Full opinion text
MEMORANDUM OPINION ROBERT W. PORTER, District Judge. Doescher, Jordan and Rheuark were convicted in the Texas state courts of various criminal offenses. They each sought to appeal their convictions to the Texas Court of Criminal Appeals, but it took between nine and twenty-three months for the transcription of the court proceedings to be prepared by the court reporter. Each Plaintiff alleges that these delays violated their constitutional rights to speedy appeal and due process, and that they are entitled to damages and injunctive relief under 42 U.S.C. § 1983. The court, in summary, holds: (1) The delays in this case violated Plaintiffs’ constitutional due process rights on appeal, for which Rheuark and Doescher are each entitled to $1.00 as nominal damages and Jordan is entitled to $3,000 actual damages, but they are not entitled to any injunctive relief or punitive damages; (2) Judge Metcalf is judicially immune for his judicial acts which caused Plaintiffs injuries; (3) Absolute legislative immunity appeals to local government officials performing legislative acts and the Dallas County Commissioners are entitled to legislative immunity for their legislative acts which caused Plaintiffs’ injuries; (4) Dallas County is liable for damages and attorneys’ fees because the actions of the Commissioners constituted a policy and custom of Dallas County that violated Plaintiffs’ rights; (5) Court reporters are entitled to greater qualified immunity than state executive officials, and Bastas is entitled to qualified immunity for his acts which caused Plaintiffs’ injuries; and (6) Under 42 U.S.C. § 1988 attorneys fees are taxed as costs, and in this case are taxed as such against judges, legislators and court reporters in their official capacities despite claims of absolute judicial and legislative immunity, and claims of qualified immunity for court reporters. John Doescher was convicted of aggravated robbery on March 12, 1975 in Criminal District Court No. 2 in Dallas, Texas, and on March 20,1975 the trial judge sentenced him to 75 years in prison. Doescher filed a timely notice of appeal on April 11, 1975 by filing a pauper’s oath in which he requested the trial judge to appoint an attorney to represent him on appeal and to order the court reporter to prepare a statement of facts free of charge. The statement of facts was completed on December 6, 1976 and Doescher’s conviction was affirmed by the Texas Court of Criminal Appeals on September 27, 1978. Doescher’s motion for rehearing was denied on March 21, 1979. The time that elapsed between ordering his statement of facts to be prepared and the actual preparation of the statement of facts was 20 months. Robert Allen Jordan was convicted of carrying a prohibited weapon in a tavern on October 5, 1976 in Criminal District Court No. 2 in Dallas, Texas, and on October 22, 1976 the trial judge sentenced him to 12 years in prison and a $3,000.00 fine. Jordan gave a timely notice of appeal on October 22, 1976 and the trial judge then ordered the court reporter to prepare a statement of facts covering the proceedings in Jordan’s trial. The statement of facts was completed on July 22, 1977. Jordan’s conviction was reversed and remanded by the Texas Court of Criminal Appeals for a new trial. On April 20, 1978, Jordan entered a plea of guilty to the charge and received a sentence of three years, with credit for time served since March 8, 1976. Jordan was released from the Texas Department of Corrections on May 1, 1978. The time that elapsed between ordering his statement of facts to be prepared and the actual preparation of the statement of facts was nine months. Jack Rheuark was convicted of armed robbery in January, 1975 in Criminal District Court No. 2 in Dallas, Texas, and on February 10, 1975 the trial judge sentenced him to 99 years in prison. Rheuark filed a timely notice of appeal on February 10, 1975 and the trial judge then ordered the court reporter to prepare a statement of facts concerning the proceedings in Rheuark’s trial. Rheuark’s statement of facts was completed on January 21,1977. Rheuark’s conviction was affirmed by the Texas Court of Criminal Appeals. The time that elapsed between ordering the statement of facts to be prepared and the actual preparation of the statement of facts was 23 months, 11 days. RHEUARK’S PRO SE REPRESENTATION Plaintiff Rheuark in certain pro se petitions and at a hearing on February 21,1979, expressed some dissatisfaction with the attorney’s representation alleging that his court appointed counsel had not raised a claim under 42 U.S.C. § 1985 and had failed to subpoena certain witnesses. The court advised the Plaintiff that he had no right to counsel in a 1983 action, and that he could represent himself. You have a right to represent yourself or you have a right to be represented by counsel, but you can’t have some of each. You go one way or the other and that’s clearly the law when there is an attorney at record in the case . You are represented by highly competent counsel particularly in this field . but I want you to tell me what you wish to do. Hearing February 21, 1979 at 5-6 The Court also stated “(i)f the evidence raised the issue of conspiracy ... I would likely grant a trial amendment to let the pleadings conform with the evidence.” Hearing February 21, 1979 at 7-8. Plaintiff Rheuark then elected to proceed to triak represented by counsel. The evidence presented at trial raised the issue of a conspiracy, and therefore the Court permits Plaintiff Rheuark to amend his complaint by including a conspiracy claim under 42 U.S.C. § 1985(2) and (3) that he was denied equal protection of the laws by his failure to receive a speedy appeal. EXHAUSTION OF STATE REMEDIES A petitioner must exhaust his state remedies in a § 1983 or a § 1985 civil suit for damages where the damage is related to the underlying criminal conviction and when he seeks injunctive relief under 42 U.S.C. § 1983. 42 U.S.C. § 1983; 42 U.S.C. § 1985; Fulford v. Klein, 529 F.2d 377 (5th Cir. 1976) aff’d en banc, 550 F.2d 342 (5th Cir. 1977); Gaito v. Ellenbogen, 425 F.2d 845 (3rd Cir. 1970). Exhaustion of state remedies is not required where the federal suit is independent of any habeas allegations. Id. Doescher has exhausted his state remedies. He filed pro se briefs with the Texas Court of Criminal Appeals contending that he had been denied his right to a speedy appeal. The Texas Court of Criminal Appeals considered his arguments and concluded: Doescher v. State, 578 S.W.2d 385 (Tex. Crim.App.1978). “We have reviewed appellant’s pro se supplemental briefs and have concluded that their consideration would add nothing to the jurisprudence of this state and they are hereby overruled.” Doescher’s motion for rehearing was denied March 21, 1979. Jordan has exhausted his state remedies because his conviction was overturned by the Texas Court of Criminal Appeals, and he subsequently pled guilty to time served and was released from prison on May 1, 1978. Rheuark has technically not exhausted his state court remedies. Although Rheuark did raise the denial of his statement of facts in a successful attempt to avoid the exhaustion requirement before he received his statement of facts, see Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976), he has apparently never alleged before a state or federal court that such denial entitled him to any habeas corpus relief other than receipt of his statement of facts. Rheuark has received his statement of facts. Exhaustion of state remedies is not required when a petitioner seeks damages and injunctive relief against state court officials for their alleged failure to forward a state trial court transcript to the State Appellate Court if the petitioners are not seeking relief from their sentences, 42 U.S.C. § 1983; Rheuark v. Shaw, 547 F.2d 1257 (5th Cir. 1977), and therefore Doescher, Jordan and Rheuark are not required to exhaust their state remedies. SIXTH AMENDMENT RIGHT TO SPEEDY APPEAL The Sixth Amendment to the Constitution guarantees that “(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . ” U.S.Const. Amendment VI. The right to a speedy trial extends to the sentencing of a defendant and an unreasonable delay may constitute a violation of the Sixth Amendment. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957); United States v. Campbell, 531 F.2d 1333 (5th Cir. 1976); United States v. James, 459 F.2d 443 (5th Cir. 1972). An early Supreme Court decision held that an appeal from a state judgment of conviction was not a matter of right, and was not a necessary element of due process. McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894). This decision was followed in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1953), and Ortwein v. Schwab, 410 U.S. 656, 93 S.Ct. 1172, 35 L.Ed.2d 572 (1973). The word “trial” in the Sixth Amendment does not include an appeal, but rather refers to a determination by the jury of guilt or innocence. Colunga v. State, 527 S.W.2d 285 (Tex.Crim.App.1975); Zanders v. State, 515 S.W.2d 907 (Tex.Crim.App. 1974); Cunningham v. State, 484 S.W.2d 906 (Tex.Crim.App.1972); State v. Lagerquist, 254 S.C. 501, 176 S.E.2d 141 (1970), cert. den’d 401 U.S. 937, 91 S.Ct. 912, 28 L.Ed.2d 216 (1971); State ex rel. Mastrian v. Tahash, 277 Minn. 309, 152 N.W.2d 786 (1967). There is no Sixth Amendment right to speedy appeal. Doescher v. Estelle, 454 F.Supp. 943 (N.D.Tex.1978). DUE PROCESS RIGHT TO SPEEDY APPEAL Substantial delay in processing of an appeal may constitute a denial of due process. Doescher v. Estelle, 454 F.Supp. 943 (N.D.Tex.1978). The Fifth Circuit has previously held in this case that Rheuark stated a cause of action under 42 U.S.C. § 1983 by claiming that his constitutional rights were violated by the delay in obtaining the transcript of the reporter’s notes of his trial. Rheuark v. Shaw, 547 F.2d 1257 (5th Cir. 1977). Other courts have allowed similar causes of action. McLallen v. Henderson, 492 F.2d 1298 (8th Cir. 1974); Washington v. Official Court Stenographer, 251 F.Supp. 945 (E.D.Pa.1966); Simmons v. Maslynsky, 45 F.R.D. 127 (E.D.Pa.1968). All persons are entitled to “meaningful access to the courts”, Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), including the right to a “meaningful” appeal where there is an established appellate process. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). “(A) state is not required by the Federal Constitution to provide appellate courts . ” but when an appeal is provided, as it is in Texas, it must meet the requirements of due process and equal protection. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956); See Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Pate v. Holman, 341 F.2d 764, 773, fn. 10 (5th Cir. 1965); Doescher v. Estelle, supra. A court must consider four factors in determining whether or not a delay in processing a prisoner’s appeal amounts to a denial of due process: (1) Length of the delay; (2) The reason or justification for the delay; (3) Whether and to what extent the defendant demanded a more rapid appeal; and (4) Any prejudice resulting to the defendant by the delay (such as post trial confinement, worry and the desire to limit the possibility that the defendant’s appeal will be impaired). Doescher v. Estelle, supra. These four factors are similar to those the court must consider in determining whether or not there has been a violation of a defendant’s right to speedy trial under the Sixth Amendment. See Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). None of these four factors is a necessary or sufficient condition to the finding that a delay in processing an appeal amounts to a denial of due process. “Rather, they are [relevant] factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” Barker v. Wingo, supra at 533, 92 S.Ct. at 2193. Demand For Rapid Appeal/Length of Delay/Prejudice Texas law has provided since at least 1965 that the transcription of a criminal proceeding should be completed within 90 days of the filing of the notice of appeal with the trial court. Tex.Code Crim.Proc. Art. 40.09, § 3. Until May 25, 1977, the trial court had the power to extend “for as many times as deemed necessary the time for preparation and filing of the transcription . . . and the transcription so filed shall be construed as having been filed within the time required by law.” Id. Doescher never requested an extension of time in which to file his transcript, and the trial court never extended the time for preparation and filing of the transcription. Doescher made numerous requests through his attorney and directly to the trial judge to obtain a statement of facts, and requested members of his family to write letters on his behalf. When these efforts failed, he sought to represent himself on appeal, hoping that in that capacity he might secure his transcript more quickly. Despite these efforts, 20 months passed between the filing of Doescher’s notice of appeal and his receipt of his statement of facts. Jordan also sent numerous letters to judges and other court personnel to secure his statement of facts. Jordan wrote to the Texas Court of Criminal Appeals, but despite all of these efforts it took nine months for Jordan to receive his statement of facts. Rheuark filed numerous habeas petitions including petitions to the Dallas state district courts, the Texas Supreme Court, the Texas Court of Criminal Appeals, a Federal District Court in Kansas, and a Federal Court in the Northern District of Texas seeking a statement of facts and an appellate review of his conviction. These courts either ignored his pleas, responded by claiming a lack of jurisdiction, or explained that the courts were unable to expedite the transcription of Rheuark’s trial. Rheuark’s herculean efforts secured a transcript of his trial 23 months, 11 days after he filed his notice of appeal. Reasons for the Delay When Judge Metcalf assumed the bench of Criminal District Court No. 2 on January 1, 1973, there was a backlog of appeals which had not been transcribed by Paul Bastas, his court reporter. Judge Metcalf and Bastas discussed the situation in the summer of 1973, and the court conducted an informal audit in the fall of that year which uncovered between 30 and 35 previously unknown appeals. By the end of 1973, according to Judge Metcalf, the court had a rough understanding of the magnitude of the problem. As the official court reporter for Criminal District Court No. 2, Bastas had a duty to attend all sessions of the court and take full shorthand notes of all oral testimony offered. V.A.T.S. Art. 2324. When a party to any suit reported by Bastas requested a statement of facts, Bastas was required to make up the statement of facts. Id. Bastas could only work on preparing these statements of the evidence when he was not in the courtroom. Judge Metcalf held one or two trials per week, and in addition heard guilty pleas and held probation revocation hearings, so it was necessary to employ a substitute court reporter to free Bastas to transcribe cases on appeal. Defendants argue that the backlog of appeals occasioned by confusion in the previous judge’s filing system and the State District Clerk’s office caused the delay that Plaintiffs experienced in receiving their transcripts. Defendants argue that this type of docket congestion should justify the delays in preparing Plaintiffs’ statements of the facts. Docket control problems, which are not within a criminal defendant’s control, cannot justify inordinate delays of nine months, twenty months and twenty-three months in preparing the transcript of the reporter’s notes, particularly where the court could remedy the problem by hiring additional court reporters to reduce the backlog. Judge Metcalf was aware of the problems in the fall of 1973 and did hire substitute court reporters three months out of the year of 1973 and four months out of the year in succeeding years to assist Bastas in reducing the backlog and to fill in when Bastas was sick or on vacation. This did not substantially alleviate the backlog, and finally in late 1976, Judge Metcalf hired a substitute reporter for nearly a year to free Bastas from his daily in-court reporting duties and permit him sufficient time to catch up on his appeals. Judge Metcalf had the authority to appoint additional court reporters, and the backlog would have been alleviated by the end of 1974 if he had had two court reporters beginning in early 1973. Delays of nine, twenty, and twenty-three months in preparing the transcripts of the reporter’s notes violate constitutional due process and the constitutional commitment to speedy justice for all. U.S. Const. Art. 14. ACTIONS BY EACH DEFENDANT Paul Bastas Paul Bastas has been the official court reporter in Criminal District Court No. 2 for almost twenty years, including a number of years before Judge Metcalf assumed the bench. Bastas was directly responsible for the preparation of the statements of facts for Doescher’s, Jordan’s, and Rheuark’s trials and he was ordered by Judge Metcalf in each case to prepare a statement of facts. Bastas knew that the Code of Criminal Procedure contemplated that the statement of facts should be filed within 90 days after the filing of a notice of appeal, but for cases tried in 1975 he also knew that it took from 18 to 24 months for him to complete a statement of facts and that this delay caused a hardship on defendants. When Judge Metcalf assumed the bench Bastas was already running behind in his production of appellate factual transcripts, or statements of fact, and the addition of 30 to 35 additional appeals found as a result of Judge Metcalf’s informal audit in the fall of 1973 compounded the backlog problem. Bastas, as an experienced court reporter, had the ability to project the length of time it would take him to catch up on the transcribing of his criminal trials, and how much additional court reporter assistance he would need to accomplish that goal. Bastas had a responsibility to impress upon the judge the enormity of the problem and the action that would be required to correct it, and he did not alert the court to the crisis. This is particularly true in light of Bastas’s extensive court reporting experience in Criminal District Court No. 2 prior to the time Judge Metcalf assumed the bench, and Judge Metcalf’s limited familiarity in 1973 with the court’s appellate backlog. Bastas also knew that at least one of the plaintiffs, Jack Rheuark, was very anxious to receive his statement of facts. Although Bastas never specifically intended to deprive the Plaintiffs of their due process rights, his failure to alert Judge Metcalf to the scope of the problem, and his failure to transcribe his appeals within the time prescribed by law was so likely to result in denying plaintiffs due process on appeal that it was substantially certain to occur. This deliberate inaction proximately caused violations of the Plaintiffs’ rights under the Constitution. Judge Metcalf District judges are responsible for the appointment of official court reporters, and of deputy court reporters, when illness or disability of the official court reporter or the press of official work requires. V.A. T.S. Art. 2323. The trial judge must approve the record on appeal and, prior to May, 1977, the trial judge had the authority to grant extensions of time for preparing the statements of fact. Tex.Code Crim. Pro., Art. 40.09. In late 1973 Judge Metcalf had a fair understanding of the backlog of appeals awaiting transcription in his court. Although Judge Metcalf hired substitute court reporters, they were only used in court four months each year in 1974-1976. The time lag in preparing appeals during this three year period was not reduced, and finally in late 1976 Judge Metcalf provided a substitute court reporter for Bastas for at least nine months to enable Bastas to dictate his appeals. Even then Judge Metcalf utilized Bastas to perform nonstatutory duties, including the preparation of criminal charges which took one to three hours per case. Judge Metcalf had at his disposal the means to drastically reduce the backlog but he did not fully utilize his power to appoint additional court reporters until nearly four years after he assumed the bench and “when you talk about appeals . if the judge does not ride herd, so to speak, on that appeal nobody else does . . . ”. Rheuark Hearing at 44. Judge Metcalf’s failure to monitor the problem closely, his tentative actions in 1973-1976 to cope with the problem, and his failure to fully assume his responsibility for insuring that trial proceedings were transcribed according to law are actions or failures to act which, although not intended to do harm to the Plaintiffs, were so likely to violate their due process rights and cause them injury that the harm is properly characterized as substantially certain to result. Even though Judge Metcalf acted in a sincere belief that he was effectively handling the problem, he knew or should have known that his failure to “ride herd” and alleviate the backlog would violate the due process constitutional rights of the Plaintiffs. As early as 1972, one year before Judge Metcalf assumed the bench, the Texas Court of Criminal Appeals had warned trial judges that they were too lenient in granting extensions of time to court reporters to file transcripts. Reese v. State, 481 S.W.2d 841, 843 (Tex.Crim.App.1972). The same year the Texas Court of Criminal Appeals held that while there is no Sixth Amendment right to speedy appeal, a delay on appeal could amount to a denial of due process. Cunningham v. State, 484 S.W.2d 906 (Tex.Crim.App.1972). That result was echoed in later Texas decisions. Zanders v. State, 515 S.W.2d 907 (Tex.Crim.App.1974); Colunga v. State, 527 S.W. 285 (Tex.Crim. App.1975). These clearly established Texas decisions made the failure of Judge Met-calf, and the other defendants, to rapidly alleviate the backlog a violation of Plaintiffs’ constitutional rights. Judge Metcalf’s actions, or inactions, proximately caused the delays experienced by each Plaintiff. The Commissioners The Commissioner’s Court of Dallas County is the governing administrative body of Dallas County with the power and duty to decide on the county budget and make appropriations of funds. The Commissioner’s Court does not have the power to appoint extra court reporters or to refuse payment for their services, but the court does decide when those reporters will be paid. The Court has attempted to use this control over the mechanics of allocating payment to actively discourage the use of substitute court reporters. The County Commissioners were aware of the problems the official court reporters were having with the appellate backlog and that extra court reporters were being used. One Commissioner testified that there had been a problem with the appeals since 1965, as long as he had been in office. Some of the Commissioners also knew that appellate statements of fact took as long as two years to prepare and that over 50% of the requests for extra court reporters were to alleviate the appellate problem. They also knew or reasonably should have known that the Texas Court of Criminal Appeals had repeatedly held that delay in transcribing a transcript in a criminal case on appeal could amount to a constitutional denial of due process. Despite this knowledge, the Commissioners took the following actions: (1) As early as the fall of 1975, the Commissioners had a discussion on the record concerning the payment of extra court reporters’ bills. The Commissioners sought to restrict the judges to a specific yearly budget for court reporter services which could not be exceeded. They objected to the open ended nature of the district judges’ requests and sent a letter to the judges asking them to curtail their appointment of additional court reporters. (2) The amount of the Commissioners’ budget for extra court reporters was consistently exceeded in 1975, 1976 and 1977. In 1975 there was an overrun of $12,880.00, in 1976 an overrun of $8,048.06 and in 1977 an overrun of $48,819.94. Although it was the Commissioners’ duty to investigate each appropriation, the Commissioners were aware that no specific district judge had responsibility for the court reporters account and there was no department head in charge of this line item of the budget. All of the Commissioners were aware that the extra court reporters were being used to deal with the problem of a backlog of appeals in the courts, but their only budgetary response to this problem was to severely limit appropriations for court reporters’ services. For example, in 1977, despite the overrun experienced in 1976 and despite the auditor’s budget request for an additional budgeted amount of $13,000.00, the Commissioners Court appropriation for court reporters was the exact amount it had spent in 1976. Its failure to appropriate adequate funds, necessitating end of the year transfers from an unallocated reserve account to cover overruns, was an obvious attempt by the Commissioners to limit court reporter funding. (3) The Commissioners’ failure to adequately budget funds for court reporters also gave the Commissioners an opportunity at the end of the year to assert further financial pressure on the judges and reporters to limit the hiring of extra court reporters. When the budget for court reporters was exceeded, a request for payment was received by the auditor who would prepare a transfer of funds request to be heard by the Commissioners. The Commissioners could recall a number of instances where these payments to extra court reporters were held up, in some cases for over a month, because of the unwillingness of the Commissioners’ Court to appropriate funds to pay these duly incurred obligations of the state district courts. These efforts clearly had a chilling effect on Judge Metcalf’s use of extra court reporters. Judge Metcalf’s court reporter testified that from 1970 to 1976 the Commissioners were continually objecting to requests for payment of substitute court reporters “. . . and the judge tried to be careful about not getting anybody too often so that he wouldn’t get into any arguments with them . . .” Hearing February 21, 1979, at 18. (4) On December 8, 1976, the Commissioners wrote a letter to the judges of the courts of record of Dallas County requiring that the judges obtain prior approval from the Commissioners before appointing extra court reporters. The letter was sent in an effort to reduce the expenditures for extra court reporters, although the Commissioners knew at the time they wrote the letter that they had no authority to require the judges to obtain advance clearance before hiring additional court reporters. These actions by the Commissioners were intended to limit the expenditures for extra court reporters, an action which proximately caused delay in the preparation of Plaintiffs’ statements of fact, constituting a violation of their constitutional rights of due process. The Commissioners actions were so likely to produce this delay in preparing the appellate statements of fact that the harm to plaintiffs was substantially certain to occur. Finally, the Commissioners knew or reasonably should have known that their actions in this regard would violate the constitutional rights of the plaintiffs and others. Dallas County The Commissioners Court is the governing board of Dallas County and budget decisions by the Commissioners Court are official decisions of Dallas County. The Commissioners, and Dallas County, had a policy of attempting to curtail the budget for court reporters, a policy which was in conflict with the scope of their powers and which jeopardized the constitutional rights of these plaintiffs and others seeking appellate review of their convictions. This policy was a proximate cause of the delay experienced by these plaintiffs in obtaining their statements of fact, and Dallas County is liable for the implement of that policy. “(W)hen execution of a government’s policy or custom whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . the government as an entity is responsible under section 1983.” Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). EQUAL PROTECTION CLAIMS Although a state is not required by the Federal Constitution to provide any appellate courts or any right to appellate review, . . that is not to say that a State that does grant appellate review can do so in a way that discriminates against some convicted defendants on account of their poverty.” Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956). “(O)nce a State establishes an appellate forum it must assure access to it upon terms and conditions equally applicable and available to all.” Chaffin v. Stynchcombe, 412 U.S. 17, 24 fn. 11, 93 S.Ct. 1977, 1981-1982 fn. 11, 36 L.Ed.2d 714 (1973). In Griffin, the Supreme Court held that the State of Illinois did not have to purchase a stenographer’s transcript for an indigent defendant, but other means had to be provided to assure the indigent defendant adequate and effective appellate review. The Supreme Court also held that California had to provide appellate assistance of counsel to indigents when California granted to all persons, rich or poor, an initial right of appeal to the California District Court of Appeals. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Substantial delay in processing an appeal may constitute a violation of the Equal Protection Clause of the Constitution. State v. Lagerquist, 254 S.C. 501, 176 S.E.2d 141 (1970), cert. den’d, 401 U.S. 937, 91 S.Ct. 912, 28 L.Ed.2d 216 (1971). The facts in this case, however, establish no violation of the Equal Protection Clause of the Constitution. Bastas testified that he transcribed trials on a first/in-first/out basis, and he gave no preference to persons who could pay for their transcripts. CLAIMS UNDER SECTION 1985(2) OR 1985(3) The Court permitted Plaintiff Rheuark a trial amendment to allege a conspiracy on behalf of the defendants to deprive Rheuark of the equal protection of laws. 42 U.S.C. § 1985(2) and (3). Although Rheuark has established the liability of the Defendants under § 1983, he has failed to prove a violation of his rights under the Equal Protection Clause, (See discussion above), and he has failed to establish the existence of any conspiracy among the defendants to deprive him of his constitutional rights. Rheuark has established that each of the defendants proximately caused the delay in preparing his statement of facts, but there is no evidence that any of the defendants conspired with each other to cause that delay. The fact that two or more agents of a single business entity participated in the same act will not normally constitute a conspiracy. Dombrowski v. Dowling, 459 F.2d 190 (7th Cir. 1972); Girard v. 94th Street and 5th Avenue Corporation, 530 F.2d 66 (2nd Cir. 1976), cert. den’d, 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1974). For purposes of § 1985(2) or (3) liability the Commissioners Court of Dallas County, Texas is a single business entity. Therefore, the fact that the Commissioners of Dallas County acted together to pursue a policy that deprived Plaintiff Rheuark of his constitutional rights does not establish a conspiracy. The existence of a conspiracy is an essential element to a claim under 42 U.S.C. § 1985, Simmons v. Zibilich, 542 F.2d 259 (5th Cir. 1976), and without proof of a conspiracy Rheuark’s claim under § 1985 fails. DAMAGES Plaintiffs seek an award of damages for mental and emotional distress they suffered awaiting preparation of their statements of fact, and additional punitive damages to prevent such conduct in the future by the Defendants. Mental and emotional distress caused by the denial of due process is compensable under 42 U.S.C. § 1983. Carey v. Piphus, 435 U.S. 247, 264, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Punitive damages may be awarded in the discretion of the trier of fact against a defendant under 42 U.S.C. § 1983 when the trier of fact finds: (1) The Plaintiff is entitled to receive compensatory damages; and (2) The act which proximately caused the injury to the Plaintiff was maliciously, wantonly, or oppressively done. Crowe v. Lucas, 595 F.2d 985 (5th Cir. 1979); Mansell v. Saunders, 372 F.2d 573, 576 (5th Cir. 1967). A court may also award nominal damages not to exceed $1.00 without proof of actual injury under 42 U.S.C. § 1983 for the denial of Plaintiffs’ procedural due process. Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). Compensatory Damages In Carey v. Piphus, the plaintiffs were suspended from school without a due process hearing. The Supreme Court held on appeal that the plaintiffs were entitled to recover damages for mental and emotional distress unless the plaintiffs would have been suspended even if a proper hearing had been held. Id. “The (7th Circuit) thought that in such a case, the failure to accord procedural due process would not properly be viewed as the cause of the suspensions” and the Supreme Court agreed. Id at 260, 98 S.Ct. at 1050. The facts in this case are analogous to those in Carey v. Piphus. In this case if defendants can show that Plaintiffs had or would have had their convictions affirmed on appeal, then Plaintiffs will not be entitled to recover damages to compensate them for injuries caused by the delay in preparing their statements of fact. Id. Doescher testified that during his 21 month period of incarceration when he was awaiting preparation of his statement of facts, he felt very frustrated by the delay and unable to prove his innocence on appeal. Doescher’s conviction was affirmed by the Texas Court of Criminal Appeals and he presently has a habeas corpus petition pending in this court. Until Doescher receives a final determination on the merits of his habeas petition, and possible retrial, this court cannot determine whether or not Doescher is entitled to compensatory damages. Carey v. Piphus, supra. Doescher has established a violation of his constitutional rights, however, and he is at least entitled to $1.00 as nominal damages. Doescher has also established that he suffered mental and emotional frustration during the period of delay, and the Court leaves open the possibility that in the future Doescher may recover additional compensatory damages. Jordan’s conviction was reversed by the Texas Court of Criminal Appeals. He then pled guilty for a three year term in April, 1978. At that time he had served approximately two years and three months flat time of his original twelve-year sentence and had accumulated an additional 21 months good time credit or a total of approximately 3 years, 11 months and 16 days. Jordan argues that if his transcript had been prepared within three months, as required by Texas law, he would have been out of jail six months earlier, and therefore he should be entitled to compensatory damages for that six-month period of unconstitutional delay in preparing his statement of facts. Jordan has established that Defendants violated his constitutional rights and defendants have the burden of proving that Plaintiff’s conviction was affirmed on appeal. Carey v. Piphus, supra. Jordan’s conviction was reversed on appeal. Therefore, defendants must show, under Carey, that on retrial Jordan was convicted again. If that showing can be made, Jordan would not be entitled to compensatory damages. Jordan was not retried. He pled guilty to three years, although he had accumulated three years, eleven months and 16 days flat and good time credit. If Jordan’s statement of facts had been prepared within six months of his notice of appeal, his conviction would have been reversed three months earlier and he could still have been released at that time with a three-year plea bargain based upon his accumulated flat and good time credit. Defendants have failed to show that Jordan’s conviction was affirmed and Jordan is entitled to compensatory damages. Jordan is entitled to receive compensatory damages in the amount of $3,000 for his mental and emotional distress while in jail awaiting his statement of facts and for the prejudice of an additional three months confinement the delay caused him. Rheuark testified that during his 23 months period of delay, he “(f)elt like I was out in the middle of the lake with a rock tied to your feet . . .” and he was downhearted, depressed and worried. Rheuark’s conviction was affirmed by the Texas Court of Criminal Appeals. His habeas corpus petition was denied by a Federal District Court in the Northern District of Texas, and that decision was affirmed on appeal by the United States Court of Appeals for the Fifth Circuit. Rheuark is not entitled to compensatory damages, but he has established a violation of his constitutional rights and is therefore entitled to $1.00 as nominal damages. Punitive Damages Punitive damages are awarded to deter or punish malicious deprivations of rights, and, in an appropriate case, may be awarded to accomplish those goals where the plaintiff is awarded only nominal damages for a violation of constitutional rights. See Carey v. Piphus, supra. Plaintiffs are not entitled to an award of punitive damages, however, because there was no showing that the defendants’ actions were malicious, wanton or oppressive. INJUNCTIVE RELIEF Plaintiffs have requested injunctive relief to secure their transcripts and to restrain the defendants from adhering to the practices which led to unconstitutional delays in processing their statements of fact. Each of these plaintiffs has now received his statement of facts, so that portion of the requested injunctive relief is moot. Defendants suggest that Plaintiffs’ request for future relief from these unconstitutional practices also must now be moot because Plaintiffs’ statements of fact have been prepared. Plaintiffs alleged a case or controversy within the meaning of Article III of the Constitution when they requested this court to enjoin the defendants from continuing with the practice that unreasonably delayed preparation of their statements of fact. Plaintiffs suffered actual injury as a result of the putatively illegal conduct of the defendants. Gladstone Realtors v. Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66, 76 (1979); Babbitt v. United Farm Workers National Union, - U.S. -, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); Duke Power Co. v. Carolina Environment Study Group, 438 U.S. 59, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978). While the usual rule in federal cases is that an actual controversy must exist at all stages of the proceedings, including appellate review, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705,35 L.Ed.2d 147 (1972), in this case the period of time it takes to prepare a statement of facts is so short that plaintiffs will receive their statements of fact before the usual trial and appellate process is completed. If receipt of the statement of facts makes a case moot, litigation seeking speedier appellate review seldom will survive the trial stage or much beyond, and review will be effectively denied. “Our law should not be that rigid” where the problem is capable of repetition, yet evades review. Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1972). Plaintiffs’ receipt of their tran- ' scripts has not entirely mooted their claims for injunctive relief. I must, however, reject Plaintiffs’ request for injunctive relief on other grounds. In O’Shea v. Littleton, 414 U.S. 448, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) certain residents of Cairo, Illinois, brought a class action suit under 42 U.S.C. § 1981, Section 1982, Section 1983, and Section 1985 seeking to enjoin a county magistrate and judge from arbitrarily setting bond in criminal cases, discriminatorily imposing sentences, and forcing certain residents to pay for a trial by jury when charged with violations of City Ordinances which carried fines and possible jail sentences if the fine could not be paid. The Supreme Court concluded that the Plaintiffs did not seek to enjoin any state statute or enjoin any criminal prosecutions, but rather sought to prevent the occurrence of specific events that might take place during the course of future criminal trials. The Court observed that “(a)n injunction of the type contemplated by (Plaintiffs) . . . would disrupt the normal course of proceedings in the state via resort to the federal suit for determination of the claim ab initio . . . (and) it would require for its enforcement the continuous supervision by the federal court over the conduct of the petitioners in the course of future criminal trial proceedings . . .” Id at 501, 94 S.Ct. at 679. The Supreme Court rejected this attempt to inject the equitable powers of the federal courts into the daily conduct of state criminal proceedings. I conclude that this court should not exercise its equitable powers and intrude into the daily operation of the Texas state criminal system. As the Supreme Court noted in O’Shea and as has been demonstrated in this opinion, there are other remedies at law for this type of conduct, including nominal, compensatory, and punitive damages. It would also be inappropriate to undertake such a major intrusion into state appellate affairs when the testimony at trial indicates that the problem is being corrected, and statements of fact are now being prepared within a six months maximum time frame. The Court strongly urges the defendants to insure statements of fact in the future are prepared within the guidelines of due process, but other than this warning, plaintiffs’ specific request for injunctive relief is denied. ATTORNEYS’ PEES A successful civil rights plaintiff should ordinarily recover an attorney’s fee under Section 1988 unless special circumstances would render such an award unjust. Gore v. Turner, 563 F.2d 159, 163 (5th Cir. 1977). The Court must consider 12 factors on the issue of attorney’s fees, see Rainey v. Jackson State College, 551 F.2d 672, 676 (5th Cir. 1977), and at a hearing on August 10, 1979 at 11:00 a. m., the Plaintiffs must be prepared to submit evidence on each of the above factors. A plaintiff who recovers only nominal damages for violations of his constitutional rights may receive an award of attorney fees. 42 U.S.C. § 1988; Perez v. University of Puerto Rico, 600 F.2d 1 (1st Cir. 1979). The minimal recovery will be one factor evaluated by the Court in its fee award determination, but public policy may support an award of counsel fees to vindicate a public right at a cost which is high in comparison to plaintiff’s damage recovery. Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972). DAMAGE DEFENSES Judicial Immunity Defendants Metcalf and each of the Dallas County Commissioners assert that they are immune as judges from damage liability under 42 U.S.C. § 1983. “A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.” Stump v. Sparkman, 435 U.S. 349, 359, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331, 341 (1978). When judicial immunity for an act is asserted, the court must determine whether that act is a function normally performed by a judge, whether the parties dealt with the judge in his judicial capacity, and whether the acts were not committed “in the clear absence of all jurisdiction.” Id 435 U.S. at 357, 98 S.Ct. at 1105, 55 L.Ed.2d at 339; See Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Plaintiffs’ complaint against Met-calf is based upon Metcalf’s appointment of his court reporter, Paul Bastas, Metcalf’s failure to insure that Bastas prepared the Plaintiffs’ statements of fact in a timely manner, and Metcalf’s failure to appoint additional court reporters and relieve Bastas of non-statutory duties so that Bastas could devote his full energies to transcribing the backlog of statements of fact. Metcalf had the jurisdictional authority to appoint court reporters and the appointment of court reporters is a function normally performed by a judge, as is the overseeing of the reporter’s preparation of the statements of fact. Tex.Rev.Civ.Stat.Ann. Art. 2321 (Vernon’s Supp.1978); Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978). The parties in this case dealt with Metcalf as a judge when they requested that he order their statements of fact prepared, and on subsequent occasions when they inquired about the status of their appeals. Judge Metcalf is absolutely immune from damages for his actions in this case. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978). Each county in Texas has a County Court, with a County Judge as its presiding officer, Texas Const. Art. 5, § 15, and the judge is elected in each county to hold office for four years. Tex.Const. Art. 5, '§ 15. The County Court has jurisdiction over certain civil cases when the matter in controversy exceeds $200.00, but does not exceed $1,000.00, and appellate jurisdiction through the granting of a trial de novo over certain civil and criminal matters of which the justices’ courts have original jurisdiction. Texas Const. Art. 5, § 16. The County Court also may have the general jurisdiction of a probate court. Tex.Const. Art. 5, §8. The County Court has no criminal jurisdiction where there is a criminal district court unless expressly conferred by law. Tex.Const. Art. 5, § 16. The county court and judge may issue writs of mandamus, injunction and all other writs necessary to enforce their jurisdiction, including writs of habeas corpus in cases where the offense charged is within the jurisdiction of the county court. Id. The Legislature has the power to change the civil and criminal jurisdiction of the county courts. Texas Const. Art. 5, § 22. A County Judge of any county having a population of more than 500,000 may act for the judge of any county court at law in civil or criminal cases during the absence or inability of the judge of the county court at law to perform such duties if he is a duly licensed attorney. Tex.Rev.Civ.Stat. Arts. 1969a — 2, 3. The Dallas County Courts at Law have original and concurrent jurisdiction with the County Court of Dallas County, in all civil and criminal matters, original and appellate. Tex.Rev.Civ.Stat. Art. 1970-3, Art. 1970-16, Art. 1970-31.1; Art. 1970-31.2; Art. 1970-31.10, Art. 1970-31.15, Art. 1970-31.20. Article 1970-4 provides that the County Court of Dallas County retains the general jurisdiction of a probate court, but Art. 1970-31a, 31b, and 31c make that jurisdiction concurrent with various probate courts of Dallas County. The Texas Constitution provides that each county in the State of Texas shall elect four County Commissioners, one from each of four precincts within each county. Texas Const. Art. 5, Section 18. The Commissioners so chosen, along with the County Judge as the presiding officer, compose the County Commissioners Court, which may exercise those powers permitted by law. Id. Article 2351 enumerates the powers of the Commissioners Court which include building and maintaining county roads, bridges, ferries, jails, courthouses and other county projects. See generally, Tex.Rev. Civ.Stat., Art. 2339 et seq. Except in a few instances, e. g. the ability to punish con-tempts by fine, all of the powers of the Commissioners Court are legislative or administrative powers. Plaintiffs’ complaint against County Judge Whittington is based upon Whittington’s attempts to limit the amount of money spent by the district judges for court reporters, and his efforts to discourage the appointment of additional court reporters, despite the court’s awareness that these court reporters were primarily being used to alleviate a backlog in transcribing statements of fact. These budgetary actions are not those normally performed by a judge, and none of the parties dealt with Whittington as a judicial officer. Finally, Judge Whittington, by his own admission, in the clear absence of all jurisdiction, approved of a letter from the Commissioners’ Court to the district judges requesting that the district judges receive prior Commissioners Court approval before approving additional expenditures for court reporters’ services. A County Judge in Dallas County, Texas wears three hats. See Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). He may technically perform the judicial functions granted to him by the Texas Constitution and by statute, although there is no evidence in this record that Judge Whittington has ever done so. The County Judge also has the legislative and administrative duties of managing, with the other members of the Commissioners Court, the county budget and approving expenditures of county funds, and as such is part of the governing body of Dallas County. Judge Whittington’s violations of Plaintiffs’ constitutional rights were actions which were taken as part of his legislative and administrative duties in governing Dallas County, and were not judicial acts. They were also actions admittedly taken in the clear absence of all jurisdiction, and therefore may not receive the cloak of judicial immunity. The other members of the Dallas County Commissioners Court do not have the constitutional and statutory authority to perform judicial functions granted to a county judge. They only possess very limited judicial powers specified in Art. 2339 et seq. Plaintiffs’ complaint against the Commissioners is essentially the same as against Judge Whittington, and for the same reasons their actions are not entitled to judicial immunity. Legislative Immunity “Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good . . . ” (and it is) “not consonant with our scheme of government for a court to inquire into the motives of legislators . . . ” Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951). As the Supreme Court noted in Tenney, the reason for the privilege is to encourage public legislative representatives to discharge their duties with the fullest measure of freedom of speech and of action. Id. at 372-373, 71 S.Ct. 783. The privilege extends to federal, state and regional legislators. Lake County Estates Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). I must now decide whether or not individuals performing legislative functions at a local level are also afforded absolute immunity under 42 U.S.C. § 1983 for their legislative acts, a question specifically left open by the Supreme Court in Lake County Estates. See 440 U.S. 391,404 fn. 26,99 S.Ct. 1171 (1979). The reasons for the legislative immunity privilege are equally applicable to county legislators acting in their legislative capacity, and it is not anomalous to establish a greater degree of immunity for county legislators than is given to a county. As Justice Marshall observed in his separate opinion in Lake County, “The majority’s reasoning in this case leaves little room to argue that municipal legislators stand on a different footing than their regional counterparts.” Id at 407, 99 S.Ct. at 1181. In Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) the Supreme Court held that a municipality is a suable entity under 42 U.S.C. § 1983. At that time the Supreme Court expressed no views on the scope of municipal immunity “beyond holding that municipal bodies sued under Section 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 ‘be drained of meaning’, Scheuer v. Rhodes, 416 U.S. 232, 248, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)”. 436 U.S. 658, 701, 98 S.Ct. 2018, 2041, 56 L.Ed.2d 611 (1978). Dicta in Crowe v. Lucas, 595 F.2d 985 (5th Cir. 1979) suggests that the Supreme Court’s denial of absolute immunity to a municipality means that no municipal official may enjoy absolute immunity. The court in Crowe v. Lucas, basing its decision upon Scheuer v. Rhodes, 416 U.S. 232, 248, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (governor or high executive officer entitled to only qualified immunity), held that the mayor and aldermen of the City of Mound Bayou, Mississippi were state executive officials entitled to only qualified immunity. The County Judge and Commissioners in this case are not high executive officials, and perform functions which are not analogous to those performed by a governor of a state. The Judge and Commissioners formulate programs for the construction of roads, buildings, and other structures in Dallas County. They are empowered by statute with the authority to care for paupers and indigents. After developing these programs, they must vote them into existence and vote for their funding. Like federal, state or regional legislatures, the Commissioners Court oversees an administrative bureaucracy designed to implement their decisions. Like federal, state and regional legislatures, their members are elected on a regular basis by the people. Thus, to the extent that the individual defendants were acting in a capacity comparable to that of members of a state legislature, they are entitled to absolute immunity from damages under 42 U.S.C. § 1983. Lake County, supra. Monell does not alter this result. Other county officials, although not all county officials, have absolute immunity for their actions, although the county itself may be liable for those actions if execution of a county government policy or custom inflicts the injury. Monell, supra, 436 U.S. at 694, 98 S.Ct. 2018. Monell does not affect the absolute immunity of county judges for performing judicial acts, Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), or the absolute immunity of county prosecutors performing their prosecutorial functions. Butz v. Economo, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). The Supreme Court recognizes that these county officials enjoy a greater degree of immunity than is given to the county itself, and it is therefore consistent with Monell to include county legislators performing legislative acts as a third class of county officials who are protected by absolute immunity. When legislative immunity for an act is asserted, the court must determine whether that act is a function normally performed by a legislator and whether the parties dealt with the legislator in a legislative capacity. Plaintiffs argue that the payment of deputy court reporters’ salaries by the Commissioners is an administrative act, not entitled to legislative immunity. Article 2323, Tex.Rev.Civ.Stat. authorizes district judges to appoint deputy court reporters, to be paid in the manner provided for the official court reporter. The judge appoints the reporter and fixes his compensation; the Commissioners Court must then make provisions for payment. Tex.Rev.Civ. Stat. Art. 2326 et seq. The Commissioners still retain some control over the timing of payments when the requests for funds exceed the budgetary allotment. All of the acts committed by the defendant Commissioners and the County Judge which violated Plaintiffs’ constitutional rights were related to the Commissioners Court’s governing authority over the county budget and were legislative acts. The Commissioners and County Judge are absolutely immune from damages from these legislative acts. Scope of Municipal Immunity “A local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government’s policy or custom, whether made by its lawmakers or by those edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. New York City Department of Social Services, 436 U.S. 658, 694, 98 S.Ct. 2018, 2038, 56 L.Ed.2d 611 (1978). This case unquestionably involves official county policy which proximately resulted in the violation of Plaintiffs’ constitutional rights. The Dallas County Commissioners, as a matter of official policy, sent letters to the district judges of Dallas County requesting that they respect the budgetary ceilings set for payment of court reporters. They occasionally refused to pay the salaries of court reporters, and their actions had a chilling effect on Judge Metcalf’s attempts to decrease his court reporter’s backlog of statements of fact awaiting transcription. The Commissioner’s efforts to limit the budgetary allocations for court reporters which proximately resulted in unconstitutional delays in preparation of Plaintiffs’ statements of fact predated this lawsuit, and even if all of these actions were not formally endorsed by the Commissioners’ Court, it was clearly the custom of the Commissioners and the County Judge to oppose increased allocation of funds for court reporters. Under Monell, governmental “custom”, even if not formally endorsed by a lawmaking body, may give rise to § 1983 liability. Id. at 691, 98 S.Ct. 2018. Dallas County asserts that it is entitled to the same immunity as its officials. It reasons that members of Commissioners Court are absolutely immune for their legislative acts; therefore, Dallas County is absolutely immune for those same actions. Although the Supreme Court has held that municipal governments are not absolutely immune, Monell, supra, a recent decision by a district court in Vermont, after an extensive analysis, seems to support by analogy Dallas County’s immunity argument. Ohland v. City of Montpelier, 467 F.Supp. 324 (D.C.Vt.1979). In Ohland, the Court concluded that a governmental entity was not liable for damages to a discharged city policeman when the governmental decision makers responsible for an unconstitutional policy or custom were entitled to qualified immunity. Municipal immunity is not derivative immunity. Municipal governments are not entitled to the same scope of immunity as municipal governmental decision makers responsible for an unconstitutional policy or custom. The basis of absolute immunity for judges, prosecutors and legislators acting within the scope of their duties is not applicable to municipal governmental bodies. While courts have been concerned that judges, prosecutors and legislators be free from concerns of harassment and embarrassment over their decisions, and have an opportunity to fearlessly and impartially administer the laws, municipal governments are not going to feel the same constraints and have no need for similar protection. See Lake Country Estates Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Stump v. Sparkman, 435 U.S. 349, 360, 98 S.Ct. 1099, 1106, 55 L.Ed.2d 331, 341 (1978); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). The liability of municipalities is very limited under Monell; and a municipal government is not liable under respondeat superior for every error committed by an official. Liability occurs only if the municipality has adopted the illegal practice as a policy or custom, and further limitations on municipal liability are not warranted. Dallas County does not have derivative absolute immunity from any liability for damages when its Commissioners are entitl