“As a general rule, this Court does not review issues raised for the first time on appeal.”
How later courts described this case
- “As a general rule, this Court does not review issues raised for the first time on appeal.”
Written by the judges who cited it.
The opinion
Case: 24-20495 Document: 64-1 Page: 1 Date Filed: 04/22/2026
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 24-20495
____________
FILED
April 22, 2026
Scott Martin, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
Marilyn Burgess, Harris County District Clerk, In her Official and
Individual Capacities; Judge Genesis Draper, In her Official and
Individual Capacities; Judge Shannon Baldwin, In her Official and
Individual Capacities,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:23-CV-3228
______________________________
Before Clement, Graves, and Ho, Circuit Judges.
Edith Brown Clement, Circuit Judge:
For decades, Plaintiff-Appellant Scott Martin has earned a living
collecting criminal defendants’ contact information from the Harris County
court system’s public records and distributing that information to private
attorneys. The Harris County Criminal Courts at Law (“HCCCL”) issued
an administrative order restricting from public access certain bail bond orders
filed in misdemeanor cases. Martin challenged the constitutionality of the
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No. 24-20495
administrative order. The district court dismissed his complaint for failure to
state a claim. We affirm.
I
Martin operates a company called Pronto Direct Mail Marketing, Inc.,
in Harris County, Texas. For decades, Martin has collected criminal
defendants’ contact information and distributed it to private criminal defense
attorneys. Martin has primarily relied on publicly available bail bond orders
to obtain this information. His attorney clients depend on him to provide this
information so they can engage potential clients and maintain a steady flow
of business. Martin contends that his direct mail marketing business makes it
easier for criminal defendants to secure competent private counsel, reduces
the number of warrant arrests and the caseload of an already-overburdened
public defender’s office, and drives down costs for criminal defendants by
encouraging more competition among lawyers.
On June 27, 2023, then-Presiding Judge Genesis Draper of the
HCCCL issued an administrative order to the Harris County District Clerk,
Marilyn Burgess. The administrative order requires the district clerk to
“keep confidential the contents of any General Order Bond . . . or Personal
Bond . . . filed in misdemeanor criminal cases assigned to the [HCCCL].”
Only the “title, filing date, and page enumeration of the filed General Order
Bond or Personal Bond is to remain viewable to the public.” Burgess
complied with the administrative order and began restricting from public
view the contents of the General Order Bonds and Personal Bonds filed in
misdemeanor cases. As a result, the criminal defendants’ personal
information—their street addresses, telephone numbers, and email
addresses—provided in the bond orders was now restricted from public view.
Judge Shannon Baldwin later became the presiding judge of the HCCCL and
preserved the administrative order.
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Martin tried to convince the HCCCL judges to reconsider the
administrative order, but he was unsuccessful. Martin claims that he and his
attorney clients were not notified or given an opportunity to be heard before
the administrative order went into effect. He also claims that Burgess “goes
beyond enforcing the four corners” of the administrative order by restricting
the contents of other HCCCL bail bond orders, as well as bond orders filed
in felony cases in the Harris County Courts Trying Criminal Cases. Since the
administrative order was issued, Martin estimates that he and his attorney
clients have lost tens of thousands of dollars in business (and continue to lose
about $1,500 per week) because the number of publicly available bond orders
from which he can collect criminal defendants’ contact information has
dropped by approximately ninety to ninety-five percent.
Martin sued Burgess, Judge Baldwin, and Judge Draper in their official
and individual capacities. 1 He pressed that the administrative order is facially
unconstitutional and is an unlawful prior restraint on his and his clients’
protected commercial speech. He also alleged that the defendants did not
have the authority to issue the administrative order. Martin brought claims
under 42 U.S.C. § 1983 for violations of his First, Fifth, and Fourteenth
Amendment rights. He sought injunctive relief, money damages, attorney’s
fees, and interest. In Martin’s application for a temporary restraining order,
he asked the district court to enjoin Burgess from enforcing the
administrative order or, alternatively, to enjoin her from restricting from
public view the criminal defendants’ contact information in the bond orders.
Burgess, Judge Baldwin, and Judge Draper moved to dismiss. They
argued that the administrative order does not violate Martin’s constitutional
_____________________
1
Martin also sued the other fourteen HCCCL judges in their official capacities
and the HCCCL itself, but he voluntarily dismissed his claims against these defendants
because he never served them.
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rights, and its issuance was not an ultra vires act. Nevertheless, they argued
that they are immune from suit in their official capacities under the Eleventh
Amendment and in their individual capacities under the doctrines of judicial
immunity, quasi-judicial immunity, qualified immunity, and state-law official
immunity.
The parties consented to proceed before Magistrate Judge Andrew
Edison. After holding a hearing and requesting supplemental briefing, Judge
Edison granted the defendants’ motion to dismiss and denied Martin’s TRO
application. Judge Edison concluded that Los Angeles Police Department v.
United Reporting Publishing Corp., 528 U.S. 32 (1999), forecloses Martin’s
facial challenge under the First Amendment. He also concluded that the
administrative order does not implicate the First Amendment right of access
to criminal proceedings, and it is not a prior restraint on speech. Finally,
Judge Edison held that Martin does not have a valid property interest in the
criminal defendants’ contact information. The court entered final judgment,
and Martin timely appealed.
II
This court reviews de novo a district court’s dismissal under Federal
Rule of Civil Procedure 12(b)(6). Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir.
2017). We accept as true all well-pleaded factual allegations and view the facts
in the light most favorable to the plaintiff. Olivarez v. T-mobile USA, Inc., 997
F.3d 595, 599 (5th Cir. 2021). A complaint will survive a motion to dismiss
only if it “pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
III
Martin raises three principal arguments on appeal. First, he argues
that the administrative order violates the First and Sixth Amendments, as
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well as Texas state law. Second, he avers that the administrative order is void
because it was issued ultra vires. Third, he insists that none of the defendants’
immunities apply. Each argument fails.
A
Martin brings a facial challenge to the administrative order under the
First Amendment. To succeed, Martin must establish that the administrative
order “prohibits a substantial amount of protected speech relative to its
plainly legitimate sweep.” Moody v. NetChoice, LLC, 603 U.S. 707, 744
(2024) (quoting United States v. Hansen, 599 U.S. 762, 770 (2023)).
United Reporting dooms Martin’s First Amendment claim. That case
concerned a California statute that required local law enforcement agencies
to limit public access to arrestees’ address information. 528 U.S. at 34. Before
the statute was enacted, United Reporting Publishing Corporation had
provided the publicly available names and addresses of recently arrested
individuals to attorneys, insurance companies, drug and alcohol counselors,
and driving schools. Id. But the new legislation restricted access to arrestees’
addresses unless the requestor declared under penalty of perjury that (1) the
request was being “made for a scholarly, journalistic, political, or
governmental purpose” or “for investigation purposes by a licensed private
investigator,” and (2) the address information would not be used “to sell a
product or service.” Id. at 35.
United Reporting challenged the statute, arguing that it was facially
unconstitutional under the First Amendment. Id. at 36–37. The Supreme
Court rejected its challenge, concluding that the statute did not implicate the
First Amendment. Id. at 40. The Court reasoned that the statute was
“nothing more than a governmental denial of access to information in its
possession,” and it did not prohibit “a speaker from conveying information
that the speaker already possesses.” Id. Three justices wrote separately, and
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they agreed on this point. See id. at 41 (Scalia, J., concurring) (“[I]nsofar
as this case presents a facial challenge to the statute, the fact that it is formally
nothing but a restriction upon access to government information is
determinative.”); id. at 42 (Ginsburg, J., concurring) (agreeing that the
statute “is properly analyzed as a restriction on access to government
information, not as a restriction on protected speech”); id. at 45 (Stevens,
J., dissenting) (“I agree with the majority that the [statute] is really a
restriction on access to government information rather than a direct
restriction on protected speech.”).
Martin tries to distinguish United Reporting in what he characterizes
as three “foundational” ways. First, United Reporting concerned arrestees’
address information, whereas the administrative order targets misdemeanor
criminal defendants’ contact information. Second, the United Reporting
restriction came from a state legislature—not local judges. Third, United
Reporting involved the “internal information” of law enforcement agencies,
and “this case involves the District Clerk publishing public records pursuant
to the First and Sixth Amendments to the U.S. Constitution and Texas State
law.”
Martin ignores the dispositive similarity between United Reporting and
this case. United Reporting did not turn on the source of the restriction. It
rested instead on the nature of the restriction. Here, the administrative order
does not restrict speech—it restricts access to government information. In
that sense, it is “a governmental denial of access to information in its
possession”—not a prohibition on “conveying information that [Martin]
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already possesses.” Id. at 40. This distinction is what matters, and this is
why we reject Martin’s First Amendment challenge. 2
Martin’s Sixth Amendment challenge to the administrative order is
perplexing. The Sixth Amendment guarantees criminal defendants “the
right to a speedy and public trial, by an impartial jury,” “to be informed of
the nature and cause of the accusation” against them, “to be confronted with
the witnesses against [them and] have compulsory process for obtaining
witnesses in [their] favor,” and “to have the Assistance of Counsel for [their]
defence.” U.S. Const. amend. VI. Martin does not sufficiently explain
how the administrative order violates the Sixth Amendment. He says only
that the Sixth Amendment applies in “full force” to criminal defendants, and
the public’s right to view the entirety of a public record, like court-issued
bond orders, “stems from both the First and the Sixth Amendments.” A
charitable reading might suggest that because the administrative order
prevents Martin from extracting defendants’ contact information from the
bond orders and sharing that information with prospective counsel, the
defendants’ Sixth Amendment right to counsel is implicated.
Whatever the true essence of this contention, it is forfeited. Martin
did not plead a Sixth Amendment violation, and he has not adequately briefed
this argument on appeal. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th
Cir. 2021) (“A party forfeits an argument by failing to raise it in the first
_____________________
2
Moreover, although the administrative order did not completely bar access to the
criminal defendants’ contact information, it could have gone that far “without violating the
First Amendment.” United Reporting, 528 U.S. at 40. After all, there is no constitutional
right to access government information, “or to require openness from the bureaucracy.”
Houchins v. KQED, Inc., 438 U.S. 1, 14 (1978) (citation omitted). “The Constitution itself
is [not] a Freedom of Information Act . . . .” Id. (citation omitted).
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instance in the district court . . . or by failing to adequately brief the argument
on appeal.”).
Turning to Martin’s state law challenge, a violation of state law is not
actionable under Section 1983. San Jacinto Sav. & Loan v. Kacal, 928 F.2d
697, 701 n.4 (5th Cir. 1991). Assuming that Martin now seeks to bring a
standalone state law claim, we refuse to entertain it because he did not plead
one. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“As a general
rule, this Court does not review issues raised for the first time on appeal.”).
Grasping at another path to victory, Martin cites a string of twelve
cases—without explanation—that purportedly confirm the administrative
order’s unconstitutionality. But the cases Martin cites reflect a
misunderstanding of the difference between the First Amendment right to
access judicial proceedings and the common law right to access judicial records.
Neither provides Martin a basis for claiming entitlement to the criminal
defendants’ contact information in the bond orders. 3
True, “[t]he press and public enjoy a First Amendment right of access
to many criminal proceedings.” United States v. Ahsani, 76 F.4th 441, 447
(5th Cir. 2023). But Martin is claiming access to information, so the First
Amendment right to access criminal proceedings is inapplicable.
_____________________
3
Martin also submits that the administrative order implicates criminal defendants’
rights to receive information about legal representation. See Ficker v. Curran, 119 F.3d 1150
(4th Cir. 1997)). Ficker concerned a Maryland law that forbade attorneys from soliciting
victims and arrestees with direct-mail advertisements until thirty days after the accident
occurred or charges were filed. Id. at 1151. Applying intermediate scrutiny to this regulation
of commercial speech, the Fourth Circuit struck it down as “encroach[ing] impermissibly
on First Amendment rights.” Id. The court noted that a criminal defendant’s interest in
receiving information about legal representation was “most significant[]” in its analysis.
Id. at 1153. Ficker is inapposite, however, because no commercial speech is at stake here—
only “a governmental denial of access to information in its possession.” United Reporting,
528 U.S. at 40.
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As for the right to access judicial records, “[c]ourts have recognized
that the public has a common law right to inspect and copy judicial records.”
SEC v. Van Waeyenberghe, 990 F.2d 845, 848 (5th Cir. 1993) (citing Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978)). But that right is not
applicable to the information in this case. This court has acknowledged that
the public’s access to judicial records “serves to promote trustworthiness of
the judicial process, to curb judicial abuses, and to provide the public with a
more complete understanding of the judicial system, including a better
perception of its fairness.” Id. at 849 (quoting Littlejohn v. BIC Corp., 851
F.2d 673, 682 (3d Cir. 1988)). The administrative order targets various types
of criminal defendant contact information. The title, filing date, and page
enumeration of the bond orders remain available to the public, consistent
with the interests served by public access to judicial records. See id. Thus, the
common law right to inspect and copy judicial records is not applicable here.
In a last-ditch effort, Martin posits that his right to access the criminal
defendants’ contact information—and the defendants’ right to have their
private information available to the public—is clearly within the
“penumbra” of rights guaranteed by the First Amendment, Sixth
Amendment, and Texas state law. Griswold v. Connecticut, 381 U.S. 479, 484
(1965). To the extent Martin requests that we recognize a substantive due
process right of unfettered access to criminal defendants’ contact
information in court-issued bond orders, we reject his invitation. “The mere
novelty of such a claim is reason enough to doubt that ‘substantive due
process’ sustains it . . . .” Reno v. Flores, 507 U.S. 292, 303 (1993). Martin has
made no effort to show how this alleged right can be considered “deeply
rooted in our history and tradition and . . . essential to our Nation’s scheme
of ordered liberty.” Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 237
(2022) (cleaned up).
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B
Martin next argues that he is entitled to injunctive relief because the
administrative order was issued ultra vires. A government official acts
“‘without legal authority,’ and thus ultra vires, if he exceeds the bounds of
his granted authority or if his acts conflict with the law itself.” Hou. Belt &
Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex. 2016). A
plaintiff may bring an ultra vires claim against a government official “in
certain narrow instances,” Hall v. McRaven, 508 S.W.3d 232, 238 (Tex.
2017), such as when she “violate[s] statutory or constitutional provisions,”
City of El Paso v. Heinrich, 284 S.W.3d 366, 369 (Tex. 2009). To succeed on
an ultra vires claim, a plaintiff “must allege, and ultimately prove, that the
officer acted without legal authority or failed to perform a purely ministerial
act.” Id. at 372.
Martin complains that “there is no constitutional or statutory basis”
for the administrative order. But the administrative order expressly provides
one. Section 75.403 of the Texas Government Code vests the HCCCL
presiding judge with the powers of “chief administrator of the offices of
county court manager and county court coordinators, and of pretrial release
services and all other court-related ministerial services in misdemeanor
cases.” Tex Gov’t Code Ann. § 75.403(d)(3). For his part, Martin cites
the Texas Public Information Act, id. §§ 552.001–552.407, and the Texas
Code of Criminal Procedure. But, as he concedes, these provisions establish
only a presumption that court records be made public.
Martin agrees that then-Presiding Judge Draper issued the
administrative order in her administrative capacity. Thus, Judge Draper
issued the administrative order under the express legal authority granted to
her by Section 75.403; she did not exceed her administrative authority or
violate the law in doing so. See McRaven, 508 S.W.3d at 239.
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Scham v. District Courts Trying Criminal Cases, 967 F. Supp. 230 (S.D.
Tex. 1997), does not compel a different result. In Scham, the district court
struck down as ultra vires an administrative order issued by the Harris County
felony courts that prohibited the district clerk and sheriff from disclosing a
defendant’s street address and phone number until the defendant retained an
attorney. Id. at 231, 234. Unlike here, the Scham defendants could not
articulate authority for issuing the order, and the district court was
particularly concerned that the order “appear[ed] [to] obstruct[] the
administration of justice.” Id. at 233. Although Martin has tried to piece
together something akin to an obstruction-of-justice argument related to the
Sixth Amendment right to counsel, the court is not convinced that the
administrative order does what Martin says it does. And for the reasons
stated above, Martin has failed to show that Judge Draper acted without any
legal authority.
C
Because we conclude that Martin has alleged no actionable claim
against the defendants, we need not analyze whether any of their claimed
immunities apply.
AFFIRMED.
11