be an undue hardship to her given her present circumstances.
Instead, the judge left Ms. Salazar’s community service order in place.
38.

Ms. Salazar had been arrested due to Austin Municipal Court warrants on one

occasion prior to August 2015. In 2013, an officer arrested Ms. Salazar because of outstanding
warrants on her traffic tickets and booked her into Travis County Jail. Ms. Salazar was brought
before an Austin Municipal Court judge.
39.

The judge ordered Ms. Salazar to complete community service every month for

several months. The judge did not ask Ms. Salazar about her ability to pay, and he did not
consider reducing the debts based on her ability to pay. He did not inquire into her ability to
complete community service. Ms. Salazar was released the same day.
40.

Ms. Salazar was unable to complete the community service as ordered by the

court in 2013. Circumstances such as Ms. Salazar’s inability to afford childcare, as well as her
pregnancy with twins, made performing community service a hardship.
41.

At no point in Ms. Salazar’s traffic ticket cases did the court inquire into her

ability to afford counsel, take any steps to appoint counsel, or obtain a knowing, voluntary, and
intelligent waiver of her right to counsel. While each of Ms. Salazar’s cases was pending, she
was unable to afford counsel. She was not represented by counsel when she entered a plea on any
one of her underlying traffic tickets. She did not waive her right to counsel in any of those
proceedings.
42.

At no point in Ms. Salazar’s traffic ticket cases did the court make a meaningful

determination about her ability to pay. At no point did the court consider whether the community
service ordered would be an undue hardship for Ms. Salazar.

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43.

Ms. Salazar is likely unable to complete her current community service

requirements because of her pregnancy and impending childbirth. She is at risk of the Austin
Municipal Court issuing warrants, which she cannot afford to clear, and jailing her to “satisfy”
her debts.
I.

Legal Framework for the Austin Municipal Court’s Jurisdiction Over Petty Crimes
44.

The City of Austin vests the Austin Municipal Court with jurisdiction over “fine

only” crimes, which include Class C misdemeanors. Austin, Tex., Charter art. VI; Tex. Gov.
Code §§ 29.003, 30.00003–30.00005. Class C misdemeanors are the least serious crimes
punishable in the State of Texas, such as failure to signal while changing lanes or entering a park
after hours.
45.

Under municipal law, the City Council has appointed a Presiding Judge and a

Clerk of Court for the Austin Municipal Court. Austin, Tex., City Code §§ 2-10-2, 2-10-11. The
Presiding Judge has the duty to adopt “rules for the orderly trial of a case in the municipal court.”
Id. The Austin Municipal Court is made up of nine full-time and eleven part-time judges.
46.

The Presiding Judge and the Clerk of Court act as policymakers for the Austin

Municipal Court. References to “the Austin Municipal Court” or “the court” denote an entity that
includes municipal judges and staff in the clerk’s office.
II.

Constitutional Protections for People Prosecuted in Austin Municipal Court
47.

The Due Process and Equal Protection Clauses of the Fourteenth Amendment,

along with the Sixth Amendment, protect people who are prosecuted for petty crimes, such as
Class C misdemeanors.
48.

The Due Process Clause requires courts to hold an ability to pay hearing before

jailing a poor person for failure to pay a criminal judgment debt. Bearden v. Georgia, 461 U.S.

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660 (1983). At that hearing, the court must inquire into the reason the person failed to pay and
consider alternatives to jail, such as tailoring the debt to the person’s resources. Id. at 672.
49.

The Equal Protection Clause prohibits courts from jailing someone for a fine-only

offense solely because she lacks the ability to pay. Tate v. Short, 401 U.S. 395 (1971); Williams v.
Illinois, 399 U.S. 235 (1970).
50.

The Sixth Amendment prohibits courts from jailing a person for a conviction

secured without the assistance of counsel for the accused. Argersinger v. Hamlin, 407 U.S. 25
(1972). If a trial court fails to appoint counsel for the accused in a misdemeanor case, the court
cannot impose a jail term as punishment for a resulting conviction. Id. Without the assistance of
counsel at trial, the court can never impose a term of imprisonment for that offense. Alabama v.
Shelton, 535 U.S. 654 (2002).
51.

The Equal Protection Clause of the Fourteenth Amendment prohibits the

government from stripping criminal judgment debtors of the rights afforded to civil judgment
debtors and using unduly harsh methods of debt collection for criminal judgment debt. James v.
Strange, 407 U.S. 128 (1972).
III.

The Austin Municipal Court’s Policies and Practices Violate the Constitutional
Rights of People Who Are Too Poor to Pay
52.

Class C prosecutions in Austin Municipal Court trap people who are too poor to

pay in an endless cycle of accumulating debt. The court burdens people who are too poor to pay
with additional fees and logistical hurdles at every step of the process, then arrests people who
cannot pay and denies them the procedural protections required by the Constitution. For people
who are too poor to pay, the almost-inevitable result of this system is jail time.
53.

The first step in the life of nearly every Class C prosecution is a ticket. When a

police officer issues a ticket, she instructs the recipient to sign the bottom of the ticket, which

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contains a promise to pay a fine or appear in Austin Municipal Court. People who are capable of
paying their tickets in a lump sum typically resolve their cases by mailing the court a check.
54.

People who are too poor to pay must appear in court. If a person fails to appear in

court, the judge has the option to either reschedule the appearance without a formal order, issue a
summons ordering the person to appear, or issue a warrant for the person’s arrest. Tex. Code
Crim. Proc. Arts. 15.03, 45.014.
55.

The Austin Municipal Court has a policy and practice of issuing an arrest warrant

and increasing all fines by 50% the first time a person fails to appear. The court charges a $50
fee for each ticket for which a warrant has been issued—the first of many fees the court adds on
top of the initial ticket. The court also charges “bail” to clear these warrants. “Bail” is the full
amount that the ticket would cost if the person who received the ticket pled guilty. People who
are too poor to pay the “bail” are not allowed to clear their warrant by rescheduling a court date
over the phone.
56.

People with open warrants for failing to appear in court are arrested as a result of

encounters with the police. Once arrested, they are taken before a judge of the Austin Municipal
Court.
57.

Once a person appears in court—whether voluntarily or upon arrest—the next

step is to either go to trial, plead no contest, or plead guilty. Upon conviction, Texas law
authorizes the court to assess a fine up to $500, court costs, and various fees that cause the debt
to spiral further out of control.
58.

For example, the Austin Municipal Court has a policy and practice of charging a

$25 fee to set up a payment plan for each ticket. In other words, if someone with three tickets

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asks for a payment plan because she is too poor to pay her tickets up front, the court charges her
an extra $75.
59.

The Austin Municipal Court has a policy and practice of charging a $30 fee for a

credit card payment or check that is rejected.
60.

The Austin Municipal Court has a policy and practice of charging a $30 driver’s

license renewal suspension fee to people who are too poor to pay their tickets. In addition, when
the court refers a ticket to a collection agency, the court charges a 30% collection fee.
61.

Texas law provides the Austin Municipal Court with many options for easing the

burden of these fines and fees on people who are too poor to pay. The court is authorized to
convert the debt to a civil judgment, order the ticket recipient to make payments under a payment
plan, or order her to discharge her debt through community service. Tex. Code Crim. Proc. Arts.
45.0047, 45.049. The court is also authorized to waive part or all of the outstanding debt for any
person who is too poor to pay or perform community service without undue hardship. Id. Art.
45.0491.
62.

The Austin Municipal Court fails to consider the full range of these options. The

court has a policy and practice of refusing to partially or fully waive debt, or collect debt as a
civil judgment, for people too poor to pay in full. The court has a policy and practice of limiting
people to two options—community service or a payment plan on the full amount of the debt—
regardless of whether these options impose an undue hardship.
63.

Taking advantage of these two options is not easy. The Austin Municipal Court’s

payment plan application does not include spaces for explaining essential financial information,
such as how many children a person has, or whether they receive governmental assistance for the
poor. The Austin Municipal Court does not post a community service application on its website.

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Clerk’s office staff have a policy and practice of refusing to offer the payment plan or
community service options unless a person has already missed the deadline to pay their fines and
fees, risking issuance of a warrant and additional fees.
64.

The Austin Municipal Court has a policy and practice of issuing an arrest warrant

called a “capias pro fine” warrant if a person misses their deadline to make payments or perform
community service. For people who appear in person, prove their poverty, and establish a
payment plan, Clerk’s office staff refuse to clear their capias warrants until the person makes a
payment. Capias warrants put people who are too poor to pay at high risk of being arrested and
jailed.
65.

For people whose cases are referred to a collections agency, the court has a policy

and practice of refusing to clear capias warrants unless the court receives separate payments on
each outstanding ticket. In other words, even if a person is making regular payments toward the
balance of one ticket, the court refuses to clear outstanding capias warrants on that person’s other
tickets.
66.

The Austin Municipal Court has a policy and practice of demanding arbitrary, on-

the-spot payments from people who appear in court—whether voluntarily or upon arrest—to
clear a capias pro fine warrant. For people with smaller debts, the court has a policy and practice
of demanding the amount of money in the person’s pockets before letting them go. For people
with larger debts, the court asks how much money the person would be able to produce that day,
and orders the person to produce that amount under the threat of jail time.
67.

The Austin Municipal Court also charges a $50 fee for each capias pro fine

warrant the court issues. In other words, if a ticket recipient is too poor to pay or perform
community service, she is subjected to an endless cycle of warrants that increase the debt she

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owes to the court. For example, for a person who is too poor to make payments or take time off
from work, debt from a single ticket for failure to signal while changing lanes can accumulate
like so:
Fine
Court Costs
Late Fine Increase (50%)
Arrest Warrant Fee
Check Return Fee
Payment Plan Fee
License Renewal Suspension Fee
Capias Warrant Fee
Collection Fee
Total
68.

$ 66.00
$ 103.00
$ 33.00
$ 50.00
$ 30.00
$ 25.00
$ 30.00
$ 50.00
$ 387.00
x 1.30
$ 503.01

The Austin Municipal Court adjudicates over 150,000 Class C misdemeanor cases

per year, resulting in approximately $30 million in gross collections.
69.

As described in detail below, the Austin Municipal Court has a policy and

practice of jailing people who take too long to satisfy their ever-growing debts. The court has a
policy and practice of jailing people until their debts are “satisfied,” or for a “total layout” of the
debt. The court then issues “jail credit,” or monetary credit for jail time, at a default rate of $100
per day. That default rate can be modified arbitrarily. The court has a policy and practice of
adjusting the amount of jail credit granted per day based on the date the Travis County Sheriff’s
Office releases people who are jailed. In so doing, the court delegates authority to the Sheriff’s
Office to determine how long people must sit in jail to “satisfy” their debt.
70.

The Austin Municipal Court does not automatically issue jail credit in all cases. In

cases where jail credit is not automatically issued, people who are jailed must provide proof of
incarceration to the Austin Municipal Court—even if the Austin Municipal Court is the same

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court that committed the person to jail. The Austin Municipal Court has a policy and practice of
charging people a fee in order to obtain proof that the court jailed them.
71.

These policies and practices affect thousands of Austin residents. The Austin

Municipal Court issued jail credit in nearly 20,000 cases in fiscal year 2012–2013. During that
same period, the Austin Municipal Court refused to waive one dollar of outstanding debt in any
of its more than 170,000 cases.
A.

The Austin Municipal Court Jails People Solely Because They Are Too Poor to Pay,
Without Inquiring Into Ability to Pay or Alternative Punishments
72.

The Austin Municipal Court has a policy and practice of jailing people solely

because they are unable to satisfy their criminal judgment debt, even if they can demonstrate that
their failure to pay or perform community service was not willful.
73.

The Austin Municipal Court has a policy and practice of bringing people who are

arrested on capias pro fine warrants to Central Booking, where they are processed into Travis
County Jail. Their clothes and belongings are confiscated. They are brought before a municipal
judge in jail-issued striped pajamas, shackled to one another at the wrist. Under these
circumstances, the court holds brief hearings to determine whether to send each person to jail.
74.

The Austin Municipal Court has a policy and practice of jailing people without

any meaningful inquiry into their reasons for failing to pay. The court jails people without
inquiring into their income, expenses, household dependents, or other circumstances bearing on
their ability to pay.
75.

The Austin Municipal Court has a policy and practice of holding jail commitment

hearings without prior notice that the hearing will take place, and without informing ticket
recipients that their ability to pay or perform community service is a crucial issue in the hearing.

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76.

The Austin Municipal Court has a policy and practice of failing to provide form

financial information affidavits to arrestees during jail commitment hearings.
77.

The Austin Municipal Court has a policy and practice of failing to make

meaningful inquiries into alternatives to imprisonment, including collection of outstanding debt
as civil judgment debt and reducing or waiving debts.
78.

The court’s policies and practices are reflected in the preprinted form the court

uses to commit people to jail. The form, which judges fill in by hand, does not include a space to
enter meaningful factual findings about constitutionally-required considerations, such as the
person’s ability to pay, the adequacy of alternative punishments, and the necessity of jail time to
satisfy the state’s interest in punishment. There is no preprinted form for tailoring outstanding
debts to the person’s resources.
79.

The court’s policies and practices are reinforced by the Austin City Code. Section

2-10-21 of the Austin City Code provides: “If a defendant defaults on payment of a fine or fails
to comply with alternative sentencing, a judge may imprison the defendant until the fine is paid
in full.” This Section does not require the court to inquire into ability to pay or consider
alternative punishments, such as tailoring a fine to the person’s resources, for people who are
unable to pay.
80.

These policies and practices are also reinforced by the Austin Municipal Court

Rules. Rule 9.4, “Inability to Pay Fine,” provides that the court “may” order a payment plan or
community service in lieu of immediate payment of a fine, “[i]f the defendant qualifies.” The
Rules do not describe the criteria for permitting people to satisfy their debts through payment
plans or community service. The Rules do not require the court to consider alternative
punishments, such as tailoring a fine to the person’s resources, for people who are unable to pay.

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81.

The court has a policy and practice of failing to provide any procedures or

guidelines for jailing people who have not paid their outstanding debts. No provision of the
Austin City Code or the Austin Municipal Court Rules establishes such procedures or guidelines.
82.

The best evidence of the court’s failure to consider alternatives to jail is its own

data on debt waivers. The Austin Municipal Court’s self-reported data indicate that the court
waived debt in just 11 of more than 600,000 cases between September 2011 and September 2015.
During the same time period, on information and belief, the court jailed more than 2000 people.
83.

Altogether, the Austin Municipal Court has a policy and practice of failing to

comply with any aspect of the ability to pay hearing required under the Due Process Clause. As a
result, the court has a policy and practice of jailing people solely because they are unable to
satisfy their criminal judgment debt 2 , in violation of their rights under the Equal Protection
Clause. People who are genuinely unable to make debt payments or perform community service,
such as the named Plaintiffs, are jailed solely because of their lack of resources.
84.

As evidenced by the Austin Municipal Court Rules and preprinted form orders,

these policies and practices are so persistent and widespread that knowledge of the policies and
practices is attributable to municipal policymakers.
B.

The Municipal Court Imprisons People For Criminal Convictions Entered Without
Assistance of Counsel
85.

The Austin Municipal Court has a policy and practice of entering Class C

misdemeanor convictions without the benefit of counsel for the accused, and then using those
convictions as a basis for jailing people.

2

Plaintiffs do not challenge the court’s authority to jail people for willful nonpayment of debt or
other actions in contempt of court.

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86.

The Austin Municipal Court has a policy and practice of refusing to appoint

counsel for people charged with Class C misdemeanors. No provision of the Austin City Code or
the Austin Municipal Court Rules discusses appointing counsel in these cases. The Austin
Municipal Court has no system for appointing counsel. The Austin Municipal Court’s website
states that the court does not appoint counsel.
87.

The Austin Municipal Court has the power to jail people for failure to pay their

criminal judgment debt. Tex. Code Crim. Proc. Art. 45.4046. The Austin Municipal Court has a
policy and practice of using this power to impose a jail term to punish Class C offenses.
88.

The court has a policy and practice of issuing orders jailing people “on the above

stated cause(s),” which are the underlying Class C offenses. The court has a policy and practice
of jailing people to “lay out” or “satisfy” the fines and fees imposed for the underlying Class C
offenses. The court therefore has a policy and practice of jailing people as a result of their Class
C misdemeanor convictions entered without the assistance of counsel.
89.

The Austin Municipal Court has a policy and practice of failing to obtain knowing,

voluntary, and intelligent waivers of counsel from people whom the court later jails for Class C
offenses.
90.

As evidenced by the lack of a system for appointing counsel and hundreds of

people jailed each year, these policies and practices are so persistent and widespread that
knowledge of the policies and practices is attributable to municipal policymakers.
C.

The Municipal Court Employs Unduly Harsh and Discriminatory Terms for
Collecting Criminal Judgment Debt, in Contrast to Civil Judgment Debt
91.

If the debt resulting from Class C tickets were owed to a private party as a civil

debt, the tools available to the debt collector would be much more limited. The Texas
Constitution prohibits jailing almost any civil debtors, with narrow exceptions for debtors in

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contempt of court who have willfully failed to pay a legal financial obligation. Tex Const. Art. I,
§ 18; Ex parte Sutherland, 526 S.W.2d 536 (Tex. 1975).
92.

Even civil debtors in contempt of court have significantly stronger procedural

protections than the protections afforded by the Austin Municipal Court. Civil debtors are
entitled to meaningful written notice of the accusations against them, appointed counsel for their
defense, a hearing on willfulness, the complete defense of inability to pay, and a written
commitment order if the court decides to imprison the contemnor. Tex. Fam. Code § 157.163; Ex
parte Chambers, 898 S.W.2d 257 (Tex. 1995); In re Griffith, 434 S.W.3d 643 (Tex. App.
Houston 2014); In re Acceptance Ins. Co., 33 S.W.3d 443 (Tex. App. Ft. Worth 2000); Ex parte
Rosser, 899 S.W.2d 382 (Tex. App. Houston 1995); Ex parte Strickland, 724 S.W.2d 132 (Tex.
App. Eastland 1987).
93.

The Austin Municipal Court has a policy and practice of failing to provide

criminal judgment debtors these basic protections.
94.

The Austin Municipal Court’s policy and practice of collecting Class C debt is

unduly harsh and discriminatory as applied to people who are too poor to pay. The threat of
imprisonment also induces impoverished families to forego paying for basic needs, such as
paying their electricity bill, in order to make their payments.
95.

The Austin Municipal Court has a policy and practice of failing to give people

who are jailed meaningful written notice of the accusations against them, failing to appoint
counsel, failing to hold meaningful hearings on ability to pay, and failing to draft written
commitment orders for a specific jail term. These policies and practices are so well-settled and
widespread that knowledge of the policies and practices is attributable to municipal policymakers.

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CLASS ACTION ALLEGATIONS
96.

The named Plaintiffs bring this action on behalf of themselves and all others

similarly situated under Rule 23 of the Federal Rules of Civil Procedure. They seek to represent
the class of all persons who, now or in the future, are unable to satisfy their criminal judgment
debt assessed in Class C misdemeanor cases in Austin Municipal Court.
97.

This action is brought and may properly be maintained as a class action pursuant

to Rule 23(a)(1)-(4) and Rule 23(b)(2) of the Federal Rules of Civil Procedure.
I.

Numerosity, Rule 23(a)(1)
98.

Members of the putative class are so numerous that joinder is impracticable. In

fiscal year 2012–2013, the Austin Municipal Court and issued 65,711 warrants and commitment
orders. 3 During that year, 19.1% of Austin residents lived below the poverty line. Even if
impoverished people are marginally over- or under-represented in Austin Municipal Court cases,
warrants, and commitment orders, there are thousands of people who are too poor to pay their
tickets, and are currently being threatened with arrest and incarceration.
99.

Joinder is also impracticable because membership in the putative class is fluid.

New people are ticketed and convicted every day—the average life cycle of a Class C
prosecution is just 230 days. Moreover, financial stability is uncertain for people with lower
incomes, and someone who is capable of paying their tickets one day may find themselves
impoverished the next, due to job loss, injury, or other unforeseen circumstances. Finally,
putative class members may moot their claims by serving jail time or paying fines and fees by
choosing to miss payments on necessary household expenses.

3

The Austin Municipal Court reports data about warrants and commitment orders together, as
one data point, to the Office of Court Administration.

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100.

Finally, joinder is impracticable because members of the putative class are poor.

They are unable to pay for an attorney to represent their interests or invest the time and money
necessary to investigate and litigate their claims pro se.
II.

Commonality, Rule 23(a)(2)
101.

The relief sought is common to all members of the putative class, and common

questions of law and fact exist as to all members of the class. The Plaintiffs seek to enjoin the
Austin Municipal Court’s unconstitutional policies and practices on a classwide basis. They also
seek a declaration that the Austin Municipal Court’s policies and practices violate the Sixth
Amendment right to counsel and the Due Process and Equal Protection rights of all putative class
members.
102.

Among the most important, but not the only, common questions of law and fact

are:
a. Whether the Austin Municipal Court has a policy and practice of failing to ask
about the reasons for a person’s failure to pay before imprisoning that person for
failure to pay;
b. Whether the Austin Municipal Court has a policy and practice of failing to
consider alternative punishments before imprisoning a person for failure to pay;
c. Whether the Austin Municipal Court has a policy and practice of declining to
appoint counsel in Class C misdemeanor cases, then jailing people for the
resulting convictions;
d. Whether the foregoing policies and practices violate the Sixth Amendment, the
Due Process Clause, and/or the Equal Protection Clause;
e. Whether the foregoing policies and practices are officially promulgated policies,
final decisions by municipal policymakers, practices or customs so widespread
and well-settled that knowledge is attributable to municipal policymakers, or the
byproduct of Defendant’s deliberate indifference to putative class members’
rights under the Sixth Amendment, the Due Process Clause, and/or the Equal
Protection Clause.

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III.

Typicality, Rule 23(a)(3)
103.

The named Plaintiffs’ claims are typical of the claims of the putative class

members, and they have the same interests as all other members of the putative class that they
represent. The named Plaintiffs’ claims arise from the same course of conduct as claims of the
putative class, and their claims are based on the same legal theories as those of the putative class.
104.

None of the named Plaintiffs has received unusual treatment by the Austin

Municipal Court. Each of them is at risk of suffering injuries—arrest and incarceration—that are
typical of injuries that would be suffered from the City’s constitutional violations.
105.

By pursuing their claims that the Austin Municipal Court’s policies and practices

concerning criminal judgment debt collection violates the law in the manner alleged, the named
Plaintiffs will likewise benefit every other member of the putative class.
IV.

Adequacy, Rule 23(a)(4)
106.

The named Plaintiffs are adequate representatives of the putative class because

they are members of the class and because their interests coincide with, and are not antagonistic
to, those of the class.
107.

There are no known conflicts of interest among putative class members, all of

whom have a similar interest in vindicating the constitutional rights to which they are entitled.
108.

Both named Plaintiffs are familiar with the Austin Municipal Court procedures

challenged here and the constitutional protections she seeks to vindicate. The named Plaintiffs
are prepared to respond to discovery requests in this case. They are enthusiastic about fulfilling
the role and duties of a class representative protecting the fundamental constitutional rights of
Austin’s poorest residents.

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109.

Plaintiffs are represented by attorneys from the Texas Fair Defense Project, the

University of Texas Civil Rights Clinic, and Susman Godfrey L.L.P. All three entities have
experience litigating complex civil rights matters in federal court. Attorneys from the Texas Fair
Defense Project and the Civil Rights Clinic have investigated municipal ticketing in Austin for
months. Moreover, Susman Godfrey has extensive experience litigating complex civil cases,
including class actions, in federal courts across the country, including this Court, the Fifth
Circuit Court of Appeals, and the U.S. Supreme Court. Affidavits from Plaintiffs’ counsel
describing their qualifications accompany the motion for class certification filed simultaneously
with this complaint.
110.

Plaintiffs and their attorneys will fairly and adequately protect the interests of the

members of the Class.
V.

Rule 23(b)(2)
111.

Class action status is appropriate because Defendants have acted and refused to

act on grounds generally applicable to the putative class. Defendants’ policies and practices with
regard to failure to inquire into ability to pay before jailing, failure to consider adequate
alternatives to imprisonment before jailing, jailing for convictions obtained without the
assistance of counsel, and denying core procedural protections for civil judgment debtors apply
equally to the class regardless of differences among class members.
112.

Plaintiffs seek final injunctive and declaratory relief with respect to the

constitutional protections due to people prosecuted for Class C offenses in Austin Municipal
Court.
113.

Injunctive and declaratory relief with respect to each claim would be appropriate

to the class as a whole. All putative class members are entitled to the constitutional protections
Plaintiffs seek to enforce.
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CLAIMS FOR RELIEF
Count One: Failure to Inquire Into Ability to Pay and Alternatives to Incarceration
(Section 1983 and Due Process Clause)
114.

Plaintiffs incorporate by reference allegations in the foregoing paragraphs.

115.

The Austin Municipal Court has a policy and practice of jailing people who are

too poor to pay their criminal judgment debt, without first inquiring into the reasons the person
has failed to pay the debt and adequate alternatives to incarceration.
116.

Jailing a person who is too poor to pay her debt without first inquiring into the

reasons she has failed to pay her debt and adequate alternatives to incarceration violates the Due
Process Clause of the Fourteenth Amendment. Bearden v. Georgia, 461 U.S. 660, 666 (1983).
Count Two: Commitment to Jail Solely Due to Inability to Pay
(Section 1983 and Equal Protection Clause)
117.

Plaintiffs incorporate by reference allegations in the foregoing paragraphs.

118.

The Austin Municipal Court has a policy and practice of jailing people solely

because they are unable to pay their debts arising from fines for Class C misdemeanors.
119.

Jailing a person solely because they lack the resources to pay a fine violates the

Equal Protection Clause of the Fourteenth Amendment. Tate v. Short, 401 U.S. 395 (1971);
Williams v. Illinois, 399 U.S. 235 (1970).
Count Three: Commitment to Jail for
Convictions Without Assistance of Counsel
(Section 1983 and the Right to Counsel and Due Process Clauses)
120.

Plaintiffs incorporate by reference the allegations in the foregoing paragraphs.

121.

The Austin Municipal Court has a policy and practice of failing to appoint

counsel for people charged with Class C misdemeanor offenses or to obtain a knowing,
voluntary, and intelligent waiver of the right to counsel. The Austin Municipal Court also has a

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policy and practice of jailing people to satisfy judgments of conviction for Class C
misdemeanors that were obtained without the assistance of counsel.
122.

The Sixth Amendment right to counsel applies against state and local

governments as incorporated through the Due Process Clause of the Fourteenth Amendment.
123.

Sentencing a person to imprisonment as a result of a criminal conviction obtained

without the assistance of counsel, and in the absence of a knowing, voluntary, and intelligent
waiver of the right to counsel, violates the Sixth Amendment right to counsel. Alabama v.
Shelton, 535 U.S. 654 (2002); Argersinger v. Hamlin, 407 U.S. 25 (1972).
Count Four: Unduly Harsh and Discriminatory Debt Collection
(Section 1983 and Equal Protection Clause)
124.

Plaintiffs incorporate by reference the allegations in the foregoing paragraphs.

125.

The Austin Municipal Court has a policy and practice of without notice or

appointment of counsel, failing to make findings of willfulness before jailing, and jailing people
with unclear orders of commitment to collect Class C debts. Use of these tactics for civil
judgment debt collection is prohibited by Texas law.
126.

The tactics used by the Austin Municipal Court are unduly harsh and

discriminatory methods of debt collection when compared with the debt collection tactics
permitted by a private creditor.
127.

Use of unduly harsh and discriminatory debt collection practices against people

who are too poor to pay criminal judgment debt violates the Equal Protection Clause of the
Fourteenth Amendment. James v. Strange, 407 U.S. 128 (1972).

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REQUEST FOR RELIEF
WHEREFORE, Plaintiffs request that this Court issue the following relief:
1.

2.

An injunction prohibiting Defendants from:
a.

imprisoning class members for failure to satisfy their debt without
inquiring into the reasons for their failure to satisfy the debt or adequate
alternatives to imprisonment, specifically, tailoring the debt to the class
member’s resources;

b.

imprisoning class members solely because they lack the resources to
satisfy their debt;

c.

imprisoning class members as a result of convictions for which the class
member did not have assistance of counsel or knowingly, intelligently, and
voluntarily waive that right; and

d.

imprisoning class members to collect criminal judgment debt without the
core legal protections required for collection of debt by a private creditor;

A declaration that the foregoing practices violate the class members’

constitutional rights as alleged;
3.

An order and judgment granting reasonable attorneys’ fees and costs pursuant to

42 U.S.C. § 1988; and
4.

Any other relief this Court deems just and proper.

Respectfully Submitted,
By:

/s/ Rebecca Bernhardt
Rebecca Bernhardt
Texas Bar No. 24001729
Susanne Pringle
Texas Bar No. 24083686
Texas Fair Defense Project
510 S. Congress Ave., Suite 208
Austin, TX 78704
(512) 637-5220 (t)
(512) 637-5224 (f)
rbernhardt@fairdefense.org
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springle@fairdefense.org
Ranjana Natarajan
Texas Bar No. 24071013
Trisha Trigilio
Texas Bar No. 24075179
University of Texas School of Law
Civil Rights Clinic
727 East Dean Keeton Street
Austin, TX 78705
Tel: 512-232-7222
Fax: 512-232-0800
rnatarajan@law.utexas.edu
ttrigilio@law.utexas.edu
Joseph S. Grinstein (TX Bar No. 24002188)
Neal Manne (TX Bar No. 12937980)
SUSMAN GODFREY LLP
1000 Louisiana Street, Suite 5100
Houston, Texas 77002
Telephone: (713) 651-9366
Facsimile: (713) 654-6666
jgrinstein@susmangodfrey.com
nmanne@susmangodfrey.com

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