Orange County Judge Brint Carlton said taxpayers should not have to pay extra to cover the $3.2 million the county paid for a lost lawsuit stemming from the death of a jail inmate.
“I am wholly against a tax increase to pay for something like this,” he told about 50 people attending at Town Hall meeting Monday evening at the county expo center.
Carlton said the county is paying the money from the fund balance, or savings, used for emergencies like natural disasters. He said the county will need to replenish the fund balance and pay for county operations. He said Commissioners Court will “make very, very tough decisions” on cutting expenses to pay for the loss.
The family of Robert Montano sued Orange County after he died after being in the Orange County Jail for four and half days in October 2011. Testimony in a federal trial held in Beaumont was that he died of renal failure after going that long without food or water.
The Orange County Sheriff’s Office at the time issued a media release saying he was on “bath salts,” a combination of chemicals. However, testimony in the trial later showed he did not have any signs of bath salts in his system at death.
Montano had a history of mental problems and the licensed vocational nurses at the jail put him in the glass room called the “bubble” and taped paper over the windows so they did not see him. He had no bed, no sink and no toilet. Food had been pushed through a slot. One nurse said in a deposition that she heard him call, but did not check. She changed her story in court.
Montano, who was schizophrenic, was listed in a state registry of people with known mental problems. The jail did not do the required search. He had been arrested for misdemeanor public intoxication with a $200 bond.
Carlton, who took office in January 2015, said officials had not been able to talk about the case while it was in litigation. After the money was paid, he set the town hall meeting and said Sheriff Keith Merritt, District-County Attorney John Kimbrough and Assistant County Attorney Doug Manning would attend. Manning handled the case for the county though the county hired outside counsel for an appeal.
Monday morning, Merritt and Kimbrough sent out a letter saying they could not participate in the public meeting.
The county judge said at the town hall meeting that the Montano case is finished and elected officials should discuss how the county lost that much money and what is being done to correct the problems.
“I’m not a fan of just using a press release or something like that,” he said.
During the meeting, people learned the county could have settled the case at a percentage of the full amount, but commissioners were assured by the attorney that the county would win.
Precinct 4 Commissioner Jody Crump, the only one of the five-member Commissioners Court who has served through the whole case, said Kimbrough never attended any of the closed-door meetings commissioners held with Manning.
Carlton said the Fifth Circuit ruling made a reference that the jail nurses on duty during the time Montano was incarcerated were disciplined. He said he wants the sheriff to explain how they were disciplined and were any terminated? He also wants to know if changes have been made.
Carlton said when the county loses that much money, taxpayers deserve an explanation.
One of the problems was that the county did not have liability insurance to cover the litigation and loss of money. Precinct 2 Commissioner Barry Burton, who also took office in January 2015, said he went to a statewide commissioners school where instructors stressed the need for the insurance.
He said when he returned to Orange, he asked Carlton about how much liability insurance the county had. They researched back to the mid-1990s and discovered the county never had it.
Carlton said the county bought the insurance in June or July of 2015. However, a pending lawsuit by an inmate who was slammed to the floor by a jailer will not be covered because it happened in January 2015.
Carlton, who is a lawyer, said he didn’t attend the Montano trial in federal court in Beaumont and relied on information from the sheriff and the assistant district attorney. He didn’t realize how bad the situation was until he read the “scathing” opinion from the U.S. Fifth Circuit Court of Appeals in New Orleans concerning the circumstances of Montano’s death.
“The county at the Fifth Circuit level got the worst possible outcome,” he said.
The decision is public record and can be found online through the Fifth Circuit website.
Earlier in the day, the Orange County Sheriff’s Office issued a media release saying a 35-year-old woman who was found hanging in a jail holding cell Friday night had died. Carlton said Monday morning on KOGT that no one from the sheriff’s office or the district attorney’s office had notified him of the death or any details. He said he learned about it when his wife pointed to a story on KOGT. A couple of commissioners said they learned of the hanging and death on Facebook.
-Margaret Toal, KOGT-
JOINT STATEMENT BY SHERIFF KEITH MERRITT AND DISTRICT ATTORNEY JOHN KIMBROUGH
At approximately 7:40 p.m. on Friday, October 7, 2011, Robert Montano was arrested for public intoxication and transported to the Orange County Correctional Facility. Upon his arrival, due to the level of his intoxication, basic information was obtained and Mr. Montano was placed in the facility’s observation cell for close observation by facility medical staff. Information obtained at the time of booking by corrections officers indicated that Mr. Montano was likely under the influence of “bath salts” a relatively new synthetic drug, and displayed behavior consistent with that information.
While being monitored by medical personnel, Mr. Montano was provided with both food and water.
On October 11, 2011, Judge David Peck attempted to arraign and take a plea from Mr. Montano; but, Montano continued to display signs of withdrawal from intoxicants and could not be arraigned. The Judge ordered Montano returned to the infirmary until he underwent detoxification and could enter a voluntary plea. Medical personnel, although noting that Mr. Montano was displaying signs consistent with withdrawal from bath salts, did not detect symptoms consistent with renal failure.
At approximately 4:58 a.m. on Wednesday, October 12, 2011, Mr. Montano, while being monitored by medical personnel, was found to be unresponsive. Ambulance and first responder personnel were contacted immediately and upon their arrival at the facility were unable to revive Mr. Montano.
Due to current protocol on in-custody deaths, the Orange County Sheriff ordered that Texas Ranger Robert Smith be contacted to investigate the incident. The autopsy results indicated that Mr. Montano’s cause of death was “Renal failure due to Bath Salts toxicity.”
Orange County Sheriff’s Office Administrators conducted an administrative investigation into the incident and have since updated and reformed policies, procedures and protocols to allow for an earlier identification and treatment of medical issues associated with intoxicating substances.
Plaintiffs’ filed suit against Orange County, Texas as well as the Sheriff and seven other Defendants alleging that they violated Robert Montano’s rights while incarcerated in the Orange County Jail. Plaintiffs alleged that Montano died of renal failure due to lack of water and that jail staff failed to provide reasonable medical care. Defendants answered denying Plaintiff’s claims and asserting appropriate affirmative defenses. In addition, Defendants retained an expert who was a former jail inspector with the Texas Commission on Jail Standards and a jail administrator. The parties conducted discovery. Defendants filed Motions For Summary Judgement. In each Motion, Defendants argued Orange County had no custom, policy or practice of denying inmates medical care. Orange County also argued that the autopsy revealed that (1) Montano died of kidney failure due to bath salt toxicity, and (2) he was not dehydrated at the time of his death. Orange County argued that the jail staff followed the standard detoxification.
protocol used by other Texas correctional facilities. Lastly, Orange County argued that Montano’s death was unforeseeable because the link between “bath salts” and kidney failure was not discovered until after Montano’s death. The Court granted the eight of the nine Motions For Summary Judgement and dismissed the eight individual defendants. But, the Court denied County’s Motion.
The case proceeded to trial and the jury returned a verdict in favor of the Plaintiffs. While we disagree with the verdict, we obviously respect the jury’s decision. Orange County filed all necessary Motions which were proper during the trial and after the jury returned its verdict. The Court denied the Motions in part but granted Orange County’s Motion to set aside the part of the award in the amount of $917,000. Both parties filed Notices of Appeal to the Fifth Circuit Court of Appeals.
Orange County retained appellate counsel for the appeal. The parties filed their briefs and presented oral arguments before a three judge panel. The three judge panel denied Orange County’s appeal and overturned the trial court’s decision to reduce the jury verdict by $917,000. Orange County moved to have a rehearing en banc (by the full court) but that Motion was denied. Thereafter, Orange County declined to appeal the case to the U.S. Supreme Court, paid the judgment and obtained a release.
The Orange County Jail is under the command of Captain Don Harmon. A tremendous amount of work and resources go into operating a county jail. Approximately 5,000 individuals are booked into the Orange County Jail each year. In addition, all of the daily needs of approximately 175 inmates must be provided every day including meals, medical and dental care, access to legal services and much more.
The Texas Commission on Jail Standards evaluates every county jail in Texas on an annual basis. The Orange County Jail has not been found to have any deficiencies since the 1994-1995 inspection year. The Orange County Jail has a twenty-two year track record of being operated in a professional and safe manner and any problems that arise are an aberration and not a normal occurrence.
The Orange County District Attorney’s Office has provided legal representation in most civil matters involving Orange County since 1993. There have been hundreds of lawsuits, claims, and disputes against the county that have been handled successfully by the attorneys of the District Attorney’s Office, including lawsuits against the jail.
Sometimes a jury will render a verdict that seems to be at odds with the evidence. Although we may not agree with what the jury decided in this case, we must accept their decision. The Assistant District Attorney who defended the case did the best he could and made the decisions that he thought to be in the best interest of the county at the time. The decisions made in every case, reviewed in hindsight, can be subject to criticism.
After reviewing some of the questions that are to be posed, and notwithstanding the fact that we have very good answers to each of them, it is clear that we cannot legally or ethically attend a public meeting and discuss those issues.
First of all, there were originally nine defendants who were sued in this case. The civil division of the District Attorney’s Office represented all of the defendants and has not been given a written waiver of the attorney-client privilege from any of them. An attorney has a sacred duty to keep much of the communications he has with a client in confidence. Even after a case reaches final disposition, that does not end the continuing obligation of an attorney to maintain the confidentiality of the attorney-client relationship. It would be impossible to discuss trial strategy and other aspects of why certain decisions were made without divulging confidential communications. The Assistant District Attorney who defended the nine named defendants in the lawsuit cannot and will not violate this privilege.
Secondly, much of the proposed public discussion directly involves matters that were discussed by the parties in closed session under the provisions of the Texas Open Meetings Act. Likewise, it would be impossible to have an intelligent conversation with anybody regarding the decisions made in this case, and the reasoning behind them, without disclosing the confidential discussions that were held in a closed meeting, which would violate the law.
In addition, we do not believe it is in the best interest of the county to publicly address past or present legal strategies given the fact that the county is currently defending other claims of a similar nature against the jail. Statements that are made by county officials or employees may be taken out of context and used in a way that is detrimental to Orange County.
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