2017-06-19 Appellants' Brief (Judges)

Case: 17-20333 Document: 00514039457 Page: 1 Date Filed: 06/19/2017
No. 17-20333
In the United States Court of Appeals for the Fifth Circuit
MARANDA LYNN ODONNELL,

Plaintiff-Appellee,
v.
HARRIS COUNTY, TEXAS; ERIC STEWART HAGSTETTE; JOSEPH LICATA, III; RONALD
NICHOLAS; BLANCA ESTELA VILLAGOMEZ; JILL WALLACE; PAULA GOODHART; BILL
HARMON; NATALIE C. FLEMING; JOHN CLINTON; MARGARET HARRIS; LARRY
STANDLEY; PAM DERBYSHIRE; JAY KARAHAN; JUDGE ANALIA WILKERSON; DAN
SPJUT; JUDGE DIANE BULL; JUDGE ROBIN BROWN; DONALD SMYTH; JUDGE MIKE
FIELDS; JEAN HUGHES,
Defendants-Appellants.
LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,

Plaintiffs-Appellees,
v.
HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH

LICATA, III; RONALD NICHOLAS; BLANCA ESTELA VILLAGOMEZ,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS, No. 16-cv-1414
BRIEF OF APPELLANTS FOURTEEN JUDGES OF

HARRIS COUNTY CRIMINAL COURTS AT LAW
Charles J. Cooper
Counsel of Record
COOPER & KIRK, PLLC
1523 New Hampshire Ave., NW
Washington, D.C. 20036
(202) 220-9600
ccooper@cooperkirk.com
(caption continued on inside cover)
John E. ONeill Michael W. Kirk

John Keville William C. Marra
Sheryl A. Falk John D. Ohlendorf
WINSTON & STRAWN LLP COOPER & KIRK, PLLC
1111 Louisiana St., 25th Floor 1523 New Hampshire Ave., NW
Houston, TX 77002 Washington, D.C. 20036
(713) 561-2600 (202) 220-9600
joneill@winston.com ccooper@cooperkirk.com
Counsel for Defendants-Appellants

Fourteen Judges of Harris County Criminal Courts at Law
CERTIFICATE OF INTERESTED PERSONS

Maranda ODonnell, et al. v. Harris County, Texas, et al., No. 17-20333
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in the
outcome of this case. These representations are made in order that the judges of this
court may evaluate possible disqualification or recusal.
Plaintiffs-Appellees Counsel for Plaintiffs-Appellees

Maranda Lynn ODonnell Alec Karakatsanis
Loetha Shantae McGruder Elizabeth Anne Rossi
Robert Ryan Ford CIVIL RIGHTS CORPS
Michael Gervais
Neal S. Manne
Lexie Giselle White
Alejandra C. Salinas
Krisina Janaye Zuniga
SUSMAN GODFREY LLP
Rebecca Bernhardt
Susanne Ashley Pringle
TEXAS FAIR DEFENSE PROJECT
Defendants-Appellants Harris County Counsel for Defendants-Appellants
and Hearing Officers Harris County and Hearing Officers
Harris County, Texas James G. Munisteri
Eric Stewart Hagstette Katharine Davenport David
Joseph Licata, III Michael A. Stafford
Ronald Nicholas Stacy R. Obenhaus
Blanca Estella Villagomez Philip J. Morgan
Jill Wallace Benjamin R. Stephens
GARDERE WYNNE SEWELL LLP
John Odom
Melissa Lynn Spinks
HARRIS COUNTY ATTORNEYS OFFICE
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Michael Paul Fleming

MICHAEL P. FLEMING & ASSOCIATES,
P.C.
Defendants-Appellants Fourteen Counsel for Defendants-Appellants
Judges for Harris County Criminal Fourteen Judges of Harris County
Courts of Law Criminal Courts of Law
Paula Goodhart Charles J. Cooper
Bill Harmon Michael W. Kirk
Natalie C. Fleming Harold S. Reeves
John Clinton William C. Marra
Margaret Harris John D. Ohlendorf
Larry Standley COOPER & KIRK, PLLC
Pam Derbyshire John Ellis ONeill
Jay Karahan John R. Keville
Judge Analia Wilkerson Sheryl Anne Falk
Dan Spjut Robert Lawrence Green, III
Judge Diane Bull Corinne Stone
Judge Robin Brown WINSTON AND STRAWN LLP
Donald Smyth
Jean Hughes
Defendants Counsel for Defendants
Sheriff Ed Gonzalez Victoria Lynn Jimenez
Judge Darrell William Jordan Laura Beckman Hedge
Carolyn Campbell HARRIS COUNTY ATTORNEYS OFFICE
Kenneth Wayne Good
LAW OFFICE OF KEN W GOOD PLLC
Defendant-Appellant
Judge Mike Fields
Other Interested Parties Counsel for Other Interested Parties

John McClusky Kenneth Wayne Good
Kim Ogg LAW OFFICE OF KEN W GOOD PLLC
American Bail Coalition
Kimbra Kathryn Ogg
Professional Bondsmen of Texas
HARRIS COUNTY DISTRICT ATTORNEYS
Professional Bondsmen of Harris
OFFICE
County
Devin Paul Cole Paul D. Clement
Rodney Ellis Christopher G. Michel
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NAACP Legal Defense and Andrew C. Lawrence

Educational Fund, Inc. KIRKLAND & ELLIS LLP
Kathryn M. Kase
TEXAS DEFENDER SERVICE
Sherrilyn Ifill
Janai Nelson
Christina Swarns
NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC.
James H. Hulme
Douglas E. Hewlett, Jr.
ARENT FOX LLP
Kathryn M. Kase
TEXAS DEFENDER SERVICE
Dated: June 19, 2017 s/ Charles J. Cooper

Charles J. Cooper
Fourteen Judges of Harris County
Criminal Courts at Law
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STATEMENT RESPECTING ORAL ARGUMENT
Pursuant to Fifth Circuit Rule 28.2.3, Appellants County Judges respectfully
request oral argument. This case involves important legal questions concerning
abstention, the power of federal courts to order the release of prisoners in civil rights
lawsuits, and the scope and meaning of the Eighth and Fourteenth Amendments to
the United States Constitution. The District Courts order, requiring the release of
misdemeanor arrestees on bail they can afford, also presents important questions
concerning public safety and the orderly administration of our criminal justice
system. The County Judges respectfully submit that oral argument will assist this
Court in resolving the legal and factual questions presented in this case.
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TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS .........................................................i
STATEMENT RESPECTING ORAL ARGUMENT ..............................................iv
TABLE OF AUTHORITIES ................................................................................. viii
INTRODUCTION ..................................................................................................... 1
JURISDICTIONAL STATEMENT .......................................................................... 5
STATEMENT OF THE ISSUES............................................................................... 5
STATEMENT OF THE CASE .................................................................................. 5
I. HARRIS COUNTYS BAIL SYSTEM .......................................................... 5
A. The Bail Requirement Under Texas Law.............................................. 5
B. The Stages of Bail Review .................................................................... 8
II. PLAINTIFFS CRIMINAL CASES ............................................................. 10
III. PROCEDURAL HISTORY .......................................................................... 11
IV. THE PRELIMINARY INJUNCTION .......................................................... 12
SUMMARY OF ARGUMENT ............................................................................... 16
ARGUMENT ........................................................................................................... 18
I. THE DISTRICT COURT ERRED IN REACHING THE MERITS OF

PLAINTIFFS CLAIMS................................................................................ 18
A. The District Court Should Have Abstained Under Younger ............... 18
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B. Preiser Requires Prisoners Seeking Release To Proceed

Exclusively in Habeas ......................................................................... 22
C. The District Court Erred in Concluding Appellants Have a

Policy or Practice that May Be Challenged Under Section 1983 ....... 27
II. THE DISTRICT COURTS CONCLUSION THAT PLAINTIFFS ARE

LIKELY TO SUCCEED ON THE MERITS IS BASED ON MULTIPLE
ERRORS OF LAW........................................................................................ 27
A. The Eighth Amendment Forecloses Plaintiffs Claim .............................. 27
B. The Equal Protection Clause Does Not Outlaw Secured Bail ................. 30
1. ODonnells Disparate Impact Theory Is Not Viable ................ 31
2. Rational Basis Review Applies to ODonnells Equal

Protection Claim .......................................................................... 32
3. The Penal Fine Cases Cited by the Court Below Are

Inapposite .................................................................................. 36
4. ODonnells Equal Protection Claim Fails at Any Level of

Scrutiny ..................................................................................... 38
C. The Due Process Clause Does Not Outlaw Secured Bail ................... 45
1. The Injunction Sounds in Substantive, Not Procedural,

Due Process ............................................................................... 45
2. The Courts Due Process Holding Fails on Its Own Terms

for Three Independent Reasons ................................................ 46
III. THE EQUITIES STRONGLY SUPPORT VACATUR OF THE

INJUNCTION................................................................................................ 51
A. The Injunction Prohibits the Enforcement of State Law..................... 51
B. The Injunction Presents a Grave Risk to Public Safety, Will Cause

Confusion and Disarray, and Will Harm the Public Fisc .................... 53
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CONCLUSION ........................................................................................................ 55
STATUTORY ADDENDUM
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TABLE OF AUTHORITIES
Cases Page
Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir.)...................................................... 26
Ashwander v. Tennessee Valley Auth., 297 U.S. 288 (1936)................................... 27
Batson v. Kentucky, 476 U.S. 79 (1986) .................................................................. 31
Bearden v. Georgia, 461 U.S. 660 (1983) .........................................................36, 37
Becker v. Kroll, 494 F.3d 904 (10th Cir. 2007) ....................................................... 30
Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003) ............................... 46
Carson v. Johnson, 112 F.3d 818 (5th Cir. 1997) ................................................... 32
Clarke v. Stalder, 154 F.3d 186 (5th Cir. 1998) ...................................................... 26
Collins v. Ainsworth, 382 F.3d 529 (5th Cir. 2004) ......................................3, 17, 49
Conyers v. Abitz, 416 F.3d 580 (7th Cir. 2005) ....................................................... 30
County of Riverside v. McLaughlin, 500 U.S. 44 (1991) ..............................3, 49, 50
DeSpain v. Johnston, 731 F.2d 1171 (5th Cir. 1984) ........................................18, 19
Doyle v. Elsea, 658 F.2d 512 (1981) ...............................................17, 35, 36, 38, 46
Dunagin v. City of Oxford, 718 F.2d 738 (5th Cir. 1983) ....................................... 41
Edwards v. Balisok, 520 U.S. 641 (1997) ................................................................ 25
Ex parte McCullough, 993 S.W.2d 836 (Tex. App. 1999) ........................................ 7
Ex Parte Shires, 508 S.W.3d 856 (Tex. App. 2016) ............................................... 21
Fields v. Henry Cty., 701 F.3d 180 (6th Cir. 2012) ................................................. 47
Gerstein v. Pugh, 420 U.S. 103 (1975) ............................... 17, 20, 22, 23, 25, 30, 50
Goldberg v. Kelly, 397 U.S. 254 (1970) .................................................................. 46
Graham v. Connor, 490 U.S. 386 (1989) ..............................................17, 28, 29, 30
Heck v. Humphrey, 512 U.S. 477 (1994) .....................................................22, 23, 24
Jackson v. Alabama, 530 F.2d 1231 (5th Cir. 1976) ............................................... 37
Johnson v. Rodriguez, 110 F.3d 299 (5th Cir. 1997) ............................................... 31
Kentucky Dept of Corr. v. Thompson, 490 U.S. 454 (1989) .................................. 46
McCleskey v. Kemp, 481 U.S. 279 (1987) .........................................................31, 39
McGinnis v. Royster, 410 U.S. 263 (1973) ....................................................3, 17, 34
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Moore v. Sims, 442 U.S. 415 (1979) ..................................................................20, 21

New Orleans Depot Servs., Inc. v. Director, Office of Workers Comp.
Programs, 718 F.3d 384 (5th Cir. 2013) ............................................................ 26
Orin v. Barclay, 272 F.3d 1207 (9th Cir. 2001) ...................................................... 30
OShea v. Littleton, 414 U.S. 488 (1974) ................................................................ 19
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) .......................... 51
Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott,
734 F.3d 406 (5th Cir. 2013) ........................................................................51, 55
Preiser v. Rodriguez, 411 U.S. 475 (1973) ..................... 4, 16, 22, 23, 24, 25, 26, 27
Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973) ................................................... 20
Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) .....................................32, 38, 46
Reynolds v. New Orleans City, 272 F. Appx 331 (5th Cir. 2008) .......................... 30
Richardson v. Joslin, 501 F.3d 415 (5th Cir. 2007) ................................................ 47
Rigney v. Hendrick, 355 F.2d 710 (3d Cir. 1965).................................................... 33
Schilb v. Kuebel, 404 U.S. 357 (1971).....................................................1, 33, 34, 35
Serio v. Members of La. State Bd. of Pardons,
821 F.2d 1112 (5th Cir. 1987) ...................................................................... 25, 26
Shove v. Martel, 510 F. Appx 503 (9th Cir. 2013) ...........................................21, 22
Simon v. Woodson, 454 F.2d 161 (5th Cir. 1972)................................................2, 28
Smith v. U.S. Parole Commn, 752 F.2d 1056 (5th Cir. 1985) ....................17, 35, 38
Sorto v. State, 173 S.W.3d 469 (Tex. Crim. App. 2005) ........................................... 9
Spina v. DHS, 470 F.3d 116 (2d Cir. 2006) .......................................................31, 32
Stack v. Boyle, 342 U.S. 1 (1951) ....................................................16, 29, 32, 33, 37
Tarter v. Hury, 646 F.2d 1010 (5th Cir. 1981) ........................................4, 16, 19, 20
Tate v. Hartsville/Trousdale Cty.,
2010 WL 4054141 (M.D. Tenn. Oct. 14, 2010) ...........................................37, 50
Tate v. Short, 401 U.S. 395 (1971) .......................................................................... 36
United States v. Acevedo-Ramos, 755 F.2d 203 (1st Cir. 1985)........................18, 48
United States v. Chagra, 701 F.2d 354 (5th Cir. 1983) ........................................... 48
United States v. Chavez, 281 F.3d 479 (5th Cir. 2002) ........................................... 31
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United States v. Crew, 916 F.2d 980 (5th Cir. 1990) .............................................. 31
United States v. Garcia-Perez, 779 F.3d 278 (5th Cir. 2015) ................................. 20
United States v. LaFontaine, 210 F.3d 125 (2d Cir. 2000) ..................................... 49
United States v. McConnell, 842 F.2d 105 (5th Cir. 1988) ...........................2, 17, 28
United States v. Powell, 639 F.2d 224 (5th Cir. 1981) ............................................ 37
United States v. Salerno, 481 U.S. 739 (1987) ............................................37, 46, 47
Veasey v. Perry, 769 F.3d 890 (5th Cir. 2014) ........................................................ 51
Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975)......................................................... 22
Washington v. Davis, 426 U.S. 229 (1976) .......................................................17, 31
Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................... 45
Watson v. New Orleans City, 275 F.3d 46 (5th Cir. 2001) ................................26, 27
Wightman v. Texas Supreme Court, 84 F.3d 188 (5th Cir. 1996) ........................... 21
Wilkinson v. Dotson, 544 U.S. 74 (2005) ..........................................................23, 25
Williams v. Illinois, 399 U.S. 235 (1970) ....................................................32, 34, 36
Wolff v. McDonnell, 418 U.S. 539 (1974) .........................................................24, 25
Womens Med. Ctr. of Northwest Houston v. Bell,
248 F.3d 411 (5th Cir. 2001) .............................................................................. 18
Younger v. Harris, 401 U.S. 37 (1971) ..........................................................5, 16, 18
Constitutions, Statutes, and Rules

28 U.S.C.
1331 .................................................................................................................... 5
1343 .................................................................................................................... 5
1292 .................................................................................................................... 5
42 U.S.C. 1983.................................................................. 4, 5, 16, 22, 23, 25, 26, 27
FED. R. APP. P. 4(a)(1)(A) .......................................................................................... 5
FED. R. APP. P. 28(i) ................................................................................................. 27
TEX. CONST. art. I, 11 ..................................................................................6, 47, 51
TEX. CONST. art. I, 11b ............................................................................................ 6
TEX. CONST. art. I, 11c ............................................................................................ 6
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TEX. CODE CRIM. PROC.

art. 2.09 ................................................................................................................. 7
art. 11.01 ............................................................................................................. 21
art. 11.09 .........................................................................................................9, 48
art. 11.11 .........................................................................................................9, 48
art. 14.06 ............................................................................................................. 52
art. 14.06(a) ........................................................................................................... 9
art. 15.17 ............................................................................................................. 52
art. 15.17(a) ........................................................................................................... 9
art. 17.01 ............................................................................................................... 6
art. 17.02 ............................................................................................................... 6
art. 17.03(a) .....................................................................................................7, 52
art. 17.033(a) ......................................................................................................... 8
art. 17.033(c) .............................................................................................8, 15, 53
art. 17.04 ............................................................................................................... 7
art. 17.08 ............................................................................................................... 6
art. 17.09 ............................................................................................................. 52
art. 17.15 .........................................................................................................7, 52
art. 17.27 ............................................................................................................. 52
art. 17.43 to 17.49 ............................................................................................... 54
art. 17.151 ............................................................................................................. 9
art. 17.152 ........................................................................................................... 14
art. 17.153 ........................................................................................................... 14
art. 17.291 .......................................................................................................9, 52
TEX. PENAL CODE
12.21................................................................................................................... 6
12.22................................................................................................................... 6
22.01................................................................................................................... 6
22.05................................................................................................................... 6
22.07................................................................................................................... 6
25.04................................................................................................................... 6
25.08................................................................................................................... 6
38.03................................................................................................................... 6
38.04................................................................................................................... 6
38.10................................................................................................................. 53
46.02................................................................................................................... 6
Other
Ending the American Money Bail System, Equal Justice Under Law ....................... 4
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INTRODUCTION
Bail, of course, is basic to our system of law, Schilb v. Kuebel, 404 U.S.
357, 365 (1971), and it has been an integral part of this Nations criminal justice
system since before the dawn of our Republic. For centuries, money bail has secured
an arrestees presence at trial, preserved public safety, and protected the victims of
crime. Nevertheless, the district court ordered Harris County, the largest jurisdiction
in this Circuit and the third largest in the United States, to release within 24 hours of
arrest misdemeanor arrestees who claim they cannot afford money bail. This newly-
minted constitutional right to affordable bail applies to every misdemeanor arrestee,
with minor exceptions, no matter how great their flight risk or how grave a danger
they pose to the community or their victims.
The district court sought to minimize the radical nature of its ruling by
asserting that its order does not govern in felony cases and does not require changes
to Texas state law. PI Mem., ROA.5560. Neither assertion is reassuring. While it is
true that this action is limited to a class of misdemeanor defendants, the courts
reasoning is not so limited. According to the district court, whenever a state
determines that a criminal defendant is eligible to be released on bail before trial, it
may not constitutionally require the defendant to make bond payments he cannot
afford. But bail is also generally available to non-capital felony defendants in Texas,
so the courts reasoning would apply to them as well. And the courts ruling
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abrogates several provisions of Texas law, most prominently those granting state
judicial officers discretion to set secured money bail.1
Plaintiffs (collectively, ODonnell) and the district court ground this novel
constitutional right to affordable bail in the Fourteenth Amendments equal
protection and due process guarantees. But the Constitution specifically addresses
the setting of bail: the Eighth Amendment provides that [e]xcessive bail shall not
be required. This Court has repeatedly and squarely held that a bail setting is not
constitutionally excessive merely because a defendant is financially unable to satisfy
the requirement. United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988).
While the ability to make bond is an important element in fixing an appropriate
amount therefor, this Court has emphasized that it cannot be said that the
Constitution requires that it alone be controlling. Simon v. Woodson, 454 F.2d 161,
166 (5th Cir. 1972). When a specific, enumerated constitutional right applies, its
limitations may not be evaded by judge-made rights fashioned from the general
provisions of the Fourteenth Amendment.
1
Secured money bail requires a defendant to post sureties prior to release,
either by depositing a cash bond or procuring a commercial bail bond. An
unsecured personal bond does not require such sureties. Although personal bonds
technically require the arrestee to forfeit an amount of money to the County if he
fails to appear, Harris County does not collect on the bond. Thus, personal bonds are
akin to release on personal recognizance. See infra pp. 6-7.
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Even on their own terms, ODonnells equal protection and due process
arguments are not viable. The Supreme Court has squarely rejected the central
premise of the district courts equal protection holding: that indigent arrestees are
denied equal protection if they are detained longer than the non-indigent by reason
of their inability to pay secured money bail. In McGinnis v. Royster, 410 U.S. 263
(1973), the Court upheld, under rational basis review, a New York good time
credit statute that effectively allowed the release of individuals who were able to
post bail earlier than those who were not, id. at 270, over the dissents argument that
the statute discriminated against those too poor to raise bail and unable to obtain
release on personal recognizance, id. at 280 (Douglas, J., dissenting).
ODonnells due process theory is equally meritless. ODonnell does not have
a liberty interest in pretrial release without first posting sufficient sureties, as
required under State law. The district courts order requiring release within 24 hours
of arrest cannot be squared with this Courts holding that [t]here is no right to post
bail within 24 hours of arrest. Collins v. Ainsworth, 382 F.3d 529, 545 (5th Cir.
2004). Finally, the Due Process Clause does not require greater procedural
protections for bail hearings than for probable cause hearings, and the Supreme
Court has held that due process is satisfied so long as a probable cause hearing is
held within 48 hours of arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56
(1991).
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This Court, however, need not reach the merits of the district courts
constitutional analysis, for ODonnells claims should have been dismissed at the
threshold. Federal courts may not intrude in state criminal proceedings and order the
release of prisoners in a Section 1983 suit. In Tarter v. Hury, 646 F.2d 1010 (5th Cir.
1981), this Court held that Younger abstention is required when litigants claim in a
civil action that state court judges have systematically imposed excessive bail. And
Preiser v. Rodriguez, 411 U.S. 475 (1973), prohibits Section 1983 lawsuits seeking
the release of individuals held by the State; such relief may be sought in federal court
only in a petition for a writ of habeas corpus. ODonnell may challenge her bail
setting and detention in state court and federal habeas proceedings, but she cannot
obtain a release order from a federal court under Section 1983.
ODonnells lawyers have made no secret of their objective in bringing this
caseto end[ ] the American money bail system. Ending the American Money
Bail System, Equal Justice Under Law, https://goo.gl/T6XxSF. But the Constitution
does not mandate the abolition of a practice that has existed since long before the
Founding and that is expressly sanctioned in the text of the Constitution itself. The
promise and guarantee of our constitutional order is that they may seek bail reform
in their legislatures and, failing that, at the ballot box.
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JURISDICTIONAL STATEMENT
The district court had jurisdiction under 28 U.S.C. 1331 and 1343. On
April 28, 2017, the court entered the preliminary injunction (Injunction),
ROA.5762, and accompanying opinion (PI Mem.), ROA.5553. This Court has
jurisdiction under 28 U.S.C. 1292. Appellants timely noticed appeals on May 9,
2017. ROA.5798, 5795; FED. R. APP. P. 4(a)(1)(A).
STATEMENT OF THE ISSUES
1. Should the district court have abstained under Younger v. Harris, 401
U.S. 37 (1971)?
2. May the district courts order requiring state officials to release
prisoners be entered in a Section 1983 action?
3. Do Appellants have a policy or practice that may be challenged under
Section 1983?
4. Is the Injunction required by the Fourteenth Amendment?
5. Do the balance of the equities favor vacatur of the injunction?
STATEMENT OF THE CASE
I. HARRIS COUNTYS BAIL SYSTEM
A. The Bail Requirement Under Texas Law
ODonnell brought this action under 42 U.S.C. 1983, alleging that Harris
Countys bail system for Class A and Class B misdemeanors violates the Fourteenth
-5-
Amendment because it permits imposition of secured bail in excess of what arrestees
can afford. Amended Complaint, ROA.1209. Class A misdemeanors are serious and
often violent offenses punishable up to one year in jail, TEX. PENAL CODE 12.21,
and Class B offenses are punishable up to 180 days in jail, id. 12.22. These crimes
include assault, id. 22.01, deadly conduct, id. 22.05, terroristic threats, id.
22.07, enticing a child, id. 25.04, violating a protective order, id. 25.08,
unlawfully carrying a handgun, id. 46.02, and resisting or evading arrest, id.
38.03 and 38.04.
The Texas Constitution provides that most misdemeanor arrestees are
bailable by sufficient sureties, TEX. CONST. art. I, 11, except that bail may be
denied altogether to certain misdemeanants who violate a condition of release or
court order in a family violence case, id. art. I, 11b, 11c. Texas law contemplates
two principal types of sureties: a bail bond (i.e., secured money bail) and a
personal bond (i.e., unsecured bond). TEX. CODE CRIM. PROC. art. 17.01. Most
defendants who provide secured money bail obtain it from a bail bondsman rather
than posting cash. PI Mem., ROA.5608-09. Bail bondsmen charge a non-refundable
fee, usually 10 percent of the bail amount. Id., ROA.5564. If the arrestee does not
appear in court, the bond is forfeited, and the bondsman is liable for the full amount
of the bond unless he can secure the arrestees presence. TEX. CODE CRIM. PROC. art.
17.02, 17.08. More than 90 percent of the time, bail bondsmen require at least one
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indemnitor to co-sign the bond, and the bondsman has recourse against the arrestee
and any co-signers. PI Hearing, ROA.8211:2-19. Bondsmen also frequently require
collateral to support a bond. Id., ROA.8143:19-25, 8144:13-14.
A personal bond, unlike a bail bond, does not require an arrestee to provide
monetary sureties before release. PI Mem., ROA.5603; TEX. CODE CRIM. PROC. art.
17.04. A bail amount is inscribed on the personal bond, and in theory this amount
becomes due if the arrestee fails to appear. PI Mem., ROA.5603. But many arrestees
are judgment proof, and Harris County never actually attempts to collect the amount
due on a personal bond. Id., ROA.5643. The personal bond is thus akin to release on
personal recognizance, i.e., a mere promise to appear. See PI Hearing,
ROA.8387:13-21.
Texas law grants magistratesHearing Officers and County Judges
discretion to release defendants on personal bond without sureties or to require
secured money bail. TEX. CODE CRIM. PROC. art. 2.09, 17.03(a), 17.15. By statute
and local rule, magistrates must consider five factors when setting bail, including the
arrestees ability to afford bail, the likelihood that the arrestee will appear in court,
and the safety of victims and the community. Id. art. 17.15; Harris County Criminal
Courts at Law Local Rule 4.2.3.1, ROA.11320. Under Texas law, the accuseds
inability to make bail, even to the point of indigence, does not control over the other
factors. Ex parte McCullough, 993 S.W.2d 836, 837 (Tex. App. 1999).
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When magistrates set bail, they have before them a report, prepared by Harris
County Pretrial Services, detailing the arrestees financial resources and criminal
history. PI Mem., ROA.5609. In August 2016, the Local Rules were amended to
provide that release on personal bond is favored for twelve crimes. Local Rule 12.2,
ROA.11327; PI Mem., ROA.5606.
B. The Stages of Bail Review
When a misdemeanor defendant is arrested, the prosecutor sets a secured bail
amount according to a bond schedule. PI Mem., ROA.5608. Under the schedule, bail
ranges from $500 to $5,000, depending on the crime and the arrestees criminal
history. Local Rule 9.1, ROA.11326.
If the arrestee does not post bond, a Hearing Officer must determine whether
probable cause exists to detain the arrestee on the pending misdemeanor charge. PI
Mem., ROA.5615. Texas law generally requires a probable cause determination
within 24 hours of arrest. TEX. CODE CRIM. PROC. art. 17.033(a); Local Rule 4.2.1.1,
ROA.11318. If a probable cause hearing does not occur within 24 hours, the arrestee
must generally be released on a personal bond, though magistrates may postpone
release for up to 72 hours. TEX. CODE CRIM. PROC. art. 17.033(a), (c). 2 If a Hearing
2
If the arrestee cannot appear before the Hearing Officer via video-link within
24 hours of arrest, probable cause is sometimes determined on the papers. PI
Mem., ROA.5648. The district court found that this situation rarely occurs. PI
Mem., ROA.5648-49.
-8-
Officer finds probable cause to detain, she must then set bail. Local Rule 4.2.2.1.11,
ROA.11319.
Texas law requires a bail determination within 48 hours after arrest. TEX.
CODE CRIM. PROC. art. 15.17(a), 14.06(a); Sorto v. State, 173 S.W.3d 469, 486 (Tex.
Crim. App. 2005). Even if bond has been paid, Harris County may detain, for an
additional 48 hours, certain arrestees who have committed a crime of family violence
and are likely to continue their violence if released. TEX. CODE CRIM. PROC. art.
17.291.
The arrestee must be brought before a County Judge on the next business day
after booking for a counseled, adversarial bail review hearing. PI Mem.,
ROA.5630, 5676; Local Rule 4.3.1, ROA.11320. If the defendant does not plead
guilty or waive the bail hearing, the County Judge must determine whether to change
the arrestees bail. Local Rule 4.3.1, ROA.11320. Arrestees always retain the right
to ask the County Judge to reconsider the bail setting, or to seek habeas review of
the bail setting. See TEX. CODE CRIM. PROC. art. 11.09, 11.11.
Even if a misdemeanor arrestee cannot afford bond, Texas law prohibits
prolonged detention of the arrestee. Specifically, almost all misdemeanants may not
be detained more than 30 days prior to the commencement of trial. Id. art. 17.151.
-9-
II. PLAINTIFFS CRIMINAL CASES
Plaintiff ODonnell was arrested on May 18, 2016, for driving with a
suspended license. PI Mem., ROA.5562. Her criminal history includes a drug
offense and two failures to appear in court. ODonnell Criminal History, ROA.11554.
The day after her arrest, a Hearing Officer set ODonnells bail at $2,500 on a secured
basis. PI Mem., ROA.5563. A day later, a County Judge confirmed that bail amount,
and ODonnell was released that same day after securing a commercial bail bond. Id.,
ROA.5563-64. ODonnell then failed to appear for her court dates and remained a
fugitive from justice for nearly a year, evading apprehension until she was arrested
for possession of a controlled substance on April 1, 2017. ODonnell Capias,
ROA.11544; Notice Regarding ODonnell, ROA.5443-61. ODonnells suspended
license charge was dismissed when she pled guilty to the new controlled substance
charge. Motion to Dismiss Charges, ROA.5450; Notice Regarding ODonnell,
ROA.5443.
Plaintiff Ford was arrested for shoplifting on May 18, 2016. PI Mem.,
ROA.5564. Ford had an extensive criminal history that included a failure-to-appear
and a felony drug conviction. Ford Criminal History, ROA.11704. Fords bail was
initially set at $5,000 under the bail schedule, and a Hearing Officer confirmed that
amount at 4:00 a.m. on May 20. PI Mem., ROA.5564-65. On May 23 (the next
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business day after May 20), Ford pleaded guilty before a County Judge, and he was
released at 12:30 a.m. on May 24. Id., ROA.5565.
Plaintiff McGruder was arrested on May 19, 2016, for failing to identify
herself to a police officer. Id., ROA.5565. Her criminal history included a theft
conviction and a pending drug charge. McGruder Criminal History, ROA.11641.
McGruders secured bail was initially set at $5,000 pursuant to the bond schedule,
and a Hearing Officer confirmed that amount at a hearing on May 20. PI Mem.,
ROA.5565. On May 23, however, a County Judge granted an unsecured personal
bond and McGruder was released. Id., ROA.5566. Her bond was later revoked and
her bail was raised because she failed a drug test. Bond Violation Report,
ROA.11611.
III. PROCEDURAL HISTORY
After ODonnell, Ford, and McGruder filed an amended complaint seeking
declaratory and injunctive relief against Harris County, the sixteen County Judges,
the five Hearing Officers, and the Sheriff, Amended Complaint, ROA.1170,
Defendants moved to dismiss. The court below denied the motion in relevant part.
Motion to Dismiss Order (MTD Order), ROA.3229. On April 28, 2017, the court
certified a class of Class A and B misdemeanor arrestees for whom a secured
financial condition of release has been set and who cannot pay the amount necessary
for release on the secured money bail because of indigence. Class Certification
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Order, ROA.5746. That same day, the court issued the preliminary injunction and
opinion under review. Injunction, ROA.5762; PI Mem., ROA.5553. The district
court denied Defendants stay application, and although a motions panel of this
Court initially granted a temporary emergency stay on May 12, on June 6, it issued
an order denying the motion for stay pending appeal without explanation. Justice
Thomas denied a stay application, and the preliminary injunction became effective.
IV. THE PRELIMINARY INJUNCTION
The district court found that about 50,000 people are arrested in Harris County
each year on Class A and Class B misdemeanor charges. PI Mem., ROA.5556. It
found that about 33 percent of all arrestees are released on bond before their probable
cause hearing, and about 50 percent of all arrestees bond out before their first
appearance before a County Judge. Id., ROA.5647, 5649. The court found that about
45 percent of all arrestees are released on surety bonds, 5 percent on cash bonds, 10
percent on personal bonds, and 40 percent are detained until case disposition. Id.,
ROA.5621-22. Thus, magistrates grant a personal bond to about 20 percent of all
arrestees who cannot, or choose not to, post a surety or cash bond. See id.
The court emphasized that ODonnell has not alleged, and the court was not
holding, that any provision of Texas law or the Local Rules was unconstitutional on
its face. Id., ROA.5731. The court nevertheless concluded that, with the exception
of nominal defendant County Judge Jordan, Harris County Hearing Officers and
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County Judges follow a custom and practice of interpreting Texas law to use secured
money bail set at prescheduled amounts to achieve pretrial detention of
misdemeanor defendants who are too poor to pay. Id., ROA.5679. In so concluding,
the court refused to credit the uniform testimony of five Hearing Officers and fifteen
County Judges stating that they review each arrestees bail setting and grant personal
bonds when appropriate. See Declarations, ROA.10254-93.
The court applied intermediate scrutiny to the equal protection claim, PI
Mem., ROA.5694, and held that bail in excess of an amount arrestees can afford is
unconstitutional unless no less restrictive alternative can reasonably meet the
governments compelling interest, id., ROA.5696. The court also applied
heightened scrutiny to the due process claim, id., ROA.5695, holding that bail in
excess of an amount that an arrestee can afford cannot be imposed absent (1) notice,
(2) a hearing within 24 hours of arrest at which the arrestee has an opportunity to
be heard and to present evidence, (3) an impartial decision-maker, and (4) a
written statement by the factfinder as to the evidence relied on to find that a secured
financial condition is the only reasonable way to assure the arrestees appearance at
hearings and law-abiding behavior before trial, id., ROA.5719; see also id.,
ROA.5705-08.
The court held as a matter of law that Harris County can never satisfy these
equal protection and due process requirements, because it can never shownot even
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for a single misdemeanor arresteethat secured money bail is the only reasonable
way to assure the arrestees appearance. Id., ROA.5717; see also id., ROA.5721.
Accordingly, although the courts constitutional analysis suggests that arrestees may
be held on unaffordable bail if there is no less restrictive alternative to satisfy the
governments compelling interests, id., ROA.5696, the injunction does not permit
Harris County to satisfy this standard. Instead, the injunction grants virtually every
misdemeanor arrestee the right to release on affordable bail.3
The injunction has four principal components. First, it grants arrestees the
right to self-report the maximum amount of financial security the arrestee would be
able to post or pay up front within 24 hours of arrest. Injunction, ROA.5762.
Defendants may not challenge arrestees self-reported assertion of how much bail
they can afford. See id.
Second, the injunction prohibits the County from requiring secured money
bail in excess of what arrestees claim they can afford. Id., ROA.5763-64. Thus, if an
arrestee claims he cannot afford a commercial suretys premium, he must be
promptly released on unsecured money bail within 24 hours of arrest. Id.,
ROA.5763. If an arrestee claims he can pay only some but not all of the suretys
3
The injunctions release order applies to all misdemeanor arrestees with
minor exceptions for those subject to formal holds, pending findings of mental
competency, and arrestees who violated a bond condition in a family violence case
under TEX. CODE CRIM. PROC. art. 17.152, 17.153. Injunction, ROA.5763-64.
- 14 -
premium, he cannot be required to pay any surety premium. Clarification Order,
ROA.6343. For example, if secured bail is set at $2,500 (making the bondsmans
premium $250), and an arrestee admits he can pay $100, the arrestee must be
released without any sureties, even though he could afford a $1,000 secured bond.
See id.
Third, the injunction requires Harris County to release all bail-eligible
misdemeanor arrestees within 24 hours of arrest. Injunction, ROA.5763-64. If an
arrestee has not gone before a magistrate for a probable cause and bail hearing within
24 hours of arrest, the Sheriff must promptly release the arrestee on unsecured
personal bond. Id.
Fourth, the injunction allows no exceptions to its requirement that Harris
County must release misdemeanor arrestees within 24 hours of arrestno matter
how extraordinary the reason for delay beyond 24 hours. Id. If extenuated
circumstances make it impossible to present an arrestee before a hearing officer
within 24 hours of arrest, detention may not be prolonged as permitted by TEX. CODE
CRIM. PROC. art. 17.033(c), so that, for example, a hearing officer may impose a
protective order (e.g., if the arrestee is charged with an act of family violence) or
require an interlock device (e.g., if the arrestee has been charged with driving under
the influence). See Injunction, ROA.5763-64.
- 15 -
The injunction applies to arrestees who are re-arrested on new misdemeanor
charges or on warrants for failure to appear. Id., ROA.5764. Thus, if an arrestee who
claims to be indigent fails to appear in court once, twice, or ten consecutive times,
Harris County must continually re-release that individual on personal bond within
24 hours of re-arrest without requiring secured money bail. Id.
SUMMARY OF ARGUMENT
The Court need not reach the merits of the district courts deeply flawed
constitutional analysis, because ODonnells claims should have been dismissed at
the threshold for two independent reasons. First, in Tarter v. Hury, 646 F.2d 1010,
1013 (5th Cir. 1981), this Court held that abstention under Younger v. Harris, 401
U.S. 37 (1971), was required in a challenge, indistinguishable from the claim here,
that Texas state court judges were systematically imposing excessive bail. Second,
the Supreme Court has squarely held, in Preiser v. Rodriguez, 411 U.S. 475 (1973),
that courts may not order the release of prisoners in a Section 1983 lawsuit. Such
relief is available only in habeas.
On the merits, the Eighth Amendment expressly contemplates the imposition
of money bail to secure the appearance of those charged with a crime. The Supreme
Court, accordingly, has sanctioned the use of secured money bail for that purpose,
Stack v. Boyle, 342 U.S. 1, 4-5 (1951), and this Court has held that bail is not
excessive under the Eighth Amendment simply because the arrestee cannot afford
- 16 -
it, United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988). ODonnell tried to
evade these precedents by raising her claim under the Fourteenth Amendment, but
where a specific constitutional provision regulates governmental conduct, litigants
cannot replace that constitutional standard with a judge-made one fashioned from
the Fourteenth Amendment. Graham v. Connor, 490 U.S. 386, 394 (1989); Gerstein
v. Pugh, 420 U.S. 103, 125 n.27 (1975).
ODonnells equal protection claim also fails on its own terms. Harris Countys
bail system is facially neutral, and disparate impact liability is not available under
the Equal Protection Clause. Washington v. Davis, 426 U.S. 229 (1976). The district
court, applying intermediate scrutiny, concluded that equal protection prohibits the
detention of arrestees who cannot afford to pay secured bail, but the Supreme Court,
this Court, and other Circuits have repeatedly rejected, under rational basis review,
equal protection claims just like ODonnells. McGinnis v. Royster, 410 U.S. 263,
270 (1973); Smith v. U.S. Parole Commn, 752 F.2d 1056, 1058 (5th Cir. 1985);
Doyle v. Elsea, 658 F.2d 512, 518 (7th Cir. 1981).
ODonnells due process claim fares no better. The district courts creation of
a right to release on affordable bail sounds in substantive, not procedural, due
process. The order that bail hearings must occur within 24 hours of arrest defies this
Courts holding that [t]here is no right to post bail within 24 hours of arrest. Collins
v. Ainsworth, 382 F.3d 529, 545 (5th Cir. 2004). And the lower courts insistence on
- 17 -
adversarial mini-trial bail hearings flouts the rule, summarized by then-Judge
Breyer, that bail hearings are typically informal affairs, not substitutes for trial or
even for discovery. United States v. Acevedo-Ramos, 755 F.2d 203, 206 (1st Cir.
1985).
Finally, the equities weigh strongly in favor of reversal, because the order
abrogates several provisions of State law, presents a serious threat to public safety,
and undermines the orderly administration of justice.
ARGUMENT
A district courts grant of a preliminary injunction is reviewed for abuse of
discretion. Womens Med. Ctr. of Northwest Houston v. Bell, 248 F.3d 411, 418-19
(5th Cir. 2001). Findings of fact are reviewed only for clear error; legal conclusions
are subject to de novo review. Id. at 419.
I. THE DISTRICT COURT ERRED IN REACHING

THE MERITS OF PLAINTIFFS CLAIMS.
A. The District Court Should Have Abstained Under Younger.
The abstention doctrine announced in Younger v. Harris, 401 U.S. 37 (1971),
safeguards the longstanding public policy against federal court interference with
state court proceedings, id. at 43, by requiring federal courts to abstain in cases
seeking either injunctive or declaratory relief when state criminal actions are
pending against the federal plaintiff at the time that federal action is commenced,
- 18 -
DeSpain v. Johnston, 731 F.2d 1171, 1175 (5th Cir. 1984) (footnotes omitted).
Because that is precisely the relief ODonnell requests, Younger required abstention.4
Both the Supreme Court and this Court have expressly held that Younger bars
systemic challenges to the imposition of pretrial bail. In OShea v. Littleton, 414
U.S. 488 (1974), the Court required abstention in a class action challenging, inter
alia, a county pattern and practice of set[ting] bond in criminal cases according
to an unofficial bond schedule without regard to the facts of a case or circumstances
of an individual defendant in violation of the Eighth and Fourteenth Amendments.
Id. at 491-92. The Court reasoned that an injunction restraining that practice would
constitute a major continuing intrusion of the equitable power of the federal courts
into the daily conduct of state criminal proceedings that would stand in sharp
conflict with the principles of equitable restraint established in Younger. Id. at 502.
Likewise, in Tarter v. Hury, the plaintiff sought, inter alia, equitable relief
against ... the imposition of excessive bail by Texas state court judges. 646 F.2d at
1013. This Court held that abstention was required under Younger and OShea.
Because OShea involved a challenge to the imposition of excessive bail, this
Court held, it was conclusive as to Tarters claim for equitable relief based on that
4
Plaintiffs all had pending state criminal actions when their original
complaints were filed. ODonnell Complaint, ROA.281; McGruder Complaint,
ROA.10115.
- 19 -
ground. Id. The injunction entered below is squarely foreclosed by OShea and
Tarter. 5
The district court based its refusal to abstain principally on this Courts
decision in Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973), and the Supreme Court
decision affirming it, Gerstein v. Pugh, 420 U.S. 103 (1975). The court read those
cases as creating an exception to Younger for challenges to pretrial detention
where (1) the allegedly unconstitutional pretrial detention [can]not be raised as a
defense in the criminal proceeding, and (2) no adequate state-court remedy exists
because the challenged pre-trial incarceration would have ended as of the time of
trial. MTD Order, ROA.3262; see also id., ROA.3265-66.
But subsequent case law made clear that Gerstein and Rainwater created no
such exception to Younger. The Supreme Court has expressly held that the teaching
of Gerstein is merely that the federal plaintiff must have an opportunity to press
his claim in the state courts, not that the plaintiffs claim must be available as a
defense to the prosecution. Moore v. Sims, 442 U.S. 415, 430 n.12, 432 (1979). And
while the court below argued that Younger should not apply where the plaintiff
challenges the timeliness of the state-court hearing, MTD Order, ROA.3262, Sims
5
The district court argued that Defendants could not rely on Tarter because
they did not cite the case until their emergency motion for a stay. Order Denying
Stay, ROA.6367. But parties must preserve arguments, not case citations; they are
not limited to citing on appeal only those cases they cited to the district court. E.g.,
United States v. Garcia-Perez, 779 F.3d 278, 281-82 (5th Cir. 2015).
- 20 -
rejected that consideration as irrelevant to the Younger inquiry. 442 U.S. at 432
(rejecting argument that delay in affording the [plaintiffs] a hearing in state court
rendered Younger inapplicable). Further, both OShea and Tarter demonstrate that
there is no exception for cases challeng[ing] pretrial detention, MTD Order,
ROA.3262, since both cases applied Younger to precisely that type of challenge.
Younger abstention applies [w]here state [judicial] proceedings allow a[ ]
[litigant] to make constitutional objections to the proceedings at multiple stages.
Wightman v. Texas Supreme Court, 84 F.3d 188, 190 (5th Cir. 1996). Here, Texas
law provides misdemeanor arrestees with numerous opportunities to challenge both
the imposition of secured money bail and the timeliness of misdemeanor bail
proceedings. They may challenge the bail initially set by a Hearing Officer at a
hearing held before a County Criminal Court at Law Judge within one business-day.
Local Rule 4.3.1, ROA.11320-21. Moreover, if a defendant is dissatisfied either with
the County Judges resolution of his bail challenge or with the timeliness of his
hearing before the County Judge, he may also seek review at any time through a
state habeas corpus proceeding. See TEX. CODE CRIM. PROC. art. 11.01. Texas
appellate courts regularly entertain appeals in such proceedings. E.g., Ex Parte
Shires, 508 S.W.3d 856 (Tex. App. 2016) (challenging constitutionality of state bail
statute in state habeas petition). Numerous cases hold that Younger abstention is
- 21 -
required in similar circumstances. See, e.g., Shove v. Martel, 510 F. Appx 503, 503
(9th Cir. 2013); Wallace v. Kern, 520 F.2d 400, 406 (2d Cir. 1975).
B. Preiser Requires Prisoners Seeking Release To

Proceed Exclusively in Habeas.
In Preiser, the Supreme Court held that a prisoner seeking release from
confinement may obtain such relief only through a petition for habeas corpus. Such
claims are not cognizable under 42 U.S.C. 1983. The Court explained that the
writ of habeas corpus evolved as a remedy available to effect discharge from any
confinement contrary to the Constitution or fundamental law, whether imposed
pursuant to conviction or prior to trial. Preiser, 411 U.S. at 485-86. Because
habeas has been accepted as the specific instrument to obtain release from
[unlawful] confinement, it displaces the general cause of action granted by Section
1983 for constitutional torts. Id. at 486; see also Heck v. Humphrey, 512 U.S. 477,
481 (1994) (habeas corpus is the exclusive remedy for a state prisoner who
challenges the fact or duration of his confinement and seeks immediate or speedier
release; such claims are not cognizable under Section 1983).
In Gerstein, the Court confirmed that Preiser applies to Section 1983
challenges to pretrial detention procedures, including challenges to the setting of
bail. The Court concluded that a class action challenging procedures for determining
probable cause and setting bail was cognizable under Section 1983 only because the
plaintiffs did not ask for release from state custody, even as an alternative remedy.
- 22 -
420 U.S. at 107 n.6 (emphasis added). Citing Preiser, the Court emphasized that
[b]ecause release was neither asked nor ordered, the lawsuit did not come within
the class of cases for which habeas corpus is the exclusive remedy. Id. In this case,
immediate release was both asked by ODonnell and ordered by the district court.
Id.
In its order denying a stay pending appeal, the court below offered four
reasons for not following Preiser. First, it suggested that Preisers rule foreclosing
relief under Section 1983 was dicta. Order Denying Stay, ROA.6368. But
Preisers statement of its holding speaks for itself:
[W]e hold today that when a state prisoner is challenging the very fact
or duration of his physical imprisonment, and the relief he seeks is a
determination that he is entitled to immediate release or a speedier
release from that imprisonment, his sole federal remedy is a writ of
habeas corpus.
411 U.S. at 500. The Supreme Court has reaffirmed this rule numerous times. E.g.,
Wilkinson v. Dotson, 544 U.S. 74, 78, 79 (2005); Heck, 512 U.S. at 481. The district
court read Heck as calling Preisers rule into doubt, but that is not so. While the
Heck Court did decline to follow dicta in Preiser discussing whether damages are
available under Section 1983 (contra Preisers dicta, Heck held that in certain
circumstances they are not), that issue has no relevance in this case. Heck, 512 U.S
at 482. Indeed Heck, like the cases before and after it, reaffirmed Preisers central
- 23 -
holding that a state prisoner who challenges the fact or duration of his confinement
and seeks immediate or speedier release may proceed only in habeas. Id. at 481.
Second, the court below attempted to distinguish Preiser based upon the
remarkable assertion that the injunction in this case neither changes nor accelerates
misdemeanor defendants entitlement to release. Order Denying Stay, ROA.6369.
Yet the injunction itself says this: All misdemeanor defendants in the custody of
Harris County who are in the plaintiff class and are not subject to a formal hold or
other exception to bail eligibility must be promptly released on unsecured money
bail by the Harris County Sheriff no later than 24 hours after arrest. Injunction,
ROA.5835 (emphasis added). The injunction also orders that all such defendants
who have not been offered a probable cause and bail-setting hearing within 24 hours
of arrest must be released by the Harris County Sheriff on an unsecured personal
bond. Id., ROA.5836 (emphasis added). An order that arrestees must be promptly
released, id., ROA.5835, is indisputably an order requiring immediate or more
speedy release, Preiser, 411 U.S. at 494.
Third, the court below thought Preiser does not apply in class actions seeking
prospective injunctive relief against regulatory procedures. Order Denying Stay,
ROA.6368. That notion is refuted by numerous cases. For example, in Wolff v.
McDonnell, the Supreme Court held that a class action prospectively seeking a
procedure speeding release from confinement was foreclosed under Preiser, 418
- 24 -
U.S. 539, 554 (1974), and Gerstein, as discussed above, also demonstrates that
Preiser applies in a broad based class-action, Order Denying Stay, ROA.6368; see
Gerstein, 420 U.S. at 107 n.6.
While plaintiffs may in some circumstances seek under Section 1983 an
otherwise proper injunction enjoining the prospective enforcement of invalid
regulations, Wilkinson, 544 U.S. at 80, that is only because [o]rdinarily, a prayer
for such prospective relief will not necessarily imply the invalidity of [the
plaintiffs detention], Edwards v. Balisok, 520 U.S. 641, 648 (1997); see also
Wilkinson, 544 U.S. at 80 (prospective relief appropriate where granting it would not
necessarily have meant immediate release or a shorter period of incarceration).
Here, the courts injunction not only rests on the invalidity of the Plaintiffs
detention, it orders their release.
Indeed, the very case the district court cited as supposedly holding that Preiser
does not apply to broad based attacks challenging regulatory procedures, Order
Denying Stay, ROA.6368 (quotation marks omitted), in fact makes clear that Preiser
applies here:
[I]n some broad-based attacks, resolution of the factual allegations and

legal issues necessary to decide the 1983 claim may, in effect,
automatically entitle one or more claimants to immediate or earlier
release. Such claims must also be pursued initially through habeas
corpus.
- 25 -
Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987)
(emphasis added); accord Clarke v. Stalder, 154 F.3d 186, 189-91 (5th Cir. 1998)
(en banc).
Finally, the district court argued that Defendants forfeited reliance on Preiser.
While the County Judges did not cite Preiser by name until their stay motion, they
did clearly argue that Plaintiffs Section 1983 challenge was foreclosed by their
failure to exhaust available state remedies, Judges Answer, ROA.3364and in
particular, by the availability of habeas relief, Judges Motion to Dismiss,
ROA.1512; Judges Opposition to PI Motion, ROA.3941-42. Moreover, Defendants
Harris County and its Sheriff argued that relief under 1983 must yield to the
federal habeas corpus statute, where an inmate seeks injunctive relief challenging
the fact or the duration of his sentence. Response to PI Motion, ROA.546
(brackets and quotations marks omitted). The issue was thus adequately presented
below. In any event, the court addressed Preiser at length when it denied the County
Judges stay motion, Order Denying Stay, ROA.6367-70. See Alberti v.
Klevenhagen, 896 F.2d 927, 936 n.9 (5th Cir.), vacated in part on other grounds,
903 F.2d 352 (5th Cir. 1990).
Even if the Court concludes that the argument was forfeited, it should exercise
its discretion to address Preiser because (1) Preiser is rooted in considerations of
state sovereignty, and the rule against waivers of such issues is applied less harshly
- 26 -
than other waivers, Watson v. New Orleans City, 275 F.3d 46, 2001 WL 1268716,
at *3 (5th Cir. 2001) (unpublished); (2) the issue is a pure question of law, New
Orleans Depot Servs., Inc. v. Director, Office of Workers Comp. Programs, 718
F.3d 384, 388 (5th Cir. 2013); and (3) Preisers clear rule obviates the necessity of
adjudicating the constitutional questions presented in this case, Ashwander v.
Tennessee Valley Auth., 297 U.S. 288, 345-56 (1936) (Brandeis, J., concurring).
C. The District Court Erred in Concluding Appellants Have a Policy

or Practice that May Be Challenged Under Section 1983.
Pursuant to FED. R. APP. P. 28(i), the County Judges adopt by reference pages
47-48 and 52-54 of Appellant Harris Countys opening brief. Section 1983 prohibits
injunctive relief against a judicial officer for an act or omission taken in such
officers judicial capacity. 42 U.S.C. 1983. ODonnell cannot circumvent that bar
by challenging thousands of judicial acts in a single lawsuit. Harris County Br. at
47-48. Nor may the district court sidestep this statutory limitation on injunctive relief
by enjoining the Sheriff rather than the County Judges. Id. at 52-54.
II. THE DISTRICT COURTS CONCLUSION THAT PLAINTIFFS

ARE LIKELY TO SUCCEED ON THE MERITS IS BASED ON
MULTIPLE ERRORS OF LAW.
A. The Eighth Amendment Forecloses Plaintiffs Claim.
This is an Eighth Amendment case wearing a Fourteenth Amendment
costume. ODonnell claims that Harris County may not constitutionally set bail in
excess of the amount arrestees can afford, and the district court enjoined the County
- 27 -
from doing just that. The Eighth Amendment specifically prohibits Excessive bail,
and when a plaintiffs claim falls within a specific source[ ] of constitutional
protection against governmental conduct, the claim must then be judged by
reference to the specific constitutional standard which governs that right, rather than
to some generalized standard fashioned from the Fourteenth Amendment.
Graham v. Connor, 490 U.S. 386, 394 (1989).
It is no mystery why ODonnell did not seek relief under the Eighth
Amendment. This Court has squarely rejected the argument that the imposition of
a financial condition of bail which a defendant cannot meet violates the eighth
amendment. United States v. McConnell, 842 F.2d 105, 107 (5th Cir. 1988).
Instead, the Court held, a bail setting is not constitutionally excessive merely
because a defendant is financially unable to satisfy the requirement. Id.
ODonnell claims, and the court below held, that when a magistrate sets bail,
inability to pay controls and trumps all other factors, including flight risk and future
dangerousness. This Court has rejected that claim too: [T]he ability to make bond
is an important element in fixing an appropriate amount therefor, but it cannot be
said that the Constitution requires that it alone be controlling. Simon v. Woodson,
454 F.2d 161, 166 (5th Cir. 1972).
Similarly, the Supreme Court has rejected the notion that there is an absolute
right to release on bail. Instead, [t]he right to release before trial is conditioned upon
- 28 -
the accuseds giving adequate assurance that he will stand trial and submit to
sentence if found guilty. Stack v. Boyle, 342 U.S. 1, 4 (1951) (emphasis added).
Indeed, the Court has expressly approved the very practice ODonnell now claims is
unconstitutional, i.e., the modern practice of requiring a bail bond or the deposit of
a sum of money subject to forfeiture. Id. at 5.
ODonnell cannot evade these settled precedents by disguising her excessive
bail claim in Fourteenth Amendment garb. Because the Eighth Amendment provides
a specific constitutional standard which governs th[e] right to money bail,
ODonnells claim must then be judged by reference to th[at] specific constitutional
standard. Graham, 490 U.S. at 394.
The district court refused to apply Graham because it thought the rule only
limited courts ability to fashion new substantive due process rights, whereas this
case involves procedural, not substantive, due process analysis. Order, ROA.5709.
But the court found a substantive equal protection right to release pending trial
whenever an arrestee cannot afford bail, and its due process holding was ultimately
substantive as well. True, the courts opinion purports to identify certain
procedures that Harris County might provide before it may set bail in excess of
what arrestees can afford, but one of the procedures was a substantive finding that
no less restrictive alternative could assure the arrestees appearance, and the court
held as a matter of law that Harris County cannot meet this standard. PI Mem.,
- 29 -
ROA.5717. Any doubt as to the substantive nature of the ruling is dispelled by the
injunction: it flatly prohibits bail in excess of what an arrestee can afford, full stop.
This is not procedure. It is a substantive right to release.
In any case, Graham is not limited to substantive due process claims. In
Gerstein, the Court rejected a procedural due process challenge to pretrial detention
procedures because it was foreclosed by the Fourth Amendment, holding that [t]he
Fourth Amendment always has been thought to define the process that is due
for seizures of person or property in criminal cases, including the detention of
suspects pending trial. Id. at 125 n.27. Following Gerstein, the Courts of Appeals
have extended Graham to procedural due process and equal protection claims. E.g.,
Reynolds v. New Orleans City, 272 F. Appx 331, 338 (5th Cir. 2008); Becker v.
Kroll, 494 F.3d 904, 919 (10th Cir. 2007); Conyers v. Abitz, 416 F.3d 580, 586 (7th
Cir. 2005); see also Orin v. Barclay, 272 F.3d 1207, 1213 n.3 (9th Cir. 2001).
B. The Equal Protection Clause Does Not Outlaw Secured Bail.
Even if ODonnell could bring an equal protection challenge to excessive bail,
her claim fails because (1) her disparate impact theory is not viable, (2) the Countys
bail system easily survives rational basis review, and (3) that system survives any
level of scrutiny.
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1. ODonnells Disparate Impact Theory Is Not Viable.
All agree that the Texas and Harris County bail laws are facially neutral. The
district court effectively held that these facially-neutral laws are applied in a way
that has a disparate impact on the poor, but this theory is not viable because [t]he
Supreme Court has instructed us time and again that disparate impact alone
cannot suffice to state an Equal Protection violation; otherwise, any law could be
challenged on Equal Protection grounds by whomever it has negatively impacted.
Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997).
This principle, most closely associated with Washington v. Davis, 426 U.S.
229, 239 (1976), applies with full force to criminal cases. The Second Circuit has
already applied Davis to the claim that a statute allegedly discriminates against the
indigent who cannot afford bail. Spina v. DHS, 470 F.3d 116, 131 (2d Cir. 2006).
Both the Supreme Court and this Court have regularly applied Davis in the criminal
law context. E.g., McCleskey v. Kemp, 481 U.S. 279, 292 (1987); Batson v.
Kentucky, 476 U.S. 79, 93 (1986); United States v. Chavez, 281 F.3d 479, 487 (5th
Cir. 2002); Johnson, 110 F.3d at 306; United States v. Crew, 916 F.2d 980, 984 (5th
Cir. 1990).
Indeed, the only potential equal protection violation in this case comes from
the classification created by the injunction itself. It expressly treats arrestees
differently according to wealth, requiring that (1) arrestees who claim they cannot
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pay the amount of bail corresponding to their dangerousness and flight risk must be
released on personal unsecured bond, while (2) otherwise similarly situated arrestees
who are able to pay must pay or remain detained. Injunction, ROA.5763. To borrow
the Supreme Courts language concerning fines, the injunction codifies unlawful
inverse discrimination since it would enable an indigent to avoid both the [bond
amount] and [detention] for nonpayment whereas other defendants must pay bond
or be detained. Williams v. Illinois, 399 U.S. 235, 244 (1970).
2. Rational Basis Review Applies to ODonnell's

Equal Protection Claim.
Even if ODonnells disparate impact claim were cognizable, Harris Countys
bail system easily survives rational basis review. Rational basis review applies, even
if the Countys bail system creates a wealth classification,6 because [n]either
prisoners nor indigents constitute a suspect class, Carson v. Johnson, 112 F.3d 818,
821-22 (5th Cir. 1997), and arrestees do not have a fundamental right to pretrial
release without first giving adequate assurance and posting sufficient surety that
they will stand trial, Stack, 342 U.S. at 4; Pugh v. Rainwater, 572 F.2d 1053, 1057
(5th Cir. 1978) (en banc); see also infra Part II.C.2.
6
The bail system does not classify based on wealth at all. As the Second
Circuit has held, money bail systems do not classify according to wealth because
indigency is not the only reason why criminal defendants fail to secure bail release.
Spina, 470 F.3d at 132. Some defendants may be detained altogether without money
bail, id., while others, though not indigent, may not be able to afford bail set high
because of their flight risk or danger to the community.
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Secured money bail is a longstanding presence in the Anglo-American
common law tradition. PI Mem., ROA.5557. Indeed, it is basic to our system of
law. Schilb v. Kuebel, 404 U.S. 357, 365 (1971). Secured money bail is grounded
in the eminently reasonable, common-sense notion, confirmed by the entire history
of secured lending, that requiring a bail bond or the deposit of a sum of money
subject to forfeiture serves as additional assurance of the presence of an accused.
Stack, 342 U.S. at 5.
The district court asserted that secured money bail has an unacceptable
disparate impact on indigents because [a] defendant who can pay is released
regardless of risk whereas a defendant who cannot afford bail is detained. PI Mem.,
ROA.5718. But these two hypothetical defendants are not similarly situated. The
money bond provides the adequate assurance that [the arrestee] will stand trial that
allows release in the first place. Stack, 342 U.S. at 4. Thus even if there is a
classification between those who can and those who cannot make bail[,] [t]he
Constitution, however, permits such a classification. Rigney v. Hendrick, 355 F.2d
710, 715 (3d Cir. 1965).
The district court applied intermediate scrutiny, PI Mem., ROA.5693, and
concluded that detaining misdemeanor defendants before trial solely because of
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their inability to pay violates the Equal Protection Clause, id., ROA.5573.7 Both
rulings are flatly inconsistent with binding precedent applying only rational basis
review and rejecting an indigents equal protection challenge to a statute that resulted
in the prolonged detention of indigents who could not afford bail.
In McGinnis v. Royster, 410 U.S. 263 (1973), inmates unable to make bail
challenged a New York good time credit statute that allowed individuals who had
posted bail to be eligible for release earlier than those who could not post bail. Id. at
268. The plaintiffs argued that the statute violates equal protection of the laws and
discriminates against those state prisoners unable to afford or otherwise qualify for
bail prior to trial, id., and the dissent contended that the statute discriminated
against those too poor to raise bail and unable to obtain release on personal
recognizance, id. at 280 (Douglas, J., dissenting). But the Court upheld the statute,
emphasizing that it require[d] only some rational basis to sustain [the
classification]. Id. at 270.
Similarly, in Schilb v. Kuebel, 404 U.S. 357, 360-61 (1971), Illinois charged
a one-percent fee whenever an arrestee procured a commercial bail bond but no fee
7
The district court repeatedly asserted that arrestees were detained because
of their indigency. See, e.g., PI Mem., ROA.5573, 5586, 5652. Not so. To borrow
language originally from the post-conviction context: It is clear, of course, that the
[detention] was not imposed upon [the arrestee] because of his indigency but because
[there was probable cause to believe] he had committed a crime. Williams, 399 U.S.
at 242 (emphasis added).
- 34 -
when the full amount of bail was deposited in cash. The arrestee claimed the fee was
unconstitutional because the wealthy may post the full amount of cash whereas the
poor and non-affluent, who have no choice but to remain in jail or deposit 10% of
bail, are unconstitutionally, penalized in a quest for justice due to a lack of wealth.
Id. at 486 n.12 (quotation marks omitted). The Court, applying rational basis review,
rejected that argument because [i]t should be obvious that the poor mans real hope
and avenue for reliefnot his right, but his hopeis the personal recognizance
provision of Illinois law. Id. at 486.
Relying on McGinnis, this Court has applied rational basis review in rejecting
an equal protection challenge brought by an indigent facing parole revocation who
could not pay bail and thus might remain incarcerated longer than someone who
could. Smith v. U.S. Parole Commn, 752 F.2d 1056, 1058 (5th Cir. 1985). This
Court explained that unconstitutional wealth discrimination simply is not involved
when a defendant receives a greater sentence because he was financially unable
to make bail and thereby to force an immediate revocation hearing. Id. at 1059.
Smith endorsed the Seventh Circuits decision in Doyle v. Elsea, 658 F.2d 512
(1981). See Smith, 752 F.2d at 1059. Doyle, like Smith, squarely rejected the
argument of an individual facing parole revocation that the Equal Protection Clause
was violated because the result of [the individuals] inability to post cash bail is
that he must spend more time in prison than a wealthier person in his position would
- 35 -
have spent. Doyle, 658 F.2d at 518. It is not the law that whenever a person spends
more time incarcerated than a wealthier person would have spent, the equal
protection clause is violated. Id.
3. The Penal Fine Cases Cited by the Court Below Are Inapposite.
Ignoring the abundant, uniform caselaw directly addressing equal protection
challenges to bail in excess of what arrestees can afford, the district court relied on
a trilogy of cases having nothing to do with bail, but instead addressing a States
power to imprison a convicted offender unable to pay a penal fine. See Williams v.
Illinois, 399 U.S. 235, 241 (1970) (defendant in default of payment of penal fine
cannot be imprisoned beyond maximum authorized by statute); Tate v. Short, 401
U.S. 395, 399 (1971) (where crime is punishable only by a penal fine, State cannot
convert the fine into a prison term for an indigent); Bearden v. Georgia, 461 U.S.
660, 662 (1983) (State cannot revoke indigents probation for failure to pay a penal
fine without first determining that adequate alternative forms of punishment do not
exist).
These cases did not purport to apply heightened scrutiny, and more
importantly, they are readily distinguishable from claims arising in the context of
pretrial detention through bail. The Williams line of decisions rests on the
proposition that sentencing someone to prisoni.e., punishing someonefor their
inability to pay a penal fine does not further any penal objective of the State. Tate,
- 36 -
401 U.S. at 399. The purpose of pretrial detention is not to punish but rather to secure
the arrestees presence at trial. United States v. Salerno, 481 U.S. 739, 747 (1987);
United States v. Powell, 639 F.2d 224, 225 (5th Cir. 1981). Thus, while
imprisonment of indigents for failure to pay fines is not required to further [the
States] penal goals, Bearden, 461 U.S. at 670, the modern practice of requiring a
bail bond or the deposit of a sum of money subject to forfeiture undoubtedly
furthers the States goal of obtaining adequate assurance that an arrestee will
appear at trial, Stack, 342 U.S. at 4-5.
Jackson v. Alabama, 530 F.2d 1231 (5th Cir. 1976), forecloses the district
courts application of Williams and, indeed, its entire equal protection analysis.
Jackson held that when an indigent is detained pretrial because he cannot afford bail,
and the indigent is later convicted of the offense, the indigent does not have a
constitutional right to credit for time spent in detention so long as the indigents
prison term is less than the statutory maximum. 530 F.2d at 1237. Because equal
protection does not require credit for time detained pretrial when an indigent arrestee
is later convicted, it necessarily follows that there is no constitutional problem with
detaining an arrestee pretrial for inability to post bail. Judge Godbold made this
premise explicit in his dissent, agreeing that [t]here is no constitutional bar to
Alabamas confining defendants who are unable to post bail until an appellate
decision is reached. Id. at 1245 (Godbold, J., dissenting).
- 37 -
The Seventh Circuit has also recognized that Williams, Bearden, and Tate do
not apply in the bail context, holding that those cases simply do not stand for the
far more sweeping proposition that, whenever a person spends more time
incarcerated than a wealthier person would have spent, the equal protection clause
is violated. Doyle, 658 F.2d at 518. As noted earlier, this Court endorsed and
adopted Doyle in Smith, 752 F.2d at 1059.
The district court also relied on Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th
Cir. 1978) (en banc), but Pugh does not support a novel constitutional right to
affordable bail. This Court vacated a panel opinion that had applied strict scrutiny to
Floridas bail system, and it squarely rejected the argument that the Equal Protection
Clause required Floridas bail system to adopt a presumption against money bail for
indigents. Id. at 1056. If the Constitution does not require a mere presumption
against money bail as Pugh holds, it follows a fortiori that it cannot possibly require
a flat rule prohibiting money bail.
4. ODonnells Equal Protection Claim Fails at Any Level of Scrutiny.
The district court held that the Equal Protection Clause prohibits unaffordable
bail unless no less restrictive alternative can reasonably meet the governments
compelling interest in ensuring arrestees appearance in court. PI Mem.,
ROA.5696. It then held, as a matter of law, that Harris County can never make
this showingfor any misdemeanor arresteebecause reasonable alternatives to
- 38 -
continued detention exist for every single misdemeanor arrestee. Id., ROA.5717-
18. To establish this equal protection violation, the court relied on its analysis of how
frequently magistrates award personal bonds in Harris County, as well as failure-to-
appear rates in jurisdictions across the country.
The jurisdiction-wide proof cited by the court below is legally insufficient to
prove discrimination in this context. To prevail under the Equal Protection Clause,
a plaintiff must prove that the decisionmakers in his case acted with discriminatory
purpose. McCleskey v. Kemp, 481 U.S. 279, 292 (1987). McCleskey tried to prove
racial discrimination infected his death sentence through a statistical study
demonstrating racial disparity across all death penalty cases in Georgia, but the
Court rejected this offer of proof. The Court emphasized that the decision to impose
the death penalty rest[s] on consideration of innumerable factors that vary
according to the characteristics of the individual defendant and the facts of the
particular capital offense. Id. at 294. It further held that [b]ecause discretion is
essential to the criminal justice process, we would demand exceptionally clear proof
before we would infer that the discretion has been abused, and it concluded that the
study could not provide such proof. Id. at 297. Bail determinations by Hearing
Officers and County Judges are just as fact-sensitive, defendant-specific, and
discretionary as sentencing decisions, and the parties dueling jurisdiction-wide
- 39 -
studies, see infra pp. 40-44, do not come close to establishing the exceptionally clear
proof the Court required.
The reason for the McCleskey rule is easy to see. Even if reasonable
alternatives to secured money bail exist for some misdemeanor arrestees, it cannot
possibly be that reasonable alternatives exist for every single misdemeanor arrestee
in Harris County. Consider, for example, an arrestee who has failed to appear for
multiple court dates and then skipped town and remained a fugitive from justice for
nearly a year. In other words, consider Plaintiff ODonnell. When she was arrested
in May 2016 for driving with a suspended license (the detention that gave rise to the
present suit), her criminal history included two failures to appear in court. ODonnell
Criminal History, ROA.11554. She then failed to appear for court dates and
remained a fugitive from justice for nearly a year, evading apprehension even as her
attorneys argued in court that money bail was unnecessary to encourage her presence
at trial. ODonnell Capias, ROA.11544; Judgment of Forfeiture, ROA.11550; Notice
Regarding ODonnell, ROA.5443.
Even if the general studies were legally sufficient, the Countys bail system
survives intermediate scrutiny. There is unquestionably a substantial relation
between the time-honored secured bail system and the compelling governmental
interests in appearance at trial and community safety. The district court disagreed
because it found that release on secured bond does not assure better rates of
- 40 -
appearance compared to release on unsecured personal bond. See, e.g., PI Mem.,
ROA.5682. This finding of legislative fact is entitled to no deference on appeal,
Dunagin v. City of Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983) (en banc), and it
contradicts both the evidence in the record and the entire history of human
experience demonstrating the increased reliability of secured compared to unsecured
lending.
The district court concluded otherwise, asserting that [n]either secured nor
unsecured bonds provide meaningfully different financial incentives for the
arrestee to appear at trial. PI Mem., ROA.5643. This statement is untenable. The
court conceded that Harris County does not actually attempt to collect forfeited
unsecured personal bonds, id., so there is no financial incentive at all to appear when
released on personal bond.
The district court argued that there is likewise no financial consequence of
failing to appear under a secured bond because the arrestee may be judgment-
proof. PI Mem., ROA.5643. To the contrary, many arrestees who can afford the
bondsmans premium are not judgment-proof. More importantly, the court entirely
ignored that (1) bondsmen may enforce judgments against an arrestees future
income and assets, (2) bondsmen usually require individuals who are not judgment-
proof (e.g., parents or other relatives who will then be incentivized to ensure that the
arrestee appears) to co-sign bonds, PI Hearing, ROA.8211:2-19; Helland Study,
- 41 -
ROA.14231; (3) bondsmen often require collateral from the arrestee or his co-
signers, PI Hearing, ROA.8143:19-25, 8144:13-14; Helland Study, ROA.14231; and
(4) the bondsman has a great financial incentive to ensure that bonded arrestees
appear at trial, PI Hearing, ROA.8211:2-19; Helland Study, ROA.14232.
The district court selectively highlighted studies that it claimed support the
finding that appearance rates are comparable whether misdemeanants are released
on secured or unsecured bonds, but the statistical evidence in the record does not
support its conclusion. Most importantly, the courts 193-page opinion entirely
ignores the most relevant and compelling evidence in the record showing that
failure-to-appear rates skyrocket when courts order the indiscriminate release of
arrestees without secured money bail.
Lucas County, Ohio, operated under a federal court decree that ordered, in
times of overcrowding, the release of lower-level arrestees (primarily
misdemeanants) without secured money bail, based on the arrestees criminal charge
rather than flight risk. Arnold Press Release, ROA.14271-72; PI Hearing,
ROA.8698. Misdemeanants failure-to-appear rates were a phenomenally high 60
percent, while the failure-to-appear rate for all arrestees (misdemeanants and felons)
was 41.1 percent. PI Hearing, ROA.8698-99; see Lucas County PSA, ROA.14290.
When Lucas County implemented a pretrial risk assessment that tailored bond types
- 42 -
to arrestees flight risk, the failure-to-appear rates for all arrestees plummeted by 30
percent. Lucas County PSA, ROA.14290.
A rigorous statistical study from Dallas reached a similar finding:
misdemeanor arrestees released on personal bonds failed to appear 39.6 percent of
the time, while misdemeanor arrestees released on a secured commercial surety
failed to appear 26.7 percent of the timeagain, a roughly 30 percent decline in the
failure-to-appear rate. PI Mem., ROA.5663; Dallas Study, ROA.10509.
Ignoring the Lucas County study and discounting the Dallas study, the court
credited instead studies or anecdotes about bail systems in Philadelphia and
Pittsburgh (the Gupta study), Denver, and New York. PI Mem., ROA.5662. To
discount the Dallas study, the court went to great lengths to identify minor
differences between the Houston and Dallas systems, id., ROA.5664, while
simultaneously not even questioning whether the distant cities of Philadelphia,
Pittsburgh, Denver, and New York provide better comparison points.
The court also discredited the Dallas study because that city does not compile
comparative data on failures to appear, forcing the researchers to use proxy data.
Id., ROA.5664. But the Gupta study that the court credited also used proxies [that]
are imperfect, because Philadelphia and Pittsburghlike Dallasdid not
specifically track failure to appear, leading the researchers to conclude that their
- 43 -
results should be interpreted as preliminary, and a more nuanced study of court
appearances using more complete data is necessary. Gupta Study, ROA.9740.
Defendants also presented studies consistently showing that for accused
felons, failure-to-appear rates are higher for those arrestees released on unsecured
compared to secured bonds. One such study found that [d]efendants released on
surety bond are 28 percent less likely to fail to appear than similar defendants
released on their own recognizance, and if they do fail to appear, they are 53 percent
less likely to remain at large for extended periods of time. Helland Study,
ROA.14242; see also Cohen Study, ROA.14258 (finding failure-to-appear rates of
18 percent for surety bonds and 30 percent for unsecured bonds). The district court
brushed these studies aside, concluding that only studies limited to misdemeanor
defendants are relevant. PI Mem., ROA.5663. But secured bail provides exactly the
same incentive to appear for accused misdemeanants as for accused felons.
Finally, there is a substantial relation between secured money bail and
community safety. As explained below in Part III.B., money bail helps reduce crime
rates and ensure that arrestees are brought to justice and deterred from committing
further crimes. Indeed, one study found that one out of every ten arrestees released
on unsecured bond remained a fugitive from justice one year after release, whereas
only three percent of arrestees released on secured bond were fugitives one year after
release. Cohen Study, ROA.14258, 14262.
- 44 -
C. The Due Process Clause Does Not Outlaw Secured Bail.
1. The Injunction Sounds in Substantive,

Not Procedural, Due Process.
The court below suggested that a State may not set bail exceeding the amount
an arrestee can afford unless the State provides notice, a hearing before an impartial
decision-maker at which the arrestee has an opportunity to be heard and to present
evidence, and a written statement that a secured financial condition is the only
reasonable way to assure the arrestees appearance at hearings and law-abiding
behavior before trialall within 24 hours of arrest. PI Mem., ROA.5719. The
courts injunction, however, does not actually permit Harris County to implement
these procedures. The injunction does not require procedures but rather creates a
new substantive right to be free from excessive bail. This novel constitutional right
cannot begin to satisfy the rigorous standard for recognition of a substantive due
process right, for it contradicts the text and history of the Constitution, it is not
deeply rooted in this Nations history and tradition, Washington v. Glucksberg,
521 U.S. 702, 720-21 (1997) (quotation marks omitted), and it disregards Supreme
Court and Fifth Circuit precedent upholding secured money bail.
Moreover, the most important procedure that the district court identified in
its opinion is actually a substantive requirement that a factfinder find that secured
bail is the only reasonable way to assure the arrestees appearance at hearings and
law-abiding behavior before trial. PI Mem., ROA.5719. Procedural due process
- 45 -
requires such protections as notice, a hearing, and the right to cross-examine, see
Goldberg v. Kelly, 397 U.S. 254, 267-71 (1970), but it does not set the specific
substantive standards or level of scrutiny that must apply in those hearings.
2. The Courts Due Process Holding Fails on Its Own Terms

for Three Independent Reasons.
a. Liberty interests protected by the Due Process Clause may arise from
only one of two sources, the Due Process Clause itself and the laws of the States.
Kentucky Dept of Corr. v. Thompson, 490 U.S. 454, 460 (1989). The district court
found that arrestees have a right to release from custody before trial. PI Mem.,
ROA.5701. But neither the Due Process Clause nor state law provides a liberty
interest in release before trial without sufficient sureties for securing the arrestees
appearance at trial.
The court did not look to the Due Process Clause for its liberty interest, and
for good reason. Any right to release before trial is not absolute but rather is
conditioned upon the accuseds giving adequate assurance that he will stand trial and
submit to sentence. Pugh v. Rainwater, 572 F.2d 1053, 1057 (5th Cir. 1978) (en
banc); see also Broussard v. Parish of Orleans, 318 F.3d 644, 650 (5th Cir. 2003)
([T]here is no absolute constitutional right to bail.); Doyle, 658 F.2d at 516 n.6.
The Supreme Court reaffirmed this principle in United States v. Salerno, 481 U.S.
739 (1987), rejecting the argument that pretrial detention offends some principle of
- 46 -
justice so rooted in the traditions and conscience of our people as to be ranked as
fundamental. Id. at 751 (quotation marks omitted).
Instead, the district court looked to state law for its liberty interest, concluding
that the Texas Constitution has created a liberty interest in misdemeanor
defendants release from custody before trial. PI Mem., ROA.5701. But the Texas
Constitution provides only that arrestees are bailable by sufficient sureties, TEX.
CONST. art. I, 11 (emphasis added); it does not provide an unconditional right to
release from custody before trial, as the district court held. If an arrestee does not
provide sufficient sureties, there is no right to release.
Harris County magistrates are required to weigh various factors in exercising
their discretion in setting an arrestees bond amount and type, and [t]he grant of
discretion indicates that no entitlement and, hence, no liberty interest, was
created. Richardson v. Joslin, 501 F.3d 415, 420 (5th Cir. 2007). To create a liberty
interest, the state law must use mandatory language to place a substantive limit on
official discretion. Id. at 419 (quotation marks omitted). No such mandatory
language appears in the discretionary power to afford bail upon sufficient sureties.
The district courts decision to the contrary conflicts with the Sixth Circuits holding
that there is no liberty interest in release on personal recognizance where state law
grants magistrates discretion to impose secured money bail. Fields v. Henry Cty.,
701 F.3d 180, 187 (6th Cir. 2012).
- 47 -
b. Even if a liberty interest were implicated, the robust procedural
protections that Harris County provides easily satisfy due process. Arrestees
typically appear before a Hearing Officer within 24 hours of arrest for a non-
adversarial hearing at which bail is set. The next business day after booking, they
appear before a County Judge for a counseled, adversarial hearing in which they may
challenge their bail setting. In July, Harris County will begin to implement state-of-
the-art updates to its bail procedures that are designed to provide lower-risk arrestees
with among the fastest processing [and release] speeds in the nation. PI Mem.,
ROA.5672. And arrestees always retain the right to petition the County Judge to
reconsider their bail, or to seek habeas review of the bail decision. See TEX. CODE
CRIM. PROC. art. 11.09, 11.11.
The Due Process Clause does not require more, and it certainly does not
require the adversarial evidentiary hearing the district court has demanded. Indeed,
this Court has already sanctioned informal bail procedures, emphasizing that they
may be so informal that the decision may also be made at home or in chambers
or during telephonic communications with the jail. United States v. Chagra, 701
F.2d 354, 363-64 (5th Cir. 1983). As then-Judge Breyer explained, bail hearings are
typically informal affairs, not substitutes for trial or even for discovery. Often the
opposing parties simply describe to the judicial officer the nature of their evidence;
they do not actually produce it. United States v. Acevedo-Ramos, 755 F.2d 203, 206
- 48 -
(1st Cir. 1985). The district court has effectively mandated a mini-trial, but as the
Second Circuit has admonished, a bail hearing cannot become a mini-trial or a
discovery tool for the defendant. United States v. LaFontaine, 210 F.3d 125, 131
(2d Cir. 2000) (citation omitted). If the courts Due Process holding is correct, then
almost allindeed, possibly allbail-hearing statutes across the land are
unconstitutional.
c. The court below compounded its error by requiring that this adversarial
mini-trial occur within 24 hours after arrest. PI Mem., ROA.5707. This requirement
is squarely foreclosed by Collins v. Ainsworth, 382 F.3d 529, 545 (5th Cir. 2004).
The courts injunction opinion never even cites Collins, and the court attempted to
distinguish Collins in its motion-to-dismiss ruling on the ground that Collins
addressed only Mississippi state law, not federal constitutional law. MTD Order,
ROA.3259. Not so. Collins squarely addressed and rejected the Plaintiffs
allegations of due process violations related to the timing of their bail by holding
that [t]here is no right to post bail within 24 hours of arrest. 382 F.3d at 545.
The district courts due process holding is also foreclosed by County of
Riverside v. McLaughlin, 500 U.S. 44 (1991), a decision the preliminary injunction
opinion likewise entirely ignores. County of Riverside holds that the Due Process
Clause permits States 48 hours to provide a highly informal, non-adversarial
probable cause hearing. Id. at 56. Moreover, a hearing beyond 48 hours is
- 49 -
permissible if the delay is justified by extraordinary circumstance[s]. Id. at 57.
Given that States may detain arrestees without bail for 48 hours before they must
give them an informal probable cause hearing, the Due Process Clause cannot
require States to release arrestees with bail if they fail to provide an adversarial bail
hearing within 24 hours. Moreover, the injunction does not even mention the
extraordinary circumstances exception that County of Riverside specifically
permits.
Indeed, County of Riverside expressly recognized that bail hearings are not
required prior to 48 hours after arrest. The Supreme Court selected the 48-hour limit
because a shorter period would make it impossible to [i]ncorporat[e] probable
cause determinations into the procedure for setting bail or fixing other conditions
of pretrial release, which Gerstein explicitly contemplated. County of Riverside,
500 U.S. at 54 (quoting Gerstein, 420 U.S. at 124). The Court set the 48-hour limit
so that States can [w]ait a few hours so that a bail hearing or arraignment could
take place at the same time as the probable cause determination . Id. It follows a
fortiori that a bail hearing is not required until at least 48 hours after arrest. The
clear import of [County of Riverside], then, is that a bail hearing held within 48 hours
of a warrantless arrest is also presumptively constitutionalif indeed the
Constitution speaks to that issue. Tate v. Hartsville/Trousdale Cty., 2010 WL
4054141, at *8 (M.D. Tenn. Oct. 14, 2010) (citation omitted).
- 50 -
Finally, the injunction requiring hearings within 24 hours of arrest is invalid
under Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984). Under
Pennhurst, federal courts lack the authority to order states to comply with state law,
id. at 106, yet that is precisely what the district court has done here, purporting to
enjoin Appellants to follow State law concerning the timeliness of probable cause
and bail hearings, PI Mem., ROA.5706.
III. THE EQUITIES STRONGLY SUPPORT VACATUR OF THE

INJUNCTION.
A. The Injunction Prohibits the Enforcement of State Law.
The district courts order enjoins the enforcement of state law, and this Court
has held that [w]hen a statute is enjoined, the State necessarily suffers the
irreparable harm of denying the public interest in the enforcement of its laws.
Planned Parenthood of Greater Texas Surgical Health Servs. v. Abbott, 734 F.3d
406, 419 (5th Cir. 2013); see also Veasey v. Perry, 769 F.3d 890, 895 (5th Cir. 2014).
Although the district court claimed that its order does not modify Texas law, PI
Mem., ROA.5560, it enjoined the enforcement of State law in at least six ways.
First, the Texas Constitution requires that arrestees for non-capital offenses
shall be bailable by sufficient sureties. TEX. CONST. art. I, 11. The injunction
mandates the release of criminal defendants without the surety that the responsible
state judicial officers have deemed sufficient.
- 51 -
Second, Texas law grants Hearing Officers and County Judges discretion to
determine whether bail shall be secured or unsecured. TEX. CODE CRIM. PROC. art.
17.03(a). The injunction overrides this provision, requiring unsecured bonds
whenever an arrestee claims he cannot pay a secured bond.
Third, Texas law requires Hearing Officers and County Judges to set bail by
weighing five factors, only one of which is the ability to pay bail. Id. art. 17.15;
Local Rule 4.2.3.1, ROA.11320. The injunction overrides these provisions and
requires bail to be based entirely on the ability to pay.
Fourth, Texas law permits bail in excess of what an arrestee can afford,
because it provides that if the required security be not given, the magistrate shall
make an order committing the accused to jail to be kept safely until legally
discharged. TEX. CODE CRIM. PROC. art. 17.27; see also id. art. 17.09. The
injunction prohibits bail in excess of what arrestees claim they can afford.
Fifth, Texas law does not require a bail determination until 48 hours after
arrest. Id. art. 15.17, 14.06. Even if bond has been paid, Texas law permits detention,
for an additional 48 hours, of certain arrestees who have committed a crime of family
violence and are likely to continue their violence if released. Id. art. 17.291. The
injunction abrogates these statutes, requiring a bail hearing and release within 24
hours.
- 52 -
Sixth, if a Hearing Officer has not determined probable cause within 24 hours
of arrest, Texas law permits the magistrate to postpone release for up to 72 hours
after arrest. Id. art. 17.033(c). The injunction abrogates this requirement and requires
release within 24 hours, no matter how extenuating the circumstances.
B. The Injunction Presents a Grave Risk to Public Safety, Will

Cause Confusion and Disarray, and Will Harm the Public Fisc.
First, the injunction threatens public safety and the orderly administration of
justice because failure-to-appear rates will increase. Bail jumping and failing to
appear in court are crimes, TEX. PENAL CODE 38.10, so the district courts order
will cause this crime rate to rise, as they did in Lucas County, Ohio, when the pretrial
system was similarly disrupted. The order strips Harris County of the ability to create
any serious incentives for prompt appearance at trial, because even if an indigent
arrestee fails to appear two, three, or ten consecutive times, the arrestee must be
continually released within 24 hours on unsecured bond. Moreover, a comprehensive
study found that arrestees released on secured bond have lower rates of pretrial
misconduct than those released on unsecured bond. Cohen Study, ROA.14258.
Second, the injunction threatens public safety because it will be more difficult
to bring criminals to justice. Many arrestees who fail to appear remain fugitives for
a year or longer. Id., ROA.14258, 14262. As time passes, witnesses memories fade,
evidence goes stale, and cooperating witnesses may lose the will to cooperate. Those
who fail to appear are thus less likely to be convicted of their crimes and less likely
- 53 -
to be deterred from committing more crimes. As one researcher has emphasized, the
costs of failing to appear include the increased crime that results when high failure-
to-appear (FTA) and fugitive rates reduce expected punishments. Helland Study,
ROA.14229.
Third, the injunction threatens public safety because it will impair Harris
Countys ability to protect the public through proper supervision of arrestees. Pretrial
Services supervises arrestees released on personal bond but not those released on
secured bonds. The injunction will cause the number of individuals released on
personal bond to skyrocket; indeed, that is its entire point. Pretrial Services will be
overwhelmed with the task of supervising many more arrestees, and the quality of
supervision provided may (and likely will) suffer. Declaration of Kelvin L. Banks,
Appendix to Emergency Motion for Stay Pending Appeal, App.1026-28.
Fourth, the injunction threatens public safety because, by facilitating release
before many arrestees appear before magistrates, the injunction limits magistrates
ability to impose restraints on arrestees released on bond, such as by imposing
protective orders and requiring interlock ignition devices. These non-financial
conditions are vital to public safety. They require, for example, that arrestees refrain
from using drugs; that drunk-driving arrestees comply with ignition interlock
devices; and that violent arrestees comply with GPS monitoring to ensure they
- 54 -
cannot harm their victims or the public. See, e.g., TEX. CODE CRIM. PROC. art. 17.43
to 17.49.
Fifth, the district courts order will cause irreparable harm to the public fisc.
The cost of tracking down fugitive misdemeanants who do not appear in court will
increase substantially. The cost of pretrial services will increase substantially. Costs
will increase as a consequence of the gridlock, delay, and wasted judicial resources
when hearings are continually rescheduled because arrestees have failed to appear.
Finally, a stay of the injunction pending appeal will protect the public interest.
As the State is the appealing party, its interest and harm merges with that of the
public. Planned Parenthood, 734 F.3d at 419.
CONCLUSION
We respectfully submit that the Court should reverse the preliminary
injunction and remand with instructions for the district court to dismiss the case.
- 55 -
Date: June 19, 2017 Respectfully submitted,
John E. ONeill s/ Charles J. Cooper

John Keville Charles J. Cooper
Sheryl A. Falk Michael W. Kirk
Winston & Strawn LLP William C. Marra
1111 Louisiana St., 25th Floor John D. Ohlendorf
Houston, T.X. 77002 Cooper & Kirk, PLLC
(713) 561-2600 1523 New Hampshire Ave., NW
joneill@winston.com Washington, D.C. 20036
(202) 220-9600
ccooper@cooperkirk.com

Fourteen Judges of Harris County Criminal Courts at Law
- 56 -
STATUTORY ADDENDUM
STATUTORY ADDENDUM
TABLE OF CONTENTS
TEX. CONST. art. I, 11 .........................................................................................SA1

TEX. CONST. art. I, 11b .......................................................................................SA1
TEX. CONST. art. I, 11c .......................................................................................SA1
TEX. CODE CRIM. PROC. art. 14.06 ........................................................................SA2
TEX. CODE CRIM. PROC. art. 17.033 ....................................................................SA10
TEX. CODE CRIM. PROC. art. 17.04 ......................................................................SA11
TEX. CODE CRIM. PROC. art. 17.15 ......................................................................SA12
Harris County Local Rule 4.2.1.1 .......................................................................SA15
Harris County Local Rule 4.2.3.1 .......................................................................SA16
Harris County Local Rule 4.3.1 ..........................................................................SA16
Harris County Local Rule 9.1 .............................................................................SA17
TEXAS CONST. art. 1, 11

Bail
Sec. 11. All prisoners shall be bailable by sufficient sureties, unless for capital
offenses, when the proof is evident; but this provision shall not be so construed as to
prevent bail after indictment found upon examination of the evidence, in such
manner as may be prescribed by law.
TEXAS CONST. art. 1, 11b.

Violation of condition of release pending trial; denial of bail
Sec. 11b. Any person who is accused in this state of a felony or an offense involving
family violence, who is released on bail pending trial, and whose bail is subsequently
revoked or forfeited for a violation of a condition of release may be denied bail
pending trial if a judge or magistrate in this state determines by a preponderance of
the evidence at a subsequent hearing that the person violated a condition of release
related to the safety of a victim of the alleged offense or to the safety of the
community.
TEXAS CONST. art. 1, 11c.

Violation of an order for emergency protection involving family violence
Sec. 11c. The legislature by general law may provide that any person who violates
an order for emergency protection issued by a judge or magistrate after an arrest for
an offense involving family violence or who violates an active protective order
rendered by a court in a family violence case, including a temporary ex parte order
that has been served on the person, or who engages in conduct that constitutes an
offense involving the violation of an order described by this section may be taken
into custody and, pending trial or other court proceedings, denied release on bail if
following a hearing a judge or magistrate in this state determines by a preponderance
of the evidence that the person violated the order or engaged in the conduct
constituting the offense.
SA1
TEXAS CODE CRIM. PROC. art. 14.06.

Must take offender before magistrate
(a) Except as otherwise provided by this article, in each case enumerated in this
Code, the person making the arrest or the person having custody of the person
arrested shall take the person arrested or have him taken without unnecessary delay,
but not later than 48 hours after the person is arrested, before the magistrate who
may have ordered the arrest, before some magistrate of the county where the arrest
was made without an order, or, to provide more expeditiously to the person arrested
the warnings described by Article 15.17 of this Code, before a magistrate in any
other county of this state. The magistrate shall immediately perform the duties
described in Article 15.17 of this Code.
(b) A peace officer who is charging a person, including a child, with committing an
offense that is a Class C misdemeanor, other than an offense under Section 49.02,
Penal Code, may, instead of taking the person before a magistrate, issue a citation to
the person that contains written notice of the time and place the person must appear
before a magistrate, the name and address of the person charged, the offense charged,
and the following admonishment, in boldfaced or underlined type or in capital
letters:
If you are convicted of a misdemeanor offense involving violence where you are or
were a spouse, intimate partner, parent, or guardian of the victim or are or were
involved in another, similar relationship with the victim, it may be unlawful for you
to possess or purchase a firearm, including a handgun or long gun, or ammunition,
pursuant to federal law under 18 U.S.C. Section 922(g)(9) or Section 46.04(b),
Texas Penal Code. If you have any questions whether these laws make it illegal for
you to possess or purchase a firearm, you should consult an attorney.
(c) If the person resides in the county where the offense occurred, a peace officer
who is charging a person with committing an offense that is a Class A or B
misdemeanor may, instead of taking the person before a magistrate, issue a citation
to the person that contains written notice of the time and place the person must
appear before a magistrate of this state as described by Subsection (a), the name and
address of the person charged, and the offense charged.
(d) Subsection (c) applies only to a person charged with committing an offense
under:
SA2
(1) Section 481.121, Health and Safety Code, if the offense is punishable
under Subsection (b)(1) or (2) of that section;
(1-a) Section 481.1161, Health and Safety Code, if the offense is

punishable under Subsection (b)(1) or (2) of that section;
(2) Section 28.03, Penal Code, if the offense is punishable under Subsection
(b)(2) of that section;
(b)(2) or (3) of that section;
(e)(2)(A) of that section;
(e)(2) of that section;
(6) Section 38.114, Penal Code, if the offense is punishable as a Class B

misdemeanor; or
(7) Section 521.457, Transportation Code.
SA3

Duties of arresting officer and magistrate
(a) In each case enumerated in this Code, the person making the arrest or the person
having custody of the person arrested shall without unnecessary delay, but not later
than 48 hours after the person is arrested, take the person arrested or have him taken
before some magistrate of the county where the accused was arrested or, to provide
more expeditiously to the person arrested the warnings described by this article,
before a magistrate in any other county of this state. The arrested person may be
taken before the magistrate in person or the image of the arrested person may be
presented to the magistrate by means of an electronic broadcast system. The
magistrate shall inform in clear language the person arrested, either in person or
through the electronic broadcast system, of the accusation against him and of any
affidavit filed therewith, of his right to retain counsel, of his right to remain silent,
of his right to have an attorney present during any interview with peace officers or
attorneys representing the state, of his right to terminate the interview at any time,
and of his right to have an examining trial. The magistrate shall also inform the
person arrested of the person's right to request the appointment of counsel if the
person cannot afford counsel. The magistrate shall inform the person arrested of the
procedures for requesting appointment of counsel. If the person does not speak and
understand the English language or is deaf, the magistrate shall inform the person in
a manner consistent with Articles 38.30 and 38.31, as appropriate. The magistrate
shall ensure that reasonable assistance in completing the necessary forms for
requesting appointment of counsel is provided to the person at the same time. If the
person arrested is indigent and requests appointment of counsel and if the magistrate
is authorized under Article 26.04 to appoint counsel for indigent defendants in the
county, the magistrate shall appoint counsel in accordance with Article 1.051. If the
magistrate is not authorized to appoint counsel, the magistrate shall without
unnecessary delay, but not later than 24 hours after the person arrested requests
appointment of counsel, transmit, or cause to be transmitted to the court or to the
courts' designee authorized under Article 26.04 to appoint counsel in the county, the
forms requesting the appointment of counsel. The magistrate shall also inform the
person arrested that he is not required to make a statement and that any statement
made by him may be used against him. The magistrate shall allow the person arrested
reasonable time and opportunity to consult counsel and shall, after determining
whether the person is currently on bail for a separate criminal offense, admit the
person arrested to bail if allowed by law. A recording of the communication between
the arrested person and the magistrate shall be made. The recording shall be
preserved until the earlier of the following dates: (1) the date on which the pretrial
hearing ends; or (2) the 91st day after the date on which the recording is made if the
SA4
person is charged with a misdemeanor or the 120th day after the date on which the
recording is made if the person is charged with a felony. The counsel for the
defendant may obtain a copy of the recording on payment of a reasonable amount to
cover costs of reproduction. For purposes of this subsection, electronic broadcast
system means a two-way electronic communication of image and sound between
the arrested person and the magistrate and includes secure Internet
videoconferencing.
(b) After an accused charged with a misdemeanor punishable by fine only is taken
before a magistrate under Subsection (a) and the magistrate has identified the
accused with certainty, the magistrate may release the accused without bond and
order the accused to appear at a later date for arraignment in the applicable justice
court or municipal court. The order must state in writing the time, date, and place of
the arraignment, and the magistrate must sign the order. The accused shall receive a
copy of the order on release. If an accused fails to appear as required by the order,
the judge of the court in which the accused is required to appear shall issue a warrant
for the arrest of the accused. If the accused is arrested and brought before the judge,
the judge may admit the accused to bail, and in admitting the accused to bail, the
judge should set as the amount of bail an amount double that generally set for the
offense for which the accused was arrested. This subsection does not apply to an
accused who has previously been convicted of a felony or a misdemeanor other than
a misdemeanor punishable by fine only.
(c) When a deaf accused is taken before a magistrate under this article or Article
14.06 of this Code, an interpreter appointed by the magistrate qualified and sworn
as provided in Article 38.31 of this Code shall interpret the warning required by
those articles in a language that the accused can understand, including but not limited
to sign language.
(d) If a magistrate determines that a person brought before the magistrate after an
arrest authorized by Article 14.051 of this code was arrested unlawfully, the
magistrate shall release the person from custody. If the magistrate determines that
the arrest was lawful, the person arrested is considered a fugitive from justice for the
purposes of Article 51.13 of this code, and the disposition of the person is controlled
by that article.
(e) In each case in which a person arrested is taken before a magistrate as required
by Subsection (a) or Article 15.18(a), a record shall be made of:
SA5
(1) the magistrate informing the person of the person's right to request
appointment of counsel;
(2) the magistrate asking the person whether the person wants to request
appointment of counsel; and
(3) whether the person requested appointment of counsel.
(f) A record required under Subsection (e) may consist of written forms, electronic
recordings, or other documentation as authorized by procedures adopted in the
county under Article 26.04(a).
(g) If a person charged with an offense punishable as a misdemeanor appears before

a magistrate in compliance with a citation issued under Article 14.06(b) or (c), the
magistrate shall perform the duties imposed by this article in the same manner as if
the person had been arrested and brought before the magistrate by a peace officer.
After the magistrate performs the duties imposed by this article, the magistrate
except for good cause shown may release the person on personal bond. If a person
who was issued a citation under Article 14.06(c) fails to appear as required by that
citation, the magistrate before which the person is required to appear shall issue a
warrant for the arrest of the accused.
SA6
TEX. CODE CRIM. PROC. art. 17.01.

Definition of bail
Bail is the security given by the accused that he will appear and answer before the
proper court the accusation brought against him, and includes a bail bond or a
personal bond.

Definition of bail bond
A bail bond is a written undertaking entered into by the defendant and the
defendant's sureties for the appearance of the principal therein before a court or
magistrate to answer a criminal accusation; provided, however, that the defendant
on execution of the bail bond may deposit with the custodian of funds of the court
in which the prosecution is pending current money of the United States in the amount
of the bond in lieu of having sureties signing the same. Any cash funds deposited
under this article shall be receipted for by the officer receiving the funds and, on
order of the court, be refunded in the amount shown on the face of the receipt less
the administrative fee authorized by Section 117.055, Local Government Code, after
the defendant complies with the conditions of the defendant's bond, to:
(1) any person in the name of whom a receipt was issued, including the defendant if
a receipt was issued to the defendant; or
(2) the defendant, if no other person is able to produce a receipt for the funds.
SA7

Personal bond
(a) Except as provided by Subsection (b) of this article, a magistrate may, in the
magistrate's discretion, release the defendant on his personal bond without sureties
or other security.
(b) Only the court before whom the case is pending may release on personal bond a
defendant who:
(1) is charged with an offense under the following sections of the Penal Code:
(A) Section 19.03 (Capital Murder);
(B) Section 20.04 (Aggravated Kidnapping);
(C) Section 22.021 (Aggravated Sexual Assault);
(D) Section 22.03 (Deadly Assault on Law Enforcement or Corrections

Officer, Member or Employee of Board of Pardons and Paroles,1 or
Court Participant);
(E) Section 22.04 (Injury to a Child, Elderly Individual, or Disabled

Individual);
(F) Section 29.03 (Aggravated Robbery);
(G) Section 30.02 (Burglary);
(H) Section 71.02 (Engaging in Organized Criminal Activity);
(I) Section 21.02 (Continuous Sexual Abuse of Young Child or

Children); or
(J) Section 20A.03 (Continuous Trafficking of Persons);
(2) is charged with a felony under Chapter 481, Health and Safety Code,
or Section 485.033, Health and Safety Code, punishable by imprisonment for
a minimum term or by a maximum fine that is more than a minimum term or
maximum fine for a first degree felony; or
SA8
(3) does not submit to testing for the presence of a controlled substance in the
defendant's body as requested by the court or magistrate under Subsection (c)
of this article or submits to testing and the test shows evidence of the presence
of a controlled substance in the defendant's body.
(c) When setting a personal bond under this chapter, on reasonable belief by the
investigating or arresting law enforcement agent or magistrate of the presence of a
controlled substance in the defendant's body or on the finding of drug or alcohol
abuse related to the offense for which the defendant is charged, the court or a
magistrate shall require as a condition of personal bond that the defendant submit to
testing for alcohol or a controlled substance in the defendant's body and participate
in an alcohol or drug abuse treatment or education program if such a condition will
serve to reasonably assure the appearance of the defendant for trial.
(d) The state may not use the results of any test conducted under this chapter in any
criminal proceeding arising out of the offense for which the defendant is charged.
(e) Costs of testing may be assessed as court costs or ordered paid directly by the
defendant as a condition of bond.
(f) In this article, controlled substance has the meaning assigned by Section
481.002, Health and Safety Code.
(g) The court may order that a personal bond fee assessed under Section 17.42 be:
(1) paid before the defendant is released;
(2) paid as a condition of bond;
(3) paid as court costs;
(4) reduced as otherwise provided for by statute; or
(5) waived.
SA9

Release on bond of certain persons arrested without a warrant
(a) Except as provided by Subsection (c), a person who is arrested without a warrant
and who is detained in jail must be released on bond, in an amount not to exceed
$5,000, not later than the 24th hour after the person's arrest if the person was arrested
for a misdemeanor and a magistrate has not determined whether probable cause
exists to believe that the person committed the offense. If the person is unable to
obtain a surety for the bond or unable to deposit money in the amount of the bond,
the person must be released on personal bond.
(a-1) Notwithstanding Subsection (a) and except as provided by Subsection (c), a

person who, in a county with a population of three million or more, is arrested
without a warrant and who is detained in jail must be released on bond, in an amount
not to exceed $5,000, not later than the 36th hour after the person's arrest if the
person was arrested for a misdemeanor and a magistrate has not determined whether
probable cause exists to believe that the person committed the offense.
(b) Except as provided by Subsection (c), a person who is arrested without a warrant
and who is detained in jail must be released on bond, in an amount not to exceed
$10,000, not later than the 48th hour after the person's arrest if the person was
arrested for a felony and a magistrate has not determined whether probable cause
exists to believe that the person committed the offense. If the person is unable to
obtain a surety for the bond or unable to deposit money in the amount of the bond,
the person must be released on personal bond.
(c) On the filing of an application by the attorney representing the state, a magistrate
may postpone the release of a person under Subsection (a), (a-1), or (b) for not more
than 72 hours after the person's arrest. An application filed under this subsection
must state the reason a magistrate has not determined whether probable cause exists
to believe that the person committed the offense for which the person was arrested.
(d) The time limits imposed by Subsections (a), (a-1), and (b) do not apply to a
person arrested without a warrant who is taken to a hospital, clinic, or other medical
facility before being taken before a magistrate under Article 15.17. For a person
described by this subsection, the time limits imposed by Subsections (a), (a-1), and
(b) begin to run at the time, as documented in the records of the hospital, clinic, or
other medical facility, that a physician or other medical professional releases the
person from the hospital, clinic, or other medical facility.
SA10
(e) Subsection (a-1) and this subsection expire on September 1, 2013.

Requisites of a personal bond
A personal bond is sufficient if it includes the requisites of a bail bond as set out
in Article 17.08, except that no sureties are required. In addition, a personal bond
shall contain:
(1) the defendant's name, address, and place of employment;
(2) identification information, including the defendant's:
(A) date and place of birth;
(B) height, weight, and color of hair and eyes;
(C) driver's license number and state of issuance, if any; and
(D) nearest relative's name and address, if any; and
(3) the following oath sworn and signed by the defendant:
I swear that I will appear before (the court or magistrate) at (address, city, county)
Texas, on the (date), at the hour of (time, a.m. or p.m.) or upon notice by the court,
or pay to the court the principal sum of (amount) plus all necessary and reasonable
expenses incurred in any arrest for failure to appear.
SA11

Rules for fixing amount of bail
The amount of bail to be required in any case is to be regulated by the court, judge,
magistrate or officer taking the bail; they are to be governed in the exercise of this
discretion by the Constitution and by the following rules:
1. The bail shall be sufficiently high to give reasonable assurance that the
undertaking will be complied with.
2. The power to require bail is not to be so used as to make it an instrument of

oppression.
3. The nature of the offense and the circumstances under which it was committed
are to be considered.
4. The ability to make bail is to be regarded, and proof may be taken upon this point.
5. The future safety of a victim of the alleged offense and the community shall be
considered.
SA12

Release because of delay
Sec. 1. A defendant who is detained in jail pending trial of an accusation against him
must be released either on personal bond or by reducing the amount of bail required,
if the state is not ready for trial of the criminal action for which he is being detained
within:
(1) 90 days from the commencement of his detention if he is accused of a felony;
(2) 30 days from the commencement of his detention if he is accused of a

misdemeanor punishable by a sentence of imprisonment in jail for more than 180
days;
(3) 15 days from the commencement of his detention if he is accused of a

misdemeanor punishable by a sentence of imprisonment for 180 days or less; or
(4) five days from the commencement of his detention if he is accused of a

misdemeanor punishable by a fine only.
Sec. 2. The provisions of this article do not apply to a defendant who is:
(1) serving a sentence of imprisonment for another offense while the defendant is
serving that sentence;
(2) being detained pending trial of another accusation against the defendant as to
which the applicable period has not yet elapsed;
(3) incompetent to stand trial, during the period of the defendant's incompetence; or
(4) being detained for a violation of the conditions of a previous release related to
the safety of a victim of the alleged offense or to the safety of the community under
this article.
SA13

Further detention of certain persons
(a) In this article:
(1) family violence has the meaning assigned to that phrase by Section
71.004, Family Code; and
(2) magistrate has the meaning assigned to it by Article 2.09 of this code.
(b) Article 17.29 does not apply when a person has been arrested or held without a
warrant in the prevention of family violence if there is probable cause to believe the
violence will continue if the person is immediately released. The head of the agency
arresting or holding such a person may hold the person for a period of not more than
four hours after bond has been posted. This detention period may be extended for an
additional period not to exceed 48 hours, but only if authorized in a writing directed
to the person having custody of the detained person by a magistrate who concludes
that:
(1) the violence would continue if the person is released; and
(2) if the additional period exceeds 24 hours, probable cause exists to believe
that the person committed the instant offense and that, during the 10-year
period preceding the date of the instant offense, the person has been arrested:
(A) on more than one occasion for an offense involving family

violence; or
(B) for any other offense, if a deadly weapon, as defined by Section

1.07, Penal Code, was used or exhibited during commission of the
offense or during immediate flight after commission of the offense.
SA14
Harris County Local Rule 4.2.1.1.
When the district clerk files an indictment, information, or complaint alleging the
commission of a misdemeanor offense within the jurisdictional limits of a county
criminal court at law and the defendant is in the custody of law enforcement officials
in Harris County, the district clerk shall update the electronic records in the
automated system to reflect that charges have been filed. Further, by general order
of the judges of the county criminal courts at law, all law enforcement officials in
Harris County shall cause the pretrial detainees in their respective custody, who have
been charged with a class A or class B misdemeanor, to be delivered to the criminal
law hearing officer not later than 24 hours after arrest for the purpose of conducting
a hearing to determine probable cause for further detention. Personnel and electronic
files, along with original and hard copy files, where appropriate, from the district
attorney, district clerk, and Pretrial Services Department necessary to conduct the
hearings shall be present and made available to the criminal law hearing officer. All
detainees will be deemed to have been taken before a judge or judicial officer if
they are physically present at the hearing, or if their participation is achieved by the
use of high-speed, two way audio/video transmission technology. In circumstances
where audio/video technology is utilized, the entire hearing must be recorded and
maintained by the court for a period of one hundred twenty (120) days after the
hearing. A written record of the proceedings shall be made.
SA15
Harris County Local Rule 4.2.3.1
4.2.3.1 The bail schedule maintained by the county criminal court at law judges for
all misdemeanor offenses occurring within the courts jurisdiction shall be referred
to by the criminal law hearing officer. The initial bail amount may be changed on
motion of the court, the hearing officer, or any party subject to the following criteria:
4.2.3.1.1. the bail shall be sufficiently high to give reasonable assurance that the
defendant will comply with the undertaking;
4.2.3.1.2. the nature of the offense for which probable cause has been found and the
circumstances under which the offense was allegedly committed are to be
considered, including both aggravating and mitigating factors for which there is
reasonable ground to believe shown, if any;
4.2.3.1.3. the ability to make bail is to be regarded, and proof may be taken upon this
point;
4.2.3.1.4. the future safety of the victim and the community may be considered, and
if this is a factor, release to a third person should also be considered; and
4.2.3.1.5. the criminal law hearing officer shall also consider the employment
history, residency, family affiliations, prior criminal record, previous court
appearance performance, and any outstanding bonds of the accused.
Harris County Local Rule 4.3.1.
The initial arraignment setting pursuant to Rule 4.1.2 shall be replaced with a bail
review hearing setting for any arrestee that is booked into the Harris County Jail.
The arrestee shall appear before the court in which the case is pending on the
business day following the booking date, regardless of whether the defendant has
been released from custody. Absent a waiver by the defendant and defense counsel,
the court will review conditions of release, bail amount set, and personal bond
decision and modify if good cause exists to do so. These hearings will be conducted
at regular docket calls on Monday through Friday and the judge shall perform all
necessary functions under the law (determining probable cause if necessary,
performing an Article 15.17 proceeding if not previously done, assessing indigency
and appointing counsel if appropriate, etc.). The defendant shall be docketed in
accordance with the following schedule, and in such cases the initial seven-day
setting shall be canceled.
SA16
Harris County Local Rule 9.1.
Pursuant to the agreed final judgment and order of the federal court in Roberson v.
Richardson (No. H-84-2974), Southern District of Texas (1987)), the Harris County
Criminal Court at Law Judges promulgate this initial bail schedule. The district
attorney shall affix an initial bail amount at the time a complaint is filed in a county
criminal court at law. The initial bail amount shall be determined by either presenting
relevant information in the possession of the district attorney to a county criminal
court at law judge, or Harris County Hearing Officer, or by applying the initial bail
schedule. The district clerk shall record the bail amount set by the judicial officer or
applied by the district attorney from the initial bail schedule in the case file. This
shall be the exclusive means of setting the initial amount of bail, unless otherwise
directed by the Judges of the Harris County Criminal Courts at Law.
SA17
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of Court
for the United States Court of Appeals for the Fifth Circuit on June 19, 2017 by using
the appellate CM/ECF system and that service was accomplished on all counsel of
record by the appellate CM/ECF system.

Charles J. Cooper

CERTIFICATE OF COMPLIANCE
Pursuant to FED. R. APP. P. 32(g), I certify the following:
This brief complies with the type-volume limitation of FED. R. APP. P.
32(a)(7)(B) because this brief contains 12,970 words, excluding the parts of the brief
exempted by FED. R. APP. P. 32(f).
This brief complies with the typeface requirements of FED. R. APP. P. 32(a)(5)
and the type style requirements of FED. R. APP. P. 32(a)(6) because this brief has
been prepared in a proportionately spaced typeface using the 2016 version of
Microsoft Word in 14-point Times New Roman font.

Charles J. Cooper


2017-06-19 Appellants&#39; Brief (Judges)

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2017-06-19 Appellants&#39; Brief (Judges)

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Case: 17-20333 Document: 00514039457 Page: 1 Date Filed: 06/19/2017

In the United States Court of Appeals for the Fifth Circuit

MARANDA LYNN ODONNELL,

LOETHA SHANTA MCGRUDER; ROBERT RYAN FORD,

HARRIS COUNTY, TEXAS; JILL WALLACE; ERIC STEWART HAGSTETTE; JOSEPH

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

BRIEF OF APPELLANTS FOURTEEN JUDGES OF

John E. ONeill Michael W. Kirk

Counsel for Defendants-Appellants

CERTIFICATE OF INTERESTED PERSONS

court may evaluate possible disqualification or recusal.

Plaintiffs-Appellees Counsel for Plaintiffs-Appellees

Michael Paul Fleming

Other Interested Parties Counsel for Other Interested Parties

NAACP Legal Defense and Andrew C. Lawrence

Dated: June 19, 2017 s/ Charles J. Cooper

STATEMENT RESPECTING ORAL ARGUMENT

Pursuant to Fifth Circuit Rule 28.2.3, Appellants County Judges respectfully

CERTIFICATE OF INTERESTED PERSONS .........................................................i

STATEMENT RESPECTING ORAL ARGUMENT ..............................................iv

TABLE OF AUTHORITIES ................................................................................. viii

JURISDICTIONAL STATEMENT .......................................................................... 5

STATEMENT OF THE ISSUES............................................................................... 5

STATEMENT OF THE CASE .................................................................................. 5

I. HARRIS COUNTYS BAIL SYSTEM .......................................................... 5

A. The Bail Requirement Under Texas Law.............................................. 5

B. The Stages of Bail Review .................................................................... 8

II. PLAINTIFFS CRIMINAL CASES ............................................................. 10

III. PROCEDURAL HISTORY .......................................................................... 11

IV. THE PRELIMINARY INJUNCTION .......................................................... 12

SUMMARY OF ARGUMENT ............................................................................... 16

I. THE DISTRICT COURT ERRED IN REACHING THE MERITS OF

A. The District Court Should Have Abstained Under Younger ............... 18

B. Preiser Requires Prisoners Seeking Release To Proceed

C. The District Court Erred in Concluding Appellants Have a

II. THE DISTRICT COURTS CONCLUSION THAT PLAINTIFFS ARE

A. The Eighth Amendment Forecloses Plaintiffs Claim .............................. 27

1. ODonnells Disparate Impact Theory Is Not Viable ................ 31

2. Rational Basis Review Applies to ODonnells Equal

3. The Penal Fine Cases Cited by the Court Below Are

4. ODonnells Equal Protection Claim Fails at Any Level of

1. The Injunction Sounds in Substantive, Not Procedural,

2. The Courts Due Process Holding Fails on Its Own Terms

III. THE EQUITIES STRONGLY SUPPORT VACATUR OF THE

A. The Injunction Prohibits the Enforcement of State Law..................... 51

B. The Injunction Presents a Grave Risk to Public Safety, Will Cause

Moore v. Sims, 442 U.S. 415 (1979) ..................................................................20, 21

Constitutions, Statutes, and Rules

TEX. CODE CRIM. PROC.

minted constitutional right to affordable bail applies to every misdemeanor arrestee,

they pose to the community or their victims.

to Texas state law. PI Mem., ROA.5560. Neither assertion is reassuring. While it is

reasoning is not so limited. According to the district court, whenever a state

determines that a criminal defendant is eligible to be released on bail before trial, it

judicial officers discretion to set secured money bail.1

constitutional right to affordable bail in the Fourteenth Amendments equal

constitutionally excessive merely because a defendant is financially unable to satisfy

While the ability to make bond is an important element in fixing an appropriate

provisions of the Fourteenth Amendment.

release on personal recognizance, id. at 280 (Douglas, J., dissenting).

a liberty interest in pretrial release without first posting sufficient sureties, as

obtain a release order from a federal court under Section 1983.

ODonnells lawyers have made no secret of their objective in bringing this

in their legislatures and, failing that, at the ballot box.

2017-06-19 Appellants' Brief (Judges)

2017-06-19 Appellants' Brief (Judges)