Gilbеrt Manly SPRING, Petitioner-Appellee, v. Harry CALDWELL, Chief of Police, City of Houston, et al., Respondents-Appellants, State of Texas, Intervenor-Appellant.
No. 81-2357
United States Court of Appeals, Fifth Circuit
Dec. 6, 1982
Rehearing and Rehearing En Banc Denied Jan. 10, 1983.
692 F.2d 994
III. CONCLUSION
Because the Hospital failed to utilize an alternative, less discriminatory means of achieving its stated goal, its business purpose stands revealed as a prеtext, and its business necessity defense must fail. Zuniga‘s termination, and the resultant controversy, could easily have been avoided by the simple expedient of treating Zuniga no differently from all the other employees eligible under the Hospital‘s leave of absence policy. The bare assertion that an unexplored, less discriminаtory means of achieving an employer‘s business purpose entails difficulties cannot justify rejecting that alternative in favor of a policy which clearly discriminates against women.
REVERSED AND REMANDED.
Douglas M. Becker, Asst. Atty. Gen., Austin, Tex., for State of Texas.
John H. Helm, Asst. City Atty., Legal Dept., Houston, Tex., for Caldwell & Stanley.
Schaffer, Lambright & Ramsey, Wendell A. Odom, Jr., Nelson & Mallett, J. Patrick Wiseman, Larry Sauer, Houston, Tex., for pеtitioner-appellee.
Michael A. Maness, Houston, Tex., amicus curiae for ACLU.
Appeals from the United States District Court for the Southern District of Texas.
Before THORNBERRY, REAVLEY and GARWOOD, Circuit Judges.
I. Introduction
This is an appeal by Caldwell, the Houston Chief of Police and defendant below, and the State of Texas, intervenor below, from a judgment arising out of a federal habeas corpus proceeding brought under
II. Facts and Disposition Below
On November 13, 1975, two Houston police officers set up surveillance in an area known to be frequented by prostitutes. They observed a known prostitute approach and speak to an unknown male who shook his head and walked away. The officers then observed her approach defendant Spring and converse with him, whereupon they approached the two. The officers requested Spring to identify himself. When Spring refused to do so, the officers placed him under arrest for violating the Texas
Spring was tried in Houston Municipal Court, found guilty, and sentenced to a $100 fine. Various appeals within the state court system resulted in affirmаnce of the judgment of the Municipal Court.2
Following affirmance of its judgment by the higher state courts, the Municipal Court demanded payment of the fine. When Spring refused to comply, the court issued a “Capias pro Fine,” or a warrant for arrest for contempt of court, to compel payment of the fine. The federal district court stayed execution of the capias on December 17, 1979, pending resolution of Spring‘s federal habeas petition.
Following a trial, the district court granted the writ, set aside Spring‘s conviction, vacated Spring‘s sentence, and declared § 38.02 of the Texas Penal Code unconstitutional.
On appeal, Caldwell and the Statе of Texas raise various points of error. In view of our disposition of the case, we need only consider the jurisdictional issue. We reverse and remand with instructions to dismiss the habeas petition.
III. Analysis
The question presented for our decision is a narrow one: whether a warrant for arrest, issued as a result of a willful refusal to pay a fine, fulfills the “in custody” requirement for federal habeas jurisdiction in a case challenging the constitutionality of a statute that only imposes a fine. The concept of custody has been relaxed considerably by the Supreme Court, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), and it is no longer necessary for a person to be under physical constraints in order to obtain habeas relief. Nonetheless, the custody requirement has not lost all meaning. Thus, for example, habeas corpus cannot be invoked to challenge a conviction that resulted in a cash fine only against the defendant. 17 Wright, Miller & Cooper, Federal Practice аnd Procedure: Jurisdiction § 4262, at 615. In our circuit, the rule has been stated in Westberry v. Keith, 434 F.2d 623 (5th Cir.1970). In Keith, defendant was convicted of failure to yield the right of way, and sentenced to a $250 fine and revocation of her driver‘s license. After paying the fine and surrendering her driver‘s license, defendant sought federal habeas relief. We held that the Supreme Court cases enlarging the concept of custody
involved petitioners who applied for the writ while either incarcerated under or paroled from prison sentences. We can find no decision by the Supreme Court nor by this circuit which would allow federal courts to take habeas corpus jurisdiction under § 2254 when the petitioner has applied for the writ after suffering a fine and the revocation of the right to drive on the state‘s highways. To allow such circumstances to form the basis of a claim that appellant was in custody would go far beyond that degree of confinement found sufficient in Carafas and Jones, supra.
434 F.2d at 624-25 (emphasis added).
All the circuit courts that have addressed the issue of federal habeas jurisdiction in fine-only cases have reached an identical
The court below distinguished the fine-only rule from the present case by stressing that Spring faced imminent incarceration as a sanction for refusing tо pay the fine, and that only a stay by the district court thwarted the execution of the capias. The court, relying on Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), justified its holding as follows: “Confinement is as imminent for petitioner here as it was in Hensley. Petitioner remains at large only by the grace of a stay issued by this Court. This is not a case of an imposition of a fine, pure аnd simple, nor is confinement here merely a speculative possibility.” 516 F.Supp. at 1227.
It is necessary, therefore, to examine Hensley in order to determine whether its holding may be construed to limit the fine-only rule as developed in this and other circuits.
In Hensley, defendant was convicted of a misdemeanor in California Municipal Court for violation of the education code, and was sentenced to serve one year in jail, and pay a fine of $625. Subsequent to his conviction, he was released on his own recognizance. While the defendant was seeking habeas relief, the state court stayed execution of his sentence. This stay was later extended by two Justices of the Supreme Court. State law provided that upon relеase on his own recognizance, a defendant must give bail, and agree to the following conditions: He must appear at all times and places as ordered by the court, and any court may revoke the order of release and return him to custody. A defendant is subject to re-arrest if he fails to appear as agreed.
The Supreme Court then laid out and applied the principles upon which to decide the custody issue. First, the defendant was subject to restraints not shared by the public generally, namely, he was obliged to appear at all times and places as ordered by any court or magistrate of competent jurisdiction. Defendаnt could not come and go as he pleased, and his freedom of movement rested in the hands of state officials who could demand his presence at any time and without prior notice and hearing. 411 U.S. at 351, 93 S.Ct. at 1575.
Second, defendant remained at large only by virtue of a stay entered first by the state court, and then extended by Justices of the Suрreme Court. The state has emphatically indicated its determination to incarcerate him, and taken every possible step to secure that result. “His incarceration is not, in other words, a speculative possibility that depends on a number of contingencies over which he has no control. This is not a case where thе unfolding of events may render the entire controversy academic. The petitioner has been forced to fend off the state authorities by means of a stay, and those authorities retain the determination and the power to seize him as soon as the obstacle of a stay is removed.” 411 U.S. at 351-52, 93 S.Ct. at 1574-75 (emphasis added).
Third, the Court noted that if it held otherwise, it wоuld do no more than postpone the habeas action until the defendant was in jail. 411 U.S. at 352-53, 93 S.Ct. at 1575. Finally, the Court emphasized that its decision would not “open the flood gates” to all persons released on bail or on their own recognizance. Those persons would still be required to contend with the exhaustion doctrine. 411 U.S. at 353, 93 S.Ct. at 1575.
One analysis of Hensley concluded thаt at least one of the two restraints on liberty, or perhaps both, must be present in order to make a finding of custody: (1) There must be present some sort of supervisory control over the defendant, that is, defendant‘s conduct must be subject in one
Applying these principles to the present case, we conclude that Hensley does not operate to limit the fine-only rule as developed in this and other circuits. First, supervisory control by state judicial officers is entirely lacking here. Spring is not out on bail, Marden v. Purdy, 409 F.2d 784 (5th Cir.1969), probation, Helm v. Jago, 588 F.2d 1180, 1181 (6th Cir.1979); United States ex rel. B. v. Shelly, 430 F.2d 215, 217-18 n. 3 (2d Cir.1970), or parole, Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). Nor is Spring out on a suspended jail sentence, United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420 (3d Cir. 1975). There are no conditions or restraints on his liberty arising out of the sentence imposed upon him for violation of § 38.02. Spring was sentenced to a fine, pure and simple.
It is true that Spring had to рost a habeas corpus bond in state court on November 25, 1977, while exhausting available state relief. However, since Spring appeared personally before the state judge as required by the bond, that bond was rendered null and void by its own terms prior to the filing of the federal habeas petition. We therefore cannot аgree with counsel for Spring, who stated during oral argument that Spring was subject to restrictions pursuant to a bond similar to the ones imposed on the defendant in Hensley.3
The second factor outlined by the Supreme Court in Hensley concerns the imminent possibility of incarceration. In Hensley, the defendant was subject to imminent arrest (which was stayed) for violating the conditions of his release. His original sentence provided for one year‘s incarceration. While сoncluding that the defendant faced imminent incarceration, the Court stressed that “[h]is incarceration is not . . . a speculative possibility that depends on a number of contingencies over which he has no control.” 411 U.S. at 351-52, 93 S.Ct. at 1574-75 (emphasis added). Our case is significantly different in that the original sentence did not provide for incarceratiоn. Furthermore, the possible incarceration here does not depend on a number of factors over which Spring has no control. On the contrary, by paying the fine, Spring will be able to avoid his incarceration altogether. He truly holds the keys to the jailhouse door.
The third factor in Hensley concerns the futility of postponing the habeas petition. In Hensley, the defendant could have properly invoked federal habeas jurisdiction by waiting until he had begun to serve his sentence. In our case, however, the rule against exercising habeas jurisdiction in fine-only cases leads us to conclude that denial of the present habeas petition will not result in mere postponement of the habeas hearing. We stress that Spring has not alleged indigency or inability to pay the fine. If he is incarcerated, it will be for his willful refusal to pay the fine.4
IV. Conclusion
For the reasons mentioned above, the judgment of the court below is REVERSED and REMANDED with directions to dismiss the habeas petition.
GARWOOD, Circuit Judge, specially concurring:
Except for the single below-noted reservation, I concur in all the majority opinion, particularly its holding as expressed in the last sentence of section III, and in the answer it gives to “the question presented” as stated in the first sentence of that section. I do not reach the question of whether the district court would have had jurisdiction if Spring had actually been incarcerated. Spring may pay his fine, as we assume he has the ability to do, or the State may collect it by levy of execution, and he may never in fact be imprisoned. See
genital abnormalities, small head, mongolism, or missing organs, depending on the cell that has been affected.”
Notes
FAILURE TO IDENTIFY AS WITNESS
(a) A person commits an offense if he intentionally refuses to report or gives a false report of his name and residence address to a peacе officer who has lawfully stopped him and requested the information.
(b) An offense under this section is a Class C misdemeanor.
The maximum penalty for violation of § 38.02 is a $200 fine. No imprisonment is authorized because justice and municipal courts, which routinely hear cases under § 38.02, have no jurisdiction to imprison. Practice Commentary,