Case Consolidation & Motion to Dismiss Victories Keep Challenge to Pre-Trial Fees Alive

Last month, Magistrate Judge K. Nicole Mitchell of the Eastern District of Texas granted consolidation of two cases by Equal Justice Under Law challenging pre-trial fees in Anderson County, Texas, while also denying the county’s motion to dismiss.

In Anderson County, pre-trial criminal defendants placed on bond supervision must pay a monthly fee of $50 for as long as their case remains in pre-trial status, which can range from months to years. One of the plaintiffs, Edward Perkins, has been on bond supervision for over three years and has been charged close to $2,000 in bond supervision fees. Ability to pay is not considered and not paying can mean jail time. In other words, pre-trial defendants can be incarcerated simply because they can’t afford a fee — a modern-day debtor’s prison. No reimbursement is given if the person’s charges are dismissed or they are acquitted, and no credit is applied towards fines and fees in the event of a guilty plea or conviction.

The first case challenging bond supervision fees was originally filed in 2020 by the Law Office of Charles W. Nichols. Over a year after the case was filed, Anderson County filed a motion to abstain on Younger grounds. While the court had not yet ruled on abstention, Equal Justice Under Law joined the case and filed a motion for leave to amend the complaint. The court denied both the motion to abstain and the motion to amend. Anderson County then unsuccessfully moved to block all depositions in the case.

In May 2022, Equal Justice Under Law and co-counsel from the Law Office of Charles W. Nichols filed a new, eight-count class action complaint also challenging Anderson County’s bond supervision fee, on due process and equal protection grounds, among others. The Court ordered briefing on case consolidation. The County filed a motion to dismiss on the sole basis that the new case was duplicative of the first. In June 2022, the court granted case consolidation and denied the motion to dismiss. The Court found that the cases had overlapping issues of fact and law and that case consolidation would promote judicial economy. The motion to dismiss was mooted based on the consolidation order.

Despite the series of procedural obstacles attempted by the County, the consolidated cases now move forward for class certification and discovery. Anderson County’s bond supervision fee is another example of criminalizing poverty, and another example of how Texas is a major civil rights battlefield right now. With these victories, Equal Justice Under Law’s fight to end Anderson County’s discriminatory policy lives on.