United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED September 19, 2022 No. 21-20269 Lyle W. Cayce Clerk

Dwight Russell; Johnnie Pierson; Joseph Ortuno; Maurice Wilson; Christopher Clack,

Plaintiffs—Appellees,

versus

Judge Hazel B. Jones; Nikita Harmon; Robert Johnson; Kelli Johnson; Randy Roll; DaSean Jones; Abigail Anastasio; Jason Luong; Greg Glass; Frank Aguilar; Chris Morton; Josh Hill; Hilary Unger; Amy Martin; Herb Ritchie; Ramona Franklin; Jesse McClure, III; George Powell; Brock Thomas; Colleen Gaido; Ana Martinez,

Movants—Appellants.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CV-226

Before Stewart, Clement, and Elrod, Circuit Judges. Jennifer Walker Elrod, Circuit Judge: Plaintiffs have sued Harris County and its Sheriff to enjoin enforcement of Harris County’s allegedly unconstitutional felony-bail system. While doing so, plaintiffs served subpoenas duces tecum on county Case: 21-20269 Document: 00516475471 Page: 2 Date Filed: 09/19/2022

No. 21-20269

district judges (Felony Judges)—the non-party movant-appellants here— seeking information about their roles in creating and enforcing Harris County’s bail schedule. The Felony Judges moved to quash on several grounds, including sovereign immunity, judicial immunity, Federal Rule of Civil Procedure 45’s undue-burden standard, and the “mental processes” rule. The district court denied the motion in part and granted it in part, denying sovereign immunity, judicial immunity, and the mental processes rule and allowing the bulk of the subpoenas to proceed. Because sovereign immunity bars these subpoenas and the mental processes rule might also apply, we REVERSE in part the district court’s order. I. Plaintiffs are individuals who have been held in Harris County jails af- ter being unable to post cash bond. The appellants, referred to by the parties as “Felony Judges,” are county district-court judges who handle felony cases and promulgate Harris County’s bail schedule. In their Second Amended Complaint, plaintiffs sued Harris County, its Sheriff, and the Felony Judges, arguing that the cash bail system violates the Due Process and Equal Protec- tion Clauses of the Fourteenth Amendment. About six months later, a panel of this court released its decision in a similar case, Daves v. Dallas County, 984 F.3d 381 (5th Cir. 2020), vacated en banc, 22 F.4th 522 (5th Cir. 2022). In Daves, the panel held that the plain- tiffs’ 42 U.S.C. § 1983 claims against county district-court judges in that case were barred by sovereign immunity. Id. at 400 (holding that the district-court judges receive sovereign immunity and “lack[ed] a sufficient connection to the enforcement of the felony bail schedules” to satisfy Ex parte Young). In the wake of that decision, the plaintiffs here voluntarily dismissed the Felony

2 Case: 21-20269 Document: 00516475471 Page: 3 Date Filed: 09/19/2022

No. 2